                        NOT RECOMMENDED FOR PUBLICATION
                               File Name: 20a0389n.06

                                      Nos. 19-5945/6024

                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT
                                                                                   FILED
 UNITED STATES OF AMERICA,           )                                        Jul 07, 2020
                                     )                                   DEBORAH S. HUNT, Clerk
      Plaintiff-Appellee,            )
                                     )
 v.                                  )                         ON APPEAL FROM THE
                                     )                         UNITED STATES DISTRICT
 LEESHAWN HOWARD (19-5945), JONATHAN )                         COURT FOR THE EASTERN
 JOSUE MACIAS (19-6024),             )                         DISTRICT OF TENNESSEE
                                     )
      Defendants-Appellants.         )
                                     )


       Before: BATCHELDER, BUSH, and LARSEN, Circuit Judges.

       LARSEN, Circuit Judge. A jury convicted Leeshawn Howard and Jonathan Macias of

conspiring to distribute and to possess with intent to distribute fifty grams or more of

methamphetamine after police officers discovered two packages of methamphetamines in their car

at a traffic stop. They were also convicted of related firearm offenses. Howard and Macias appeal

their convictions, arguing that the evidence against them was obtained in violation of the Fourth

Amendment and Miranda v. Arizona, 384 U.S. 436 (1966). Macias also argues for the first time

on appeal that he should have a new trial because the verdict was contrary to the manifest weight

of the evidence. Because Howard and Macias’s suppression arguments are meritless and because

the district court had no authority to grant Macias a new trial, we AFFIRM.

                                               I.

       On the morning of January 15, 2018, Trooper William Connors of the Tennessee Highway

Patrol was on duty and parked in the median of I-40 in Jefferson County, Tennessee, facing
Nos. 19-5945/6024, United States v. Howard, et al.


eastbound traffic. At 10:08 AM, a green Saturn Vue SUV caught his attention. As the Vue

approached, it moved from the center of the three-lane highway to the far-right lane, behind a

slower-moving tractor trailer. The Vue was traveling at about sixty-five miles per hour, the speed

limit for passenger vehicles, while the tractor trailer was moving at about fifty-five miles per hour,

the speed limit for commercial vehicles. As the Vue passed, Connors noticed that the driver,

Howard, was looking at him “out of the corner of his eye.” Connors found this behavior

suspicious, so he pulled out of the median and began to follow the Vue.

       The Vue was initially following the tractor trailer at a distance of about three seconds. As

it continued to travel down the right lane, however, the Vue drew progressively closer to the tractor

trailer until it was only about one second behind. At one point the tractor trailer began to slow

down incrementally, and the Vue had to brake because it was following so closely. Connors also

thought he saw the Vue twice cross over the white line dividing the right lane from the shoulder.

These facts led Connors to conclude that the Vue was following too closely in violation of Tenn.

Code Ann. § 55-8-124(a) and failing to drive as nearly as practicable within a single lane in

violation of Tenn. Code. Ann. § 55-8-123(1). At 10:09 AM, Connors merged into the right lane

and activated his blue lights. The Vue immediately pulled over. As the Vue was pulling over,

Connors radioed for a records check on the Vue’s North Carolina license plate.

       Connors initially approached the Vue from the passenger side. While approaching he

noticed that there were two men in the car—the driver, Howard, and a passenger, Macias. He also

noticed that there was no luggage in the SUV. Connors saw that Macias was lying completely

reclined but was awake and talking to Howard. Because it was hard to get a good look at Macias,

Connors decided it was safer to change course and approach on the driver’s side. After opening

Howard’s door, Connors asked for his driver’s license, registration, and proof of insurance.



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Nos. 19-5945/6024, United States v. Howard, et al.


Howard was nervous, more nervous in Connors’ estimation than a typical driver at a traffic stop.

He was breathing heavily, and his hands were shaking as he passed his license to Connors. Macias

remained reclined and stared straight ahead without looking at Connors. When Howard opened

the glove compartment to get his registration, a handgun came into view, which Howard

immediately claimed as his. Connors also observed that both Howard and Macias had tattoos on

their left cheeks, which in his experience “could indicate potential gang activity.” Howard

produced his license and registration but could not find his proof of insurance.

       Connors asked Howard to step out of the car and stand by the passenger side of his cruiser.

As Howard left the Vue, Connors came around to the passenger side and asked Macias to put his

hands on the center console. Macias complied, and Connors put the gun out of reach on the roof

of the Vue. Connors then joined Howard at the side of his cruiser. He offered to let Howard sit in

the back of the patrol car to get out of the cold, but Howard declined. In response to questions

about his itinerary, Howard told Connors that he and Macias had come to Tennessee for a vacation

in the mountains and were now returning to Raleigh, North Carolina. Howard could not recall the

name of the city or hotel where they had stayed but related that they had come to Tennessee the

previous day on an eight-hour drive from Raleigh.

