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 ...