||ELEVENTH CIRCUIT DISCUSSES VEHICLE CONSENT SEARCH

ELEVENTH CIRCUIT DISCUSSES VEHICLE CONSENT SEARCH

On February 27, 2019, the Eleventh Circuit Court of Appeals decided the United States v. Burwell[i], in which the court examined whether the district court erred when it granted a motion to suppress in a vehicle consent search case.  The facts of Burwell, although lengthy, are stated below in their entirety because consent search cases are very fact driven.   The facts, taken directly from the case, are as follows:

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.

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.

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 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 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.[ii]

Burwell was subsequently charged with drug and weapons offenses under federal law.  He filed a motion to suppress the evidence in district court.  The district court granted the motion to suppress (1) because it determined that the officer continued to detain Burwell without reasonable suspicion after the traffic stop had ended and (2) because it determined that the consent to search was coerced because the officer used “sweet talk” and a warning ticket to make Burwell feel obligated to consent to the search.  The government appealed the grant of the motion to suppress to the Eleventh Circuit Court of Appeals.

Based upon the government’s appeal and additional reasons Burwell provided in support of the evidence suppression, the court of appeals examined five issues, as discussed below.

Issue One:  When the officer spoke to Burwell after the traffic stop, was the encounter “consensual” or a continued detention?

The court began by stating the legal principles that control this issue.  The court stated

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 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.[iii] [emphasis added]

Simply put, the officer may only question the driver and passengers regarding the purpose of the stop and safety concerns.  The officer can also check the driver’s license status, check for outstanding warrants, check vehicle registration and insurance status.  Any inquiry on a topic unrelated to the stop that measurable extends the duration of the stop, will be held to violate the Fourth Amendment.

The court also examined the legal principles related to whether an encounter is a seizure or consensual, under the Fourth Amendment.  The court stated

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.[iv] [emphasis added]

The court then examined the facts of Burwell’s case in light of the principles above.  The court noted that, during the traffic stop, the exchange between the officer and Burwell was cooperative in nature.  Additionally, the officer had given Burwell his license, registration, and a warning citation and began to walk away, when he stopped and asked Burwell if he would mind answering a few additional questions.  This indicated that Burwell had a choice; Burwell replied “sure.”

The court of appeals then held that, based on the facts, a reasonable person in Burwell’s position would have felt free to leave; as such, the encounter was consensual and the Fourth Amendment was not implicated.[v]

Issue Two:  Was Burwell’s consent to search voluntary or coerced by the officer?

The court first examined the legal principles relevant to this issue.  The court stated

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).[vi] [emphasis added]

The district court held that the officer used “sweet talk” and a warning citation to make Burwell feel obligated to consent to the search.  The government argued the consent was voluntary.

The court examined the facts in light of the principles above.  First, the court noted that Burwell was not handcuffed or in custody when he gave consent to search; rather, the encounter was consensual by the time he gave consent to search.  Second, Burwell volunteered consent before the officer even asked for consent.  When the officer asked about whether there were drugs, weapons or other illegal items in the vehicle, Burwell answered, “no sir, you can check.”[vii]  Third, Burwell gave consent a second time when the officer verified the consent.  Fourth, the encounter was friendly, polite, and cooperative between the officer and Burwell.  The court noted that this was all evident by watching the video of the encounter.  Fifth, officers routinely give drivers warning citations, and the officer did nothing to indicate that he would change the warning to an actual citation if consent was not granted.

Lastly, regarding the comment from the officer, to his back-up officer that he was going to try to “sweet talk” consent to search, the court noted that the subjective intent of an officer is irrelevant to whether consent to search is voluntary.  Specifically, the court stated

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).[viii] [emphasis added]

As such, the court held that Burwell’s consent to search was voluntary.

Issue Three:  Did the officer exceed the scope of Burwell’s consent to search when he searched the engine compartment?

The court described the legal principles relevant to this issue as follows:

[A] search is impermissible when an officer does not conform to the limitations imposed by the person giving consent.” United States v. Zapata, 180 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).[ix] [emphasis added]

The court applied the facts to the legal principles above and noted that the officer told Burwell he was searching for drugs, large amounts of money and firearms.  Burwell did not put any limitations on where the officer could search and did not object to where the officer was searching at the time of the search.  Additionally, the officer did not damage the car during the search.

