                                     PUBLISHED

                      UNITED STATES COURT OF APPEALS
                          FOR THE FOURTH CIRCUIT


                                      No. 17-4701


UNITED STATES OF AMERICA,

                    Plaintiff – Appellee,

             v.

LEONARD CHARLES BERNARD,

                    Defendant – Appellant.


Appeal from the United States District Court for the Western District of North Carolina,
at Statesville. Richard L. Voorhees, Senior District Judge. (5:13-cr-00032-FDW-DSC-1)


Argued: March 21, 2019                                         Decided: June 24, 2019


Before GREGORY, Chief Judge, NIEMEYER, and MOTZ, Circuit Judges.


Affirmed by published opinion. Chief Judge Gregory wrote the opinion, in which
Judge Motz joined. Judge Niemeyer concurred in the judgment and wrote a concurring
opinion.


ARGUED: Stephen Thomas Meier, STEPHEN T. MEIER, P.L.L.C., Charlotte, North
Carolina, for Appellant. Amy Elizabeth Ray, OFFICE OF THE UNITED STATES
ATTORNEY, Asheville, North Carolina, for Appellee. ON BRIEF: R. Andrew Murray,
United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte,
North Carolina, for Appellee.
GREGORY, Chief Judge:

       Appellant Leonard Charles Bernard was found guilty of one count of possession of

marijuana with the intent to distribute in violation of 21 U.S.C. § 841 and one count of

possession of a firearm in furtherance of a drug trafficking crime in violation of 18

U.S.C. § 924.     Bernard now challenges the district court’s denial of his pretrial

suppression motion to exclude physical evidence and statements under the Fourth and

Fifth Amendments to the United States Constitution. Because the district court properly

denied Bernard’s suppression motion, we affirm his convictions.



                                            I.

       Early in the morning on December 4, 2012, Officer Barry Willis saw Bernard

driving eastbound on Interstate 40 in Iredell County, North Carolina, in a white Jeep.

Because Bernard appeared to be driving erratically, Officer Willis decided to conduct a

traffic stop to determine if Bernard might be impaired or fatigued. When Officer Willis

approached the Jeep, he observed Bernard acting nervously, so he requested Bernard’s

license and registration and asked Bernard if he could pat him down to search for

weapons. Bernard consented to the pat-down, and Officer Willis then asked Bernard to

join him in the patrol vehicle. Bernard did so, sitting next to Officer Willis uncuffed in

the passenger seat.

       As Officer Willis was processing Bernard’s information to ascertain whether he

had outstanding warrants, he experienced technical difficulties and had to use his cell

phone to call the main office to conduct the warrant check. Officer Willis estimated that

                                            2
this process took approximately five to seven minutes. During this time, he engaged in

casual conversation with Bernard, who informed Officer Willis that he was from Lathrop,

California, but had previously lived in Greensboro, North Carolina. Bernard explained

that he planned to stay in North Carolina for 2 weeks to visit with friends and repair

motorcycles and that he would extend his trip if he found additional motorcycles to repair

in North Carolina because business was slow in California. Officer Willis said he found

this story suspicious because the weather in California was conducive to riding

motorcycles year-round, while people generally did not ride motorcycles in the winter in

North Carolina. He asked Bernard if he had any controlled substances or firearms in or

on top of his vehicle. Bernard said no.

       The central information system verified that Bernard had no outstanding warrants,

and Officer Willis issued him a warning ticket for “other hazardous violation.” Officer

Willis returned Bernard’s documents to him, but as Bernard opened the door to exit the

police vehicle, Officer Willis asked Bernard if he could answer a few more questions.

Bernard said yes. Officer Willis then asked a second time if Bernard had any controlled

substances, and Bernard again answered no. Officer Willis next asked Bernard if he

could search his Jeep. Bernard said yes, informed Officer Willis that he had a rifle in the

car, and also signed a consent-to-search form. This form authorized officers to conduct a

complete search of his vehicle, including his luggage and everything inside of it.

       After signing the form, Bernard explained that he stored a weapon in a box on top

of the Jeep. Another police officer, Trooper Blanton, arrived on the scene and assisted

Officer Willis with the search. Officer Willis found a loaded handgun in front of the Jeep

                                             3
and an unloaded rifle in the back. Trooper Blanton then searched the top luggage rack of

the Jeep and found containers of mason jars filled with marijuana, wrapped in black

plastic bags, and a gun case with a firearm inside.

       After Trooper Blanton found the marijuana, Officer Willis immediately arrested

Bernard, who had been seated uncuffed in the passenger seat of the patrol car during this

search. Without reading him his Miranda rights, the officers asked him about the cargo

they found, and Bernard admitted possessing three pounds of marijuana. 1 The officers

left Bernard’s Jeep on the side of the highway after arresting him, and no inventory

search was performed.

