United States v. Cantrell Lamont Burwell ( 2019 )

Case: 18-13039 Date Filed: 02/27/2019 Page: 1 of 29
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 18-13039
Non-Argument Calendar
________________________
D.C. Docket No. 1:17-cr-00471-MHH-TMP-1
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
versus
CANTRELL LAMONT BURWELL,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
________________________
(February 27, 2019)
Before BRANCH, HULL and JULIE CARNES, Circuit Judges.
PER CURIAM:
Case: 18-13039 Date Filed: 02/27/2019 Page: 2 of 29
The government appeals the district court’s order granting defendant
Cantrell Burwell’s motion to suppress the drugs and firearm found in his vehicle
during a traffic stop. The government seeks reversal of that order on the ground
that the district court erred in concluding that Burwell’s consent to search his
vehicle was coerced and not voluntary. After careful review, we vacate the order
granting Burwell’s motion to suppress because we conclude that, at the time when
Burwell consented to the search, he was engaged in a consensual encounter with
the police officer, Burwell’s consent was voluntarily given, and the police officer’s
search of his vehicle did not exceed the scope of his consent.
I. BACKGROUND
A. Traffic Stop and Search of Burwell’s Vehicle
The material facts of this case are undisputed. On September 16, 2016, at
approximately 2:46 a.m., Anniston City Police Officer Josh Powers pulled over a
black Chevrolet Tahoe that Burwell was driving in Anniston, Alabama. Officer
Powers wore a body camera, which recorded the traffic stop and his interactions
with Burwell. All of the factual background here is based on the video and audio
recordings on the body camera and Powers’s testimony at the evidentiary hearing
on the motion to suppress. 1
1
Burwell did not testify at that evidentiary hearing.
2
Case: 18-13039 Date Filed: 02/27/2019 Page: 3 of 29
Powers parked his patrol car behind the Tahoe, which Burwell had stopped
in a parking lot. Powers got out of his car, approached the Tahoe on the driver’s
side, and told Burwell that he pulled him over for failing to maintain his lane.
Burwell handed Powers his driver’s license, registration, and proof of insurance.
From his license, Powers noted that Burwell lived in Toney, Alabama, and Burwell
told the officer where within Alabama Toney was located. Burwell volunteered to
Powers that he and his passenger, Kelly Boucher, had been fishing at his buddy’s
house. In a friendly tone, Powers asked if they had caught any fish, and Burwell
said they had not. Powers asked a few follow-up questions about their fishing trip
and learned that Burwell and Boucher were on their way home after fishing that
day at a friend’s pond in LaGrange, Georgia. Boucher also gave Powers her
driver’s license.
Powers then went back to his patrol car to determine whether Burwell or
Boucher had any outstanding warrants. Neither did. Powers also called for backup
and another Anniston Police Officer, Officer Collins, arrived to assist about five
minutes later. Powers told Collins that Burwell had prior drug possession
convictions and seemed “real nervous.” Powers explained to Collins that
Burwell’s fishing story was suspicious and questioned why Burwell and Boucher
would drive from Toney, Alabama, which is near Tennessee, all the way to
LaGrange, Georgia to fish in someone’s pond and return in the middle of the night.
3
Case: 18-13039 Date Filed: 02/27/2019 Page: 4 of 29
Powers also told Collins that when he ran Burwell’s insurance through their
system, it came back unconfirmed, but that did not justify him towing the Tahoe
for lack of insurance.
Nevertheless, Powers said he was going to “try to get in that car.” Powers
continued, “I’m gonna get him out and explain to him I’m going to write him a
warning and try to sweet talk my way in.” 2 Powers repeated that he doubted
Burwell’s fishing story because they were returning at 2:30 a.m. and, while they
had fishing poles in the vehicle, they had no cooler. Powers also questioned
Burwell’s choice of route, suggesting that he should have stayed on the interstate.
Officer Collins responded that Burwell could have been driving that particular
route to avoid “the gauntlet,” a stretch of I-20 with a heavy presence of law
enforcement. Powers then said, “God, I wish we had a dog. Here we go. Let’s try
it.”
Powers walked back to the Tahoe and told Burwell that he was going to give
him a warning for his improper lane usage. Powers asked Burwell to step out of
the car so that he could explain the warning. Burwell said “alright,” and Powers
asked if he had any weapons on his person. Burwell answered no. Powers then
2
At the suppression hearing, Powers testified that, by “sweet talk,” he meant asking
questions in order to de-escalate the situation. He explained that police officers are trained to
de-escalate during roadside interviews because everyone is nervous when pulled over by the
police. Also, in answering questions from the district court, Powers admitted that by
de-escalating the situation, he tries to put individuals at ease so that they will cooperate and
voluntarily consent to him conducting various searches.
4
Case: 18-13039 Date Filed: 02/27/2019 Page: 5 of 29
patted him down and found none. After Burwell gave Powers permission to search
his pockets, Powers discovered about $600 in cash in Burwell’s front pocket.
Burwell told Powers that he earned the money from work.
