United States v. Sanchez , 817 F.3d 38 ( 2016 )

United States Court of Appeals
For the First Circuit
No. 15-1107
UNITED STATES OF AMERICA,
Appellee,
v.
JORGE SANCHEZ,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, U.S. District Judge]
Before
Howard, Chief Judge,
Thompson and Kayatta, Circuit Judges.
Jeffrey W. Langholtz on brief for appellant.
Carmen M. Ortiz, United States Attorney, and Randall E. Kromm,
Assistant United States Attorney, on brief for appellee.
March 23, 2016
THOMPSON, Circuit Judge.
Preface
Jorge Sanchez asks us to undo a district judge's order
denying his motion to suppress. Concluding that we cannot, we
affirm.
How the Case Got Here1
One summer evening back in August 2011, Officer Mark
Templeman of the Springfield Police Department got a phone call
from a confidential informant ("CI," for short). A Hispanic man
standing near a green Ford Taurus on the corner of Main and Calhoun
streets had a black semiautomatic handgun in his waistband and
crack cocaine in his pocket, the CI said. And he described the
man as medium complected, roughly 5'5" tall, and wearing a white
t-shirt and black cargo-style shorts. Asked by Templeman how he
knew about the gun and the crack, the CI replied that he had
personally "seen" them. Templeman knew the CI well, having worked
with him since about 2007. Templeman knew the CI's name, phone
number, and address, for example. And the CI had been a big help
to police before, having given Templeman tips about street-level
drug deals and firearm-possession crimes over the years that led
1 As per usual, we outline the relevant facts as found below,
"consistent with record support." See United States v. Lee, 317
F.3d 26, 30 (1st Cir. 2003).
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to arrests and convictions — as far as Templeman knew, the CI had
never given him false info.
Responding to the tip, Templeman and other officers
headed to the scene in several cars. Templeman drove alone,
arriving at the locale about five minutes after the CI's call.
There he saw a green Ford Taurus and a man matching the physical
description given by the CI. Templeman recognized the man as
Sanchez, a suspected gang member he had arrested in 2004 for
possessing with intent to distribute heroin and cocaine — an
offense that resulted in a conviction, meaning (as Templeman knew)
that Sanchez could not legally carry a firearm.
After surveilling the site for about 10 minutes,
Templeman (who had binoculars) spied Sanchez put his left hand on
his left hip: Sanchez's t-shirt hung over his waistband, and as
Sanchez touched this area, Templeman could see the shape of some
object underneath the shirt. Sanchez's movement reminded
Templeman of how he (Templeman) checks his concealed firearm. As
a result of his observations, and based on his training and
experience, Templeman believed that Sanchez had a firearm. So he
radioed his colleagues, telling them to "move in" and warning them
about the gun tucked in the left side of Sanchez's waistband.
Staying in his car, Templeman watched an officer named
Kalish close in, pat Sanchez's waistband, and grab the gun.
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Someone — the record does not say who — then arrested and cuffed
Sanchez. And a search incident to the arrest turned up the crack.
The total time from the CI's call to Sanchez's arrest was 15
minutes or so.
During booking, Sergeant Julio Toledo (the booking
officer that evening) asked a not-yet-Mirandized Sanchez a series
of standard questions about his name, date of birth, social-
security number, height, weight, job held or school attended, etc.
And when Toledo asked him whether he was employed, Sanchez matter-
of-factly answered that he was "a drug dealer." By the way, Toledo
played no part in the Sanchez investigation — other than knowing
the booking charges, Toledo knew nothing about the case against
Sanchez. Also, Toledo had no info suggesting that his asking these
standard booking questions might cause Sanchez to incriminate
himself. What is more, Toledo did not ask the questions to further
the investigation. And he did not ask Sanchez any follow-up
questions tied to the "drug dealer" comment — a comment Toledo
shared with Templeman after booking.
A federal grand jury indicted Sanchez on three counts.
Count 1 alleged that he had possessed cocaine base with intent to
distribute. Count 2 alleged that he had possessed a firearm as a
convicted felon. And count 3 alleged that he had possessed a
firearm in furtherance of a drug-trafficking offense.
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Sanchez moved to suppress both the contraband and the
drug-dealer statement. On the contraband issue, he challenged the
evidence's admissibility on the ground that no reasonable
suspicion justified the "seizure and search" of his "person." And
on the employment-question matter, he contested his answer's
admissibility on the basis that Toledo had asked the offending
question — before any Miranda warnings — "to elicit an
incriminating response," rendering his drug-dealer "confession"
involuntary. The government disagreed with Sanchez on both fronts,
insisting that reasonable suspicion did exist to stop and frisk
him and that the complained-of question and answer fell outside
Miranda's scope. A district judge held an evidentiary hearing, at
which only Templeman and Toledo testified. And after crediting
the key particulars of their accounts, the judge orally denied the
motion.
Later, the government voluntarily dismissed counts 1 and
3. Sanchez then entered a conditional guilty plea to count 2 (the
felon-in-possession-of-a-firearm count), reserving his right to
appeal the suppression ruling. And the judge sentenced him to the
statutory minimum of 180 months in prison plus 3 years of
supervised release.
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Which brings us to today, with Sanchez complaining about
the judge's refusal to suppress the evidence seized and the comment
made that fateful summer evening.
