PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellant,

v.

ROBERT H. SULLIVAN,
Defendant-Appellee.

                                                                     No. 97-4017
WASHINGTON LEGAL FOUNDATION;
JEFF SESSIONS, United States Senator;
JON KYL, United States Senator;
JOHN ASHCROFT, United States
Senator; STROM THURMOND, United
States Senator,
Amici Curiae.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Robert G. Doumar, Senior District Judge.
(CR-96-339-A)

Argued: December 4, 1997

Decided: March 9, 1998

Before NIEMEYER, Circuit Judge, WILSON,
Chief United States District Judge for the
Western District of Virginia, sitting by designation, and JONES,
United States District Judge for the Western District of Virginia,
sitting by designation.

_________________________________________________________________

Reversed and remanded by published opinion. Judge Niemeyer wrote
the opinion, in which Chief Judge Wilson and Judge Jones joined.

_________________________________________________________________
COUNSEL

ARGUED: Patty Merkamp Stemler, Chief, Appellate Section, Crimi-
nal Division, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Appellant. David Benjamin Smith, ENGLISH
& SMITH, Alexandria, Virginia, for Appellee. ON BRIEF: Helen F.
Fahey, United States Attorney, Criminal Division, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Appellant.
Paul G. Cassell, UNIVERSITY OF UTAH COLLEGE OF LAW, Salt
Lake City, Utah; Daniel J. Popeo, Paul D. Kamenar, WASHINGTON
LEGAL FOUNDATION, Washington, D.C., for Amici Curiae.

_________________________________________________________________

OPINION

NIEMEYER, Circuit Judge:

We are presented with the question of whether the defendant's con-
fession, made following a routine traffic stop, and a gun subsequently
seized from the defendant's automobile should be suppressed under
both the Fourth and Fifth Amendments. The district court granted the
defendant's motion to suppress, holding that when the defendant was
"subjected . . . to six repeated, insistent questions obviously designed
to invite incrimination," he was taken into custody and therefore
should have been given Miranda warnings. On the government's
interlocutory appeal, we reverse and remand this case for further pro-
ceedings.

I

At midday on January 23, 1996, United States Park Police Officer
Franz Ferstl stopped a car traveling northbound on the George Wash-
ington Memorial Parkway in Virginia because the car was missing its
front license plate. After Robert Sullivan, the driver, produced his
driver's license and car registration, Officer Ferstl noticed that the
missing license plate was displayed on the car's dashboard. The offi-
cer then asked Sullivan whether he had any outstanding traffic tickets
in Virginia. With that question, Sullivan's demeanor changed notice-
ably. He responded that he believed he owed $30 on a ticket he had

                    2
received for making an illegal u-turn. Suspecting that Sullivan's
license may have been suspended, Officer Ferstl returned to his police
cruiser in order to run a check on Sullivan's driving record. Since the
Park Police computer was "down" at the time, Ferstl requested assis-
tance from the Airport Police at nearby Washington National Airport.
Between five and ten minutes later, Airport Police Officer Roscoe
Evans arrived on the scene and ran the check on Sullivan's license
and registration. The computer check took less than five minutes to
complete and came up negative. After Ferstl indicated that he had the
situation under control, Evans departed the scene. Officer Ferstl then
returned to Sullivan's car, handed Sullivan his license and registra-
tion, and advised Sullivan to take care of the unpaid ticket and replace
the missing license plate. The traffic stop at this point had lasted
approximately 15 to 20 minutes.

When Sullivan's driving record appeared clean, Officer Ferstl sus-
pected that "there [was] something else wrong here." Accordingly,
after returning Sullivan's license and registration, Ferstl asked Sulli-
van "if he had anything illegal in the vehicle." Sullivan hesitated
before responding, and Ferstl noticed that his lip"started to shake and
quiver." Sullivan then responded, "illegal?!" with his "tone raised."
Becoming more suspicious, Ferstl repeated the question. This time,
instead of answering, Sullivan only "turned his head forward and
looked straight ahead." Ferstl then told Sullivan that "if he had any-
thing illegal in the vehicle, it's better to tell me now." When Sullivan
still did not answer, Ferstl again asked him what he had in the car and
told him that "he could tell me . . . . I would be cool with him." After
Ferstl asked Sullivan another time what was in the car, Sullivan
finally replied, "I have a gun." Ferstl then asked Sullivan where the
gun was located, and Sullivan replied, "under the seat." This dialogue
lasted "probably less than a minute."