Both men walked back to the patrol car so that Powers could explain the
warning to Burwell. Powers said that he was “giv[ing] him a warning [for failure
to maintain lane]—I know it’s late.” Burwell thanked Powers. Powers then began
to fill out the warning paperwork, first verifying that the address listed on
Burwell’s license was correct. While writing out the warning, Powers asked
Burwell additional questions about the fishing trip, including why he decided to
drive back to Alabama in the middle of the night, his relationship with Boucher,
and where she lived. Burwell answered all of Powers questions, explaining that he
and Boucher had planned to stay the night in LaGrange, but instead left because
Boucher needed to get home to Alabama to take care of her son.
After finishing the paperwork, Powers returned Burwell’s and Boucher’s
driver’s licenses. Powers joked about the number of times he accidentally kept
someone’s license. Burwell said that had actually happened to him before—that an
officer accidently kept his driver’s license. Powers then said, “all right man, here’s
that warning. Like I said, that’s for when I had you pulled over, you were
swerving a little bit, not terrible but you come over on that fog line a couple times.
So I was just making sure you was alright.” Powers handed Burwell the warning
5
Case: 18-13039 Date Filed: 02/27/2019 Page: 6 of 29
and said, “there’s that back.” This part of the traffic stop lasted 16 minutes and 9
seconds.
With the warning and licenses in hand, Burwell turned and began to walk
towards his car, but Powers said, “hey before you go, you care if I ask you a few
more questions?” Burwell responded “sure.” Powers said, “all right, man. Our
boss has been on us pretty bad about being productive and trying to, you know, do
work—they like to see us out here working. Part of our job is to, you know, find
drugs, large amounts of money, firearms, anything—stuff like that. You don’t
have anything like that in the car do you?”
Burwell responded, “no sir, you can check.” Powers then confirmed that he
had Burwell’s consent to search his vehicle: “You don’t care if I search it real
quick?” Burwell again gave consent. This exchange about the consent lasted
approximately 25 seconds.
At that point, Powers returned to the Tahoe and Burwell stayed back by the
patrol car. After having Boucher exit the car, Powers searched the passenger
compartment of the vehicle for about 11 minutes. Powers then opened the
vehicle’s hood and looked in the engine compartment. He found a handgun and
approximately 55 grams of methamphetamine partially hidden under the fuse box
in the engine. Powers arrested Burwell, who admitted that the gun and drugs
belonged to him.
6
Case: 18-13039 Date Filed: 02/27/2019 Page: 7 of 29
Thereafter, Burwell was charged with possession with intent to distribute 50
grams or more of methamphetamine, in violation of 21 U.S.C. § 841(a)(1) and
(b)(1)(A); possession of a firearm in furtherance of a drug trafficking crime, in
violation of 18 U.S.C. § 924(c)(1)(A); and possession of a firearm by a convicted
felon, in violation of 18 U.S.C. § 922(g)(1).
B. District Court Suppresses the Evidence
Burwell moved to suppress the evidence against him on the ground that his
consent to search the vehicle did not permit Powers to open the vehicle’s hood and
search the engine compartment. In his reply brief, Burwell argued further that the
traffic stop was completed before Powers asked about contraband and requested
consent to search his vehicle. As such, Burwell contended that Powers was not
justified in detaining him to ask to search his car.
Following a hearing on the motion, during which Powers testified, the
district court granted Burwell’s motion to suppress on a different ground—that
Burwell’s consent to the search was coerced. To reach this conclusion, the district
court first determined that the traffic stop was completed before Powers asked to
search Burwell’s car because Powers returned Burwell’s driver’s license, explained
the warning to him, and handed him the written warning.
After the traffic stop ended, the court found that Burwell’s interaction with
Powers was not a consensual encounter because Powers coerced him into
7
Case: 18-13039 Date Filed: 02/27/2019 Page: 8 of 29
cooperating with “sweet talk.” Specifically, the court explained that Powers used a
friendly tone and joked with Burwell to exert a subtle form of pressure—the
pressure of a debt that Powers created by letting Burwell off with a warning
instead of a citation, which made Burwell feel compelled to oblige the officer’s
requests. According to the court, Powers then asked for a favor in return for the
warning, that is Burwell’s permission to search the vehicle, which would make
Powers look good to his boss. “Because Officer Powers used coercive tactics to
try to trick Mr. Burwell into giving consent, and because Officer Powers did not
tell Mr. Burwell that the traffic stop was over or that he was free to leave without
consenting to the search, the [c]ourt does not find that Mr. Burwell’s consent was
voluntary.” With no valid consent, the court concluded that the search of
Burwell’s vehicle violated the Fourth Amendment.
This is the government’s appeal. Among other things, the government
argues that the district court erred in granting the motion to suppress because:
(1) at the time that Powers asked for consent to search Burwell’s vehicle, the stop
had become a consensual encounter; (2) Burwell’s consent to search was
voluntary; and (3) Powers did not exceed the scope of Burwell’s consent by
searching under the vehicle’s hood. In his response, Burwell argues for the first
time that Powers unlawfully prolonged the traffic stop before he gave Burwell the
8
Case: 18-13039 Date Filed: 02/27/2019 Page: 9 of 29
written warning by taking actions aimed at discovering general criminal activity
unrelated to the traffic stop. We address each argument in turn.
