2009 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

11-2-2009

USA v. Licurtis Whitney

Precedential or Non-Precedential: Non-Precedential

Docket No. 09-1752

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Recommended Citation

"USA v. Licurtis Whitney" (2009). 2009 Decisions. Paper 319.

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

____________

No. 09-1752

____________

UNITED STATES OF AMERICA,

v.

LICURTIS WHITNEY,

 Appellant.

____________

On Appeal from the United States District Court

for the District of Delaware

(D.C. No. 07-cr-00028)

District Judge: Honorable Joseph J. Farnan, Jr.

____________

Submitted Under Third Circuit LAR 34.1(a)

October 30, 2009

Before: SLOVITER, FUENTES and HARDIMAN, Circuit Judges.

(Filed: November 2, 2009)

____________

OPINION OF THE COURT

____________
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HARDIMAN, Circuit Judge.

Licurtis Whitney appeals his judgment of conviction following his conditional plea

of guilty, pursuant to which he reserved the right to challenge on appeal the District

Court’s denial of his motions to suppress physical evidence and statements. We will

affirm.

I.

Because we write for the parties, we recount only the facts essential to our

analysis.

Acting on a tip that a vehicle matching the description of Whitney’s was involved

in a drug deal, Delaware police followed Whitney and pulled him over around 2:00 a.m.

after he failed to use his turn signal. Upon approaching the vehicle, one of the police

officers noticed white crumbs similar to cocaine residue on Whitney’s clothing. The

officer asked Whitney what the crumbs were, to which Whitney replied, “I don’t know.” 

The officer then shined his flashlight inside the vehicle, and noticed a clear, knotted

sandwich bag containing an off-white chalky substance (later determined to be cocaine)

on the floor behind the driver’s seat. Another officer spotted a similar bag partially

obscured in the lap of the front-seat passenger. The officers arrested Whitney and his

passenger and transported them to the police station where they were advised of, and

invoked, their Miranda rights.
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A month later, Whitney was questioned by federal agents from the Drug

Enforcement Agency. The Government conceded that Whitney was not Mirandized

before this meeting, so statements Whitney made could not be used at trial. Two months

after that meeting, Whitney was arrested by the Bureau of Alcohol, Tobacco, Firearms,

and Explosives (ATF) at his Maryland home and charged under 21 U.S.C. §§ 841(a)(1),

841(b)(1)(A), and 846. This time Whitney was advised of his Miranda rights, completed

a written waiver, and made certain incriminating statements.

Before trial on the federal charges, Whitney filed a motion to suppress all of the

evidence against him: the cocaine found in his vehicle, statements made during the traffic

stop prior to his arrest, and subsequent statements made to the ATF after waiving his

Miranda rights. The District Court denied the motion and, following a conditional guilty

plea, sentenced Whitney to 75 months in prison.

Whitney appeals the District Court’s evidentiary rulings. We have jurisdiction

under 28 U.S.C. § 1291.

II.

A.

Whitney first argues that the cocaine seized by the police following the traffic stop

should have been suppressed. The District Court ruled that the cocaine found in

Whitney’s vehicle was admissible under

the well-settled rule that ‘objects such as weapons or contraband found in a

public place may be seized by the police without a warrant [because the]
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seizure of property in plain view involves no invasion of privacy and is

presumptively reasonable, assuming that there is probable cause to associate

the property with criminal activity.’

Texas v. Brown, 460 U.S. 730, 738 (1983) (quoting Payton v. New York, 445 U.S. 573,

586-587 (1980)).

Whitney argues that the cover of darkness rendered the cocaine out of plain view,

and that by shining a light inside his vehicle police committed an illegal search. This

argument flies in the face of the Supreme Court’s statement that “[i]t is . . . beyond

dispute that [the police officer’s] action in shining his flashlight to illuminate the interior

of Brown’s car trenched upon no right secured to the latter by the Fourth Amendment.” 

Id. at 739-40.

So long as the officers who arrested Whitney “did not violate the Fourth

Amendment in arriving at the place from which the [cocaine] could be plainly viewed,”

the evidence is admissible. Horton v. California, 496 U.S. 128, 136 (1990). See also

United States v. Yamba, 506 F.3d 251, 257 (3d Cir. 2007) (“The ‘plain view’ doctrine . . .

is best understood not as an independent exception to the warrant clause, but simply as an

extension of whatever the prior justification for an officer’s access to an object may be.”). 

Whitney concedes that “an ordinary traffic stop is analogous to an investigative detention,

[and] has been historically reviewed under the investigatory framework first articulated in

Terry v. Ohio, 392 U.S. 1 (1968).” Appellant’s Br. at 11 (quoting United States v. DelfinColina, 464 F.3d 392, 396 (3d Cir. 2006)). Under Terry, “the police officer must be able
5

to point to specific and articulable facts which, taken together with rational inferences

from those facts, reasonably warrant” the stop. 392 U.S. at 21.

Here, it is undisputed that police observed Whitney violate state law by making a

turn without using his turn signal, so the traffic stop was proper. See Pennsylvania v.

Mimms, 434 U.S. 106, 109 (1977) (finding “no question about the propriety of” pulling

over respondent for violating Pennsylvania Motor Vehicle Code). Nor does Whitney

dispute that the “incriminating character” of the contraband seen in his car was

immediately apparent, or that discovery of the cocaine gave rise to probable cause

justifying the warrantless seizure. Therefore, because the officers were lawfully in a

position from which to observe the drugs on the floor of Whitney’s car using a flashlight,

the District Court correctly found that the evidence was admissible under the plain view

doctrine.

B.

Whitney next challenges the District Court’s denial of his motion to suppress

incriminating statements he made during the traffic stop and after his arrest by the ATF. 

Whitney claims the statements he made during the traffic stop were obtained in violation

of Miranda v. Arizona, 384 U.S. 436 (1966), because he was not warned of his right to

remain silent. The Supreme Court long ago rejected this argument, holding in Berkemer

v. McCarty that because of “the non-coercive aspect of ordinary traffic stops,” motorists

are not “in custody” and therefore not entitled to Miranda warnings. 468 U.S. 420, 440
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(1984). Whitney proposes an exception to this well-established rule based on the time of

day and location where a traffic stop takes place. Such a distinction is unsupported by the

law or logic. Accordingly, we reject Whitney’s strained attempt to distinguish Berkemer

and affirm the admissibility of Whitney’s statements during the traffic stop.

Whitney also argues that the statement he gave to the ATF — which followed

Miranda warnings and the execution of a written waiver — should have been suppressed

because of the un-Mirandized statement he gave previously to the DEA. This argument

also has been squarely rejected by the Supreme Court. See Oregon v. Elstad, 470 U.S.

298, 318 (1985) (“[A] suspect who has once responded to unwarned yet uncoercive

questioning is not thereby disabled from waiving his rights and confessing after he has

been given the requisite Miranda warnings.”).

III.

In sum, because the District Court committed no legal error in denying Whitney’s

motions to suppress physical evidence and statements, we will affirm the judgment.