PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4176
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ERIC JOHNSON,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Catherine C. Blake, District Judge.
(1:10-cr-00716-CCB-1)
Argued: September 17, 2013 Decided: October 29, 2013
Before WILKINSON, DUNCAN, and AGEE, Circuit Judges.
Affirmed by published opinion. Judge Duncan wrote the opinion,
in which Judge Wilkinson and Judge Agee joined.
ARGUED: Thomas Edward Sarachan, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Greenbelt, Maryland, for Appellant. Debra Lynn Dwyer,
OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for
Appellee. ON BRIEF: James Wyda, Federal Public Defender,
Baltimore, Maryland, Lauren E. Case, OFFICE OF THE FEDERAL
PUBLIC DEFENDER, Greenbelt, Maryland, for Appellant. Rod J.
Rosenstein, United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Baltimore, Maryland, for Appellee.
DUNCAN, Circuit Judge:
Eric Johnson entered a conditional plea of guilty to being
a felon in possession of a firearm in violation of 18 U.S.C. §
922(g)(1) and was sentenced to 15 years’ imprisonment. He
appeals the district court’s denial of his motion to suppress
various statements he made to the police and evidence recovered
from his home. For the reasons that follow, we affirm.
I.
On April 13, 2010, three members of the Baltimore City
Police Department's Violent Crime Impact Section patrolled the
Cold Spring area of Baltimore, Maryland, a neighborhood known
for its high incidence of crime. According to one of the
officers, Detective Jonathan Mackensen, this unit often stops
motorists in such areas for minor offenses in the hope that
these encounters will lead them to information about more
serious crimes.
That night, the officers spotted a red GMC Jimmy weaving in
and out of traffic and displaying a bent and illegible temporary
registration tag. The officers pulled the vehicle over and
approached the car.
Detective Damian Krauss asked the driver, Johnson, for his
license and registration. Johnson handed Detective Krauss the
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vehicle’s registration card and a Maryland identification card,
but stated that he did not have a driver’s license.
At that point, Detective Krauss detected a faint odor of
marijuana and discreetly communicated his suspicion to the other
officers by sniffing his nose in the air. He then asked Johnson
if the officers could search his vehicle. Johnson consented to
the search. The officers found nothing in the vehicle but
Detective Mackensen came to suspect that Johnson was hiding
something in his mouth. Detective Mackensen told Johnson to
“spit it out” and out came two small bags of marijuana. J.A.
117.
Johnson was then arrested, handcuffed, and placed in the
back of the officers’ unmarked car. He was not informed of his
Miranda rights at that time. See Miranda v. Arizona, 384 U.S.
436 (1966). The officers waited for Johnson's father, the
registered owner of the vehicle, to come and retrieve it. They
then left for the police station with Johnson in the back seat.
Johnson was never cited for the license plate violation.
While en route to the station, however, Johnson volunteered
the following: “I can help you out, I don’t want to go back to
jail, I’ve got information for you.” J.A. 122. Detective
Mackensen replied, “what do you mean?,” and Johnson responded,
“I can get you a gun.” Id. Detective Mackensen then gave
Johnson a verbal Miranda warning and another officer, Sergeant
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Brian Hopkins, advised Johnson not to say any more until they
reached the station.
Upon his arrival at the station, Johnson was taken to an
interview room. He was read a second Miranda warning and signed
an Explanation and Waiver of Rights form. After Johnson signed
the waiver, the officers returned to the discussion of the
firearm that Johnson had initiated on the way to the police
station. At that point Johnson told the officers that the
weapon was in his home. He described the weapon and where in
the house it could be found. Johnson signed a Consent to Search
form. The officers then travelled with Johnson to his house and
recovered the weapon from Johnson’s bedroom closet. Johnson
remained in custody and was eventually charged in federal court
with being a felon in possession of a firearm in violation of 18
U.S.C. § 922(g)(1).
Johnson moved to suppress the weapon and other tangible
evidence recovered in the search of his home, and to suppress
his statements to the police. The district court held a hearing
on these motions at which Johnson, his wife, Detective Krauss,
Detective Mackensen, and Sergeant Hopkins testified.
Johnson and the officers testified about the state of
Johnson’s license plate the night he was stopped. Johnson
testified that he was in the habit of checking his license
plates before getting in the car because he lived in a
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neighborhood in which temporary tags were often stolen. He
testified that he followed his usual routine that night and
noticed nothing wrong. Johnson also stated that there were two
plastic tabs at the bottom of the tag that were designed to keep
it “sturdy and straight.” J.A. 237.
