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United States v. Santillan

United States Court of Appeals, Second Circuit

August 24, 2018

United States of America, Appellee,
v.
Hector Santillan (AKA "Bane"), Defendant-Appellant, Junior Rivera-Vasquez, Defendant.

          Argued: October 11, 2017

          Appeal from the United States District Court for the Southern District of New York. No. 1:13-cr-138-1 - Robert W. Sweet, District Judge.

         Defendant-Appellant Hector Santillan appeals his conviction and sentence entered in the United States District Court for the Southern District of New York (Robert W. Sweet, J.) following a jury trial. Santillan was convicted of participating in a conspiracy to distribute or possess with intent to distribute heroin, oxycodone, and cocaine, and distributing and possessing with intent to distribute 500 grams or more of cocaine. He was sentenced to 151 months' imprisonment.

         Santillan's primary argument on appeal is that the district court erred in denying his pre-trial motion to suppress physical evidence recovered and statements made during a traffic stop and search. Specifically, Santillan argues that: (1) the traffic stop was unreasonably prolonged to the point that it became a de facto arrest for which probable cause was lacking; (2) there was no reasonable basis to frisk Santillan for weapons; (3) his statements were used against him in violation of Miranda v. Arizona, 384 U.S. 436 (1966); and (4) police officers obtained consent to search a car in which he was a passenger through coercion. Santillan also argues that the government impermissibly vouched for its cooperating witness during trial, his trial counsel was ineffective, and the district court committed procedural errors when calculating his sentence.

         In this opinion, we address Santillan's challenges to the stop and search. We conclude that the police officer conducting the traffic stop had reasonable suspicion to extend the stop when Santillan and the driver appeared nervous and were unable to provide information about where they were coming from. The stop did not ripen into a de facto arrest because the police officer used reasonable methods and intrusions to confirm or dispel his suspicions. Although certain evidence was improperly seized during a frisk, the physical evidence would have inevitably been discovered and thus suppression was not warranted. While accompanying statements should have been suppressed, the error was harmless. We find no merit in each of Santillan's other challenges to his sentence and conviction, which are resolved by a summary order issued simultaneously with this opinion. Accordingly, we AFFIRM Santillan's conviction and sentence.

          Kristy J. Greenberg, Assistant United States Attorney (Noah Solowiejczyk, Michael Ferrara, Assistant United States Attorneys, on the brief), for Geoffrey S. Berman, United States Attorney for the Southern District of New York, New York, NY, for Appellee.

          Michelle Anderson Barth, Law Office of Michelle Anderson Barth, Burlington, VT, for Defendant-Appellant.

          Hector Santillan, Ayer, MA, pro se.

          Before: Walker, Pooler, Circuit Judges, and Crawford, District Judge. [**]

          John M. Walker, Jr., Circuit Judge.

         Defendant-Appellant Hector Santillan appeals his conviction and sentence entered in the United States District Court for the Southern District of New York (Robert W. Sweet, J.) following a jury trial. Santillan was convicted of participating in a conspiracy to distribute or possess with intent to distribute heroin, oxycodone, and cocaine, and distributing and possessing with intent to distribute 500 grams or more of cocaine. He was sentenced to 151 months' imprisonment.

         Santillan's primary argument on appeal is that the district court erred in denying his pre-trial motion to suppress physical evidence recovered and statements made during a traffic stop and search. Specifically, Santillan argues that: (1) the traffic stop was unreasonably prolonged to the point that it became a de facto arrest for which probable cause was lacking; (2) there was no reasonable basis to frisk Santillan for weapons; (3) his statements were used against him in violation of Miranda v. Arizona, 384 U.S. 436 (1966); and (4) police officers obtained consent to search a car in which he was a passenger through coercion. Santillan also argues that the government impermissibly vouched for its cooperating witness during trial, his trial counsel was ineffective, and the district court committed procedural errors when calculating his sentence.

