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w . v i l l a no va . e du/thir dc ir c uit_1995/223UNITED STATES COURT OF APPEALS 1 FOR THE THIRD CIRCUIT 2 3 4 5 No. 94-7646 6 7 8 UNITED STATES OF AMERICA, 9 10 Appellant , 11 12 v. 13 14 PAUL N. JOHNSON; DARRYL JONNS; 15 LAMONT BELL; and CRAIG RICHARDSON, 16 17 PAUL N. JOHNSON, 18 19 Appellee

. 20 21 22 23 Appeal from the United States District Court 24 for the Middle District of Pennsylvania 25 (D.C. Crim. No. 1:CR-94-145-1) 26 27 28 Argued April 18, 1995 29 30 31 Before: STAPLETON, HUTCHINSON and SEITZ, Circuit Judges

. 32 33 Filed: August 16, 1995 34 35 36 David M. Barasch, United States Attorney 37 Dennis C. Pfannenschmidt, Assistant U.S. Attorney (Argued) 38 Office of the United States Attorney 39 Federal Building 40 228 Walnut Street 41 P.O. Box 11754 42 Harrisburg, PA 17108 43 44 Attorneys for Appellant 45 46 Spero T. Lappas, Esquire (Argued) 47 205 State Street 482

P.O. Box 808 1 Harrisburg, PA 17108-0808 2 3 Attorney for Appellee 4 Stefan Presser, Esquire 5 ACLU of Pennsylvania 6 125 South 9th Street, Suite 701 7 P.O. Box 1161 8 Philadelphia, PA 19105 9 10 David Rudovsky, Esquire 11 ACLU of Pennsylvania 12 Kairys & Rudovsky 13 924 Cherry Street, 5th Floor 14 Philadelphia, PA 19107 15 16 Eric B. Henson, Esquire 17 Jan Fink Call, Esquire 18 R. David Walk, Jr., Esquire 19 Hoyle, Morris & Kerr 20 4900 One Liberty Place 21 1650 Market Street 22 Philadelphia, PA 19103 23 24 Attorneys for Amicus Curiae ACLU of Pennsylvania 25 26 27 28 29
OPINION OF THE COURT 30 31 SEITZ, Circuit Judge

. 32 Paul N. Johnson ("Defendant") was indicted by a federal 33 grand jury for conspiracy to distribute narcotics, see 21 U.S.C. 34 § 846, possession and distribution of narcotics, in violation of 35 21 U.S.C. § 841, and related firearms offenses, see 18 U.S.C. 36 §§ 922(g), 924(a)(2), (c)(1), (c)(2). The government appeals 37 here from an order of the district court granting Defendant's 38 pretrial motion to suppress contraband seized by the Pennsylvania 39 State Police during a vehicle search. The district court had 403

jurisdiction under 18 U.S.C. § 3231, and we have jurisdiction 1 pursuant to 18 U.S.C. § 3731. The trial has been stayed pending 2 the disposition of this appeal. 3
I. FACTS 4 The historic facts are taken from the memorandum 5 decision filed by the district court, see F ED . R. C RIM . P. 12(e), 6 after the hearing on Defendant's motion to suppress the seized 7 materials. 8 A Pennsylvania State Trooper, while following a vehicle 9 traveling on Interstate 78 toward Harrisburg and driven by 10 Defendant, noticed "several large objects," which appeared to be 11 air fresheners, hanging from its inside rearview mirror. Because 12 he believed the hanging objects constituted a violation of the 13 Pennsylvania Vehicle Code, see 75 P A . C ONS . S TAT . A NN . § 4524(c) 14 (Supp. 1994), 1 the trooper engaged his overhead lights and 15 signaled for the vehicle to pull to the side of the road. 16 After both vehicles stopped, the trooper asked 17 Defendant to produce his driver's license and automobile 18 registration card. Defendant produced a South Carolina driver's 19 license bearing the name "Tracy Lamar Washington." Although he 20 was unable to produce an automobile registration card, a 21

