United States v. Muriel, Oscar O.

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 04-3968
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
OSCAR O. MURIEL,
Defendant-Appellant.
____________
Appeal from the United States District Court for the
Southern District of Indiana, Indianapolis Division.
No. 04 CR 48—Larry J. McKinney, Chief Judge.
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ARGUED JULY 6, 2005—DECIDED AUGUST 11, 2005
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Before COFFEY, RIPPLE and ROVNER, Circuit Judges.
RIPPLE, Circuit Judge. Oscar Muriel challenges the denial
of his motion to suppress cocaine seized incident to a traffic
stop and statements made to a police officer during the stop.
He contends that the stop was not supported by probable
cause and, in any event, was unreasonable in scope and
duration. Because the arresting officer had probable cause
to believe a traffic violation had occurred and because the
officer did not unreasonably prolong the stop, we affirm the
judgment of the district court.
2 No. 04-3968
I
BACKGROUND
On February 4, 2004, Indianapolis police sergeant Paul
McDonald executed a traffic stop that led to the arrest of Mr.
Muriel, the driver, and John Ramirez, his passenger. Mr.
Muriel later was charged with possession with intent to
distribute 500 grams or more of cocaine, in violation of 21
U.S.C. § 841(a)(1). Before trial, he filed a motion to suppress
the cocaine and statements he made to Sgt. McDonald
during the stop. He contended, in relevant part, that there
was no probable cause for the traffic stop and that
Sgt. McDonald had detained him longer than was reason-
ably necessary to issue a traffic citation or to check for
outstanding warrants.
At the suppression hearing, Sgt. McDonald testified that
he was driving westbound on the interstate when he noticed
Mr. Muriel’s Jeep Cherokee tailgating another vehicle. The
sergeant was driving in the left lane, and Mr. Muriel in
the right; when Sgt. McDonald approached the Jeep,
Mr. Muriel slowed down to about thirty miles per hour.
Consequently, Sgt. McDonald had difficulty changing lanes
to get behind Mr. Muriel’s car and he had to brake abruptly.
Sgt. McDonald then initiated a traffic stop for following too
closely and for reckless driving. The stop commenced at 2:28
p.m. according to the squad car’s video camera, which
recorded the entire stop.
Sgt. McDonald testified that, as he approached
Mr. Muriel’s car, his suspicions were aroused by certain
features, such as the Illinois license plates, three police
support decals affixed to the windows, a teddy bear on the
dashboard and an American flag on the front of the vehicle.
In his experience, Sgt. McDonald testified, such items are
used to divert attention from illicit activity. Sgt. McDonald
No. 04-3968 3
asked Mr. Muriel to sit in the squad car while he ran checks
on Mr. Muriel’s driver’s license and registration. While
Mr. Muriel was seated in the squad car, Sgt. McDonald
asked him about his trip. Mr. Muriel stated that he was on
his way back to Chicago from Columbus, Ohio, where he
had been visiting friends for three days. Sgt. McDonald
returned Mr. Muriel’s license and registration. While
awaiting the results of the computer checks, Sgt. McDonald
asked Mr. Muriel to wait in the cruiser while he spoke with
Ramirez. Sgt. McDonald then asked for Ramirez’s identifica-
tion and inquired about their trip. Ramirez replied that they
were returning from Columbus, where they had gone for
work related to their landscaping business; he stated that
they had left Chicago the day before and stayed in Colum-
bus for one night. Sgt. McDonald decided to check Ramirez
for outstanding warrants and returned to the squad car. On
his way back to the squad car, he called for backup because
he was suspicious of the inconsistent stories. Once in the
squad car, he again asked Mr. Muriel where the two had
been and pointed out the discrepancies between his and
Ramirez’s version of events. Sgt. McDonald asked if there
was any contraband in their vehicle, and Mr. Muriel said
that there was none. The sergeant then asked for permission
to search, and Mr. Muriel at 2:41 p.m. agreed. After finding
two packages of cocaine under the rear seat, Sgt. McDonald
arrested both men. The arrest occurred at 2:46 p.m.