       Connors asked Howard if he had ever been arrested and whether he was on probation or

parole, to which Howard responded no. He then asked who Howard’s passenger was. Howard at

first said that Macias was his cousin, but then clarified that by “cousin” he meant friend, not blood

relative. Following that, Connors asked Howard what he did for a living. When Howard replied

that he did not work, Connors asked him how he could afford to go on vacation. Connors then

asked more questions about Howard’s travel plans. Howard explained that he and Macias had




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Nos. 19-5945/6024, United States v. Howard, et al.


gone to Tennessee to meet some girls from Raleigh for vacation. The girls never showed up,

however, so he and Macias just went to Waffle House.

        As Connors finished talking to Howard, he radioed for backup. He then walked back to

the Vue and asked Macias whether he could find the proof of insurance. While Macias was

searching, Connors asked Macias about his arrest record and about his and Howard’s itinerary.

Like Howard, Macias could not recall the town or hotel where the two of them had stayed. At

first, he said they had gone to Tennessee to visit family. Then he said they had gone to see some

girls from Tennessee. Macias claimed that he and Howard did meet up with the girls and that they

had “partied all night.” When Macias was unable to find proof of insurance, Connors returned to

Howard. At that point it was 10:19 AM, a little under ten minutes after Connors had initiated the

traffic stop.

        Connors then began to ask Howard whether he had any drugs or anything else illegal in the

car, as well as follow-up questions about his and Macias’s travel plans. Connors also asked

Howard if he could search the car, and Howard gave permission. Connors waited until backup

arrived to search the Vue. While waiting for backup, he performed a records check on Howard’s

and Macias’s licenses while continuing to question Howard. The records check revealed that

Macias had a felony-drug conviction and that Howard had several misdemeanor convictions.

Another officer, Trooper Woods, arrived on the scene at 10:29 AM, twenty minutes after Connors

first pulled the Vue over. A third officer, Trooper Rabun, arrived shortly thereafter. Connors

directed Howard and Macias to sit in Woods’ patrol car. Rabun then brought his drug-detection

dog to the Vue. The dog alerted on the passenger side of the car at 10:34 AM.

        After the dog sniff, the officers searched the Vue.         They found a package of

methamphetamines under the driver’s seat and another under the front passenger seat. Connors



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Nos. 19-5945/6024, United States v. Howard, et al.


then went back to Howard and Macias and read them their Miranda rights. Macias claimed

ownership of the drugs as well as of a second handgun, which the officers had discovered in the

center console of the Vue. The officers then arrested Howard and Macias.

       A grand jury charged Howard and Macias with conspiracy to distribute and possess with

intent to distribute fifty grams or more of methamphetamine in violation of 21 U.S.C. §§ 841 and

846 and with possessing a firearm in furtherance of a drug trafficking crime in violation of 18

U.S.C. § 924(c). The grand jury also charged Macias with being a felon in possession of a firearm

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

       Howard and Macias filed a joint motion to suppress all evidence obtained at the stop. They

raised three arguments. First, they claimed the stop violated the Fourth Amendment from the

outset because Connors lacked probable cause to believe Howard had committed a traffic offense.

Second, they argued that even if the stop was a valid traffic stop, Connors unlawfully extended the

stop by investigating matters unrelated to Howard’s alleged traffic violation without reasonable

suspicion of criminal activity. Third, they claimed that Connors interrogated them when they were

in police custody without first apprising them of their Miranda rights.

       The district court assigned the motion to a magistrate judge, who held a suppression

hearing. The evidence at the hearing principally consisted of Connors’ testimony and the dashcam

footage from his cruiser.      After the hearing, the magistrate judge issued a report and

recommendation recommending that the motion be denied in full. United States v. Howard, No.

3:18-CR-29-TAV-HBG, 2018 WL 6595364, at *18 (E.D. Tenn. Oct. 5, 2018). On the first issue,

the magistrate judge concluded that Connors had probable cause to believe that Howard both was

following the tractor trailer too closely and had failed to stay within one lane by crossing over the

shoulder line. Id. at *11–12. On the second issue, he concluded that Connors had reasonable



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Nos. 19-5945/6024, United States v. Howard, et al.


suspicion that criminal activity was afoot by the time he finished questioning Macias while Macias

was searching for proof of insurance. Thus, his continued detention of Howard and Macias while

he waited for backup and searched for drugs was reasonable. Id. at *14–15. On the third issue,

the magistrate judge found no Miranda violation because Howard and Macias were not in custody

prior to the discovery of drugs in the Vue, at which point they were promptly advised of their

rights. Id. at *17.

