        RECOMMENDED FOR FULL-TEXT PUBLICATION
             Pursuant to Sixth Circuit Rule 206            2    United States v. Herbin                      No. 02-5143
    ELECTRONIC CITATION: 2003 FED App. 0328P (6th Cir.)
                File Name: 03a0328p.06                                         _________________
                                                                                   OPINION
UNITED STATES COURT OF APPEALS                                                 _________________
               FOR THE SIXTH CIRCUIT                          SUTTON, Circuit Judge. A federal grand jury indicted
                 _________________                         Terry Lamont Herbin for violating 18 U.S.C. § 922(g), which
                                                           prohibits convicted felons from possessing firearms, after the
 UNITED STATES OF AMERICA ,       X                        police seized a .38 caliber handgun from the car in which
          Plaintiff-Appellant,     -                       Herbin was a passenger. Herbin moved to suppress the
                                   -                       firearm, arguing that narcotics officers violated the Fourth
                                   -   No. 02-5143         Amendment when they used traffic violations as a pretext to
            v.                     -                       stop the car. The District Court granted the motion and
                                    >                      suppressed the weapon. We REVERSE.
                                   ,
 TERRY LAMONT HERBIN ,             -
           Defendant-Appellee. -                                                          I.
                                  N                           On July 3, 2001, several narcotics agents, driving unmarked
       Appeal from the United States District Court        cars, tailed two vehicles in Johnson City, Tennessee. The
   for the Eastern District of Tennessee at Greeneville.   first car was driven by Lisa Thompson, and included Herbin
     No. 01-00071—Thomas G. Hull, District Judge.          in the passenger seat. The second car was driven by Herbin’s
                                                           brother. In tailing the vehicles, the agents admitted that their
                Submitted: August 1, 2003                  primary mission was to pursue a drug-trafficking
                                                           investigation, not to enforce the traffic laws. The agents
         Decided and Filed: September 15, 2003             acknowledged that they had information that Terry Herbin
                                                           was in the area for the purpose of distributing narcotics.
Before: DAUGHTREY, MOORE, and SUTTON, Circuit
                   Judges.                                   The two drivers – Ms. Thompson and Herbin’s brother –
                                                           soon gave the agents another explanation for stopping the
                   _________________                       cars. The agents observed both cars run a red light and, later,
                                                           saw Thompson’s car cross the center line twice. When the
                       COUNSEL                             two cars eventually pulled into a parking lot, the agents
                                                           activated their lights and initiated a traffic stop.
ON BRIEF: Dan R. Smith, ASSISTANT UNITED STATES
ATTORNEY, Johnson City, Tennessee, for Appellant.            As the agents approached the cars, Herbin’s brother exited
William L. Ricker, RICKER LAW OFFICE, Greeneville,         the second car as if to flee. The agents drew their weapons
Tennessee, for Appellee.                                   and ordered him to stop. One of the agents then reached into
                                                           Lisa Thompson’s car through the window and removed the
                                                           key from the ignition. The officers asked Ms. Thompson and

                             1
No. 02-5143                      United States v. Herbin       3    4     United States v. Herbin                      No. 02-5143

Terry Herbin to exit the car in which they were riding and to          This case does not mark a new path. In Whren v. United
remain at the scene.                                                States, 517 U.S. 806, 812–13 (1996), the Supreme Court held
                                                                    that the legality of a traffic stop turns on the validity of the
  Although Agent Thompson testified that he stopped the             officers’ objective explanation for making the stop, not on the
vehicles to issue a citation and to determine whether Ms.           subjective intentions of the officers in initiating the stop. A
Thompson was intoxicated (because she had crossed the               traffic stop supported by probable cause, Whren makes clear,
center line), the agents never pursued the traffic violations.      may not be invalidated under the Fourth (and Fourteenth)
They did not ask for drivers’ licenses,“run the tags” on the        Amendment on the ground that the officers stopped the car
vehicles, perform any field sobriety tests, or issue any tickets.   for “pretextual” reasons – which is to say, acted upon a
What they did do once they had obtained order over the area         violation of one set of laws (e.g., run-of-the-mill traffic laws)
was to ask Ms. Thompson for permission to search her car for        in order subjectively to enforce another set of laws (e.g., drug-
contraband. Ms. Thompson consented, and the search                  trafficking laws). In the words of Whren: “Subjective
revealed a loaded .38 caliber handgun beneath the passenger         intentions play no role in ordinary, probable-cause Fourth
seat in which Herbin had been sitting.                              Amendment analysis.” Id. at 813. See also Arkansas v.
                                                                    Sullivan, 532 U.S. 769, 771–72 (2001) (per curiam) (holding
  Presumably on the basis of this evidence, a grand jury            that a custodial arrest for a traffic violation and search
indicted Herbin for violating 18 U.S.C. § 922(g), which             incident to arrest do not violate the Fourth Amendment just
prohibits convicted felons from possessing firearms. Herbin         because the officer had an improper subjective motivation for
moved to suppress the weapon. A magistrate judge                    making the stop).
recommended denying the motion because (1) the stop was
supported by probable cause that traffic violations had                Both before and after Whren, this Court has adhered to this
occurred and (2) the driver had consented to the subsequent         principle. In United States v. Bailey, 302 F.3d 652 (6th Cir.
search of her vehicle.                                              2002), in rejecting a similar argument, the Court held that two
                                                                    officers had lawfully stopped a motorist whom they had
  The District Court disagreed. In its view, “the initial traffic   witnessed driving down the wrong side of the road. That the
stop in this case was a pretext, [ ] the subsequent detention of    officers were allegedly “making traffic stops” as a “pretext”
the defendant and the officers’ actions were not related to the     to investigate complaints of drug activity was “irrelevant,” we
circumstances justifying the initial stop, and [ ] the search       emphasized, because the officers “had probable cause to stop
incident to that stop was in violation of the defendant’s Fourth    [the motorist] for a traffic violation.” Id. at 656–57. Nor did
Amendment rights.” The Government appealed.                         we stray from this path in United States v. Burton, 334 F.3d
                                                                    514 (6th Cir. 2003), in holding that the Fourth Amendment
                               II.                                  permitted a police officer to stop a car that he observed
                                                                    parked in a no-parking area, regardless of the officer’s
   We review the District Court’s legal conclusions de novo,        subjective motivation for the stop. Id. at 516–17. See also
United States v. Bailey, 302 F.3d 652, 656 (6th Cir. 2002),         United States v. Hill, 195 F.3d 258, 264 (6th Cir. 1999) (“an
and, finding them erroneous, need not question its factual          officer may stop a vehicle for a traffic violation when his true
findings.                                                           motivation is to search for contraband, as long as the officer
                                                                    had probable cause to initially stop the vehicle”); United
                                                                    States v. Ferguson, 8 F.3d 385, 391 (6th Cir. 1993) (en banc).
No. 02-5143                     United States v. Herbin       5    6     United States v. Herbin                      No. 02-5143