The officers, on the other hand, testified that the tag was
bent in such a way that it could not be read at a distance.
Detective Krauss and Sergeant Hopkins testified that the tag was
bent up from the bottom while Detective Mackensen testified that
it had been “folded over at the top.” J.A. 106. All three were
also asked, however, to demonstrate using a piece of cardboard
how the tag was bent. The district court observed that all
three officers folded the cardboard so that it curved up from
the bottom. All three officers testified that they stopped
Johnson’s vehicle after they noticed that the tag was bent and
illegible.
The district court found that the tag had indeed been bent
and rendered illegible. It concluded that the officers had
probable cause to stop Johnson’s vehicle on that ground.
The district court went on to find that Detective
Mackensen’s asking Johnson “what do you mean?” in response to
Johnson's voluntary statement was not the functional equivalent
of an interrogation and, therefore, was not a Miranda violation.
The district court concluded that Johnson was subsequently
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apprised of his Miranda rights and waived them voluntarily by
signing the Waiver of Rights form. It also found that he
voluntarily consented to the officers’ search of his home. The
district court consequently denied Johnson’s motions to
suppress.
Johnson entered into a plea agreement with the government,
preserving his right to appeal the district court’s decision on
the motions to suppress. He conditionally pleaded guilty and
was sentenced to 15 years’ imprisonment. This appeal followed.
II.
Johnson argues that the district court erred in concluding
that the officers had probable cause to stop his vehicle, and he
argues that Detective Mackensen’s question, “what do you mean?,”
constituted an unwarned custodial interrogation in violation of
Miranda. We consider each in turn.
A.
We first consider Johnson’s contention that the officers’
initial traffic stop was unreasonable and, thus, an illegal
seizure under the Fourth Amendment. He argues that the district
court’s contrary conclusion rests on both an erroneous factual
finding--that Johnson’s registration tag was bent--and an error
of law--that the stop was reasonable even if the officers used
the bent tag merely as a pretext to make the stop.
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We review the district court’s factual finding for clear
error, viewing the evidence in the light most favorable to the
government. United States v. Hamlin, 319 F.3d 666, 671 (4th
Cir. 2003). We review the court’s legal conclusion de novo.
Id.
1.
Johnson contends that the district court erred when it
found that Johnson’s tag was bent and illegible. Under the
clear-error standard, “[a] factual finding by the district court
may be reversed only if, ‘although there is evidence to support
it, the reviewing court on the entire evidence is left with the
definite and firm conviction that a mistake has been
committed.’” Walton v. Johnson, 440 F.3d 160, 173–74 (4th Cir.
2006) (en banc) (quoting United States v. U.S. Gypsum Co., 333
U.S. 364, 395 (1948)). “Where there are two permissible views
of the evidence, the factfinder’s choice between them cannot be
clearly erroneous.” Anderson v. City of Bessemer, 470 U.S. 564,
574 (1985). This is all the more true when the district court’s
finding was based upon its assessment of witnesses’ credibility.
See United States v. Springer, 715 F.3d 535, 545 (4th Cir.
2013).
At the suppression hearing, Johnson and the officers
provided conflicting testimony about the state of the tag on
Johnson’s vehicle. In the face of such a conflict, the district
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court’s decision to credit the officers’ testimony over
Johnson’s is a paradigmatic credibility determination which we
do not disturb lightly. See id.
Johnson argues that the officers’ testimony was belied by
the fact that they did not seize the tag, photograph it, or
issue a citation. But we find the officers’ failure to take
these steps much less illuminating than Johnson suggests. The
scent of marijuana emanating from Johnson’s vehicle gave the
officers reason to investigate a more serious violation than an
illegible tag almost immediately after the officers stopped him.
Johnson likewise seeks to impeach the officers' credibility
by pointing out the inconsistency of their testimony about how
the tag was bent. But although their verbal descriptions
differed, their physical demonstrations were consistent.
Moreover, the officers were unanimous on the general proposition
that the tag was bent and illegible at a distance.
Johnson therefore presents nothing more than a competing
version of the facts, a version that the district court was free
not to credit. At the least, the evidence presented is
compatible with “two permissible views,” the choice between
which followed from the district court’s assessment of the
officers’ credibility. On the basis of this record we cannot
conclude that the district court’s finding was clearly
erroneous.
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2.
Johnson also argues that the district court erred in
concluding that the bent tag rendered the traffic stop
reasonable. He contends that the bent tag was not the officers’
true motive for stopping the vehicle, evidenced, in particular,
by the fact that the officers did not pursue the matter further
once the stop had been made.