        Howard and Macias filed joint objections to the report and recommendation, in which they

largely restated the arguments they presented in their initial motion. The district court overruled

their objections, adopted the report and recommendation in full, and denied the motion to suppress.

United States v. Howard, No. 3:18-CR-29-TAV-HBG, 2018 WL 6061439, at *9 (E.D. Tenn. Nov.

20, 2018).

        Howard and Macias proceeded to a joint trial, where they moved for a judgment of acquittal

after the government’s case. The district court denied the motion, and the jury convicted them on

all counts. Macias then renewed his motion for a judgment of acquittal and moved for a new trial,

raising again the arguments he and Howard had made in their suppression motion. He also asserted

that both his motions should be granted because the government had failed to prove “the required

element of a conspiratorial agreement,” but he made no argument to support this assertion. The

district court denied both motions. United States v. Macias, No. 3:18-CR-29-TAV-HBG-2, 2019

WL 3255164, at *3 (E.D. Tenn. July 19, 2019).

        Howard and Macias each filed a timely notice of appeal.

                                                  II.

        Howard and Macias renew their suppression arguments on appeal. They claim that

(1) Connors lacked probable cause to initiate the traffic stop, (2) even if the traffic stop was valid,



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Nos. 19-5945/6024, United States v. Howard, et al.


Connors exceeded its proper scope, and (3) Connors unlawfully questioned them without apprising

them of their Miranda rights.

        In an appeal from the denial of a motion to suppress, we review the district court’s findings

of fact for clear error and its conclusions of law de novo. United States v. Ramamoorthy, 949 F.3d

955, 964 (6th Cir. 2020). “A finding is ‘clearly erroneous’ when although there is evidence to

support it, the reviewing court on the entire evidence is left with the definite and firm conviction

that a mistake has been committed.” United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948).

                                                 A.

        Howard and Macias first argue that Connors’ initial decision to stop their vehicle violated

their Fourth Amendment rights. They claim that the dashcam video shows that the Vue was

following at a reasonable distance and did not cross the line dividing the shoulder from the

highway; therefore, they say Connors lacked probable cause to believe Howard was committing a

traffic violation.

        The Fourth Amendment protects “[t]he right of the people to be secure in their

persons . . . against unreasonable searches and seizures.” U.S. Const. amend. IV. “Temporary

detention of individuals during the stop of an automobile by the police, even if only for a brief

period and for a limited purpose, constitutes a ‘seizure’ of ‘persons’ within the meaning of this

provision.” Whren v. United States, 517 U.S. 806, 809–10 (1996). “[T]he decision to stop an

automobile is reasonable where the police have probable cause to believe that a traffic violation

has occurred.” Id. at 810. This is the case regardless of “the actual motivations of the individual

officers involved.” Id. at 813. The district court ruled that Connors had probable cause to believe

that Howard was both following too closely in violation of Tenn. Code Ann. § 55-8-124(a) and

failing to drive as nearly as practicable within a single lane in violation of Tenn. Code Ann.



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Nos. 19-5945/6024, United States v. Howard, et al.


§ 55‑8‑123(1). Connors’ decision to stop the Vue was lawful provided he had probable cause for

at least one of these offenses.1

       Tenn. Code Ann. § 55-8-124(a) provides that “[t]he driver of a motor vehicle shall not

follow another vehicle more closely than is reasonable and prudent, having due regard for the

speed of the vehicles and the traffic upon and the condition of the highway.” Violation of this

provision is a misdemeanor under state law. Id. § 55-8-124(e). Tennessee courts have not

“delineat[ed] a standard for what constitutes a ‘reasonable and prudent’ following distance.”2

Collazo, 818 F.3d at 255. Faced with “this interpretive vacuum, this court has consistently turned

to the Tennessee Comprehensive Driver’s License Manual (the Manual) for guidance.” Id.