         In this opinion, we address Santillan's challenges to the stop and search. We conclude that the police officer conducting the traffic stop had reasonable suspicion to extend the stop when Santillan and the driver appeared nervous and were unable to provide information about where they were coming from. The stop did not ripen into a de facto arrest because the police officer used reasonable methods and intrusions to confirm or dispel his suspicions. Although certain evidence was improperly seized during a frisk, the physical evidence would have inevitably been discovered and thus suppression was not warranted. While accompanying statements should have been suppressed, the error was harmless. We find no merit in each of Santillan's other challenges to his sentence and conviction, which are resolved by a summary order issued simultaneously with this opinion. Accordingly, we AFFIRM Santillan's conviction and sentence.

         BACKGROUND

         On February 12, 2013, Santillan was a passenger in a car that Junior Rivera-Vasquez was driving from Manhattan to Massachusetts. Early in the afternoon, Westchester County Department of Public Safety Officer Isai Moreira, who was patrolling in a marked car on the Hutchinson River Parkway, observed Rivera-Vasquez commit five violations of New York's Vehicle and Traffic laws over a three-minute span: (1) tires touching the fog line; (2) speeding; (3) changing lanes without signaling; (4) a second incident of tires touching the fog line; and (5) following too closely. Officer Moreira signaled for Rivera-Vasquez to pull to the side of the highway. He testified at the suppression hearing that he planned for the vehicle stop to occur in a "safety zone," but the car pulled over approximately 50 feet ahead of that zone. Joint Appendix ("J.A.") 47. At that point, the shoulders of the heavily trafficked Hutchinson River Parkway were narrowed somewhat by snow that had accumulated as a result of a recent storm.

         Officer Moreira approached the driver's side window and, after obtaining Rivera-Vasquez's license and registration, asked Rivera-Vasquez where the two men were going to and coming from. Officer Moreira testified at the suppression hearing that Rivera-Vasquez told him they were going back to Massachusetts but was "unable to provide an answer [to where they were coming from]. He basically looked over to [Santillan] and said we're coming from his aunt's house," but "could not give me any location specifically." J.A. 49. Officer Moreira then asked Santillan for his identification, and Santillan provided a photocopy of a state license. Officer Moreira repeated his question about where the two men had come from. Santillan "was mentioning some type of city or town in-he eventually mentioned New Jersey." J.A. 50-51. Officer Moreira testified that he spoke to the men in a combination of English and Spanish, and that he is fluent in both languages. Officer Moreira testified that both men "appeared very nervous, were avoiding making eye contact," "their voice was kind of shaky and they were speaking in a low voice," and that Rivera-Vasquez's "hands were shaking as he [handed] over the documents." J.A. 50. Officer Moreira returned to his patrol car to conduct license checks. Rivera-Vasquez's license and registration were valid, and there were no outstanding warrants for either party. We note that the nervousness Officer Moreira witnessed occurred even though neither man had an outstanding warrant.

         It is undisputed that at this point, approximately eight minutes after initially stopping the car, Officer Moreira had the information necessary to cite Rivera-Vasquez for the traffic violations he had observed. However, Officer Moreira continued his investigation. At Officer Moreira's request, Rivera-Vasquez got out of the car and answered additional questions in Spanish regarding his relationship with Santillan, their trip to Santillan's aunt's house, and Santillan's aunt's name. Rivera-Vasquez did not know the name of Santillan's aunt or the location of her home, where, he said, he and Santillan had stayed overnight. He said he did not know Santillan well. Officer Moreira performed a pat-down of Rivera-Vasquez, removed his wallet and cell phone, then asked him to sit (uncuffed) in the back of the patrol car. He told Rivera-Vasquez that he was not in trouble.