A traffic stop is reasonable, and therefore not a violation
of the Fourth Amendment, if it is justified by probable cause or
reasonable suspicion. United States v. Branch, 537 F.3d 328,
337 (4th Cir. 2008). This is an objective standard. Id. The
standard is met, therefore, when officers observe a traffic
violation, regardless of their true, subjective motives for
stopping the vehicle. Whren v. United States, 517 U.S. 806,
810–13 (1996) (“[O]nly an undiscerning reader would regard [our]
cases as endorsing the principle that ulterior motives can
invalidate police conduct that is justifiable on the basis of
probable cause to believe that a violation of law has
occurred.”); Branch, 537 F.3d at 337.
Johnson, however, relies on United States v. Tibbetts, 396
F.3d 1132 (10th Cir. 2005), in which the Tenth Circuit held that
“when police completely ignore the purported reason justifying
the initial traffic stop, a court may consider that failure when
evaluating the objective reasonableness of the stop under the
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Fourth Amendment.” Id. at 1139. Tibbetts therefore appears to
contemplate that there may be a situation where, although
officers have observed a traffic violation, a resulting traffic
stop might nonetheless be held objectively unreasonable if the
officers did not proceed to investigate the predicate violation.
Johnson argues that his traffic stop is just such a situation.
But to the extent that Tibbetts provides for such an
outcome it is incompatible with our precedent, for we have held
that “[o]bserving a traffic violation provides sufficient
justification for a police officer to detain the offending
vehicle.” Branch, 537 F.3d at 335; see also United States v.
Digiovanni, 650 F.3d 498, 506 (4th Cir. 2011). Thus, it is not
relevant whether the officers proceed to take further action on
the predicate traffic violation.
Maryland law requires that a vehicle’s registration tags be
clearly legible. Md. Code Ann. Transp. § 13-411(c). Therefore,
having found that Johnson’s license plate was illegible the
night he was stopped, the district court properly concluded that
the stop was reasonable. Regardless of their true motives, and
whether they pursued the traffic violation, it was reasonable
for the officers, who had observed the illegible tags, to stop
Johnson’s vehicle.
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B.
We next examine Johnson’s Miranda challenge. There can be
no doubt that Johnson, handcuffed and seated in the back of a
police car, was in custody at the time of his exchange with the
officer. The issue is whether Detective Mackensen’s question,
“what do you mean?,” after Johnson voluntarily proffered
information, constituted a custodial interrogation.
The seminal case in this area is Rhode Island v. Innis, 446
U.S. 291 (1980). In that case, officers had arrested Innis for
his suspected robbery of a taxicab driver. Innis was Mirandized
and he invoked his right to counsel. But before he could
consult with an attorney, Innis overheard officers discussing a
sawed-off shotgun which had been used in the robbery but not
recovered, and the risk it might pose to nearby school children.
In response, Innis interrupted and led officers to the weapon.
Id. at 293–95. At trial, however, Innis argued that the
officers' conversation constituted a custodial interrogation in
violation of Innis's right to remain silent until he had
consulted a lawyer. Id. at 298.
The Supreme Court ultimately disagreed. It held that the
Miranda rules only apply to police conduct that is the
“functional equivalent” of an interrogation--that is, any
conduct “that the police should know [is] reasonably likely to
elicit an incriminating response.” Id. at 299–301. The brief
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remarks that passed between the officers, the court held, did
not meet that requirement. Id. at 302.
While the facts of Innis led the Court to emphasize the
possibility of a Miranda interrogation without express
questioning, it made clear that the opposite is also possible.
There are questions that are not reasonably likely to elicit
incriminating responses just as there are declarative statements
or actions that are. * The Miranda analysis does not turn on the
form of an officer’s articulation.
Moreover, Innis illustrates that a question might not be
classified as an interrogation even if the question subjectively
exerted a coercive effect on a suspect. Id. at 302–03. The
suspect’s subjective experience of the questioning is relevant
only to the extent that it should have been anticipated by the
officers such that they should have known that the suspect was
reasonably likely to incriminate himself in response. Id.
*
See, e.g., United States v. Jackson-Forsythe, 498 F. App'x
224, 226 (4th Cir. 2012) (per curiam) (no interrogation when
officers asked a suspect whether she was staying at a particular
hotel); United States v. Rhodes, 779 F.2d 1019, 1032 (4th Cir.