       Prior to 2010, the Manual “provided that vehicles should ‘maintain at least one car length

for every ten miles per hour’ of velocity.” Id. (quoting United States v. Huff, 630 F. App’x 471,

497 (6th Cir. 2015)). Since 2010, the Manual has defined a safe following distance in terms of

seconds rather than car lengths. Id. The Manual now provides that drivers should generally

maintain a following distance of at least two seconds. Tenn. Dep’t of Safety & Homeland Sec’y,

Tennessee Comprehensive Driver License Manual 48–49 (July 1, 2018 ed.). During “interstate


1
  Even if Connors lacked probable cause, reasonable suspicion of a traffic violation might have
sufficed. In earlier decisions, we had “asserted, albeit in dicta, that reasonable suspicion of a
completed misdemeanor is not sufficient to justify an investigatory stop.” United States v. Collazo,
818 F.3d 247, 254 (6th Cir. 2016) (quoting United States v. Simpson, 520 F.3d 531, 541 (6th Cir.
2008)). Recently, however, we rejected this per se rule, holding instead that reasonable suspicion
of a completed misdemeanor may in some circumstances justify an investigatory stop. See United
States v. Jones, 953 F.3d 433, 437 (6th Cir. 2020). The government does not argue that reasonable
suspicion would have permitted Connors to initiate a traffic stop, however, so we will not consider
the question.
2
  In the years since Collazo, we are aware of only three Tennessee appellate decisions that cite
Tenn. Code Ann. § 55-8-124. See Trammell v. Peoples, No. M201602198COAR3CV, 2017 WL
4541771, at *1 (Tenn. Ct. App. Oct. 11, 2017); State v. Weston, No. E201501530CCAR3CD, 2016
WL 4132543, at *4 (Tenn. Crim. App. Aug. 2, 2016); State v. Shell, 512 S.W.3d 267, 272 (Tenn.
Crim. App. 2016). None addresses what constitutes a “reasonable and prudent” following
distance.
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Nos. 19-5945/6024, United States v. Howard, et al.


highway driving at higher speeds,” however, drivers should maintain a following distance of “[a]

minimum of four seconds.” Id. at 49; accord Collazo, 818 F.3d at 255. We have made use of both

rules in our post-2010 decisions. See Collazo, 818 F.3d at 256–57; Huff, 630 F. App’x at 498.

        These rules, of course, are just aids in determining whether a driver’s following distance is

reasonable; they are not independent legal requirements. See Collazo, 818 F.3d at 255; Huff, 630

F. App’x at 477 (opinion of Boggs, J.). Absent more concrete guidance from Tennessee’s courts,

however, they serve “as valuable guideposts when determining whether an officer possessed

probable cause to stop a vehicle for violating § 55-8-124(a).” Collazo, 818 F.3d at 256.

        In this case, the magistrate judge found that the Vue was following the tractor trailer at a

distance of three seconds when it first passed Connors’ parked cruiser, then drew progressively

closer until it was only one second behind the tractor trailer. Having independently reviewed

Connors’ dashcam footage, we conclude that the video supports these findings of fact. The video

also reveals that at one point the Vue had to brake on account of the short distance between it and

the tractor trailer, even though the tractor trailer did not apply its brakes or suddenly lose speed.

Howard and Macias even admit that Howard had to brake because the tractor trailer “was

positioned immediately in front of his car.” Appellant Br., No. 19-5945, at 21. Additionally,

Connors testified that Howard was driving at about fifty-five miles an hour just before Connors

turned on his blue lights, but it is clear from the video that the Vue was well less than five to six

car lengths from the tractor-trailer at that time.

        On these facts, Connors had probable cause to believe Howard’s following distance was

not reasonable and prudent. The Vue’s following distance was much shorter than the minimum

distance recommended by the Manual under either the car-length rule or the four-second rule, and

we see no countervailing facts to suggest that Howard’s following distance was nonetheless



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Nos. 19-5945/6024, United States v. Howard, et al.


reasonable. Howard and Macias object that it was prudent of Howard to apply his brakes. That is

undoubtedly true, but also irrelevant. Connors had reason to believe Howard’s conduct had run

afoul of § 55-8-124(a) not because Howard braked but because he was so close to the tractor-trailer

that it was necessary for him to brake to avoid an accident. See Helms v. Weaver, 770 S.W.2d 552,

553 (Tenn. Ct. App. 1989) (stating that “the reasonableness of the distance maintained by the

operator of the following vehicle has been measured in terms of the operator’s ability to make an

emergency stop without striking the forward vehicle”); United States v. Sanford, 476 F.3d 391,

396 (6th Cir. 2007) (same).

       Because Connors had probable cause to believe Howard was violating Tenn. Code Ann.

§ 55-8-124(a), Howard and Macias were not unreasonably seized when Connors initiated the

traffic stop. Whren, 517 U.S. at 810. We therefore need not consider whether there was also

probable cause to believe Howard had violated Tenn. Code. Ann. § 55-8-123(1).

                                                 B.

       Howard and Macias next claim that, even if initially lawful, Connors’ seizure of them

exceeded the scope of a reasonable traffic stop. They raise two principal arguments. First, they

maintain that Connors peppered them with irrelevant and intrusive questions. Second, they

contend that Connors never developed a reasonable suspicion of criminal activity that would have

permitted him to continue detaining them while he waited for the arrival of Woods and Rabun.