II. DISCUSSION
A. Standard of Review
“A denial of a motion to suppress involves mixed questions of fact and law.
We review factual findings for clear error and view the evidence in the light most
favorable to the prevailing party. We review de novo the application of the law to
the facts.” United States v. Barber, 777 F.3d 1303, 1304 (11th Cir. 2015) (citations
omitted).
B. Consensual Encounter
On appeal, the government first argues that at the time when Powers asked
Burwell for consent to search the vehicle, the traffic stop had become a consensual
encounter. Because Burwell was not detained when he gave consent to search, the
government asserts that his Fourth Amendment rights were not implicated. We
find this argument persuasive.
The Fourth Amendment protects individuals from unreasonable searches and
seizures. U.S. Const. amend. IV. A routine traffic stop is a limited form of seizure
that is more analogous to an investigative detention than a custodial arrest, and so
we analyze the legality of such stops under the standard articulated in Terry v.
9
Case: 18-13039 Date Filed: 02/27/2019 Page: 10 of 29
Ohio, 392 U.S. 1, 88 S. Ct. 1868 (1968). United States v. Purcell, 236 F.3d 1274,
1277 (11th Cir. 2001). “Under Terry, an officer’s actions during a traffic stop must
be reasonably related in scope to the circumstances which justified the interference
in the first place.” Id. (internal quotation marks omitted).
Moreover, “the duration of the traffic stop must be limited to the time
necessary to effectuate the purpose of the stop.” Id. “Authority for the seizure
thus ends when tasks tied to the traffic infraction are—or reasonably should have
been—completed.” Rodriguez v. United States, 575 U.S. __, 135 S. Ct. 1609,
1614 (2015). “[T]he tolerable duration of police inquiries in the traffic-stop
context is determined by the seizure’s ‘mission’—to address the traffic violation
that warranted the stop . . . and attend to related safety concerns.” Id. (internal
citation omitted). That mission or purpose often includes checking the driver’s
license, attending to safety concerns, searching for outstanding warrants against the
driver, and inspecting the vehicle’s registration and proof of insurance. Id. at
__,135 S. Ct. at 1615. But “unrelated inquiries” that “measurably extend the
duration of the stop” offend the Constitution. Id.The Fourth Amendment allows lengthening the traffic stop for unrelated
inquiries in only two situations. United States v. Ramirez, 476 F.3d 1231, 1237
(11th Cir. 2007).
First, the officer may detain the driver for questioning unrelated to the
initial stop if he has an objectively reasonable and articulable suspicion
10
Case: 18-13039 Date Filed: 02/27/2019 Page: 11 of 29
illegal activity has occurred or is occurring. Second, further
questioning unrelated to the initial stop is permissible if the initial
detention has become a consensual encounter.
United States v. Pruitt, 174 F.3d 1215, 1220 (11th Cir. 1999). Although there is no
bright-line test for determining whether a traffic stop is a seizure or a consensual
encounter, we examine the totality of the circumstances, including whether there is
any police coercion, whether the exchange is cooperative in nature, and whether
the defendant had everything reasonably required to leave. Ramirez, 476 F.3d at
1240. We also may consider the following factors in determining whether a
police-citizen encounter was consensual:
whether a citizen’s path is blocked or impeded; whether identification
is retained; the suspect’s age, education and intelligence; the length of
the suspect’s detention and questioning; the number of police officers
present; the display of weapons; any physical touching of the suspect,
and the language and tone of voice of the police.
United States v. Jordan, 635 F.3d 1181, 1186 (11th Cir. 2011) (internal quotation
marks omitted).
The Supreme Court has instructed that the ultimate, objective inquiry
remains whether “a reasonable person would feel free to terminate the encounter.”
United States v. Drayton, 536 U.S. 194, 201, 122 S. Ct. 2105, 2110 (2002).
Therefore, where a reasonable person would feel free to decline the requests of law
enforcement or otherwise terminate the encounter, the encounter is consensual, and
the Fourth Amendment is not implicated. Ramirez, 476 F.3d at 1238.
11
Case: 18-13039 Date Filed: 02/27/2019 Page: 12 of 29
In Ramirez, a case similar to this one, we rejected the defendant Ramirez’s
assertion that additional questioning by police constituted an illegal prolonging of
his detention during a traffic stop. Id. at 1236. In that case, after the police officer
returned Ramirez’s license, handed him the traffic citation, and told him the traffic
stop was over, the officer asked the defendant if he was carrying anything illegal in
his car. Id. at 1234. Ramirez responded by advising the police officer that he
could search the vehicle if he wanted to. Id. After some additional discussion,
Ramirez signed a consent form. Id. at 1234-35. The officer then searched the
vehicle and found cocaine. Id.On appeal, we concluded that Ramirez’s Fourth Amendment challenge to
the traffic stop was meritless because, after the police officer returned Ramirez’s
license and gave him the traffic citation, the stop became a consensual encounter.