1985) (no interrogation when, during a search of a suspect’s
home, the suspect informed officers that he could not take a
spiral notebook and officers asked why); Papile v. Hernandez,
697 F. Supp. 626, 629 n.2, 631 (E.D.N.Y. 1988) (no interrogation
when suspect volunteered “I want to make a deal” and officers
asked “what kind of deal?”); Turner v. Sullivan, 661 F. Supp.
535, 537-38 (E.D.N.Y. 1987) (no interrogation when suspect
volunteered “my leg is hurting” and officers asked “what
happened to you?”), aff'd, 842 F.2d 1288 (2d Cir. 1988).
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This test reflects a careful balancing of interests.
Miranda, on one hand, counsels that meaningful enforcement of
citizens’ Fifth Amendment right against self-incrimination
requires a subjective approach. Miranda recognized that the
interrogation environment might render that right illusory by
“subjugat[ing] the individual to the will of his examiner.”
Miranda v. Arizona, 384 U.S. 436, 457 (1966). To guard against
this danger requires a court to consider the police’s actions
from the suspect’s point of view. On the other hand, however,
“the police surely cannot be held accountable for the
unforeseeable results of their words or actions.” Innis, 446
U.S. at 301–02.
The suppression remedy for Miranda violations further
tightens the focus on foreseeability. “[T]he deterrent effect
of suppression must be substantial and outweigh any harm to the
justice system.” Herring v. United States, 555 U.S. 135, 147
(2009). But to suppress evidence due to a question’s or
comment’s coercive effect on a suspect, when that effect could
not reasonably have been foreseen, would have no desirable
deterrent effect at all. The only lesson an officer might draw
from such an outcome would be that he himself should remain
silent until a Miranda warning could be administered, lest his
blunder cause a criminal to go free. See id. at 148.
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The question Innis instructs us to ask is whether Detective
Mackensen should have known that the query “what do you mean”
was reasonably likely to elicit an incriminating response or, in
other words, whether he should reasonably have foreseen that
result. It bears reiteration that Detective Mackensen’s
question was in response to Johnson’s undisputedly voluntary
statement, “I can help you out, I don’t want to go back to jail,
I’ve got information for you.” J.A. 122.
In the absence of facts suggesting otherwise, an officer
would reasonably expect a defendant making such a proffer to be
acting with some degree of self-interest. Here, the officers
had every reason to believe at the outset that Johnson was doing
precisely that. He was offering the officers something of value
in the hope that it would keep him from going to prison. Given
the purpose of the suggested bargain, a follow-up inquiry “what
do you mean?” would not have seemed reasonably likely to elicit
self-incriminating information, because Johnson’s offering such
information would have defeated the very purpose of the
proposal. The query would reasonably be expected to elicit
information incriminating someone else. But incriminate himself
is exactly what Johnson did. He attempted to extricate himself
from a misdemeanor by implicating himself in a felony.
Johnson argues that, his professed motivations
notwithstanding, Detective Mackensen should have known that to
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ask “what do you mean?” could at least possibly have elicited an
incriminating response. But this sets the bar too low. It is
possible, of course, that a suspect in custody could implicate
himself in a criminal act in response to any question or action
no matter how innocuous. If possibility were the standard,
therefore, an officer would risk suppression whenever he spoke
within earshot of an unwarned suspect. But Miranda was intended
to protect suspects from coercive police practices, not render
officers mute.
Innis itself demonstrates this problem as well as its
solution. Its facts confirm that any passing remark might
indeed carry some potential to elicit an incriminating response.
And its holding confirms that more is needed to transform a
question or comment into an interrogation--Innis rejects
possibility in favor of foreseeability. See Innis, 446 U.S. at
303.
In sum, Innis teaches that when the police have no reason
to expect that a question will lead a suspect to incriminate
himself, that question cannot constitute an interrogation under
Miranda. Under such circumstances they cannot be blamed for
failing to anticipate a suspect’s incriminating response and the
threat of suppression could not plausibly deter them from
eliciting it. We therefore agree with the district court that
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the officers did not conduct an unwarned custodial interrogation
on these facts.
There is therefore no need to consider whether, under
Missouri v. Seibert, 542 U.S. 600 (2004), the officers’
subsequent Miranda warnings were sufficient to ensure the
voluntariness of Johnson’s later statements to the police.
Seibert addressed “a police protocol for custodial interrogation
that calls for giving no warnings of the rights to silence and
counsel until interrogation has produced a confession.” Id. at
604. Because we hold that no interrogation had occurred before
Johnson was Mirandized, Seibert is plainly inapplicable.
III.
For the foregoing reasons, the district court’s decision
denying Johnson’s suppression motions is
AFFIRMED.
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