1 Section 4524(c) provides in relevant part: (c) Other obstruction.

─ No person shall drive any motor vehicle with any object or material hung from the inside rearview mirror . . . as to materially obstruct, obscure or impair the driver's vision through the front windshield or any manner as to constitute a safety hazard. Title 75, § 4524(c).4

violation of the Pennsylvania Vehicle Code, see 75 P A . C ONS . S TAT . 1

A NN . § 1311(b) (Supp. 1994), Defendant told the trooper that he 2 owned the vehicle. See Appendix at A60-A61. At that point, the 3 trooper went to his patrol car and had the police dispatcher run 4 a check on the vehicle's license number. 5 While waiting for the vehicle check to be completed, 6 the trooper spoke separately with Defendant and the other 7 occupants of the vehicle. According to the trooper, during these 8 conversations Defendant as well as the passengers seemed 9 "unusually" and "exceptionally" nervous and gave the trooper 10 conflicting statements about the origin and the destination of 11 their trip. Although Defendant knew the name of one of the 12 passengers, he could identify another one only as "T." The 13 trooper testified that the circumstances caused him to suspect 14 that there were narcotics or contraband in the vehicle. 15 The trooper asked Defendant whether there was anything 16 illegal in the vehicle, and Defendant replied in the negative. 17 The trooper then asked Defendant for his consent to search the 18 car and presented him with a consent form to read and sign. 19 Although Defendant would not sign the form, the trooper testified 20 that he orally consented to the search. In the search that 21 followed, the trooper discovered one-half pound of marijuana, one 22 and one-half ounces of cocaine, one ounce of a substance often 23 used to "cut" cocaine, and a digital scale. At that point, the 24 trooper read the adult occupants of the vehicle their Miranda 25 rights, then placed them under arrest, and seized the contraband. 265

Defendant was first charged in state court with a 1 number of violations under the Pennsylvania Crimes Code, the Drug 2 Code, and the Vehicle Code. He, thereafter, filed a pretrial 3 motion to suppress the seized drugs and other contraband. The 4 Court of Common Pleas for Berks County, Pennsylvania suppressed 5 the seized materials found in the vehicle because it concluded 6 that they were obtained during an unlawful search. That action 7
was later nolle prossed . See id. at A71. 8 Defendant was also charged in the district court with 9 federal narcotics and firearms violations. Again, he moved to 10 suppress the same materials obtained by the trooper following the 11 traffic stop. Thereafter, the district court conducted a 12 pretrial suppression hearing and concluded that the traffic stop 13 was used by the trooper as a pretext, that is, a legal 14 justification for an otherwise unconstitutional vehicle stop 15 based on suspicion of narcotics possession. See United States v. 16
Johnson , No. 1:CR-94-145-01, slip op. at 6 (M.D. Pa. Oct. 24, 17 1994) ("Mem. Op."). As a result, the court found that the 18 subsequent search and seizure were tainted by this pretextual 19 stop and the seized materials were suppressed. The government 20 appeals that order. 21
II. DISCUSSION 22 Some preliminary observations are appropriate to an 23 understanding of the structure of this opinion. 24 We emphasize that this is an appeal by the government 25 from an order of the district court granting Defendant's pretrial 26 suppression motion. In the district court, Defendant set forth 276

what we understand to be two grounds for suppression: (1) the 1 traffic stop that eventuated in the seizure of the illegal 2 materials was unconstitutional, thus tainting the seizure; and 3 (2) the real reason for the traffic stop was to find a way to 4 search for drugs and not to enforce the traffic laws. As we read 5 the memorandum decision of the district court, it rejected 6 Defendant's first ground but relied on the second, i.e. , pretext, 7 to grant his motion. 8 On appeal the government attacks the district court's 9 pretext finding, which, of course, the Defendant supports. We 10 will initially address whether the district court erred in its 11 ruling on the first ground in Defendant's motion. We do so 12 because if the district court erred in that determination, it 13 would be unlikely that the more complex pretext issue would be 14 decided. See, e.g. , United States v. Shabazz , 993 F.2d 431, 435 15 n.3 (5th Cir. 1993). 16 A. Was The Traffic Stop Justified? 17 The United States Supreme Court has held that stopping 18 a car and detaining its occupants is a seizure under the Fourth 19
Amendment. See United States v. Hensley , 469 U.S. 221, 226 20 (1985); see also United States v. Velasquez , 885 F.2d 1076, 1081 21 (3d Cir. 1989), cert. denied , 494 U.S. 1017 (1990). However, a 22 stop to check a driver's license and registration is 23 constitutional when it is based on an "articulable and reasonable 24 suspicion that . . . either the vehicle or an occupant" has 25 violated the law. Delaware v. Prouse , 440 U.S. 648, 663 (1979); 267

