                            NOT RECOMMENDED FOR PUBLICATION
                                    File Name: 18a0251n.06

                                                   No. 17-6268

                               UNITED STATES COURT OF APPEALS
                                    FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,                                           )
                                                                                                   FILED
                                                                                           May 23, 2018
                                                                    )
         Plaintiff-Appellee,                                        )                  DEBORAH S. HUNT, Clerk
                                                                    )
v.                                                                  )         ON APPEAL FROM THE
                                                                    )         UNITED STATES DISTRICT
FRANCISCO HERRERA,                                                  )         COURT FOR THE WESTERN
                                                                    )         DISTRICT OF TENNESSEE
         Defendant-Appellant.                                       )
                                                                    )
                                                                    )



BEFORE:           BOGGS, SILER, and SUTTON, Circuit Judges.

         BOGGS, Circuit Judge. Francisco Herrera appeals the denial of his motion to suppress

firearm evidence seized from a search of his vehicle during a traffic stop. Following the denial

of his motion to suppress, Herrera pleaded guilty to being a felon in possession of a firearm, in

violation of 18 U.S.C. § 922(g)(1). We affirm.

                                                               I
             a. Factual Background

         This case concerns a simple factual dispute regarding a traffic stop. 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).1



1
 The statute requires that vehicles “be driven upon the right half of the roadway,” unless the vehicle is overtaking
and passing another vehicle, or unless another exception applies. Tenn. Code Ann. § 55-8-115(a)(1).
No. 17-6268
United States v. Herrera
       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.




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No. 17-6268
United States v. Herrera
       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.

              b. Procedural Background

       A federal grand jury charged Herrera with four counts of being a felon in possession of a

firearm, in violation of 18 U.S.C. § 922(g)(1).

       Herrera filed a motion to suppress the firearm evidence obtained from the search. The

district court conducted an evidentiary hearing and denied the motion to suppress. Herrera

pleaded guilty but reserved the right to appeal the denial of the motion to suppress. Herrera has

timely appealed.



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United States v. Herrera
                                                 II

          On appeal, Herrera essentially raises three arguments as to why his motion to suppress

should have been granted. First, Herrera argues that Crouch lacked probable cause to initiate the

traffic stop, as required by this court’s Terry’s jurisprudence for alleged civil infractions. Terry

v. Ohio, 392 U.S. 1 (1968). Second, Herrera argues that the stop (and subsequent questioning)

were not sufficiently limited in duration or in scope, rendering it unreasonable under United

States v. Saucedo, 226 F.3d 782, 789 (6th Cir. 2000). Third, Herrera argues that he did not

consent voluntarily to a search of his vehicle. Schneckloth v. Bustamonte, 412 U.S. 218, 226

(1973).

          The district court’s factual findings, including credibility determinations, will be

reviewed for clear error. United States v. Jackson, 682 F.3d 448, 452 (6th Cir. 2012). A factual

finding is clearly erroneous only if “the reviewing court on the entire evidence is left with the

definite and firm conviction that a mistake has been committed.” United States v. Adams, 583

F.3d 457, 463 (6th Cir. 2009) (quoting United States v. Navarro-Camacho, 186 F.3d 701, 705

(6th Cir. 1999)). And we review that evidence “in the light most likely to support the district

court’s decision.” United States v. Higgins, 557 F.3d 381, 389 (6th Cir. 2009) (quoting United

States v. Davis, 514 F.3d 596, 607 (6th Cir. 2008)). The district court’s conclusions of law are

reviewed de novo. Jackson, 682 F.3d at 452.

                                                      III
          a. The District Court Did Not Clearly Err in Accepting Crouch’s Version of the
             Facts, Which Established Probable Cause to Initiate the Terry Stop

          Terry traffic stops constitute a “seizure” within the meaning of the Fourth Amendment.

Whren v. United States, 517 U.S. 806, 809–10 (1996). There are “two separate tests to determine

the constitutional validity of vehicle stops: an officer must have probable cause to make a stop


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United States v. Herrera
for a civil infraction, and reasonable suspicion of an ongoing crime to make a stop for a criminal

violation.” United States v. Blair, 524 F.3d 740, 748 (6th Cir. 2008).          Probable cause is

“reasonable grounds for belief, supported by less than prima facie proof but more than mere

suspicion.” United States v. Ferguson, 8 F.3d 385, 392 (6th Cir. 1993). Determining whether an

officer had probable cause requires a fact-dependent analysis of what the officer knew at the time

of the stop. United States v. Valdez, 147 F. App’x 591, 594 (6th Cir. 2005).

       Here, Herrera was ostensibly stopped for violating Tenn. Code Ann. § 55-8-115(a)(1),

which would be a civil infraction. Thus, Crouch needed probable cause to initiate the stop. We

have been presented with two factual versions of the stop, one of which clearly provided Crouch

with probable cause and one of which did not. Whenever “there are two permissible views of the

evidence, the factfinder’s choice between them cannot be clearly erroneous.” Anderson v. City of

Bessemer City, 470 U.S. 564, 574 (1985).

