United States of America v. Licurtis Whitney

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 09-1752
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UNITED STATES OF AMERICA,
v.
LICURTIS WHITNEY,
Appellant.
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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.
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Submitted Under Third Circuit LAR 34.1(a)
October 30, 2009
Before: SLOVITER, FUENTES and HARDIMAN, Circuit Judges.
(Filed: November 2, 2009)
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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. Delfin-
Colina, 464 F.3d 392, 396 (3d Cir. 2006)). Under Terry, “the police officer must be able

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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.

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