                                                                                                                           Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


11-4-2003

USA v. White
Precedential or Non-Precedential: Non-Precedential

Docket No. 03-2012




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Recommended Citation
"USA v. White" (2003). 2003 Decisions. Paper 142.
http://digitalcommons.law.villanova.edu/thirdcircuit_2003/142


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                                                               NOT PRECEDENTIAL

                   IN THE UNITED STATES COURT OF APPEAL
                            FOR THE THIRD CIRCUIT
                           _________________________

                                    N0. 03-2012
                             _________________________

                           UNITED STATES OF AMERICA

                                            v.

                                RYAN ANDRE WHITE,
                                                            Appellant

                             __________________________

                    On Appeal From the United States District Court
                       For the Western District of Pennsylvania
                                (D.C. No. 02-cr-00168)
                    District Judge: Honorable Donetta W. Ambrose
                           ___________________________

                      Submitted Under Third Circuit LAR 34.1(a)
                                  October 24, 2003
                Before: ALITO, FUENTES and BECKER, Circuit Judges

                               (Filed November 4, 2003)
                           _____________________________

                              OPINION OF THE COURT
                           _____________________________

Becker, Circuit Judge.

       This is an appeal by defendant Ryan Andre White, who entered a conditional plea

of guilty to three counts of an indictment charging him with possession of a firearm by a

convicted felon, 18 U.S.C. § 922(g)(1); possession with intent to distribute 50 grams or

more of cocaine, 21 U.S.C. § 841(a)(1) and 841(b)(A)(iii); and using and carrying a
firearm during and in relation to a drug trafficking offense, 18 U.S.C. § 924(c)(1)(A).

The conditional plea preserved White’s ability to appeal the District Court’s ruling

denying his motion to suppress a firearm and drugs seized from him during a traffic stop.

The facts of this case are well known to the parties hence we need not recount them here.

       However, one factor bears particular mention. White, who was in the back seat,

was not seized. While as a practical matter he could not go anywhere—he was in a leg

cast and on crutches—there is no indication that he was not free to leave. Indeed Officer

Boehm (Officer Elledge’s partner, who remained with the stopped car and its occupants

the whole time) testified that, while the car was detained and the driver was with Officer

Elledge, “[White] asked me if somebody could come down and get the vehicle, if

everything turned out okay, or they could leave, and I said sure, call who you want [on

your cell phone.].” App. 119.

       As noted, this appeal is from White’s conditional plea, and it raises only a Fourth

Amendment seizure claim (along with fruit-of-the-poisonous-tree claims regarding

statements he made about the contents of the bag once its contents were revealed).1 In

essence, White argues that the period of time where the driver was out of the car with

Officer Elledge (5-10 minutes addressing the driver’s lack of identification and



  1
   White correctly recognizes that he has no serious challenge to the grounds on which
the search ultimately took place: Supreme Court precedent seems to foreclose any
objections about the driver’s ability to give consent, see Ohio v. Robinette, 519 U.S. 33
(1996), or the reasonableness of searching the car and all its occupants’ possessions, see
Wyoming v. Houghton, 526 U.S. 295 (1999).
                                             2
completing the consent-to-search form) constitutes an unreasonable seizure of him, from

which the discovery of the gun and drugs ensued. White argues that “[t]his Court has

held that a routine traffic stop is not ‘carte blanche’ for an officer to engage in unjustified

action based merely on a hunch,” and that “the moment Officer Elledge requested that the

driver give consent to search the automobile, he was acting [merely] on a hunch.” In

other words, the seizure was no longer reasonable when the officers turned the traffic stop

into a fishing expedition. We disagree.

       First, the Third Circuit case that White cites, United States v. Johnson, 63 F.3d

242, 247 (3d Cir. 1995), predates Whren v. United States, 517 U.S. 806 (1996). Whren

resolved a question that was open at the time of Johnson (and was central to the portion

of Johnson that White cites), i.e., whether an officer’s subjective intent is relevant to

finding a Fourth Amendment violation. Whren held that it is not. Moreover, even if

Johnson were still the leading case, White does not characterize it accurately in his brief.

Johnson in fact is quite skeptical of a subjective component in Fourth Amendment traffic

stop analysis. In simple terms, an officer certainly may ask—incident to a lawful traffic

stop—for consent to search based on a hunch, or indeed, on nothing at all. Thus, White

fails as a matter of law to establish the predicate that the request for consent to search was

unlawful.



       Second, the seizure was not unreasonable in duration even if it were only a traffic

stop. The reason that the traffic stop took so long was that the driver had no

                                               3
identification. Whoever’s estimate of the incident’s duration one takes, from stop to

arrest it lasted no more than 20 minutes or so. This is not objectively unreasonable for a

traffic stop, particularly one with extenuating circumstances. Third, as noted above,

White was free to leave, and was subjectively aware that this was so. Under the

circumstances, the search was not unreasonable, and the motion to suppress evidence was

properly granted.

              The judgment of the District Court will be affirmed.

                                            TO THE CLERK:

       Please file the foregoing opinion.



                                       /s/ Edward R. Becker
                                          Circuit Judge




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