                                                  1.

       “[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,

543 U.S. 405, 407 (2005). Because “[a] routine traffic stop . . . is a relatively brief encounter,” it

“‘is more analogous to a so-called Terry stop . . . than to a formal arrest.’” Knowles v. Iowa, 525



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Nos. 19-5945/6024, United States v. Howard, et al.


U.S. 113, 117 (1998) (second alteration in original) (quoting Berkemer v. McCarty, 468 U.S. 420,

439 (1984) (citing in turn Terry v. Ohio, 392 U.S. 1 (1968))). Traffic stops therefore “must be

limited in [both] scope and duration.” United States v. Lott, 954 F.3d 919, 923 (6th Cir. 2020)

(alteration in original) (quoting United States v. Everett, 601 F.3d 484, 488 (6th Cir. 2010)).

        The scope of an ordinary traffic stop is limited to “address[ing] the traffic violation that

warranted the stop and attend[ing] to related safety concerns.” Rodriguez v. United States, 575

U.S. 348, 354 (2015) (citation omitted). “[D]etermining whether to issue a traffic ticket” and other

“ordinary inquiries incident to [the traffic] stop” fall within the scope of the stop. Id. at 355 (second

alteration in original) (citation omitted). Seeking “evidence of ordinary criminal wrongdoing”

does not. Id. (quoting Indianapolis v. Edmond, 531 U.S. 32, 40–41 (2000)). If “[unrelated]

inquiries . . . measurably extend the duration of the stop,” the seizure becomes unlawful. Id.

(brackets in original) (quoting Caballes, 543 U.S. at 333). The critical question is whether the

officer’s conduct “prolongs—i.e., adds time to—the stop.” Id. at 357 (quotation marks omitted).

        We need not dwell on whether Connors’ initial questions were related to the traffic stop

because, regardless, Howard and Macias have not shown that any suspicionless questioning

prolonged the stop. “An officer’s inquiries into matters unrelated to the justification for the traffic

stop, [the Supreme] Court has made plain, 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) (citing Muehler v. Mena, 544 U.S. 93, 100–01

(2005)). “[A]n officer may ask unrelated questions to his heart’s content, provided he does so

during the supposedly dead time while he or another officer is completing a task related to the

traffic violation.” Everett, 601 F.3d at 492.




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Nos. 19-5945/6024, United States v. Howard, et al.


        In his report and recommendation, the magistrate judge found that, when Connors pulled

the Vue over, he “radioed for a check on [its] North Carolina license plate.” 2018 WL 6595364,

at *8. Then, after asking Howard to step out of the car, “Connors joined Howard at the front

passenger side of his patrol car and, while recording information on Howard’s driver’s license and

insurance, Trooper Connors questioned him about his itinerary and his passenger.” Id. at *9.

Connors returned to the Vue and questioned Macias while Macias was searching through the

glovebox for proof of insurance. Id. The district court adopted the magistrate judge’s findings of

fact in full.

        The magistrate judge’s findings of fact explain that Connors’ questioning of Howard and

Macias occurred while he was obtaining license and insurance information and waiting on a record

check of Howard’s license plate. Howard and Macias did not object to these findings of fact below,

nor do they challenge them on appeal. These findings reveal that Connors’ questioning occurred

while he was completing tasks related to the traffic stop. Connors was free to question Howard

and Macias “to his heart’s content” during this time, Everett, 601 F.3d at 492, because the

questioning did not prolong the stop, Muehler, 544 U.S. at 101. See also United States v. Garrido-

Santana, 360 F.3d 565, 575 (6th Cir. 2004) (concluding that the officer’s questioning did not

prolong the stop because “[a]t that time, [the officer] had not yet completed the initial purpose of

the traffic stop because he was filling out the courtesy citation and, as discussed above, was still

waiting for the return of the computer check on the vehicle’s license”). As a result, Connors’

initial questioning did not violate the Fourth Amendment.

                                                 2.