The district court, after viewing the video evidence,
characterized whether Mr. Muriel had been tailgating as a
fairly close question. Nevertheless, the court credited
Sgt. McDonald’s testimony that the gap between
Mr. Muriel’s Jeep and the truck in front of him was closer
than two seconds. It therefore concluded that the officer had
probable cause to believe that the driver was following
another vehicle more closely than was reasonable and pru-
dent. The court also concluded that the officer had probable
cause to believe that Mr. Muriel had acted recklessly in
4 No. 04-3968
violation of Indiana law by slowing to thirty miles per hour
on the interstate. Given the existence of probable cause, the
court concluded that the officer had the authority to stop the
vehicle. Relying on United States v. Childs, 277 F.3d 947 (7th
Cir. 2002) (en banc), the district court then held that the
duration of the stop was reasonable. The court gave little
weight to the suspicion allegedly raised by the Illinois
license plates, police decals, flag and teddy bear, but rea-
soned that Mr. Muriel and Ramirez had aroused suspicion
by giving conflicting accounts of their itinerary. The court
concluded that, because the stop was reasonable up until
the point when Mr. Muriel gave consent, there was no
Fourth Amendment violation. It further concluded that
Mr. Muriel’s consent was voluntarily given. Therefore, the
court denied the motion to suppress, and the next day a jury
found Mr. Muriel guilty.
II
DISCUSSION
In reviewing the denial of a suppression motion, we review
1
questions of law de novo and findings of fact for clear error.
1
Mr. Muriel was sentenced after this court’s decision in
United States v. Booker, 375 F.3d 508 (7th Cir. 2004), but before the
Supreme Court resolved Mr. Booker’s appeal, United States v.
Booker, 125 S. Ct. 738 (2005). Before this court, Mr. Muriel only
appeals the denial of his suppression motion. He does not chal-
lenge his sentence on Booker grounds and does not dispute the
reasonableness of his sentence.
A court of appeals may notice plain error even though the error
was not brought to the court’s attention. Fed. R. Crim. P. 52(b); see
Silber v. United States, 370 U.S. 717, 718 (1962) (per curiam); 3B
(continued...)
No. 04-3968 5
See United States v. Banks, 405 F.3d 559, 570 (7th Cir. 2005).
1
(...continued)
Charles Alan Wright et al., Federal Practice and Procedure § 856,
at 490 (3d ed. 2004). We have established a limited remand to
address Booker sentencing error, United States v. Paladino, 401 F.3d
471 (7th Cir. 2005), and in United States v. Murphy, 406 F.3d 857(7th Cir. 2005), we applied the limited remand when the parties
had not challenged their sentences:
Although Murphy has not directly challenged his sentence
and Baker has limited her involvement on appeal to resisting
the efforts of the government to reinstate her convictions, we
think both, because they were sentenced under the old
unconstitutional regime, should, in the interest of justice, get
the benefit of the procedures we recently announced in
United States v. Paladino, 401 F.3d 471 (7th Cir. 2005), if they
so desire.
Id. at 862. We thus gave the defendants fourteen days in which to
notify this court whether they wished a Paladino remand. Id.
In this case, there is no need to ask Mr. Muriel whether he de-
sires a Paladino remand. The district court sentenced him to 63
months’ imprisonment, the low end of the applicable Guidelines
range for possessing 1.9 kg. of cocaine and three months more
than the mandatory minimum. See 21 U.S.C. § 841(b)(1)(B). In the
alternative, the district court considered the nature of the crime
and the defendant’s characteristics and noted that it would
sentence him to the same term even if the Guidelines were un-
constitutional. See 18 U.S.C. § 3553(a). We thus know that the
district court would retain the 63-month sentence, and there is no
need for a Paladino remand. Turning to the reasonableness of the
sentence, we cannot say that a sentence only three months higher
than the statutory minimum, based upon the factors discussed by
the district court, is unreasonable. Thus, there is no plain error for
this court to notice.