Following Sullivan's statement, Officer Ferstl ordered Sullivan to
place his hands on the steering wheel of the car, thanked him for his
cooperation, and requested backup. Once additional police officers,
including Officer Evans, arrived, Ferstl ordered Sullivan out of his
vehicle and handcuffed him. Ferstl then recovered a Browning 9mm
pistol loaded with 14 rounds of ammunition from under the driver's
seat of the car. The officers advised Sullivan that he was under arrest
and later released him with a citation, charging him with illegal pos-

                    3
session of a handgun. It is undisputed that at no time during the
encounter did Officer Ferstl advise Sullivan of his Miranda rights, nor
did he ever inform Sullivan that he was free to leave.

After the government discovered that Sullivan had previously been
convicted for armed robbery, the grand jury indicted him with being
a convicted felon in possession of a firearm, in violation of 18 U.S.C.
§§ 922(g)(1) and 924(a)(2). Prior to trial, Sullivan moved to suppress
both his confession and the gun on the grounds that the confession
was involuntary and had been obtained in violation of his rights under
Miranda v. Arizona, 384 U.S. 436 (1966). The government argued in
opposition that, when Sullivan was being questioned by Officer
Ferstl, he was not "in custody" for purposes of Miranda and that his
confession had been voluntarily made.

The district court granted Sullivan's motion to suppress. 948 F.
Supp. 549, 558 (E.D. Va. 1996). It pointed out that Officer Ferstl's
questions concerned "a matter wholly unrelated to the reasons for the
traffic stop." Id. at 550. The court therefore stated the issue as
"whether Officer Ferstl's repeated questioning regarding matters out-
side the scope of the circumstances leading to the traffic stop
amounted to a custodial interrogation." Id. Relying on Berkemer v.
McCarty, 468 U.S. 420 (1984), the district court found that "an objec-
tively reasonable person in the defendant's place would not have felt
that he could leave prior to the sixth question. Therefore, for purposes
of Miranda, the defendant was `in custody.'" 948 F. Supp. at 557-58.
The court accordingly concluded that Sullivan's confession and its
fruits "must be suppressed." Id. at 558.

The government noticed an interlocutory appeal, see 18 U.S.C.
§ 3731, and Sullivan's trial on the charges was postponed pending the
outcome.

II

In the district court, Sullivan based his suppression motion on the
alleged denial of his rights under Miranda v. Arizona, 384 U.S. 436
(1966), in which the Supreme Court imposed procedural duties on
government officials to protect the Fifth Amendment rights of persons
during custodial interrogations. During oral argument, however, it

                    4
appears that Sullivan may also have argued Fourth Amendment prin-
ciples, urging that he had been illegally seized when the purpose of
the traffic stop had ended and the police officer continued to question
him on matters unrelated to the stop. On appeal, Sullivan clearly
relies on both Fourth and Fifth Amendment grounds to support the
district court's suppression order.

While the district court conducted its analysis under both the
Fourth and Fifth Amendments, it rested its suppression order on the
failure to give Sullivan his Miranda warnings. Thus, before conduct-
ing our review, it will be useful to outline the applicability of Fourth
and Fifth Amendment principles to traffic stops.

In order to protect the rights granted by the Fifth Amendment that
"[n]o person . . . shall be compelled in any criminal case to be a wit-
ness against himself," U.S. Const. amend. V, the Supreme Court in
Miranda v. Arizona, 384 U.S. 436 (1966), adopted prophylactic pro-
cedural rules that must be followed during custodial interrogations.
The Court held that a suspect in custody "must be warned that he has
a right to remain silent, that any statement he does make may be used
as evidence against him, and that he has a right to the presence of an
attorney, either retained or appointed." Id. at 444. Any statements
elicited from a suspect in violation of these rules are inadmissible in
the prosecution's case-in-chief. See United States v. Leshuk, 65 F.3d
1105, 1108 (4th Cir. 1995) (citing Stansbury v. California, 511 U.S.
318, 322 (1994) (per curiam)).

The procedural safeguards prescribed by Miranda apply "only
where there has been such a restriction on a person's freedom as to
render him `in custody.'" Stansbury, 511 U.S. at 322 (quoting Oregon
v. Mathiason, 429 U.S. 492, 495 (1977) (per curiam)). A person is "in
custody" for purposes of Miranda either if the person has been
arrested or if his freedom of action has been curtailed to a degree
associated with arrest. Id.; Berkemer v. McCarty, 468 U.S. 420, 440
(1984); Leshuk, 65 F.3d at 1108.

