16-1370-cr
United States v. Herman

                               UNITED STATES COURT OF APPEALS
                                  FOR THE SECOND CIRCUIT

                                      SUMMARY ORDER
Rulings by summary order do not have precedential effect. Citation to a summary order filed
on or after January 1, 2007, is permitted and is governed by Federal Rule of Appellate
Procedure 32.1 and this Court’s Local Rule 32.1.1. When citing a summary order in a
document filed with this Court, a party must cite either the Federal Appendix or an
electronic database (with the notation “summary order”). A party citing a summary order
must serve a copy of it on any party not represented by counsel.

       At a stated term of the United States Court of Appeals for the Second Circuit, held at
the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York,
on the 27th day of April, two thousand seventeen.

PRESENT:           AMALYA L. KEARSE,
                   JOSÉ A. CABRANES,
                   RAYMOND J. LOHIER, JR.,
                                Circuit Judges.


UNITED STATES OF AMERICA,

                          Appellee,                                16-1370-cr

                          v.

GREGORY E. HERMAN,

                          Defendant-Appellant.*


FOR APPELLEE:                                                  CHRISTINA E. NOLAN (Gregory L.
                                                               Waples, on the brief), Assistant United
                                                               States Attorneys for Eric S. Miller, United
                                                               States Attorney, Burlington, VT.

FOR DEFENDANT-APPELLANT:                                       BARCLAY T. JOHNSON (David L.
                                                               McColgin, Assistant Federal Public



    *
        The Clerk is directed to amend the caption as above.

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                                                             Defender, on the brief), Research and
                                                             Writing Attorney for Michael L. Desautels,
                                                             Federal Public Defender, Burlington, VT.

        Appeal from a judgment of the United States District Court for the District of Vermont
(Christina Reiss, Chief Judge).

     UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the District Court be and hereby is
AFFIRMED.

        Defendant-appellant Gregory E. Herman appeals his conviction for possessing heroin with
intent to distribute under 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(c). Herman challenges only the
District Court’s denial of his motion to suppress the heroin, which was discovered when a Vermont
police officer, Trooper Richard Slusser, stopped and issued a written speeding warning to a driver,
one Francis Putney, and thereafter obtained consent from Putney to conduct a canine sniff search of
his truck, in which Herman was a passenger. We assume the parties’ familiarity with the underlying
facts and the procedural history of the case.

         Herman does not contest the validity of the traffic stop. And, for its part, the Government
does not contend that Putney was not “seized” during the approximately ninety-second interval
between delivery of the speeding warning and his consent to the search. Nor does the Government
dispute the District Court’s conclusion that “Trooper Slusser undertook unrelated investigative
measures that unquestionably lengthened the duration of the traffic stop beyond the time necessary
to issue a written warning for Mr. Putney’s excessive speed.” United States v. Herman, No. 2:15-CR-53,
2015 WL 8758971, at *6 (D. Vt. Dec. 14, 2015); see Rodriguez v. United States, 135 S. Ct. 1609, 1614
(2015) (“Because addressing the infraction is the purpose of the stop, it may last no longer than is
necessary to effectuate that purpose.” (internal quotation marks and alteration omitted)); id. at 1615
(explaining that while officers can “conduct certain unrelated checks during an otherwise lawful
traffic stop,” they “may not do so in a way that prolongs the stop, absent the reasonable suspicion
ordinarily demanded to justify detaining an individual”). Thus the central question on appeal is
whether, by the time Trooper Slusser finished issuing the speeding warning and proceeded to
prolong the stop, he had a reasonable suspicion of “legal wrongdoing” under the “totality of the
circumstances.” See United States v. Arvizu, 534 U.S. 266, 273 (2002).

        Viewing the totality of the circumstances, we agree with the District Court that Trooper
Slusser’s brief prolongation of the traffic stop was justified by reasonable suspicion, substantially for
the reasons stated by the District Court in its opinion of December 14, 2015.




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                                       CONCLUSION

       We have reviewed all of the arguments raised by Herman on appeal and find them to be
without merit. For the foregoing reasons, we AFFIRM the judgment of the District Court.


                                                   FOR THE COURT:
                                                   Catherine O’Hagan Wolfe, Clerk




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