Id. at 1241. In so ruling, we explained that when the officer asked the post-citation
question about contraband in Ramirez’s car, “all business with [Ramirez] was
completed and [] he was free to leave.” Id. at 1240 (internal quotation marks
omitted). We also said that Ramirez’s post-citation discussion with the officer
appeared to be fully cooperative and non-coercive. Id. For those reasons, we
concluded that a reasonable person in Ramirez’s position would have felt free to
terminate the encounter with the police officer and thus the encounter was
consensual. Id. at 1241.
12
Case: 18-13039 Date Filed: 02/27/2019 Page: 13 of 29
In this case, like in Ramirez, the traffic stop ended when Powers returned
Burwell’s and Boucher’s licenses, explained the warning to Burwell, and gave him
the written warning. As Burwell then turned to walk to his car, Powers asked if
Burwell would mind answering additional questions. Burwell responded “sure.”
At that point, “the exchange [became] cooperative in nature” because Burwell “had
everything he reasonably required to proceed on his journey” but voluntarily
agreed to answer Powers’s additional questions instead of ending the encounter.
See id. at 1240. That Burwell chose to answer the follow-up questions instead of
terminating the encounter does not change the fact that it had converted from a
traffic stop into a consensual encounter. Id.Contrary to Burwell’s argument on appeal, Powers was not required to
inform him that the traffic stop was over or that he was free to go for the encounter
to be consensual. See Ohio v. Robinette, 519 U.S. 33, 35, 117 S. Ct. 417, 419
(1996) (holding that the Fourth Amendment does not require that a lawfully seized
defendant must be advised that he is “free to go” before his consent to search will
be recognized as voluntary). In any event, Powers’s question itself—“hey before
you go, you care if I ask you a few more questions?”—indicated to Burwell that
the traffic stop was over and staying to answer additional questions was optional.
Moreover, at that time, Burwell was not impeded, touched, or threatened by
Powers, their interactions appeared to be fully cooperative, Powers’s gun remained
13
Case: 18-13039 Date Filed: 02/27/2019 Page: 14 of 29
holstered, and Powers used the same friendly tone that he had used during the
entire traffic stop. See Jordan, 635 F.3d at 1186. We know all this because the
video camera tells us so.
Under these particular undisputed factual circumstances, we conclude that a
reasonable person in Burwell’s position would have felt free to leave when Powers
asked Burwell for permission to question him further. Therefore, at that point, the
encounter was consensual, and the Fourth Amendment was not implicated. See
Ramirez, 476 F.3d at 1238. The district court erred in concluding otherwise.
C. Voluntary Consent
The government next argues that the district court erred in determining that
Burwell’s consent to search the vehicle was coerced by Powers’s “sweet talk.”
Instead, the government maintains that Burwell voluntarily consented to the
search, pointing out that Burwell offered to let Powers search the car before
Powers even asked. We agree.
Voluntariness is a question of fact that we may disturb only if clearly
erroneous. United States v. Spivey, 861 F.3d 1207, 1212 (11th Cir. 2017).
“Normally, we will accord the district judge a great deal of deference regarding a
finding of voluntariness, and we will disturb the ruling only if we are left with the
definite and firm conviction that the trial judge erred.” United States v. Fernandez,
58 F.3d 593, 596–97 (11th Cir. 1995) (internal quotation marks omitted).
14
Case: 18-13039 Date Filed: 02/27/2019 Page: 15 of 29
However, whereas here, the district court applied the law about voluntariness to the
uncontested facts, our review is de novo. See Spivey, 861 F.3d at 1212.
An officer conducting a routine traffic stop may request consent to search
the vehicle. Schneckloth v. Bustamonte, 412 U.S. 218, 222, 93 S. Ct. 2041, 2045
(1973). A consensual search is constitutional if it is voluntary; if it is the product
of an “essentially free and unconstrained choice.” Schneckloth, 412 U.S. at 225,
93 S. Ct. at 2046. Voluntariness is “not susceptible to neat talismanic definitions;
rather, the inquiry must be conducted on a case-by-case analysis” that is based on
“the totality of the circumstances.” United States v. Blake, 888 F.2d 795, 798
(11th Cir. 1989). “Relevant factors include the voluntariness of the defendant’s
custodial status, the presence of coercive police procedure, the extent and level of
the defendant’s cooperation with police, the defendant’s awareness of his right to
refuse to consent to the search, the defendant’s education and intelligence, and,
significantly, the defendant’s belief that no incriminating evidence will be found.”
Spivey, 861 F.3d at 1213 (internal quotation marks omitted). The government
bears the burden of proving the voluntariness of the consent. United States v.
Chemaly, 741 F.2d 1346, 1352 (11th Cir. 1984).
In this case, the district court erred in finding that Burwell did not
voluntarily consent to the search of his vehicle because the record does not support
that finding. First, Burwell was not seized, handcuffed, or in custody at the time he
15
Case: 18-13039 Date Filed: 02/27/2019 Page: 16 of 29
gave consent; rather, his encounter with Powers was consensual. See United States
v. Hall, 565 F.2d 917, 920 (5th Cir. 1978) (“It is generally recognized that coercion
is more easily found if the person consenting to the search has been placed under
arrest[.]”). Indeed, after getting Burwell’s permission to continue the encounter,
Powers said, “all right, man. Our boss has been on us pretty bad about being
productive and trying to, you know, do work—they like to see us out here working.
