United States v. White , 80 F. App'x 230 ( 2003 )

Opinions of the United
2003 Decisions States Court of Appeals
for the Third Circuit
11-4-2003
USA v. White
Precedential or Non-Precedential: Non-Precedential
Docket No. 03-2012
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NOT PRECEDENTIAL
IN THE UNITED STATES COURT OF APPEAL
FOR THE THIRD CIRCUIT
_________________________
N0. 03-2012
_________________________
UNITED STATES OF AMERICA
v.
RYAN ANDRE WHITE,
Appellant
__________________________
On Appeal From the United States District Court
For the Western District of Pennsylvania
(D.C. No. 02-cr-00168)
District Judge: Honorable Donetta W. Ambrose
___________________________
Submitted Under Third Circuit LAR 34.1(a)
October 24, 2003
Before: ALITO, FUENTES and BECKER, Circuit Judges
(Filed November 4, 2003)
_____________________________
OPINION OF THE COURT
_____________________________
Becker, Circuit Judge.
This is an appeal by defendant Ryan Andre White, who entered a conditional plea
of guilty to three counts of an indictment charging him with possession of a firearm by a
convicted felon, 18 U.S.C. § 922(g)(1); possession with intent to distribute 50 grams or
more of cocaine, 21 U.S.C. § 841(a)(1) and 841(b)(A)(iii); and using and carrying a
firearm during and in relation to a drug trafficking offense, 18 U.S.C. § 924(c)(1)(A).
The conditional plea preserved White’s ability to appeal the District Court’s ruling
denying his motion to suppress a firearm and drugs seized from him during a traffic stop.
The facts of this case are well known to the parties hence we need not recount them here.
However, one factor bears particular mention. White, who was in the back seat,
was not seized. While as a practical matter he could not go anywhere—he was in a leg
cast and on crutches—there is no indication that he was not free to leave. Indeed Officer
Boehm (Officer Elledge’s partner, who remained with the stopped car and its occupants
the whole time) testified that, while the car was detained and the driver was with Officer
Elledge, “[White] asked me if somebody could come down and get the vehicle, if
everything turned out okay, or they could leave, and I said sure, call who you want [on
your cell phone.].” App. 119.
As noted, this appeal is from White’s conditional plea, and it raises only a Fourth
Amendment seizure claim (along with fruit-of-the-poisonous-tree claims regarding
statements he made about the contents of the bag once its contents were revealed).1 In
essence, White argues that the period of time where the driver was out of the car with
Officer Elledge (5-10 minutes addressing the driver’s lack of identification and
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White correctly recognizes that he has no serious challenge to the grounds on which
the search ultimately took place: Supreme Court precedent seems to foreclose any
objections about the driver’s ability to give consent, see Ohio v. Robinette, 519 U.S. 33(1996), or the reasonableness of searching the car and all its occupants’ possessions, see
Wyoming v. Houghton, 526 U.S. 295 (1999).
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completing the consent-to-search form) constitutes an unreasonable seizure of him, from
which the discovery of the gun and drugs ensued. White argues that “[t]his Court has
held that a routine traffic stop is not ‘carte blanche’ for an officer to engage in unjustified
action based merely on a hunch,” and that “the moment Officer Elledge requested that the
driver give consent to search the automobile, he was acting [merely] on a hunch.” In
other words, the seizure was no longer reasonable when the officers turned the traffic stop
into a fishing expedition. We disagree.
First, the Third Circuit case that White cites, United States v. Johnson, 63 F.3d
242, 247 (3d Cir. 1995), predates Whren v. United States, 517 U.S. 806 (1996). Whren
resolved a question that was open at the time of Johnson (and was central to the portion
of Johnson that White cites), i.e., whether an officer’s subjective intent is relevant to
finding a Fourth Amendment violation. Whren held that it is not. Moreover, even if
Johnson were still the leading case, White does not characterize it accurately in his brief.
Johnson in fact is quite skeptical of a subjective component in Fourth Amendment traffic
stop analysis. In simple terms, an officer certainly may ask—incident to a lawful traffic
stop—for consent to search based on a hunch, or indeed, on nothing at all. Thus, White
fails as a matter of law to establish the predicate that the request for consent to search was
unlawful.
Second, the seizure was not unreasonable in duration even if it were only a traffic
stop. The reason that the traffic stop took so long was that the driver had no
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identification. Whoever’s estimate of the incident’s duration one takes, from stop to
arrest it lasted no more than 20 minutes or so. This is not objectively unreasonable for a
traffic stop, particularly one with extenuating circumstances. Third, as noted above,
White was free to leave, and was subjectively aware that this was so. Under the
circumstances, the search was not unreasonable, and the motion to suppress evidence was
properly granted.
The judgment of the District Court will be affirmed.
TO THE CLERK:
Please file the foregoing opinion.
/s/ Edward R. Becker
Circuit Judge
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