        Connors’ subsequent questioning was also constitutional, because Connors had developed

reasonable suspicion of criminal activity by the time Macias had finished looking for proof of



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insurance. “A seizure can be extended” for reasons outside the initial scope of the traffic stop “if

‘something happened during the stop to cause the officer to have a reasonable and articulable

suspicion that criminal activity is afoot.’” Lott, 954 F.3d at 923 (quoting United States v. Stepp,

680 F.3d 651, 661 (6th Cir. 2012)). “Although a mere hunch does not create reasonable suspicion,

the level of suspicion the standard requires is considerably less than proof of wrongdoing by a

preponderance of the evidence, and obviously less than is necessary for probable cause.” Kansas

v. Glover, 140 S. Ct. 1183, 1187 (2020) (quoting Navarette v. California, 572 U.S. 393, 397

(2014)). An officer “need not rule out the possibility of innocent conduct” in order to form a

reasonable suspicion. United States v. Arvizu, 534 U.S. 266, 277 (2002). Although each individual

fact forming the basis of an officer’s suspicion may be “perhaps innocent in itself,” reasonable

suspicion nevertheless exists when all the circumstances “taken together warranted further

investigation.” Terry, 392 U.S. at 22. Officers, moreover, may “draw on their own experience

and specialized training to make inferences from and deductions about the cumulative information

available to them that ‘might well elude an untrained person.’” Arvizu, 534 U.S. at 273 (quoting

United States v. Cortez, 449 U.S. 411, 418 (1981)).

       The district court concluded that the following factors supported a finding of reasonable

suspicion: (1) Howard’s initial driving behavior appeared evasive in Connors’ experience;

(2) Howard was breathing heavily, his hands were shaking, and he seemed more nervous than the

typical driver at a traffic stop; (3) Macias remained reclined in his seat and stared straight ahead

instead of looking at Connors; (4) Howard and Macias had tattoos on their left cheeks, which in

Connors’ experience was consistent with gang membership; (5) there was a handgun inside the

glove compartment; (6) Howard and Macias had no luggage beyond an extra pair of shoes; and




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Nos. 19-5945/6024, United States v. Howard, et al.


(7) Howard and Macias gave dubious and inconsistent accounts of their travel plans. We will

address each factor in turn and then consider their combined weight.

        The first three factors, while relevant, do not by themselves lend much weight to the

determination of reasonable suspicion.        We note in particular that nervousness can be an

“unreliable indicator, especially in the context of a traffic stop,” United States v. Calvetti, 836 F.3d

654, 666 (6th Cir. 2016) (quoting Stepp, 680 F.3d at 665); see United States v. Winters, 782 F.3d

289, 299 (6th Cir. 2015) (collecting cases), though, here, Connors considered Howard to be

unusually nervous for the circumstances.

        Howard and Macias’s facial tattoos, while not criminal in themselves, carry somewhat

more weight. Unusual tattoos that in an officer’s experience are consistent with gang membership

can support a finding of reasonable suspicion, especially where not just one but two suspects

happen to have tattoos in the same unusual place. See United States v. Aragones, 483 F. App’x

415, 416 (10th Cir. 2012) (per curiam); United States v. Vasquez-Ortiz, 344 F. App’x 551, 554

(11th Cir. 2009); United States v. Jeter, 175 F. App’x 261, 265 (10th Cir. 2006). That said,

Connors did not notice anything suspicious about the designs of the tattoos that could link Howard

and Macias to any particular gang. He observed only that facial tattoos are rare and “could indicate

potential gang activity.” Accordingly, although Howard and Macias’s unusual tattoos could be

one of several factors supporting an inference that criminal activity is afoot, in this case they cannot

be the principal driver of such an inference.

        Connors’ discovery of a handgun in the glove compartment can likewise contribute to a

finding of reasonable suspicion. See United States v. Cantu, 50 F.3d 11, 1995 WL 122792, at *3

(6th Cir. 1995) (table decision). Many citizens, of course, keep handguns in their cars for entirely

lawful and innocent reasons, and Howard did promptly claim the gun upon its discovery. At the



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Nos. 19-5945/6024, United States v. Howard, et al.


same time, it was still reasonable for Connors to conclude from his training and experience that

“firearms” often “play a role in drug trafficking activity,” see United States v. Swafford, 385 F.3d

1026, 1030 (6th Cir. 2004) (collecting cases admitting police testimony to this effect), and to keep

that fact in mind when considering whether Howard and Macias might be involved in criminal

activity.

        Howard and Macias’s conflicting and implausible accounts of their travel plans are the

most critical factor here. “[D]ubious travel plans” are often a “strong indicator[] of criminal

activity.” Calvetti, 836 F.3d at 667. This factor is more likely to give rise to reasonable suspicion

when “inconsistent explanations are offered,” id. at 667; see United States v. Hill, 195 F.3d 258,

272 (6th Cir. 1999); United States v. Palomino, 100 F.3d 446, 450 (6th Cir. 1996); when other

circumstances contradict the driver’s or passengers’ explanations, see Calvetti, 846 F.3d at 667

(occupants “had almost no luggage, despite claiming that they were relocating from one state to

another”); Hill, 195 F.3d at 272 (occupants’ claim that they were “moving their sister who was in

the military” was suspicious because it had been the officer’s “experience that people in the

military did not have to move their belongings themselves when relocated”); and when the driver

or passengers are ignorant without justification of the details of their own itinerary or plans, see

Stepp, 680 F.3d at 666–67 (occupants did not know the name or address of the gym to which they

were headed when they were less than one hour away); United States v. Rodriguez, 485 F. App’x

16, 20 (6th Cir. 2012) (driver claimed to be going to his cousin’s bachelor party but did not know

the date of the wedding).