6 No. 04-3968
A.
Mr. Muriel first submits that the stop was not supported
by probable cause and contends that the purported traffic
violations were a pretext for stopping a car occupied by two
2
Hispanic males. The Supreme Court has held that the de-
cision to stop an automobile is reasonable when the police
have probable cause to believe that a traffic violation has
occurred. Whren v. United States, 517 U.S. 806, 810 (1996).
Probable cause exists when “the circumstances confronting
a police officer support the reasonable belief that a driver
has committed even a minor traffic offense.” United States v.
Cashman, 216 F.3d 582, 586 (7th Cir. 2000).
The record before us supports the conclusion that
Sgt. McDonald had probable cause to believe that a traffic
offense had been committed. The Indiana Code prohibits
following another vehicle “more closely than is reasonable
and prudent.” Ind. Code § 9-21-8-14. Sgt. McDonald tes-
tified that the “two-second rule” prescribed by the Indiana
Bureau of Motor Vehicles’ Driver Manual is often used as a
measure of reasonableness. His use of the “two-second rule”
as a guide for reasonableness comports with Indiana law;
while the two-second “rule” may provide useful guidance,
“[t]here is no rule, other than that relating to the exercise of
reasonable care, which prescribes a distance that must be
maintained between vehicles.” Whitaker v. State, 778 N.E.2d
423, 427 (Ind. App. Ct. 2002) (quotation marks and citation
omitted). The district court viewed the video evidence and
stated that it was a close question whether Mr. Muriel was
2
We note that, although Mr. Muriel refers in his brief to the issue
of whether “following too closely was merely a pretext for
stopping a car with two Hispanic males,” Appellant’s Br. at 6, at
oral argument his counsel agreed that the facts simply do not
support a claim of racial profiling here.
No. 04-3968 7
following within two seconds behind the truck in front of
him. However, we need only inquire whether the officer
had probable cause to believe that a traffic violation oc-
curred, see Whren, 517 U.S. at 819, not whether Mr. Muriel
actually was tailgating. When the record is assessed in this
context, we believe that it is clear that Sgt. McDonald’s
estimation of the following distance amounted to probable
cause to believe that Mr. Muriel’s vehicle was “more close[ ]
than is reasonable and prudent.” Ind. Code § 9-21-8-14.
In any event, Mr. Muriel’s slowing to thirty miles per hour
on an interstate highway, under the circumstances de-
scribed here, provided probable cause to stop him for
reckless driving. See Ind. Code § 9-21-8-26 (prohibiting stops
or sudden decreases in speed without an appropriate
signal); id. § 9-21-8-52(a)(1)(A), (B) (prohibiting driving at an
unreasonably slow rate of speed so as to endanger the safety
or property of others or block the proper flow of traffic). Mr.
Muriel’s insistence that his slowing down “is not necessarily
reckless driving,” Appellant’s Br. at 8, ignores the applicable
standard. Probable cause exists so long as the officer
reasonably assesses the facts and concludes that a traffic
violation occurred. Cashman, 216 F.3d at 587; see also Whren,
517 U.S. at 819. When a vehicle suddenly slows to thirty
miles per hour on an interstate highway, thus forcing
another vehicle to brake hard and to experience difficulty
changing lanes, there is probable cause to believe that a
traffic violation has been committed.
B.
Mr. Muriel next contends that the scope and duration of
the stop were unreasonable. He submits that Sgt. McDonald
impermissibly asked questions unrelated to the purpose of
the stop for the purpose of prolonging it beyond the point
of reasonableness.
8 No. 04-3968
As we have explained earlier, the traffic stop was based
on probable cause; the initial seizure was therefore legal. As
the Supreme Court has reiterated recently, however, “a
seizure that is lawful at its inception can violate the Fourth
Amendment if its manner of execution unreasonably
infringes interests protected by the Constitution.” Illinois v.