Part of our job is to, you know, find drugs, large amounts of money, firearms,
anything—stuff like that. You don’t have anything like that in the car do you?” In
response, Burwell denied having contraband in his car and offered his consent to
search the vehicle before Powers even asked for it, saying: “no sir, you can check.”
Powers then verbally confirmed that he had Burwell’s consent to search the
vehicle. And Burwell gave consent a second time.
The record, therefore, shows that Burwell, an adult with no apparent
intellectual difficulties, offered to let Powers search his vehicle before Powers even
asked and gave his consent to the search twice. Moreover, Burwell had been fully
cooperative with Powers during their entire exchange. In fact, by the time that
Burwell volunteered to let Powers search his vehicle, Burwell had already agreed
to cooperate with Powers in two separate instances—first when allowing Powers to
search his pockets and then in agreeing to answer his questions. In addition, the
video and audio record shows that Powers and Burwell spoke in a friendly tone
16
Case: 18-13039 Date Filed: 02/27/2019 Page: 17 of 29
and even joked with each other. While Powers did not inform Burwell that he had
the right to refuse consent, he was not required to do so. See Schneckloth, 412
U.S. at 248-49, 93 S. Ct. at 2058-59.
The district court concluded otherwise because it determined that Powers
engaged in what it deemed the coercive technique of using “sweet talk.”
According to the district court, Powers coerced Burwell by using a friendly tone to
exert pressure, by first letting Burwell off with a warning, second, cementing good
will with jokes, and then third asking Burwell for a favor in return, “a quid pro
quo,” that is consent to search his vehicle so that Powers looked good for his boss.
While police coercion is one factor a court may consider in determining whether a
consent is voluntary, we find no trace of such coercion in the record before us.
Indeed, there is no evidence of any inherently coercive tactics, either from
the nature of Powers’s questioning or the environment in which it took place.
Rather, the encounter was “polite and cooperative,” and Powers “used no signs of
force, physical coercion, or threats.” Spivey, 861 F.3d at 1216. Nothing in the
video and audio record shows that Powers lied, deceived, or tricked Burwell—
tactics we have suggested may constitute psychological coercion in the context of
consent for a search. See id. at 1214.
Importantly too, in the district court Burwell did not testify or even argue
that he believed that Powers induced his consent by letting him off with a warning
17
Case: 18-13039 Date Filed: 02/27/2019 Page: 18 of 29
and then requesting to search his vehicle in return for that favor. And although the
district court found a quid pro quo in that arrangement, nothing that Powers said to
Burwell at the time expressed or implied that the warning might turn into a ticket if
Burwell did not consent to the search.
We recognize too that police officers routinely give drivers warnings rather
than issue traffic citations, and they are trained to engage with drivers in a friendly
tone to de-escalate the situation. There is nothing inherently coercive about that.
And Powers’s statement about his boss wanting him to be productive is not
inherently coercive because, even if it was not true, there is no evidence that
Powers’s statement led Burwell to believe he could not refuse to consent.
Moreover, Powers expressly told Burwell that he was looking for drugs and
firearms, which was in fact the case, so we see no trickery or deception in that
statement either.
It appears to us that the district court’s own conclusion that Powers coerced
Burwell’s consent through the use of “sweet talk” to “get into [Burwell’s] car” was
largely based on Powers’s own statements to Officer Collins at the scene that he
was going to try to “sweet talk his way in” to the vehicle. 3 However, the
3
The district court also relied on Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602(1966), in concluding that Powers’s conduct violated the Constitution. In doing so, the district
court stated that “the Fifth Amendment right to remain silent and avoid self-incrimination is, in
many respects, similar to the Fourth Amendment right to walk away from a law enforcement
officer at the conclusion of a lawful traffic stop.” However, the Supreme Court has made clear
that “[t]here is a vast difference between those rights” in the Fifth and Fourth Amendments and
18
Case: 18-13039 Date Filed: 02/27/2019 Page: 19 of 29
subjective motivation of police officers is irrelevant in determining whether a
consent is voluntary. Spivey, 861 F.3d at 1215. We have made plain that
“[c]onsent is about what the suspect knows and does, not what the police intend”
because “[c]oercion is determined from the perspective of the suspect.” Id.
(internal quotation marks omitted). Even if a police officer deliberately lies to a
suspect, that does not matter because the “only relevant state of mind” for
voluntariness “is that of [the suspect] himself.” United States v. Farley, 607 F.3d
1294, 1330 (11th Cir. 2010). Accordingly, Powers’s subjective purpose for his
friendly tone, letting Burwell off with a warning, and then asking to search
Burwell’s vehicle due to pressure from his boss does not affect the voluntariness of
Burwell’s consent. See Spivey, 861 F.3d at 1215; Whren v. United States, 517
U.S. 806, 812-13, 116 S. Ct. 1769, 1774 (1996).