see Velasquez , 885 F.2d at 1081; see also 75 P A . C ONS . S TAT . A NN . 1 § 6308(b) (Supp. 1995). 2 2 As a general rule, the burden of proof is on the 3 defendant who seeks to suppress evidence. See United States v. 4
Acosta , 965 F.2d 1248, 1256 n.9 (3d Cir. 1992) (citations 5 omitted). However, once the defendant has established a basis 6 for his motion, i.e. , the search or seizure was conducted without 7 a warrant, the burden shifts to the government to show that the 8 search or seizure was reasonable. See United States v. McKneely , 9 6 F.3d 1447, 1453 (10th Cir. 1993). 10 The trooper testified that he stopped Defendant's 11 vehicle because, based on what he saw, he believed it was in 12 violation of the Pennsylvania Vehicle Code. See Appendix at A57. 13 As we read the district court's memorandum decision, it accepted 14 this testimony. See Mem. Op. at 12, 14. This finding of fact 15 exceeds the showing required of the government to justify the 16 traffic stop under Prouse , which requires only an articulable and 17 reasonable suspicion that the car was in violation of 18 Pennsylvania law. See, e.g. , Pennsylvania v. Mimms , 434 U.S. 106, 19 109 (1977); Velasquez , 885 F.2d at 1081. Because this finding is 20 not clearly erroneous, we conclude that the district court 21

2 Under section 6308(b) of the Pennsylvania Vehicle Code, a

trooper who has reasonable and articulable grounds to believe that a vehicle or driver is in violation of the Vehicle Code may stop the vehicle. See Commonwealth v. Benton , 655 A.2d 1030, 1033 (Pa. Super. Ct. 1995). Although an actual violation need not be established, a reasonable basis for the officer's belief is required to validate the stop. See id. ; Commonwealth v. McElroy , 630 A.2d 35, 40-41 (Pa. Super. Ct. 1993).8

correctly determined that the trooper's basis for the stop, 1 standing alone, met Fourth Amendment requirements. 2 B. The Pretext Issue 3 Although the traffic stop itself met constitutional 4 requirements, the district court suppressed the seized materials 5 because it found that the traffic stop was merely a pretext to 6 find a basis to thereafter search Defendant's vehicle for 7 narcotics and, as such, was violative of the Fourth Amendment. 8
See Mem. Op. at 16. We now determine whether the district court 9 applied the proper standard in determining that the stop was 10 pretextual. This important issue presents a question of law 11 subject to plenary review. See United States v. Deaner , 1 F.3d 12 192, 196 (3d Cir. 1993). 13 In evaluating the constitutionality of a police traffic 14 stop, most courts agree that an objective analysis of the facts 15 and circumstances surrounding the stop is appropriate. See, e.g. , 16 Scott v. United States , 436 U.S. 128, 137-38 (1978); United 17
States v. Whren , 53 F.3d 371, 374 (D.C. Cir. 1995); United States 18 v. Hawkins , 811 F.2d 210, 213 (3d Cir.), cert. denied , 484 U.S. 19 833 (1987). However, courts of appeals have had some difficulty 20 in applying this objective assessment to the argument that a 21 traffic stop, otherwise lawful, is really a pretext to search for 22 evidence of an unrelated serious crime and, thus, unlawful. 23 Neither the Supreme Court nor this court seems to have directly 24 addressed this constitutional issue. 3 25

3 Some courts have characterized this court's opinion in United

States v. Hawkins , 811 F.2d 210 (3d Cir. 1987) as endorsing the9

The majority of the courts of appeals have adopted the 1 so-called "authorization test." Under that approach, materials 2 seized following a traffic stop are admissible so long as a 3 reasonable police officer could have made the stop (also known as 4 the "could" test). These courts simply inquire whether, at the 5 time of the stop , the police officer reasonably believed the 6 defendant was committing a traffic offense, and whether the law 7 authorized a stop for such an offense. 4 8 A minority of the courts of appeals have adopted the 9 "usual police activities" test (also known as the "would" test). 10 Applying that test to a traffic stop, materials seized are 11 admissible as evidence only if a reasonable police officer would 12 have made the stop in the absence of an invalid purpose. 5 These 13 courts inquire not only into the legality of the stop, but also 14 into its conformity with regular police practices. 15 "authorization" test. See, e.g. , United States v. Scopo , 19 F.3d