       While transporting Bernard to the detention center, Officer Willis advised Bernard

that “there may be some people up there that might want to talk to him and that he might

want to think about trying to help himself out.” Bernard stated in response that he grew

the marijuana himself, that he was planning on selling it for $500 a jar, and that he could

make more money selling it in North Carolina than in California. Bernard also replied

that “he was strapped for cash, out of a job, and that you gotta do what you gotta do to

survive.”

       Counsel for Bernard filed a motion to suppress the statements and physical

evidence. At the hearing, counsel argued that Officer Willis did not have a basis to

conduct the traffic stop, noting that there was no evidence of a traffic infraction. Counsel

then contended that law enforcement unjustifiably detained Bernard for an extended

       1
        The Government conceded that this questioning amounted to unwarned custodial
interrogation. It did not seek to introduce these statements at trial.

                                             4
period of time during the traffic stop. Counsel further argued that Bernard’s consent to

search was invalid because he did not consent to the search of the cargo on top of his

Jeep.     Finally, Counsel argued that the lack of a Miranda warning required the

suppression of all his statements because Officer Willis’s statement constituted custodial

interrogation.

         The district court denied Bernard’s motion to suppress. The court first held that

reasonable suspicion existed for the traffic stop, finding Officer Willis’s testimony about

Bernard’s erratic driving to be credible. The court next concluded that the stop was not

excessively long. The court found no issue with Officer Willis’s request that Bernard

accompany him in the police vehicle for the duration of the stop. On the consent issue,

the court found that Bernard consented to the search and that his consent included his

belongings on top of the Jeep. The court concluded that Bernard was free to end the

encounter at the time he consented to the search because “he had received his license and

registration back from the officer when he agreed to answer a few more questions. He

cracked the door but at the request of the officer agreed to stay on with further questions

or conversations.” Finally, the court found that Officer Willis’s statements in transit to

the detention center were “not designed to elicit a response conceding criminality,” and

that Bernard’s “response was not directly responsive to the officer’s statement, which

was not in an interrogatory form in any event, but rather, it was something on defendant’s

mind.”

         On November 18, 2013, a jury convicted Bernard of possession of marijuana with

the intent to distribute, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(D), and possession of

                                             5
a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c).

The district court entered its judgment on October 30, 2017, and the court imposed an

aggregate sentence of 62 months’ imprisonment and a 5-year term of supervised release.

       Bernard timely appealed on November 9, 2017. Counsel filed a brief pursuant to

Anders v. California, 386 U.S. 738 (1967), stating that there were no meritorious grounds

for appeal but questioning whether the district court erred in denying Bernard’s motion to

suppress and in allowing Officer Willis to testify at trial that Bernard’s statements about

moving to North Carolina were suspicious.         This Court directed the parties to file

supplemental briefing “specifically addressing whether the district court erred in

concluding that Bernard consented to the search of the cargo on top of his vehicle and

that Willis’ statement to Bernard that ‘there may be some people [at the detention center]

that might want to talk to him and that he might want to think about trying to help himself

out’ was not the functional equivalent of express questioning.” 2




       2
         Bernard’s counsel inexplicably did not brief the consent issue. We decline to
find this claim forfeited given the unique context of Anders, which requires us to both
“afford the indigent the assistance of counsel” and “pursue all the more vigorously [our]
own review.” 386 U.S. at 744–45. We further note that forfeiture rules are designed to
encourage parties to focus the issues and present their best arguments upfront, see
Freytag v. C.I.R., 501 U.S. 868, 894–95 (1991) (Scalia, J., concurring); these purposes
are hardly served by rigid application of forfeiture where appointed counsel fails to
follow a clear and mandatory briefing order.

      On the merits, however, we affirm. Our review persuades us that Officer Willis
reasonably perceived Bernard’s consent to reach the containers on top of his vehicle. See
United States v. Smith, 395 F.3d 516, 519 (4th Cir. 2005).

                                             6
                                             II.

                                             A.

       In reviewing a district court’s denial of a motion to suppress, we review the

“district court’s legal determinations de novo and its factual conclusions for clear error.”

United States v. Shrader, 675 F.3d 300, 306 (4th Cir. 2012). “Because the district court

denied the defendant’s motion, [this Court] construe[s] the evidence in the light most

favorable to the government.” Id.

                                             B.

       The Fourth Amendment protects the “right of the people to be secure in their

persons, houses, papers, and effects against unreasonable searches and seizures.” U.S.

Const. amend. IV. A traffic stop constitutes a seizure under the Fourth Amendment.

Whren v. United States, 517 U.S. 806, 809-10 (1996). When examining if a traffic stop is

lawful, we begin our analysis “when a vehicle is pulled over for investigation of a traffic

violation and end [] when the police have no further need to control the scene and inform

the driver and passengers, they are free to leave.” United States v. Green, 740 F.3d 275,

279 (4th Cir. 2014) (internal quotations omitted).