         Officer Moreira then asked Santillan a few questions in Spanish before asking him to get out of the car. Officer Moreira asked Santillan where he and Rivera-Vasquez were coming from and how well they knew each other. Santillan responded that he did not know Rivera-Vasquez well, that they had stayed for one or two nights at Santillan's aunt's house, and that his aunt lived somewhere in New Jersey, although "[h]e had difficulty pronouncing the name [of the location] and [Officer Moreira] had difficulty understanding [it]." J.A. 57. During this conversation, Officer Moreira saw that there were energy drinks and "multiple cell phones," which he later clarified to mean more than one cell phone, in the center console. J.A. 58, 191. At this point, Officer Moreira had already removed Rivera-Vasquez's cell phone from his pocket, and thus had reason to believe that the car contained more cell phones than occupants. At some point, Officer Moreira noticed the passenger seat was higher than the driver's seat. J.A. 59, 177. Officer Moreira also "observed [Santillan] to be very hesitant in exiting" the car and "observed [Santillan] kind of look down in his general area as a quick look over before he exited." J.A. 58-59.

         In response to further questions, Santillan indicated that he had no luggage, but had extra clothes in the car, and that he had $80 on him. Officer Moreira patted Santillan down and removed $1, 000 from Santillan's back pants pocket. When Officer Moreira asked why he had "lied" about the amount of money he had on him, Santillan replied that he thought Officer Moreira was only asking about the money in his front pockets. J.A. 61. Officer Moreira asked Santillan to sit (uncuffed) in the back of a second patrol car which had arrived during the stop. As with Rivera-Vasquez, Officer Moreira informed Santillan that he was not in trouble or under arrest.

         By this time, approximately 17 minutes had elapsed since Officer Moreira first initiated the traffic stop. Officer Moreira then asked for and received Rivera-Vasquez's verbal consent to search the car. Officer Moreira and another officer searched the car for approximately 20 minutes, during which time they noticed that the seat material covering the passenger seat appeared to be different than and newer than the material on the driver's seat. In addition, the officers noticed that there was plastic wrapping in the space between the cushion and the backrest of the passenger seat. According to Officer Moreira's experience, which was based in part on Drug Enforcement Administration training, the plastic wrapping was consistent with wrapping used to transport narcotics. Officer Moreira then requested a narcotics dog.

         At this point, approximately 37 minutes after the stop began, Officer Moreira wrote Rivera-Vasquez citations for three of the five violations of New York's Traffic and Vehicle laws. About 67 minutes after the stop began, the "narcotics canine" arrived on the scene and indicated that the front passenger seat of the car was positive for the presence of drugs. J.A. 75. Officer Moreira pulled back the seat and found two packages of material later determined to contain cocaine.

         Approximately 80 minutes after the stop began, both Rivera-Vasquez and Santillan were arrested. At the police station, Rivera-Vasquez signed a written consent to search form, which Officer Moreira stated was to "reassure the consent that [he] had received on the scene." J.A. 82. Shortly thereafter, both Rivera-Vasquez and Santillan were arraigned on a complaint charging them with drug offenses.

         Santillan, joined by co-defendant Rivera-Vasquez, moved to suppress all evidence found on his person and in the car, as well as his statements to Officer Moreira. He argued in relevant part that the officers lacked probable cause or reasonable suspicion to detain him longer than eight minutes into the stop, the point at which Officer Moreira had the information needed to issue traffic citations. He also argued that the pat-down of his person was not supported by a reasonable suspicion to believe that he was armed, that his statements regarding the $1, 000 should be suppressed because they were the fruit of illegally obtained evidence, and that his other pre-arrest statements should be suppressed because they were obtained through the coercive nature of a de facto arrest without Miranda warnings. The district court denied this motion and a motion to reconsider following Rodriguez v. United States, 135 S.Ct. 1609 (2015), in which the Supreme Court addressed the unlawful prolongation of traffic stops.

