# United States v. Cecil R. Ferguson

> Court of Appeals for the Sixth Circuit · March 19, 1993 · 989 F.2d 202

URL: https://www.frixlaw.com/law-library/cases/9484061

## Case

- **Full name:** UNITED STATES of America, Plaintiff-Appellee, v. Cecil R. FERGUSON, Defendant-Appellant
- **Court:** Court of Appeals for the Sixth Circuit
- **Decided:** March 19, 1993
- **Citations:** 989 F.2d 202; 1993 U.S. App. LEXIS 5002; 1993 WL 75152
- **Precedential status:** Published
- **Opinion:** Dissent by Boggs
- **Judges:** Keith, Jones, Boggs
- **Cited by:** 7 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Vacated by United States v. Cecil Ferguson, 8 F.3d 385 (1993).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9484061

## Opinion text

BOGGS, Circuit Judge,
dissenting.
There is only one question posed by this case: would “the reasonable police officer,” an objective construct, stop a car driving at 1 a.m. with no visible license plate? The district court found as a fact that the reasonable officer would have made such a stop. There is no basis in the record, and no basis in common sense, for holding that finding clearly erroneous. Therefore, the district court’s ruling and the defendant’s conviction must stand, and I respectfully dissent.
Although the court professes allegiance to the objective test, it buttresses its conclusion with subjective evidence and concentrates primarily on Officer Writesman’s actions after the stop was made. The court displays its reliance on a subjective test in this summary of its reasoning: “Although Writesman testified that he routinely stops vehicles that do not display a visible license plate, there is overwhelming evidence that Writesman stopped the vehicle because he wanted to conduct an investigatory drug stop, suspicious of the activity he observed at the motel.” (Maj. op. at 205) This confuses the analysis. There is no question that Writesman was partially motivated by his suspicion of drug activity. He admitted his suspicion on the stand. However, the existence of an illegitimate motivation does not render a concurrent legitimate motivation pretextual. To the contrary, it is irrelevant. The proper inquiry is whether a reasonable officer would have stopped Ferguson and Lester “in the absence of an illegitimate ' motivation.” Smith, 799 F.2d at 708 (emphasis added). By focusing entirely on the illegitimate motivation and whether it was the true or dominant reason for the stop, the court, despite ostensibly adhering to the objective test, has applied a subjective test.
This holding has several undesirable consequences. First, the court appears to be reserving the right to declare any stop unreasonable when it believes that the ostensible reason — no matter how reasonable and justified by the circumstances — is not the true or dominant motivation for the stop. Second, the court’s holding apparently presumes a constitutional right to be free from public observation based on suspicious conduct that does not amount to probable cause. No such right exists. See, e.g., United States v. Knotts, 460 U.S. 276, 281 , 103 S.Ct. 1081, 1085 , 75 L.Ed.2d 55 (1983). The essence of good police work is to notice what appears to be out of the ordinary, the possible precursors or indicia of unlawful conduct, to take appropriate steps to confirm or deny those suspicions, within constitutional limits, and then to take appropriate action when violations are observed or probable cause appears. That is exactly what happened here.
Officer Writesman made no bones about the fact that his observation led him to believe that unlawful conduct might be afoot. In fact, Officer Writesman admitted that he did not notice the missing license until, prompted by the suspicious activity at the motel, he began following the Ford. Therefore, Officer Writesman probably would not have noticed the license violation if he had not followed up on his suspicions. However, these circumstances do not alter our analysis. Conduct arousing suspicion of criminal activity does not immunize a citizen from being stopped for a different, though significant, violation of the law. On the contrary, suspicious conduct is likely to attract police scrutiny and increase the probability of being stopped for traffic violations or other offenses. Increased *207 scrutiny alone is not a constitutional violation. A citizen’s constitutional rights are violated only if the stated motivation for the stop is not objectively reasonable and is thus an unreasonable pretext for an illegitimate motivation.
Smith, Pino, and United States v. French, 974 F.2d 687 (6th Cir.1992), all involve this same situation — an officer observing suspicious conduct, following a vehicle, and making a traffic stop based on alleged violation of traffic regulations. In each of these cases, the traffic violation is, in some sense, a “pretext” to the end of obtaining information about the suspected crime, and the suspicion is a “but-for” cause of the stop, because the officer would not have been in a position to observe the violation had it not been for the suspicion.
Of course, not every minor violation of traffic regulations justifies a stop. As the Eleventh Circuit stressed, the question is not whether a reasonable officer could legally have stopped the defendant, but whether a reasonable officer would have stopped the defendant. Smith, 799 F.2d at 708. The appropriate inquiry under the objective test is whether the traffic violation is one that is so minor (e.g., failing to signal before changing lanes on an open road; going one mile an hour over the speed limit; or failing to come to an absolutely complete stop before turning right at a stop sign) that a reasonable officer would not have stopped an unsuspicious car, or whether the stop was for a reason that would have led a reasonable officer to make the stop under any circumstances.