        In this case, Howard and Macias’s accounts of their travel plans were extremely dubious

and strongly pointed to the conclusion that they were concealing their true purpose. It is often

quite suspicious for a driver to claim he does not know the location of his intended destination, see



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Nos. 19-5945/6024, United States v. Howard, et al.


Stepp, 680 F.3d at 667, even though it is possible to imagine an innocent explanation for this,

especially if the driver is headed somewhere for the first time. But Howard did not even know the

name of the town or hotel where he and Macias had spent their vacation and stayed the previous

night. In other words, he claimed not to know where he had woken up that morning and where he

had begun driving from just a few hours earlier. That Macias was similarly ignorant when

separately asked beggars all belief.

       Moreover, Howard and Macias’s accounts were contradictory, and Macias’s statements

were internally contradictory. Howard stated that he and Macias had planned to meet up with

some girls from North Carolina but that he and Macias had just gone to Waffle House because the

girls never showed up. Macias, on the other hand, first claimed that they were traveling to see

family. Then, without explanation, he changed his story, saying instead that they had “partied all

night” with some girls from Tennessee. Macias’s change of story meant that one or the other or

both of his accounts were lies, and neither story was reconcilable with Howard’s.

       That Howard and Macias were hiding the true nature of their trip is the only rational

explanation. The other factors present—Howard and Macias’s facial tattoos, Howard’s handgun,

and their extreme nervousness—reinforced the natural inference that the purpose they were

concealing was illicit rather than benign. Accordingly, Connors had reasonable suspicion to

believe Howard and Macias were involved in criminal activity and therefore authority to continue

detaining them until he could carry out a dog sniff of their car.

                                                 C.

       Finally, Howard and Macias argue that the statements they made before they were apprised

of their Miranda rights should be suppressed because they were in police custody for the entirety




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Nos. 19-5945/6024, United States v. Howard, et al.


of the traffic stop. They contend they were in police custody because they were not free to leave

at any point during the stop.

          When a suspect is in police custody, officers may not interrogate him without first

informing him of certain rights, including the right to remain silent. Miranda, 384 U.S. at 444.

“Statements elicited in noncompliance with this rule may not be admitted for certain purposes in

a criminal trial.” Stansbury v. California, 511 U.S. 318, 322 (1994). Miranda “‘custody’ is a term

of art that specifies circumstances that are thought generally to present a serious danger of

coercion.” Howes v. Fields, 565 U.S. 499, 508–09 (2012). In determining whether a suspect is in

custody, we first ask whether a “reasonable person” faced with the same circumstances would

“have felt he or she was not at liberty to terminate the interrogation and leave.” Id. at 509 (quoting

Thompson v. Keohane, 516 U.S. 99, 112 (1995)). But “the freedom-of-movement test identifies

only a necessary and not a sufficient condition for Miranda custody.” Maryland v. Shatzer, 559

U.S. 98, 112 (2010). Even if a reasonable person in a suspect’s position would not have felt free

to leave, the suspect is not in custody unless “the relevant environment presents the same inherently

coercive pressures as the type of station house questioning at issue in Miranda.” Fields, 565 U.S.

at 509.

          “[T]he ‘temporary and relatively nonthreatening detention involved in a traffic stop or

Terry stop does not constitute Miranda custody.’” Id. at 510 (quoting Shatzer, 559 U.S. at 113);

accord McCarty, 468 U.S. at 439–40. Howard and Macias assert only that they were not free to

leave. They identify no facts indicating that the circumstances they faced were more coercive than

an ordinary traffic stop; nor do we see any. The traffic stop took place in “public view” on the

side of a busy highway. McCarty, 468 U.S. at 438. Connors “did not handcuff . . . or physically

restrain” Howard and Macias, United States v. Panak, 552 F.3d 462, 467 (6th Cir. 2009), and he



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Nos. 19-5945/6024, United States v. Howard, et al.


questioned them in a friendly, “conversational” tone, United States v. Luck, 852 F.3d 615, 621 (6th

Cir. 2017). Only twenty-six minutes passed before Connors read Howard and Macias their rights,

and Connors asked no questions during substantial portions of that period. See United States v.