Caballes, 125 S. Ct. 834, 837 (2005). Thus, the Court contin-
ued, “[a] seizure that is justified solely by the interest in
issuing a warning ticket to the driver can become unlawful
if it is prolonged beyond the time reasonably required to
complete that mission.” Id. This court too has emphasized
that the detention following a traffic stop based on probable
cause must be reasonable. See United States v. Carpenter, 406
F.3d 915, 916 (7th Cir. 2005); Childs, 277 F.3d at 954 (“What
the Constitution requires is that the entire process remain
reasonable.”). Officers need not have reasonable suspicion
to ask questions unrelated to the purpose of the traffic stop,
but questions that prolong custody may affect the reason-
ableness of the detention.
In this case, the traffic stop resulted in full custodial ar-
rests after eighteen minutes. The more appropriate focus,
however, is the time that elapsed between the initial stop
and Mr. Muriel’s consent to search; consent renders a search
reasonable under the Fourth Amendment unless given
involuntarily, which Mr. Muriel does not allege. See
Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973). Accord-
ing to the record, Mr. Muriel was stopped at 2:28 p.m. and
gave consent to search at 2:41 p.m. During that period,
Sgt. McDonald had run license and warrant checks on
Mr. Muriel, while asking him some questions, and then had
left the squad car from approximately 2:34 p.m. to 2:38 p.m.
to speak to Ramirez and collect his identification.
Sgt. McDonald testified that he had entered Mr. Muriel’s
information into the computer and returned his documents
No. 04-3968 9
to him before leaving the squad car to speak to Ramirez
while the checks were being run. When he returned to the
squad car, the checks showed that Mr. Muriel had a valid
driver’s license and registration and no outstanding war-
rants. While he ran Ramirez’s check (which also turned up
nothing), Sgt. McDonald asked Mr. Muriel more questions
before seeking consent to search.
Viewed in its entirety, Mr. Muriel’s detention was not
unreasonably prolonged by Sgt. McDonald’s asking a num-
ber of routine questions while conducting the business of
the traffic stop. An officer conducting a valid traffic stop can
detain the occupants of the vehicle long enough to ac-
complish the purpose of the stop. See Caballes, 125 S. Ct. at
837. And, as part of the stop, police may ask the vehicle’s
occupants “a moderate number of questions” and request
their identification. Berkemer v. McCarty, 468 U.S. 420, 439
(1984). Indeed, “[s]uch questions may efficiently determine
whether a traffic violation has taken place, and if so,
whether a citation or warning should be issued or an arrest
made.” United States v. Brigham, 382 F.3d 500, 508 (5th Cir.
2004). Furthermore, the police may ask questions that do not
concern the purpose of the stop and that are not supported
by any other suspicion. Childs, 277 F.3d at 954 (citing Ohio v.
Robinette, 519 U.S. 33 (1996)).
Mr. Muriel also seems to suggest that Sgt. McDonald’s
involvement of Ramirez in the stop bears on its reasonable-
ness. However, passengers may be questioned without rea-
sonable suspicion. Childs, 277 F.3d at 952; see United States v.
Moore, 375 F.3d 580, 583 (7th Cir. 2004) (“[I]ncident to his
status as a passenger of a vehicle involved in a traffic stop,
Moore could be questioned by the officers without their
questions being deemed a ‘seizure’ for Fourth Amendment
purposes . . . .”). Passengers may also be ordered out of the
vehicle “as a matter of course” during a traffic stop.
Maryland v. Wilson, 519 U.S. 408, 410 (1997).
10 No. 04-3968
By the time Sgt. McDonald had completed his work on the
traffic stop, he had, by virtue of the inconsistent stories
received from the occupants, reasonable suspicion to inquire
further. In any event, at that point, Mr. Muriel had given
him permission to search the vehicle. The district court
therefore correctly denied the motion to suppress.
Conclusion
Accordingly, the judgment of the district court is affirmed.
AFFIRMED
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—8-11-05