Addressing whether traffic stops implicate the requirements of
Miranda, the Supreme Court in Berkemer observed that even though
"few motorists would feel free either to disobey a directive to pull
over or to leave the scene of a traffic stop without being told they

                     5
might do so," 468 U.S. at 436, "persons temporarily detained pursuant
to [ordinary traffic] stops are not `in custody' for the purposes of
Miranda," id. at 440. Only if the motorist is detained "to a `degree
associated with formal arrest'" will he be entitled to the Miranda pro-
tections for in-custody interrogations. Id. (quoting California v.
Beheler, 463 U.S. 1121, 1125 (1983) (per curiam)). In short, while a
motorist during a routine traffic stop is detained and not free to leave,
the motorist is not "in custody" for Miranda purposes.

The "custody" that implicates the Miranda rule is conceptually dis-
tinct from a seizure implicating the Fourth Amendment. The Fourth
Amendment secures the "right of the people to be secure in their per-
sons, houses, papers, and effects, against unreasonable . . . seizures."
U.S. Const. amend. IV. Even though a routine traffic stop does not
amount to a custodial detention of the motorist, it does constitute a
"seizure" within the meaning of the Fourth Amendment. See
Delaware v. Prouse, 440 U.S. 648, 653 (1979). The usual traffic stop,
however, is more analogous to a "so called ` Terry stop' than to a for-
mal arrest." Berkemer, 468 U.S. at 439; see also United States v.
Rusher, 966 F.2d 868, 875 (4th Cir. 1992) (traffic stop is limited sei-
zure more like investigative detention than custodial arrest). In carry-
ing out a routine traffic stop, a law enforcement officer "may request
a driver's license and vehicle registration, run a computer check, and
issue a citation. . . . Any further detention for questioning is beyond
the scope of the Terry stop and therefore illegal unless the officer has
a reasonable suspicion of a serious crime." Id. at 876-77 (citation
omitted). It follows that statements obtained as the product of an ille-
gal detention are inadmissible. See Florida v. Royer, 460 U.S. 491,
501 (1983).

But police encounters with citizens during which police question
them are, without more, consensual. "[M]ere police questioning does
not constitute a seizure" for Fourth Amendment purposes. Florida v.
Bostick, 501 U.S. 429, 434 (1991). Rather, "[o]nly when the officer,
by means of physical force or show of authority, has in some way
restrained the liberty of a citizen may we conclude that a `seizure' has
occurred." Id. (quoting Terry v. Ohio , 392 U.S. 1, 19 n.16 (1968)). In
the absence of a seizure, a police-citizen encounter is considered con-
sensual and "will not trigger Fourth Amendment scrutiny." Id.

                    6
At bottom, a routine traffic stop does not place the motorist in cus-
tody so as to require Miranda warnings. Such stops are analogous to
Terry stops where no Miranda warnings are required. Miranda warn-
ings are required only when the motorist is detained to an extent anal-
ogous to an arrest. But a routine traffic stop does constitute a Fourth
Amendment seizure so that when the purpose justifying the stop is
exceeded, the detention becomes illegal unless a reasonable suspicion
of some other crime exists. When the stop is over and its purpose
served, however, mere questioning by officers, without some indi-
cated restraint, does not amount either to custody for Miranda pur-
poses or a seizure under the Fourth Amendment.

Against these principles, Sullivan contends that his confession
must be suppressed (1) because it was made by him while he was in
custody without having received Miranda warnings, and alternatively
(2) because it was given while he was being detained beyond the
scope of his traffic stop in violation of the Fourth Amendment.

In reviewing the district court's determination on these issues, we
defer to the district court's factual findings about the circumstances
surrounding the interrogation, reviewing only for clear error. But on
the question of whether those circumstances create a custodial situa-
tion requiring Miranda warnings or constitute a seizure implicating
the Fourth Amendment, we review de novo. See Thompson v.
Keohane, 116 S. Ct. 457, 465 (1995); United States v. Howard, 115
F.3d 1151, 1154 (4th Cir. 1997); United States v. McDonald, 61 F.3d
248, 254 (4th Cir. 1995).