at 783; United States v. Ferguson , 8 F.3d 385, 389 (6th Cir. 1993). In Hawkins , the police gave a pretext, a traffic violation, as the reason for stopping a vehicle whose occupants, they believed, were involved in the purchase and sale of narcotics. This court, without relying on the pretext asserted by the police, found an objectively reasonable basis for the stop. See Hawkins , 811 F.2d at 215. It stated that the pretext used by the police did not render an otherwise constitutional search invalid . See id. Therefore, the court was not required to address the allegedly pretextual nature of the traffic stop.

4 See Whren , 53 F.3d at 375-76; Scopo , 19 F.3d at 782-84; United States v. Jeffus , 22 F.3d 554, 557 (4th Cir. 1994); United States v. Bloomfield , 40 F.3d 910, 915 (8th Cir. 1994); United States v. Roberson , 6 F.3d 1088, 1092 (5th Cir. 1993); Ferguson , 8 F.3d at 389-91; United States v. Hadfield , 918 F.2d 987, 993 (1st Cir. 1990), cert. denied , 500 U.S. 936 (1991); United States v. Hope , 906 F.2d 254, 257-58 (7th Cir. 1990).
5 See United States v. Millan , 36 F.3d 886, 888 (9th Cir. 1994); United States v. Dirden , 38 F.3d 1131, 1139-40 (10th Cir. 1994); United States v. Harris , 928 F.2d 1113, 1116-17 (11th Cir. 1991).10

In this case the district court adopted the minority 1 approach, the usual police activities test. It held that a 2 "reasonable" trooper would not have stopped the vehicle for the 3 minor traffic violation here involved, absent a "hunch" that the 4 occupants were trafficking in narcotics. See Mem. Op. at 15-16. 5 The usual police activities test, the court reasoned, "is most 6 faithful to the spirit of the Fourth Amendment." Id. at 13. 7 Thus, we must decide, under a plenary standard of 8 review, whether to adopt the minority standard employed by the 9 district court or the rule of the majority of the courts of 10 appeals. 11 The Supreme Court has consistently held that an 12 analysis of Fourth Amendment issues involves "`an objective 13 assessment of the officer's actions in light of the facts and 14 circumstances confronting him at the time' and not on the 15 officer's actual state of mind at the time the challenged action 16 was taken." Maryland v. Macon , 472 U.S. 463, 470-71 (1985) 17 (quoting Scott , 436 U.S. at 136); see Hawkins , 811 F.2d at 213- 18 14. "[T]he fact that the officer does not have the state of mind 19 which is hypothecated by the reasons which provide the legal 20 justification for the officer's action does not invalidate the 21 action so long as the circumstances, viewed objectively, justify 22 that action." Scott , 436 U.S. at 138; see United States v. 23 Villamonte-Marquez , 462 U.S. 579, 584 n.3 (1983) (stating that 24 the fact that customs officers boarding a ship pursuant to a 25 statute authorizing a check of the vessel's documentation 26 suspected that the vessel carried marijuana was not a violation 2711

of the Fourth Amendment); Hawkins , 811 F.2d at 214 ("Both the 1 Supreme Court and this court have held that a seizure that is 2 valid based upon the stated purpose cannot be challenged on the 3 grounds that the seizing officers were in fact motivated by an 4 improper purpose."); see also Velasquez , 885 F.2d at 1081. We 5 conclude that the authorization test incorporates this objective 6 analysis. 7 On the other hand, the usual police activities test 8 applied by the district court is not a wholly objective test 9 because it requires a reviewing court to examine the motivations 10 and hopes of a police officer. See Mem. Op. at 9 ("The crux of 11 [the would] test is an objective analysis of what a reasonable 12 police officer would have done under the same circumstances 13 absent any underlying improper purpose ."). This approach would 14 require a court to move past the objective facts and 15 circumstances, i.e. , the traffic violation, and attempt to 16 ascertain an officer's true state of mind. 17 In response to the government's argument seeking to 18 have us apply the majority view, Defendant and amicus, ACLU, 19 contend that the authorization standard will do nothing to 20 restrain the arbitrary exercise of discretionary police power. 21
See Defendant's Br. at 12; ACLU Br. at 11-14; see also United 22
States v. Cannon , 29 F.3d 472, 474-75 (9th Cir. 1994) ("In the 23 absence of some limit on police power to make such stops, 24 thousands of everyday citizens who violate minor traffic 25 regulations will be subject to unfettered police discretion as to 26 whom to stop."); United States v. Guzman , 864 F.2d 1512, 1516 2712