         After the suppression motion was denied, Rivera-Vasquez agreed to plead guilty and to become a cooperating witness against Santillan. Rivera-Vasquez testified at Santillan's trial regarding Santillan's role in distributing cocaine, heroin, oxycodone, and Percocet. He testified that he had delivered oxycodone to Santillan "several times" in packages of "between 1, 500 and 2, 000 pills." J.A. 517-18. Rivera-Vasquez also testified that Santillan had engaged in other criminal activity, including the possession of an assault rifle while trafficking in drugs and an attempted kidnapping of a person whom Santillan and others suspected of stealing narcotics and narcotics proceeds. According to Rivera-Vasquez's testimony, Santillan and two other men asked the target of the attempted kidnapping to join them in a car. When the target opened the car door and saw Santillan holding an assault rifle, he fled. Rivera-Vasquez testified that he had seen Santillan with a specific assault rifle, and identified that assault rifle as the same one pictured in photographs recovered from Santillan's phone.

         The jury convicted Santillan on both counts of conspiracy and possession of drugs with intent to distribute. The district court sentenced Santillan principally to 151 months' imprisonment, at the bottom of his sentencing guidelines range of 151 to 188 months. Santillan timely appealed.

         DISCUSSION

         Santillan argues that we should vacate his conviction and sentence because the district court erred by denying his motion to suppress evidence seized from the vehicle and from his person and statements he made during the course of the stop. His principal contention is that the stop was unreasonably prolonged in violation of the Fourth Amendment.[1] See Rodriguez, 135 S.Ct. at 1612, 1616. Under Rodriguez, authority for a traffic-stop seizure ends when the tasks tied to the traffic infraction are-or reasonably should have been-completed, unless the officer develops reasonable suspicion of criminal activity sufficient to extend the stop. Id. at 1614-15. We disagree with Santillan.

         First, we conclude that Officer Moreira had reasonable suspicion to extend the traffic stop. Second, we determine that Officer Moreira had reasonable suspicion to believe that Santillan was armed, and therefore had sufficient justification to frisk him. Although the $1, 000 recovered during the frisk should not have been removed from Santillan's pockets, it would have inevitably been discovered and admitting Santillan's statements about it was harmless error. Third, Santillan was never subject to custodial arrest and Miranda warnings were not required. Fourth, Santillan's detention never ripened into a de facto arrest, either due to the stop's duration or to the fact that Santillan was placed in a police car, because Officer Moreira took reasonable steps under the circumstances, and therefore probable cause for Santillan's detention was not required. Finally, Santillan cannot challenge the search of the car because he had no reasonable expectation of privacy in it.

         I. Officer Moreira had Reasonable Suspicion to Prolong the Stop of Santillan and his Investigatory Tactics Were Reasonable

         On review of a challenged suppression order, we examine the district court's findings of fact for clear error, reviewing de novo questions of law and mixed questions of law and fact, including the existence of reasonable suspicion to stop or extend a stop. See United States v. Singletary, 798 F.3d 55, 59 (2d Cir. 2015). We view the totality of the circumstances through the eyes of a reasonable and cautious officer on the scene, whose insights are necessarily guided by the officer's experience and training. Id. at 60-62. See also United States v. Bayless, 201 F.3d 116, 133 (2d Cir. 2000) (noting that we ask "if the conduct would appear suspect to one familiar with the practices of narcotics couriers," even if it would appear innocuous to an untrained observer) (internal quotation marks omitted).

         "Reasonable suspicion requires more than an inarticulate hunch." United States v. Compton, 830 F.3d 55, 61 (2d Cir. 2016) (internal quotation marks and alteration omitted). "The suspicion must derive from specific and articulable facts which, taken together with rational inferences from those facts, provide detaining officers with a particularized and objective basis for suspecting wrongdoing." Id. (internal quotation marks omitted). The reasonable suspicion standard is "not high" and is "less demanding than probable cause, requiring only facts sufficient to give rise to a reasonable suspicion that criminal activity may be afoot." Singletary, 798 F.3d at 60 (internal quotation marks and citation omitted). Conduct that is as consistent with innocence as with guilt may provide the basis for reasonable suspicion where there is some indication of possible illicit activity. See ...


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