In sum, under the totality of the undisputed circumstances, we conclude that
the government has shown that Burwell’s consent to search the vehicle was
voluntary and uncontaminated by coercion. Accordingly, the district court erred in
that the “considerations that informed the Court’s holding in Miranda are simply inapplicable” in
a consent to search case. Schneckloth, 412 U.S. at 241-47, 93 S. Ct. at 2055-58. We also note
that the tactic of an officer showing himself to be “a kindhearted man” discussed in Miranda had
to do with a ploy set forth in police manuals “termed the ‘friendly-unfriendly’ or the ‘Mutt and
Jeff’ act,” where two officers play good-cop, bad-cop to extract a confession from a suspect.
Miranda, 348 U.S. at 452, 86 S. Ct. at 1616. There is no evidence that Powers engaged in that
ploy here.
19
Case: 18-13039 Date Filed: 02/27/2019 Page: 20 of 29
concluding that Burwell’s consent was coerced and granting the motion to
suppress.
D. Scope of Burwell’s Consent
The government also argues that, although the district court did not address
the issue, Powers did not exceed the scope of Burwell’s consent by looking under
the vehicle’s hood into the engine compartment because Burwell’s consent was
general, and there was a reasonable chance that Powers might find guns or drugs in
the engine compartment. Burwell responds that we should remand this issue to the
district court to determine in the first instance whether Powers’s search exceeded
the scope of the consent.
It is true that where the district court did not address a party’s argument and
a determination of that issue is fact-specific, we may remand to the district court to
address the issue in the first instance. See Torres v. Pittston Co., 346 F.3d 1324,
1334 (11th Cir. 2003). However, a federal appellate court is justified in resolving
an issue not passed on below where the proper resolution is beyond any doubt.
Narey v. Dean, 32 F.3d 1521, 1526-27 (11th Cir. 1994). Because the facts of this
case are undisputed and the proper resolution of this issue is beyond a reasonable
doubt, we will exercise our discretion and resolve the issue here.
“[A] search is impermissible when an officer does not conform to the
limitations imposed by the person giving consent.” United States v. Zapata, 180
20
Case: 18-13039 Date Filed: 02/27/2019 Page: 21 of 29
F.3d 1237, 1242 (11th Cir. 1999). “A general consent to search for specific items
includes consent to search any compartment or container that might reasonably
contain those items.” Id. at 1243. “When an individual provides a general consent
to search, without expressly limiting the terms of his consent, the search is
constrained by the bounds of reasonableness: what a police officer could
reasonably interpret the consent to encompass.” Id. at 1242 (internal quotation
marks omitted). “While we have held that a search exceeds the scope of consent
when an officer destroys a vehicle, its parts, or its contents, a search does not
exceed the scope of consent merely because an officer forces open a secured
compartment that reasonably may contain the objects of the search.” Id. at 1243(internal citation omitted) (distinguishing a valid search of an interior door panel
from an invalid search during which an officer slashed open a spare tire). The
person who gave consent can also limit the scope of a search as it is occurring or
request that it be discontinued. See United States v. Harris, 928 F.2d 1113, 1117-
18 (11th Cir. 1991).
In this case, Powers informed Burwell that he was searching for drugs, large
amounts of money, and firearms, which Powers knew were sometimes hidden
under a vehicle’s hood in the engine compartment. Burwell did not put any
limitations on his consent to search the vehicle, he did not object when Powers
started looking under the hood of the car, and Powers did not damage the vehicle
21
Case: 18-13039 Date Filed: 02/27/2019 Page: 22 of 29
in any way when he looked under the hood. Accordingly, Powers did not exceed
the scope of Burwell’s consent to search. See Zapata, 180 F.3d at 1242-43; Harris,
928 F.2d at 1117-18.
E. Burwell’s Alternative Reason to Affirm
On appeal, Burwell asks us to affirm the district court’s suppression order
for an alternative reason not addressed by the court below. He now argues that
Powers took steps that unlawfully prolonged the traffic stop so that he could
inquire into general criminal conduct before issuing the written warning.
Specifically, Burwell challenges these four actions taken by Powers before he
completed the written warning: (1) calling and waiting for backup; (2) explaining
the situation to Officer Collins when he arrived, including his suspicion of general
criminal activity; (3) asking Burwell to step out of the vehicle and patting him
down; and (4) asking Burwell additional questions about the fishing trip and his
travel plans while filling out the written warning.4
We have discretion to affirm a district court’s ruling on a motion to suppress
on alternative grounds when the record below supports that reason, even if not
4
We note that at the suppression hearing, Burwell briefly argued that the questions that
Powers asked him while writing out the warning citation were not related to the mission of the
traffic stop, but his briefing on the motion to suppress did not include any argument that Powers
unlawfully prolonged the traffic stop before giving him the warning. In the district court,
Burwell also never argued at all that Powers unlawfully extended the traffic stop by calling for
back up, discussing the situation with Collins, or having Burwell exit the vehicle and patting him
down.
