On May 14, 2018, the Sixth Circuit Court of Appeals decided the United States v. Herrera[i], in which serves as a review of the law pertaining to questioning of driver’s during traffic stops.  The relevant facts of Herrera are as follows:

On July 19, 2016, Herrera was traveling eastbound on I-40 when he was pulled over by West Tennessee Drug Task Force Special Agent Shawn Crouch, ostensibly for impeding traffic in the left lane, in violation of Tenn. Code Ann. § 55-8-115(a).

Crouch activated his body camera as he initiated the traffic stop. The footage begins with Crouch describing Herrera’s vehicle and the reason for initiating the traffic stop: that four other vehicles had been “piled up” behind Herrera but that he had not moved to the right lane, despite the right lane being clear. Crouch provided this same version of events during the suppression hearing.

Herrera’s version of the events is somewhat different. Herrera testified that he had been driving in the right lane when traffic slowed to approximately 35-40 miles per hour. Herrera claims that he moved to the left lane to avoid this slow-moving traffic. Herrera did not testify that any vehicles were piled up behind him when he moved to the left lane.

In any event, once Herrera had been pulled over, Crouch told Herrera that he had been pulled over for impeding traffic in the left lane. Herrera did not dispute he had impeded traffic, saying, “[y]eah, I understand that, I’m not going to argue with you.” Crouch also asked Herrera a series of identification questions. Crouch asked for Herrera’s driver’s license but Herrera responded that he did not have it. Herrera also gave inconsistent information about his travel plans. Herrera did provide Crouch with a vehicle registration form, which listed Melvim M. Herrera as the owner of the vehicle, and Herrera confirmed that that was his name. Crouch then asked for Herrera’s date of birth, but Herrera hesitated when providing it. Crouch also asked for Herrera’s social security number but Herrera struggled to answer, saying that he forgot the number. Crouch asked about Herrera’s criminal history, and Herrera said that he had been arrested for stealing a car but that he was “good” to be driving now. Crouch returned to his vehicle to verify the name “Melvim Herrera” and the birthdate that Herrera had provided, by calling the information in to the Blue Lightning Operation Center (BLOC) database.

While waiting for a return call from BLOC, Crouch wrote Herrera a warning citation for impeding traffic while the two continued making small talk. Based on Herrera’s difficulty answering the earlier basic identification questions, Crouch remained suspicious of Herrera, and asked Herrera additional questions about his travel plans. Crouch asked whether there was contraband inside his vehicle, including whether there were any guns inside. Herrera stated that there were no guns inside his vehicle. Crouch then asked, “Can I search your vehicle?”, to which Herrera responded casually, “Sure, umm, whatever.”

While waiting for backup to arrive, BLOC called Crouch with information that suggested that Herrera had provided incorrect identifiers. Crouch then searched Herrera’s vehicle, finding four guns and ammunition in the center console as well as a wallet with a driver’s license for Francisco Herrera. Herrera apologized to Crouch for lying about his identification information. Crouch submitted the new name and date of birth to BLOC. When asked why he had provided false information, Herrera told Crouch that he would find out in a minute.

Sure enough, shortly thereafter, BLOC informed Crouch that Herrera had an outstanding kidnapping arrest warrant out of California and had previously been convicted of a felony in California.[ii]

Herrera was subsequently indicted on federal weapons violations.  He filed a motion to suppress the firearms and the district court denied the motion.  He entered a conditional guilty plea with the right to appeal the denial of the motion to suppress.

Herrera filed a timely appeal with the Sixth Circuit and raised three issues as to why the motion to suppress should be granted.

First, Herrera argued that the agent lacked probable cause to stop his vehicle.  The district court accepted the agent’s version of events, which provided probable cause to believe a state law traffic violation occurred.  The district court’s decision to credit the agent’s version of events was not “clearly erroneous” and must be upheld by the court of appeals.

Second, Herrera argued that the agent exceeded the duration and scope of the traffic stop by the questions that he asked during the stop.  The court first examined the law related to this issue and stated

[A]n otherwise lawful Terry stop becomes unlawful if the officer’s conduct during the stop was not “reasonably related in scope to the circumstances that justified the interference in the first place.” Saucedo, 226 F.3d at 789 (quoting Terry, 392 U.S. at 20). For example, an officer may not unreasonably extend the length of the roadside detention. However, an “officer’s inquiries into matters unrelated to the justification for the traffic stop . . . do not convert the encounter into something other than a lawful seizure, so long as those inquiries do not measurably extend the duration of the stop.Arizona v. Johnson, 555 U.S. 323, 333 (2009).[iii] [emphasis added]

Herrera argued that the agent stalled while filling out the warning citation so he would have time to ask numerous questions unrelated to the traffic stop.  However, the court noted that the video evidence also showed that the agent was awaiting the driver’s license and warrant check from BLOC, based on the false name and date of birth that he provided.  Thus, since the agent was awaiting the BLOC returns, even if he stalled on the traffic warning citation or asked unrelated questions, the warning citation and the questions did not extend the length of the stop.  Additionally, Herrera’s consent to search the vehicle was granted prior to the agent receiving the return information from BLOC.  As such, the court of appeals upheld the decision of the district court that the agent did not impermissibly extend the duration and scope of the traffic stop.

Lastly, Herrera argued that he did not give voluntary consent to search his vehicle.  The court stated

Whether the consent was voluntary is a question of fact to be determined from the totality of the circumstances. Schneckloth, 412 U.S. at 248-49. The defendant’s consent must have been “unequivocally, specifically, and intelligently given, uncontaminated by any duress and coercion.” United States v. Worley, 193 F.3d 380, 386 (6th Cir. 1999) (quoting United States v. Tillman, 963 F.2d 137, 143 (6th Cir. 1992)). However, a “defendant must show more than a subjective belief of coercion, but also some objectively improper action on the part of the police.” United States v. Higgins, 127 F. App’x 201, 204 (6th Cir. 2005) (quoting United States v. Crowder, 62 F.3d 782, 787 (6th Cir. 1995)). Because voluntariness is question of fact, the “district court’s finding of voluntary consent will be reversed only if clearly erroneous.United States v. Erwin, 155 F.3d 818, 822 (6th Cir. 1998).[iv] [emphasis added]

The court of appeals noted that the video of the stop and interaction did not reveal any inappropriate pressure from the agent while he was speaking to Herrera.  Further, the court noted that Herrera’s language and tone of voice conveyed voluntary consent rather than acquiescence.

Herrera also argued that his consent was not voluntary because the agent asked for consent to search after asking him several “gotcha” type questions, such as “are there guns in the vehicle.”  The court said that these questions did not violate the Fourth Amendment.

Lastly, Herrera argued that the consent was not voluntary because the agent did not read him Miranda warnings and obtain a waiver first.  The court stated

Miranda is only triggered during a custodial interrogation. And a traffic stop does not constitute custody, for the purposes of Miranda. See Maryland v. Shatzer, 559 U.S. 98, 113 (2010) (“Thus, the temporary and relatively nonthreatening detention involved in a traffic stop or Terry stop . . . does not constitute Miranda custody.”).[v]

Therefore, the Miranda argument failed.

For the reasons stated above, the Sixth Circuit affirmed the denial of the motion to suppress.



[i] No. 17-6268 (6th Cir. Decided May 23, 2018 Unpublished)

[ii] Id. at 2-3

[iii] Id. at 6

[iv] Id. at 7

[v] Id. at 8-9

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