With these principles in hand, we now turn our attention to the
facts of this case.

III

The facts relevant to whether Sullivan was "in custody" are readily
summarized. Following the traffic stop and after its purpose had been
served, Officer Ferstl, prompted by a lingering suspicion that some-
thing was amiss, asked Sullivan whether he had anything illegal in the
car. When Sullivan would not directly answer the question, the officer
repeated it several times. During the course of the dialogue, which
lasted less than a minute, the officer advised Sullivan that it would be

                    7
better "to tell me now" and that he "would be cool" with Sullivan. The
questions culminated with Sullivan's admission that he had a gun
under the front seat.

This conversation included no threats or statements that Sullivan
was being detained, and it occurred at midday on the side of a high-
way in full public view. See Berkemer, 468 U.S. at 438 (exposure to
public scrutiny diminishes motorist's fear of abuse by police). There
is no hint from anything Officer Ferstl said or from how he conducted
himself to suggest that Sullivan was under arrest or was being
detained as if he were under arrest. The officer had returned Sulli-
van's license and registration to him before questioning him. The
mere fact that Ferstl did not affirmatively advise Sullivan that he
could refuse to answer Ferstl's questions or that he was free to go did
not transform the encounter into a custodial interrogation. See Leshuk,
65 F.3d at 1110. Even "drawing weapons, handcuffing a suspect,
placing a suspect in a patrol car for questioning, or using or threaten-
ing to use force does not necessarily elevate a lawful stop into a cus-
todial arrest for Miranda purposes." Id. at 1109-10. While we accept
the factual findings made by the district court in this case -- which,
we note, Sullivan also does not challenge -- we conclude as a matter
of law that Sullivan was not in custody for purposes of Miranda while
being questioned by Ferstl.

IV

Sullivan argues alternatively that he was detained in violation of
his Fourth Amendment right against unreasonable seizures and that
his statement was made during an illegal detention. He argues, citing
Florida v. Royer, 460 U.S. 491, 501 (1983) ("[S]tatements given dur-
ing a period of illegal detention are inadmissible even though volun-
tarily given if they are the product of the illegal detention and not the
result of an independent act of free will."), that his confession must
therefore be suppressed. Sullivan maintains that Officer Ferstl's inter-
rogation about contraband had "no connection with the alleged reason
for the traffic stop" and notes that the government has conceded the
absence of a reasonable suspicion of any crime to justify a Terry stop
upon completion of the traffic stop.

The government argues that at the time Officer Ferstl questioned
Sullivan about illegal contraband, the traffic stop had ended and Offi-

                     8
cer Ferstl had returned Sullivan's license and registration. Accord-
ingly, the government maintains that the ensuing dialogue between
Sullivan and Officer Ferstl was consensual.

As we have noted, because a routine traffic stop amounts to a sei-
zure implicating the Fourth Amendment, albeit a limited seizure anal-
ogous to a Terry stop, "if the initial stop was illegal or the officers
exceeded the stop's proper scope, the seized contraband is excluded
under the `fruit of the poisonous tree doctrine.'" United States v.
Rusher, 966 F.2d 868, 875 (4th Cir. 1992). No party, however, has
advanced the argument that the initial stop in this case was illegal.
Sullivan argues, rather, that Officer Ferstl's questioning after the
completion of the traffic stop amounted to a detention and, because
it was imposed without reasonable suspicion, violated Sullivan's
Fourth Amendment rights.

The test we apply in determining whether a person has been seized
for purposes of the Fourth Amendment is whether, under the totality
of the circumstances surrounding the encounter, a reasonable person
in the suspect's position "would have felt free to decline the officers'
requests or otherwise terminate the encounter." Florida v. Bostick,
501 U.S. 429, 438 (1991); United States v. Lattimore, 87 F.3d 647,
653 (4th Cir. 1996) (en banc); see also United States v. Gray, 883
F.2d 320, 322 (4th Cir. 1989) ("[So] long as a person remains at lib-
erty to disregard a police officer's request for information, no consti-
tutional interest is implicated." (quoting United States v. Black, 675
F.2d 129, 134 (7th Cir. 1982))). Because the test is an objective one,
its proper application is a question of law. See McDonald, 61 F.3d at
254.