22
Case: 18-13039 Date Filed: 02/27/2019 Page: 23 of 29
relied upon by the district court. United States v. Caraballo, 595 F.3d 1214, 1222
(11th Cir. 2010). We decline to exercise our discretion to do so here.
Alternatively, even if we consider Burwell’s new arguments, we conclude
that the record shows that Powers’s conduct fell within the lawful purpose of the
traffic stop and did not unlawfully prolong the stop before he issued the warning
citation. As we explained above, the duration of a traffic stop must be limited to
the time necessary to effectuate the purpose of the stop. The purpose of a traffic
stop includes determining whether to issue a traffic citation, checking the driver’s
license, searching for outstanding warrants against the driver, and inspecting the
vehicle’s registration and proof of insurance. Rodriguez, 575 U.S. at __, 135 S. Ct.
at 1615. These tasks serve the same objective as enforcement of the traffic code:
ensuring that vehicles on the road are operated safely and responsibly. Id. In
addition, “[g]enerally, questions about travel plans are ordinary inquiries incident
to a traffic stop.” United States v. Campbell, 912 F.3d 1340, 1354 (11th Cir.
2019).
The purpose of a traffic stop also includes attending to any related safety
concerns, including “the government’s officer safety interest [that] stems from the
mission of the stop itself.” Rodriguez, 575 U.S. at __, 135 S. Ct. at 1616.
“Highway and officer safety are interests different in kind from the Government’s
endeavor to detect crime in general or drug trafficking in particular.” Id. The
23
Case: 18-13039 Date Filed: 02/27/2019 Page: 24 of 29
Supreme Court has repeatedly recognized that traffic stops are “‘especially fraught
with dangers to police officers.’” Rodriguez, 575 U.S. at __, 135 S. Ct. at 1616(quoting Arizona v. Johnson, 555 U.S. 323, 330, 129 S. Ct. 781, 782 (2009)); see
also Pennsylvania v. Mimms, 434 U.S. 106, 110, 98 S. Ct. 330, 333 (1977)
(explaining that “a significant percentage of murders of police officers occurs
when the officers are making traffic stops”). Therefore, “an officer may need to
take certain negligibly burdensome precautions in order to complete his mission
safely.” Rodriguez, 575 U.S. at __, 135 S. Ct. at 1616. In that vein, it is well-
settled that an officer may direct a driver to get out of the car during a lawful traffic
stop. See Mimms, 434 U.S. at 111 n.6, 98 S. Ct. at 333 n.6 (“[O]nce a motor
vehicle has been lawfully detained for a traffic violation, the police officers may
order the driver to get out of the vehicle without violating the Fourth
Amendment[.]”). Moreover, once that driver is outside a stopped vehicle, he may
be patted down for weapons if the officer has reason to believe that his own safety
or the safety of others is at risk. Id. at 112, 98 S. Ct. at 334; United States v.
White, 593 F.3d 1199, 1202 (11th Cir. 2010). “The officer need not be absolutely
certain that the individual is armed; the issue is whether a reasonably prudent man
in the circumstances would be warranted in the belief that his safety or that of
others was in danger.” White, 593 F.3d at 1202-03 (internal quotation marks
omitted).
24
Case: 18-13039 Date Filed: 02/27/2019 Page: 25 of 29
Given this precedent, we conclude that Powers’s conduct—of calling for
back up, briefing Officer Collins on the situation when he arrived, directing
Burwell out of his vehicle, and patting him down—was related to the mission of
the traffic stop, that is, ensuring officer safety. Because Powers’s actions in this
regard related to safety concerns, the delays they caused are the sort of “negligibly
burdensome precautions” tolerated by the Fourth Amendment. See Rodriguez, 575
U.S. at __, 135 S. Ct. at 1616.5
Indeed, Powers’s safety concerns were objectively strong. The traffic stop
took place at 2:46 a.m. at a location with little other traffic. Two individuals were
in the stopped vehicle, but Powers was alone. The driver, Burwell, appeared to be
very nervous, he had prior drug convictions, and provided an unusual explanation
for where he had been, namely, that earlier in the evening, he had driven several
hours to Georgia to fish in a pond and decided to drive back to Alabama in the
middle of the night. Further, Powers found it suspicious that Burwell was not
driving on the interstate. In Powers’s experience, individuals transporting drugs
often avoid that section of interstate that he referred to as the “gauntlet,” which was
known to have a heavy law-enforcement presence. Based on Burwell’s prior drug
5
Our conclusion remains the same even considering that Powers testified at the
suppression hearing that one reason why he called for backup and was interested in Burwell’s
fishing story was because he thought something was up and he wanted to investigate it further.
We do not consider an officer’s subjective motivations in this area of the law. See Whren, 517
U.S. at 812-13, 116 S. Ct. at 1774.
25
Case: 18-13039 Date Filed: 02/27/2019 Page: 26 of 29
convictions, Powers also was concerned that he might have a firearm because “if
you find drugs, you are going to find weapons.”