       Here, while either version of events was possible, the district court did not err in

concluding that Crouch’s version of events was more likely. In reaching this conclusion, the

district court properly reviewed Crouch’s body-camera footage, which suggested that traffic was

moving normally in the right lane as soon as the stop was initiated, casting doubt on Herrera’s

version of events. The court also noted that Herrera’s assertion that traffic had slowed in the

right lane to 35–40 miles per hour was “not believable” on its face. And when Crouch told

Herrera that he had been pulled over for impeding traffic in the left lane Herrera replied, “[y]eah,

I understand that, I’m not going to argue with you.” And the district court was well within its

discretion to deem Crouch’s testimony more credible than Herrera’s testimony.             After all,

Crouch’s testimony was consistent with the video footage and Herrera’s willingness to lie about




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United States v. Herrera
his identity during the stop made it somewhat more likely that Herrera would have lied during

his suppression-hearing testimony.

       Herrera points to Crouch’s admission that the vehicles behind Herrera may have been

unlawfully following too closely. However, that the vehicles traveling behind Herrera may have

been committing another civil infraction does not diminish the probable cause that Crouch had to

stop Herrera’s vehicle for his infraction.

       The district court did not clearly err in accepting Crouch’s version of the facts, which

established probable cause to initiate a traffic stop.

       b. The District Court Did Not Clearly Err in Concluding that the Stop Was
          Reasonable in Duration and Scope

       Herrera also argues that the duration of the traffic stop and Crouch’s questioning of

Herrera rendered the stop unreasonable under the Fourth Amendment. Herrera is correct that an

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).

       Here, Herrera argues that Crouch “stall[ed] while writing the warning citation,” giving

Crouch more time to ask questions about Herrera’s travel plans and the contents of his vehicle.

It is true that Crouch took his time filling out the warning citation, but Crouch’s questions could

not have “measurably extend[ed] the duration of the stop” because Crouch was still waiting to

hear back from BLOC about Herrera’s (faulty) identification information. This situation is


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United States v. Herrera
similar to that in United States v. Garrido-Santana, 360 F.3d 565, 574–75 (6th Cir. 2004), in

which a police officer asked the defendant whether the vehicle contained any contraband while

the officer was completing the necessary paperwork and waiting for the background check to

clear. Just as in Garrido-Santana, Herrera granted consent to search the vehicle prior to the

officer receiving the results of the background check. As a result, Crouch’s conduct did not

measurably extend the duration of the stop.

       c. The District Court Did Not Clearly Err in Concluding that Herrera Gave
          Voluntary Consent to Search His Vehicle

       Next, Herrera argues that the firearm evidence seized from a search of the vehicle must

be suppressed because Herrera did not give voluntary consent.         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).

       Here, the district court did not clearly err in concluding that Herrera voluntarily

consented to the search. As the video footage confirms, Crouch did not apply any sort of

inappropriate pressure when speaking with Herrera. And Herrera’s language and tone of voice

conveyed voluntary consent to the search, rather than mere acquiescence.


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United States v. Herrera
       Herrera attempts to analogize this case to United States v. Worley, 193 F.3d 380 (6th Cir.

1999). But Worley is distinguishable for several reasons. First, the posture of the case was

materially different. There, we were reviewing the district court’s grant of the motion to

suppress, after the district court made the factual finding that the consent was not voluntary.

Thus, we merely held that the district court did not clearly err by concluding that the consent was

not voluntary. Id. at 386. Here, the tables are turned. Moreover, there, the defendant’s

statement to police was “You’ve got the badge, I guess you can [search],” which suggested that

the defendant may have merely been acquiescing to the police officer or believed that resistance

was futile. Ibid. But here, Herrera replied, “Sure, umm, whatever,” in a manner suggesting that

he was granting broad consent to search “whatever.”

       Herrera next argues that because Crouch asked Herrera a series of “gotcha!”-style

questions like, “[a]re there any guns in the vehicle?” (to which Herrera lied and said no) Herrera

felt trapped into granting consent to search. After all, if there is nothing illegal in the car, why

not consent to the search? Handling this quagmire is undoubtedly uncomfortable, but it is not an

interest that the Fourth Amendment protects. See Ohio v. Robinette, 519 U.S. 33, 39–40 (1996);

Garrido-Santana, 360 F.3d at 576.

       Finally, Herrera argues that that the questions about whether he had any contraband in the

vehicle, which immediately preceded the request for consent to search, should have been

accompanied by a Miranda warning. See Miranda v. Arizona, 384 U.S. 436 (1966). Not only

was this Miranda argument not raised below, but it is also meritless. 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




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United States v. Herrera
relatively nonthreatening detention involved in a traffic stop or Terry stop . . . does not constitute

Miranda custody.”).

       The district court did not clearly err in concluding that Herrera gave voluntary consent to

search his vehicle.

                                                 IV

       For the foregoing reasons, we AFFIRM the district court’s denial of Herrera’s motion to

suppress.




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