In this case, the district court found that Officer Ferstl's "six
repeated, insistent questions" amounted to a detention since "an
objectively reasonable person in the defendant's place would not have
felt that he could leave" prior to the question that elicited Sullivan's
confession. Although the district court's conclusion was reached in
the context of a custody determination under Miranda, Sullivan
argues that it also "provide[s] a clear basis for ordering suppression
under the Fourth Amendment." Even if we assume that the district
court's Miranda ruling may be used as a basis for concluding that a
Fourth Amendment seizure occurred, we nevertheless disagree that

                     9
the brief one-minute dialogue between Officer Ferstl and Sullivan,
when viewed objectively, amounted to a seizure implicating the
Fourth Amendment. Our decisions in United States v. Lattimore, 87
F.3d 647 (4th Cir. 1996) (en banc), and United States v. Rusher, 966
F.2d 868 (4th Cir. 1992), support this conclusion.

In Lattimore, we held that no Fourth Amendment violation
occurred in circumstances very similar to this case. After the defen-
dant had been pulled over for speeding, he accompanied the police
officer to the patrol car, where the officer issued the defendant a
warning for speeding and a ticket for failing to wear his seat belt.
After handing the citations to the defendant and returning the defen-
dant's driver's licence, the officer asked the defendant whether there
were any drugs or other contraband in his car. When the defendant
responded in the negative, the officer requested and received the
defendant's consent to search the car. That search uncovered cocaine
and narcotics paraphernalia. Among the issues addressed in Lattimore
was whether the officer's initial questions concerning the contents of
the defendant's car "exceeded the lawful scope of the traffic stop and
thereby converted the encounter into an illegal detention." 87 F.3d at
652. Applying the test set forth by the Supreme Court in Bostick, we
held that the totality of the circumstances surrounding the encounter
indicated that the encounter was consensual. Id. at 653. To reach this
conclusion, we noted that the officer did not question the defendant
"until after the officer had issued the citations and returned [the defen-
dant's] driver's license." Id.

Similarly, in Rusher, we found no Fourth Amendment violation
where, following the completion of a routine traffic stop prompted by
the defendant's driving without a valid licence plate, the police officer
asked the defendant whether he possessed any illegal contraband. As
in Lattimore, after being pulled over the defendant accompanied the
officer to the patrol car, where the officer issued the defendant a cita-
tion. After returning the defendant's driver's license and informing
him that he was "free to go," the officer asked the defendant whether
there were "any weapons, illegal contraband, alcohol or anything of
an illegal nature in the vehicle." 966 F.2d at 872. After the defendant
stated that there were not, he consented to a search of his car. This
search uncovered drugs and drug paraphernalia. In addressing the
issue relevant here, whether the officer's initial question about contra-

                     10
band "exceeded the proper scope of the traffic stop," id. at 876, we
concluded that it did not because the encounter was consensual, id. at
877.

In the case before us, we likewise conclude that the brief dialogue
between Officer Ferstl and Sullivan was consensual. Sullivan
remained in his own car throughout the dialogue. Ferstl did not ques-
tion Sullivan until after he had returned Sullivan's license and regis-
tration, thus ending the traffic stop and affording Sullivan the right to
depart. Significantly, there is no indication that Ferstl employed any
physical force or engaged in any outward displays of authority that
indicated that Ferstl was detaining Sullivan. While Ferstl never told
Sullivan that he was free to go, that fact alone is not dispositive. See
Ohio v. Robinette, 117 S. Ct. 417, 421 (1996) (Fourth Amendment
does not require police officers executing traffic stops to inform
motorists that they are free to go before engaging in consensual inter-
rogation). Moreover, the repetition of questions, interspersed with
coaxing, was prompted solely because Sullivan had not responded.
They encouraged an answer, but did not demand one. We cannot con-
clude that this limited coaxing with the repetition of questions
amounts to a Fourth Amendment seizure.

Because we hold that the brief interrogation of Sullivan did not
constitute a seizure within the meaning of the Fourth Amendment, it
follows that any statement made by Sullivan during this dialogue was
not illegally obtained.

For the foregoing reasons, we reverse the district court's order sup-
pressing Sullivan's confession and the gun found in the car and
remand this case to the district court for further proceedings.*

REVERSED AND REMANDED
_________________________________________________________________

*Amici curiae urge that we reverse the district court on the basis of 18
U.S.C. § 3501 (providing for the admissibility of confessions voluntarily
given). Because our decision moots this issue and because the parties
neither presented it to the district court nor briefed it on appeal, we
decline to address it.

                     11