(10th Cir. 1988); 1 W AYNE R. L A F AVE , S EARCH AND S EIZURE , A T REATISE ON THE 1

F OURTH A MENDMENT § 1.4(e), at 28 (Supp. 1995) (arguing that the 2 authorization test has "conferred upon the police a virtual carte 3
blanche to stop people because of the color of their skin or for 4 any other arbitrary reason"). 5 However, the police are subject to a number of 6 statutory and common law limitations. For example, officers 7 cannot make a traffic stop without probable cause or a reasonable 8 suspicion, based on articulable facts, that a traffic violation 9
has occurred. See Prouse , 440 U.S. at 661; Velasquez , 885 F.2d at 10 1081; see also 75 P A . C ONS . S TAT . A NN . § 6308(b). Thus, in 11 evaluating the constitutionality of a traffic stop, a court is 12 free to examine the sufficiency of the reasons for the stop as 13 well as the officer's credibility. 14 Furthermore, a traffic stop must be reasonably related 15 in scope to the justification for the stop. See Berkemer v. 16 McCarty , 468 U.S. 420, 439 (1984); Bloomfield , 40 F.3d at 915; 17 Scopo , 19 F.3d at 785; United States v. Hassan El , 5 F.3d 726, 18 731 (4th Cir. 1993), cert. denied , 114 S. Ct. 1374 (1994). To 19 justify a greater intrusion unrelated to the traffic stop, the 20 totality of the circumstances known to the police officer must 21 establish reasonable suspicion or probable cause to support the 22 intrusion. See United States v. Ramos , 42 F.3d 1160, 1163 (8th 23 Cir. 1994); United States v. Hernandez , 872 F. Supp. 1288, 1293- 24 94 (D. Del 1994). Clearly, a lawful traffic stop is not "carte 25 blanche" for an officer to engage in other unjustified action. 2613

In addition, the authorization test ensures that the 1 validity of a traffic stop "is not subject to the vagaries of 2 police departments' policies and procedures" concerning the kinds 3 of traffic offenses which are enforced. Ferguson , 8 F.3d at 392; 4

see Whren , 53 F.3d at 376; Scopo , 19 F.3d at 784. Therefore, the 5 validity of a traffic stop should be evaluated on the officer's 6 objective legal basis for the stop and not on whether the police 7 department routinely enforces a particular traffic law or assigns 8 a traffic officer to make such stops. It is not apparent why 9 police officers should be precluded from making an otherwise 10 valid traffic stop merely because by doing so they would be 11 departing from some routine. 12 We conclude that the district court erred in adopting 13 and applying the usual police activities test rather than the 14 authorization test in deciding that the basis for the vehicle 15 stop was a pretext to search for drugs. In adopting the majority 16 standard, we recognize that any rule governing this issue can be 17 abused by the authorities. But, that concern is inherent in the 18 nature of law enforcement. Based on the foregoing, we now 19 examine Defendant's pretext argument in light of the standard we 20 have adopted. 21 We next consider whether we should go on and apply the 22 standard we adopt to Defendant's pretext argument or remand it 23 for resolution by the district court. Because the district court 24 has already made the relevant factual findings, we will decide 25 this issue. 2614

As we have noted, the district court found that the 1 trooper reasonably believed that Defendant's vehicle was in 2 violation of the Pennsylvania Vehicle Code. See supra at 7. 3 Applying the authorization test, we hold that the stop was not 4 unconstitutionally pretextual under the Fourth Amendment because 5 it was authorized under Pennsylvania law. See supra note 2. 6
III. CONCLUSION 7 The suppression order of the district court will be 8 vacated and Defendant's motion to suppress will be remanded to 9 the district court to decide whether the subsequent consent and 10 search were valid. 11

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