As such, the court of appeals held that the officer did not exceed the permissible scope of the consent.

Issue Four:  Did the officer measurably extend the duration of the traffic stop by asking questions or conducting activity that was unrelated to the purpose of the stop?

On appeal, Burwell alleged four actions of the officer that impermissibly extended the duration of the traffic stop.  The actions are as follows: (1) calling and waiting on a back-up officer; (2) explaining the situation to the back-up officer upon his arrival, including his suspicion that there may be drugs in the vehicle; (3) asking Burwell to exit the vehicle and conducting a frisk; and (4) asking Burwell additional questions about the fishing trip and travel plans as he wrote the warning citation.

The court described the relevant legal principles as follows:

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 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).[x] [emphasis added]

The principles above speak to the four possible “delays” argued by Burwell.  First, Burwell argued that calling, waiting on and briefing the back-up officer impermissibly delayed the stop.  The court noted above that traffic stops are fraught with danger for police officers, and as such the officer may take some negligibly burdensome precautions.  This includes have a driver and passengers exit the vehicle.  It could also be calling and waiting on back-up when, as here, there are two vehicle occupants, and initially only one police officer.

Second, the frisk for weapons was permissible based on the fact that Burwell had an odd explanation of his travel plans, was taking an odd route (that drug traffickers take to avoid law enforcement interdiction on the interstate), was very nervous, and had a criminal history to include drug violation convictions.  The court stated in light of these facts, and the rule regarding frisks as stated above, the frisk for weapons was permissible.

Third, the questions regarding Burwell’s travel itinerary were permissible and related to the purpose of the stop. The court stated

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.[xi]

Thus, the court held that all four of the activities that Burwell argues impermissibly extended the duration of his traffic stop were all actually properly within the scope of the traffic stop.  As such, no Fourth Amendment violation occurred.

Issue Five:  Does the Eleventh Circuit case, United States v. Campbell[xii], require suppression of the evidence?

In Campbell, an officer conducted a traffic stop of Campbell for having a tag cover that obscured part of his tag.  As the officer was writing the warning, he paused and asked Campbell if he had any contraband such as counterfeit merchandise, drugs, or any dead bodies.  Campbell said that he did not, and the officer asked for consent to search the vehicle.  Campbell gave consent and the officer found a firearm and a ski mask.  The questions were deemed to be regarding general criminal activity and outside of the scope of the traffic stop; they extended the stop 25 seconds, as seen on the video.  The court held that because the stop was prolonged, a violation of the Fourth Amendment occurred.

However, the court stated that Burwell is distinguishable from Campbell.  The court stated

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 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.[xiii] [emphasis added]

As such, Campbell does not require suppression of the evidence in Burwell’s case.

Therefore, the court of appeals reversed the grant of the motion to suppress and remanded the case back to the district court.

______________________________________________

Citations

[i] No. 18-13039 (11th Cir. Decided February 27, 2019 Unpublished)

[ii] Id. at 2-6

[iii] Id. at 10-11

[iv] Id. at 11

[v] Id. at 14

[vi] Id. at 15

[vii] Id. at 16

[viii] Id at 19

[ix] Id. at 20-21

[x] Id. at 23-24

[xi] Id. at 26

[xii] 912 F.3d 1340 (11th Cir. 2019)

[xiii] Burwell at 28-29

By |2019-10-01T19:22:57+00:00October 1st, 2019|Legal updates|

About the Author:

Brian Batterton is an attorney in the State of Georgia and currently a Lieutenant with the Cobb County Police Department. He has been in law enforcement since 1994 and obtained his Juris Doctorate in 1999 from John Marshall Law School in Atlanta. He has served as an officer in Uniform Patrol, a detective in Criminal Investigations, a Corporal in the Training Unit and as a Sergeant in Uniform Patrol. Brian is currently assigned as the Legal Officer to the Chief of Police. In addition to his work at the police department, he also lectures for the Legal and Liability Risk Management Institute (LLRMI) on both criminal law and procedure topics, as well as, police civil liability.