       Because a traffic stop is more akin to an investigative detention than a custodial

arrest, this Court applies the Terry v. Ohio standard in determining the constitutionality of

the stop. Id. When evaluating a Terry stop, this Court must consider (1) whether the

officer’s actions were justified at their inception and (2) whether his subsequent actions

were reasonably related in the scope of circumstances that justified the stop. Id. The first

prong is satisfied whenever “it is lawful for police to detain an automobile and its

                                             7
occupants pending inquiry into a vehicular violation.” Arizona v. Johnson, 555 U.S. 323,

327 (2009). The second prong is satisfied when the seizure is limited to the length of

time reasonably necessary to issue the driver a citation and determine that the driver is

entitled to operate his vehicle. United States v. Branch, 537 F.3d 328, 337 (4th Cir.

2008). A police officer can extend the duration of a routine traffic stop only if the driver

gives consent or if there is reasonable suspicion that an illegal activity is occurring. Id. at

336. In order to assess whether reasonable suspicion is present, we look at the “totality of

the circumstances” and the officer must demonstrate a “particularized and objective basis

for suspecting legal wrongdoing.” United States v. Vaughan, 700 F.3d 705, 710 (4th Cir.

2012).

         Bernard alleges he experienced Fourth Amendment violations such that the district

court should have granted his motion to suppress. We disagree. Officer Willis stated that

Bernard was driving erratically and that he initiated a traffic stop in order to ensure that

Bernard was not impaired or fatigued. The district court found this testimony to be

credible. See United States v. Palmer, 820 F.3d 640, 653 (4th Cir. 2016) (explaining that

we “particularly defer to a district court’s credibility determinations, for it is the role of

the district court to observe witnesses and weigh their credibility during a pre-trial motion

to suppress”). Indeed, the record provides no basis to doubt that Officer Willis observed

a traffic infraction. “When an officer observes a traffic offense—however minor—he has

probable cause to stop the driver of the vehicle.” United States v. Williams, 740 F.3d

308, 312 (4th Cir. 2014). Officer Willis had probable cause here due to the fact that he



                                              8
observed Bernard driving erratically. For these reasons, the first prong of Terry is

satisfied.

       The second prong of Terry is satisfied as well. The traffic stop here lasted a

reasonable amount of time. There is no indication that Officer Willis took longer than

necessary to retrieve information regarding any outstanding warrants. And the traffic

stop continued after Officer Willis issued the citation only because Bernard provided both

verbal and written consent for the vehicle search. Bernard’s motion to suppress could not

be granted on Fourth Amendment grounds, as he suffered no cognizable Fourth

Amendment violation.

                                           C.

       The Fifth Amendment provides that no person shall be compelled in any criminal

case to be a witness against himself. U.S. Const. amend. V. In order to comply with the

constitutional protections of the Fifth Amendment, when police interrogate an individual

who is in their custody, they must provide standard warnings to the individual explaining

his rights. For example, before any questioning, law enforcement must explain that he

“has the right to remain silent, that any statements he does make may be used as evidence

against him and that he has the right to an attorney, either retained or appointed.”

Miranda v. Arizona, 384 U.S. 436, 444 (1966).

       While transporting Bernard to the detention center, Officer Willis advised Bernard

that “there may be some people up there that might want to talk to him and that he might

want to think about trying to help himself out.” It is undisputed that Bernard made self-

incriminating statements to law enforcement describing his criminal liability, economic

                                            9
rationales for why he sold drugs, the quantity of drugs he possessed, and how much he

hoped to make from selling the drugs in his possession. It is also undisputed that law

enforcement personnel never Mirandized Bernard. The question before this Court is

whether Officer Willis’s statement constitutes the equivalent of express questioning and

therefore triggers Fifth Amendment protection.

       The Supreme Court has explained that Miranda “refers not only to express

questioning, but also to any words or actions on the part of the police (other than those

normally attendant to arrest and custody) that the police should know are reasonably

likely to elicit an incriminating response from the suspect. The latter portion of this

definition focuses primarily upon the perceptions of the suspect, rather than the intent of

the police.” Rhode Island v. Innis, 446 U.S. 291, 301 (1980). Interrogation “must reflect

a measure of compulsion above and beyond that inherent in custody itself.” Id. at 300.

“Any knowledge the police may have had concerning the unusual susceptibility of a

defendant to a particular form of interrogation might be an important factor . . . .” Id. at

302 n.8.