   Measured by these precedents, the District Court’s decision     a custodial arrest for a misdemeanor traffic violation even
cannot stand. Under Whren and this Court’s cases, the              though it is not an arrestable offense under state law);
District Court’s finding that the initial traffic stop was “a      Pennsylvania v. Mimms, 434 U.S. 106, 111 n.6 (1977) (“once
pretext” is legally beside the point. No one disputes that the     a motor vehicle has been lawfully detained for a traffic
agents had probable cause to stop Ms. Thompson’s car when          violation, the police officers may order the driver to get out of
it ran a red light and twice crossed the center line.              the vehicle without violating the Fourth Amendment’s
Accordingly, the agents had an objectively justifiable basis       proscription of unreasonable searches and seizures”). On this
for stopping the car.                                              record, we find no illegality in the officers’ actions,
                                                                   particularly in light of the sudden movements of Herbin’s
   Nor do the officers’ subjective intentions become relevant      brother and the violations of the traffic laws that had already
in assessing the agents’ conduct after the initial stop. Herbin    occurred.
contends that the agents ran afoul of the Fourth Amendment
when, without any intention of pursuing the traffic violations,       Lastly, once the scene was under control, there was nothing
the agents drew their guns on the vehicle occupants, seized        unreasonable about asking Ms. Thompson for permission to
the key to Lisa Thompson’s car, and requested her consent to       search her car. See Robinette, 519 U.S. at 39-40 (holding that
search it. The Supreme Court’s decision in Ohio v. Robinette,      an officer need not advise a detained motorist that he or she
519 U.S. 33 (1996), however, forecloses this argument. It          is free to go before asking whether the motorist would
makes clear that continuing to detain a motorist does not          consent to a search for contraband); United State v. Erwin,
become unlawful just because the officer has determined in         155 F.3d 818, 822–23 (6th Cir. 1998) (en banc) (“irrespective
his own mind not to pursue the traffic violation. Id. at 38.       of whether the deputies were justified in detaining [the
From beginning to end, the constitutionality of a traffic stop     motorist] after he showed no signs of intoxication, and even
under the Fourth Amendment depends on the objectively              if they had not, after approaching [him], observed conditions
reasonable justifications for the officers’ actions, not their     raising a reasonable and articulable suspicion that criminal
subjective intentions.                                             activity was ‘afoot,’ they were entitled to ask [the motorist]
                                                                   for permission to search his vehicle”). As this Court recently
   Here, the circumstances of the stop and detention were          explained in United States v. Burton, 334 F.3d 514 (6th Cir.
within legal limits. Before the agents even had an                 2003), a case involving a similar traffic stop, “‘[q]uestions
opportunity to pursue the traffic violations, Herbin’s brother     that hold potential for detecting crime, yet create little or no
exited the second car as if to flee. Already suspecting Terry      inconvenience, do not turn reasonable detention into
Herbin of criminal activity, the agents responded with             unreasonable detention.’” Id. at 518 (quoting United States v.
appropriate caution: They did not ask for drivers’ licenses,       Childs, 277 F.3d 947, 954 (7th Cir. 2002) (en banc)). Had
run the tags, attempt to perform a field sobriety test, or issue   Ms. Thompson declined to answer questions and had there
a ticket. They instead drew their weapons, seized the              been no reasonable suspicion to detain her and the Herbin
occupants, and removed the key from the ignition of Ms.            brothers for something other than traffic violations, the agents
Thompson’s car. The agents already had authority to seize,         would have been required to “pursue” the traffic violations or
at least temporarily, the vehicles and their occupants based on    let the vehicles and occupants go. Instead, she voluntarily
probable cause to believe traffic laws had been violated. See      consented, a fact that Terry Herbin does not dispute.
Atwater v. City of Lago Vista, 532 U.S. 318, 354 (2001) (the
Fourth Amendment does not prohibit an officer from making
No. 02-5143                     United States v. Herbin      7

  Because we conclude that the seizure was the product of a
lawful traffic stop, followed by the driver’s voluntary consent
to a search, we do not address the Government’s alternative
argument that Herbin lacked standing to move to suppress the
weapon discovered in the car.
                             III.
  For the foregoing reasons, we REVERSE the judgment of
the District Court granting Herbin’s motion to suppress, and
we REMAND for further proceedings consistent with this
opinion.