The cases give us some considerable guidance in assessing where this line should be drawn. Crotinger is particularly instructive, as it provides a calibration with which we are all familiar. Crotinger was driving 66 miles an hour in a 55 mile an hour zone. It is quite likely that many readers of this opinion have done so, and quite likely that most would have felt somewhat aggrieved at being stopped, though such a stop would be close to the line. At 20 miles an hour over the limit, most of us, I believe, would feel that the officer was quite justified, and at 3 miles an hour over the limit, virtually everyone would feel that a reasonable officer would not have made the stop. Crotinger, 928 F.2d at 206.
The other two Sixth Circuit cases are even more problematic than Crotinger. In Pino, an officer pulled alongside a rental car that he suspected was driven by a drug courier. When the driver saw the officer passing, he panicked, abruptly braked and swerved onto the shoulder. The officer, now highly suspicious, played a cat-and-mouse game with the defendant. He drove more and more slowly in an attempt to force the defendant to pass him again, but only succeeded when he pulled to a complete stop on the shoulder. A subsequent search confirmed the officer’s suspicion of drug activity. Not surprisingly, the officer did not claim that he stopped the defendant because his driving raised suspicion of drug activity. Instead, the officer claimed there was probable cause that the defendant violated several traffic regulations, such as those prohibiting passing a vehicle on the right, weaving, endangering pedestrians, and not using blinkers. We accepted the officer’s explanation and upheld the stop. Pino, 855 F.2d at 361. Of course, the same activity-^-erratic driving — heightened the officer’s suspicion of the drug activity and provided the grounds for the minor traffic offenses. In essence, the stop was not pretextual because the defendant’s panicked response to the sight of a police officer was so pronounced that the officer could classify it as a traffic offense. 1
*208 In French , police officers followed a vehicle for nearly 50 miles before stopping it for speeding. Applying the objectively reasonable analysis, we found that the stop for speeding was valid even though one officer admitted, not surprisingly, that he was partially motivated by the suspicion of drug trafficking. French , 974 F.2d at 691— 92. We stated that the officers “acted in an objectively reasonable manner because the Mercedes was, in fact, speeding” — even though the car was clocked at only seven miles an hour over the limit. Id. at 692 .
Finally, in Smith itself, the only case in which a stop was ruled invalid, the relevant conduct was “weaving” by 6 inches onto the shoulder and not looking at the nearby patrol car. The Smith court properly held that a reasonable officer would not have made the stop.
The conduct here, in my view, was clearly more egregious than that in Crotinger, Pino, and French . Driving with no visible vehicle registration is a violation of Memphis City Ordinance § 21-269. It is a significant offense, certainly comparable to the offenses that justified the stops in Pino, French and Crotinger, and Writes-man, a police officer with sixteen years of experience, testified that he routinely stops cars that do not display a license. Ferguson failed to present, and the court does not provide, any evidence or argument that Writesman’s conduct is not consistent with that of a reasonable police officer or that Memphis police officers routinely choose not to enforce this ordinance.
If I drove around town for any length of time with no visible license plate, I would not be surprised at all to be stopped as soon as I was observed by an officer going in the same direction who was not otherwise engaged. Having in fact been stopped by a reasonable police officer for the lesser and more difficult-to-detect offense of not displaying an auto inspection decal, it strikes me very forcefully that Officer Writesman's action in stopping a car with no visible license plate does not clearly brand him as an unreasonable police officer. The court’s opinion today is impossible to square with the objective test that is the law in this circuit, and I therefore dissent.
. However, the difficulty with Pino is not that the officer’s dominant motive for the stop was undoubtedly suspicion of drug activity. The problem is that the two motives are inseparable; they are really one motive with two characterizations — one legitimate and one illegitimate. But the legitimate reason for the stop, the traffic offense, would have never materialized had the officer not zealously followed up on the illegitimate motive. The officer’s suspicion and investigation, in effect, precipitated the erratic driving. In contrast, Officer Writesman’s actions in no way provided the grounds for the stop; he did not cause or contribute to the license violation. His suspicion and subsequent observation only provided the opportunity to notice the lack *208 of a license. Thus, it is difficult to understand how a judge could uphold Pino and yet vote to reverse this case.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9484061. Public record. Not legal advice.