       The Government argues that Officer Willis’s statement did not have the “same

coercive effect as conventional interrogation.” United States v. Bell, 901 F.3d 455, 463-

64 (4th Cir. 2018). In light of the extensive friendly conversation between Officer Willis

and Bernard, the Government contends, the statement lost the sting of a traditionally

coercive custodial interrogation. We find this argument unpersuasive. The American

idiom, “You can catch more flies with honey than with vinegar” seems apt here. The

Government’s arguments imply that coercion must be fueled by fear and that the friendly

                                            10
rapport between Officer Willis and Bernard should undermine any arguments regarding

the existence of coercion. As Miranda discussed, however, coercion can just as readily

be built on hope as it can be built on fear. 384 U.S. at 462.

       Given the rapport built between Officer Willis and Bernard, Bernard could

reasonably have perceived, and likely did perceive, that the officers were in fact on his

side. It is also very likely that, upon hearing Officer Willis’s statement asking him to be

forthcoming, Bernard’s subsequent self-incriminating statements were made out of a

hopeful and uninformed expectation of leniency if he was cooperative. His experience

with law enforcement during this encounter had generally been positive, and he was

likely hoping for the best.

       Officer Willis should have known that Bernard was not reasonably likely to stay

silent after he advised him to confess his crimes. Bernard had already provided plenty of

information to Officer Willis, including self-incriminating statements he made in

response to questions immediately after his arrest, which questions the Government

conceded were interrogation. Given this context, Officer Willis should have known that

his invitation to cooperate was reasonably likely to induce Bernard to provide him with

even more self-incriminating information. Officer Willis’s statement thus constitutes the

functional equivalent of interrogation and triggered the need for Miranda’s protection.

       Nonetheless, the failure to administer a Miranda warning constitutes harmless

error. Fed. R. Crim. P. 52(a). A constitutional error is harmless if it is clear that a

rational factfinder would have found the defendant guilty absent the error—i.e.,

Bernard’s unconstitutionally elicited statements. United States v. Giddins, 858 F.3d 870,

                                             11
885 (4th Cir. 2017).    In making this determination, this Court considers:     (1) the

importance of the statement to the Government’s case; (2) the impact on credibility of

other evidence; and (3) the admission of prejudicial evidence based solely on the

admission of the statement. Id. at 886.

       First, the self-incriminating statements Bernard made are of small consequence

given the amount of marijuana recovered and the guns found in his vehicle after he

consented to the search by Officer Willis. The Government still had a strong case, and

any reasonable jury would have been convinced of Bernard’s culpability even in the

absence of the self-incriminating statements. Second, the lack of statements would not

undermine the credibility of the physical evidence in this case. Even without the self-

incriminating statements, a reasonable factfinder would readily have found Bernard

guilty given the physical evidence found in his vehicle. Law enforcement officials

recovered a rifle, two handguns, and three pounds of marijuana in Bernard’s vehicle.

This evidence overwhelmingly supported Bernard’s drug-trafficking and firearm

convictions. Finally, there was no admission of any prejudicial evidence based solely on

the self-incriminating statements. Consequently, the failure to administer a Miranda

warning constitutes harmless error. The Fifth Amendment thus cannot provide a basis for

relief in this case.



                                          III.

       In sum, the district court properly found that Bernard’s motion to suppress

physical evidence and statements were without merit. We have found no cognizable

                                          12
Fourth Amendment violation warranting suppression.        And despite the Miranda

violation, an overwhelming amount of physical evidence was properly seized that would

still inculpate Bernard in the eyes of any reasonable factfinder. The judgment of the

district court is therefore upheld.



                                                                         AFFIRMED




                                         13
NIEMEYER, Circuit Judge, concurring in the judgment:

       After uncovering 53 mason jars filled with marijuana during a consensual search

of Leonard Bernard’s vehicle, officers arrested Bernard. And while transporting Bernard

to the detention center, one officer said to him that “there may be some people up there

that might want to talk to him and that he might want to think about trying to help himself

out.” In response, Bernard explained to the officer that he grew the marijuana and

intended to sell it for $500 a jar, as he was in need of money.

       I would conclude that the officer’s statement was only friendly advice about future

conduct — consistent with the manner in which the officer and Bernard had been chatting

freely before Bernard’s arrest — and was not reasonably likely to elicit an inculpatory

response at that time. Thus, Bernard was not subjected to “interrogation” while en route

to the detention center, and there was no reason for the district court to suppress his

voluntary statement. See Rhode Island v. Innis, 446 U.S. 291, 302–03 (1980) (holding

that it was not interrogation when one officer said to another in the defendant’s presence

that a missing shotgun was near a school for handicapped children and expressed fear that

one of the children might find the weapon and hurt themselves, in response to which the

defendant showed the officers where the gun was located). Indeed, like in Innis, “the

entire conversation” at issue here “appears to have consisted of no more than a few off

hand remarks,” and I cannot conclude that the officer “should have known that [Bernard]

would suddenly be moved to make a self-incriminating response.”               Id. at 303.

Accordingly, I disagree with the analysis included in the first half of Part II.C.

Nonetheless, I concur in the judgment.

                                             14