Levenderis, 806 F.3d 390, 400 (6th Cir. 2015) (characterizing a thirty-minute interview as

“relatively brief”). Accordingly, Howard and Macias were not in custody before they were

apprised of their Miranda rights.

       Because Howard and Macias’s Fourth Amendment and Miranda claims are meritless, the

district court did not err in denying their motion to suppress.

                                                 III.

       In addition to adopting Howard’s suppression arguments, Macias claims that the district

court abused its discretion in denying his motion for a new trial because the verdict was contrary

to the manifest weight of the evidence. Specifically, he contends that the evidence does not show

that there was any agreement between him and Howard to possess the methamphetamines found

in the car, because Howard did not have any knowledge of them. Macias first asserted this claim

below in support of both his motion for acquittal and his motion for new trial, but he does not

challenge the denial of his motion for acquittal on appeal.

       Below, Macias’s motion for a new trial largely rehashed his suppression claims, but in the

final paragraph it also asserted, without argument or further discussion, that the government had

“failed to carry the burden of proving the required element of a conspiratorial agreement.” R. 67,

PageID 1582. The district court ruled that Macias had forfeited any weight-of-the-evidence claim

because he had raised it “in a perfunctory manner, unaccompanied by some effort at developed

argumentation.” 2019 WL 3255164, at *2 (quoting El-Moussa v. Holder, 569 F.3d 250, 257 (6th

Cir. 2009)).



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Nos. 19-5945/6024, United States v. Howard, et al.


       “Upon the defendant’s motion, the [district] court may vacate any judgment and grant a

new trial if the interest of justice so requires.” Fed. R. Crim. P. 33(a). One ground for granting

such a motion is that “the jury’s verdict was against the manifest weight of the evidence.” United

States v. Hughes, 505 F.3d 578, 592 (6th Cir. 2007). But the court may vacate a conviction and

order a new trial only “[u]pon the defendant’s motion.” Fed. R. Crim. P. 33(a); see id. advisory

committee’s note to 1966 amendment (“[A] judge has no power to order a new trial on his own

motion[;] . . . he can act only in response to a motion timely made by a defendant.”).3 Ordering a

new trial sua sponte would be reversible error. See United States v. Smith, 331 U.S. 469, 473–74

(1947); United States v. Navarro Viayra, 365 F.3d 790, 795 (9th Cir. 2004); United States v.

Wright, 363 F.3d 237, 248 (3d Cir. 2004); cf. United States v. Davis, 992 F.2d 635, 639 (6th Cir.

1993) (reversing district court’s sua sponte order of acquittal issued post-conviction because the

provisions of Rule 29(c) “do not differ from those of Rule 33 in any respect sufficient to justify

different treatment of these rules”).

       For the same reason, it would be error for a district court to grant a new trial for reasons

not properly presented in the defendant’s motion. See United States v. Nguyen, 507 F.3d 836,

838–40 (5th Cir. 2007); Wright, 363 F.3d at 248; United States v. Quintanilla, 193 F.3d 1139,

1148 (10th Cir. 1999); United States v. Newman, 456 F.2d 668, 669–72 (3d Cir. 1972). The phrase

“[u]pon the defendant’s motion” implies not just that the court’s grant of a new trial will come

after the motion in time but also that it will be related to the content of the motion. See Fed. R.




3
  Rule 33 by its terms applies after the jury has issued a verdict. Before a verdict is handed down,
“trial judges may” by their own motion “declare a mistrial ‘whenever, in their opinion, taking all
the circumstances into consideration, there is a manifest necessity’ for doing so.” Renico v. Lett,
559 U.S. 766, 773–74 (2010) (quoting United States v. Perez, 22 U.S. (9 Wheat.) 579, 580 (1824)).
Here the alleged injustice of which Macias complains stems from the jury verdict itself, so the
court’s power to declare a mistrial before the jury reaches a decision is not implicated.
                                               -19-
Nos. 19-5945/6024, United States v. Howard, et al.


Crim. P. 33 advisory committee’s note to 1966 amendment (Rule 33 “make[s] it clear that a

judge . . . can act only in response to a motion timely made by a defendant.” (emphasis added)).

       Because Macias’s motion below did not properly present his argument that the jury’s

verdict was against the manifest weight of the evidence, the district court could not have granted

his motion on that basis. See Nguyen, 507 F.3d at 839 (reversing district court’s grant of a new

trial on the basis of an argument that was raised only in a perfunctory way in the defendant’s

motion below). The district court therefore committed no error in denying Macias’s motion for a

new trial.

                                              ***

       For the foregoing reasons, we AFFIRM Howard and Macias’s convictions.




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