We also readily conclude that Powers’s general questions at 2:46 a.m. about
Burwell’s fishing trip and travel itinerary, including his destination, route, and
reasons for driving at that time of night, were ordinary inquiries incident to a traffic
stop. In particular, all of Powers’s questions were reasonably related to
ascertaining why Burwell had been swerving and failed to maintain his lane and
whether he posed a danger to others on the road given where he still had to drive
that night. As such, asking about Burwell’s travel plans was related to
investigating his failure to maintain his lane while driving.
Importantly, Powers’s conduct before issuing the warning citation did not
include inquiries that were unrelated to a traffic stop’s purpose and instead aimed
at investigating other crimes. In Rodriguez, the Supreme Court made clear that
“unrelated inquiries” aimed to detect general criminal activity that “measurably
extend the duration of the stop” offend the Constitution, even if de minimis. Id. at
__, 135 S. Ct. at 1614-16. 6 In Johnson, for instance, the Court intimated that
asking about a passenger’s gang affiliation is not an inquiry related to a traffic stop.
6
Nonetheless, inquiries into matters unrelated to the purpose of the traffic stop are
permissible so long as they do not prolong the stop. Id. at 1614–15; see also Johnson, 555 U.S.
at 327-38, 129 S. Ct. at 787-88 (concluding that the Fourth Amendment tolerated the unrelated
investigation into the passenger’s gang affiliation that did not lengthen the duration of the
roadside detention).
26
Case: 18-13039 Date Filed: 02/27/2019 Page: 27 of 29
See Johnson, 555 U.S. at 332-33, 129 S. Ct. at 787-78. And in Rodriguez, the
Supreme Court held that using a dog to sniff for contraband is not related to the
purpose of a traffic stop and instead aimed at detecting ordinary criminal
wrongdoing. Rodriguez, 575 U.S. at __, 135 S. Ct. at 1615.
Here, Powers did not use a drug dog or ask about Burwell’s gang affiliation
during the traffic stop. Instead the four actions Powers took prior to issuing the
written warning were related to the purpose of the traffic stop and thus did not
unlawfully prolong it.
F. United States v. Campbell
Finally, Burwell has filed supplemental authority following this Court’s
recent decision in United States v. Campbell, 912 F.3d 1340 (11th Cir. 2019),
which he claims “makes absolutely clear that Officer Powers violated the Fourth
Amendment.”
In Campbell, we applied Rodriguez to hold that a traffic stop was unlawful
because it had been prolonged for 25 seconds by an officer’s efforts to uncover
evidence of general criminal activity unrelated to the purpose of the stop. Id.
at 1354-55. There, an officer pulled over a vehicle after witnessing two potential
traffic violations and began issuing a written warning. Id. at 1344-45. As the
officer filled out the warning, he asked the driver whether he had any contraband in
his vehicle, such as counterfeit merchandise, illegal alcohol, drugs, or any dead
27
Case: 18-13039 Date Filed: 02/27/2019 Page: 28 of 29
bodies. Id. at 1345. The driver said that he did not and gave the officer permission
to search his vehicle, and the officer found a firearm and ski mask. Id. The driver
sought suppression of that evidence on the basis that the officer unlawfully
prolonged the stop by asking questions designed to investigate general criminal
activity. Id. On appeal, we agreed that the stop was unlawful under Rodriguez
because it had been prolonged by the officer’s questions about the contraband,
which were unrelated to the purpose of the traffic stop. Id. at 1354-55. But we
declined to invoke the exclusionary rule, finding that the good faith-exception
applied. Id. at 1355-56.
Campbell is materially distinguishable from this case for two reasons. First,
in Campbell, the officer asked the driver questions about contraband while filling
out the warning citation, that is, during the traffic stop. Id. at 1344-45. In contrast
here, Powers did not ask Burwell whether he had any contraband in his vehicle
until after the traffic stop was finished and had converted into a consensual
encounter. The Fourth Amendment is not implicated during a consensual
encounter. See Pruitt, 174 F.3d at 1220.
Second, although Powers did ask Burwell questions while simultaneously
filling out the written warning, the questions Powers asked concerned Burwell’s
travel plans and were reasonably related to the purpose of the traffic stop. In fact,
in Campbell, we expressly found that “questions about travel plans are ordinary
28
Case: 18-13039 Date Filed: 02/27/2019 Page: 29 of 29
inquiries incident to a traffic stop.” Id. at 1354. On the other hand, the unlawful
questions posed by the officer in Campbell concerned contraband possession and
related solely to investigating general criminal activity. Therefore, Burwell’s
reliance on Campbell is unpersuasive.
III. CONCLUSION
After careful review of the uncontroverted facts established in the record, we
conclude that the conditions which existed at the time Burwell consented to allow
Powers to search his vehicle do not support the district court’s finding that his
consent was coerced and could not have been voluntary. We also conclude that
Powers’s search of the vehicle did not exceed the scope of Burwell’s consent.
Finally, we decline to affirm the district court’s suppression order for the
alternative reason Burwell now advances on appeal. Accordingly, we reverse the
district court’s order granting Burwell’s motion to suppress and remand for further
proceedings consistent with this opinion.
REVERSED AND REMANDED.
29