The Evidence-Suppression Issue
We start with the evidence-suppression issue. As
Sanchez sees it, the judge should have granted his suppression
motion because the CI's tip was too "generic" and not
"corroborated" enough to supply reasonable suspicion for the stop
and the frisk, which made the arrest — based on the evidence seized
— "unlawful." We of course review the judge's legal conclusion de
novo, accepting his factual findings and credibility calls unless
clearly erroneous and viewing the evidence in the light most likely
to support his decision. See, e.g., United States v. Martinez,
762 F.3d 127, 130-31 (1st Cir. 2014); United States v. Brake, 666
F.3d 800, 804 (1st Cir. 2011); see also United States v. Coccia,
446 F.3d 233, 237 (1st Cir. 2006) (noting that "'we will uphold a
denial of a motion to suppress if any reasonable view of the
evidence supports it'" (quoting United States v. Garner, 338 F.3d
78, 80 (1st Cir. 2003))). Keeping these principles in mind, we
see no constitutional violation.
Search-and-Seizure Basics
The Fourth Amendment declares that searches and seizures
shall not be "unreasonable." See U.S. Const. amend. IV. Cases
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often treat searches without probable cause as "unreasonable."
See, e.g., United States v. Lopez, 989 F.2d 24, 26 (1st Cir. 1993).
But there are exceptions. The one relevant here says that officers
may stop and briefly detain a person if they have reasonable
suspicion that criminal activity is afoot, see, e.g., Terry v.
Ohio, 392 U.S. 1, 30 (1968); Brake, 666 F.3d at 804 — a standard
that requires us to take account of the "totality of the
circumstances," see United States v. Arvizu, 534 U.S. 266, 273
(2002); accord United States v. Pontoo, 666 F.3d 20, 29 (1st Cir.
2011). And officers may pat-frisk the person too if they have
reason to believe he is "armed and dangerous." See, e.g., Pontoo,
666 F.3d at 30. The high Court refers to these police actions as
"Terry stops" and "Terry frisks." See Florida v. J.L., 529 U.S.
266, 272–73 (2000). So we will too.
No Terry-Stop Problem
Reasonable suspicion can be established by an
informant's tip if the tip possesses sufficient "indicia of
reliability," see id. at 270 — on this both sides agree. And the
tip here fits the bill, despite what Sanchez argues. Just consider
the following:
Templeman knew the CI's tips had proven reliable in the
past — which is a very big deal because an informant's "past
reliability . . . is a significant factor permitting reliance on
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information that would not otherwise be sufficiently
corroborated." See United States v. Jones, 700 F.3d 615, 621-22
(1st Cir. 2012). Actually, Templeman knew more than just the CI's
reliability. He knew the CI's identity — after working with him
for years, Templeman knew the tipster's name, phone number, and
address. And the reason that matters is because it is a crime to
materially lie to law-enforcement agents — so knowing the CI's
name, for example, ups the chance that agents can come down hard
on the tipster if the tip is false, and that threat ups the chance
that the tip is reliable. See J.L., 529 U.S. at 270 (indicating
that unlike an anonymous informant's tip, a "tip from a known
informant whose reputation can be assessed and who can be held
responsible if her allegations turn out to be fabricated" is much
more trustworthy). Also, the CI gave detailed, not general, info,
as he spoke about Sanchez's physical appearance, location, gun
possession, and crack holding — and the CI had seen the gun and
crack with his own eyes, which gave him a clear basis of knowledge
for the tip. See Illinois v. Gates, 462 U.S. 213, 234 (1982)
(explaining that when an informant observes a crime "first-hand,"
that "entitles [the] tip to greater weight than might otherwise be
the case").
Seeking to avoid all this, Sanchez analogizes his case
to J.L. There, officers used an anonymous tip — that "a young
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black male standing at a particular bus stop and wearing a plaid
shirt was carrying a gun" — to justify a Terry stop. Officers
could not verify the tipster's credibility (obviously, because
they did not know who he was). Plus, aside from the tip, which
did not describe how the tipster knew the male was armed, officers
had zero reason to suspect the male of any illegal activity — they
"did not see the firearm," for example, "and [the male] made no
threatening or otherwise unusual movements." J.L., 529 U.S. at
268. With concerns about the tipster's credibility and
accountability uppermost in the Court's mind, J.L. held that the
tip — without more — could not justify the Terry stop.
From what we have just said it is obvious that Sanchez
can get no mileage from J.L.: Not only did the CI here say how he
knew about Sanchez's gun and crack possession. And not only did
Templeman see Sanchez move in a way consistent with his having a
gun (i.e., touching an object hidden in his waistband), which
Templeman knew Sanchez could not legally possess. But unlike the
tipster in J.L., our CI was not (repeat, not) anonymous, see United
States v. Romain, 393 F.3d 63, 73 (1st Cir. 2004) (distinguishing
J.L. on similar grounds), meaning Templeman could gauge his
credibility and hold him accountable if necessary.
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The net result is that given the universe of
circumstances, the Springfield police had reasonable suspicion to
Terry-stop Sanchez. Enough said about that issue.
No Terry-Frisk Problem
Sanchez also protests that officers had no business
conducting a Terry frisk, essentially arguing that they had no
"urgent" need to pat him down because they had no reason to
perceive the situation to be so dangerous as to justify even a
limited search. Call us unconvinced.
Again, the CI saw Sanchez's gun and crack. Surveilling
the site, Templeman remembered that he had previously busted
Sanchez for possessing drugs with intent to distribute. He then
noticed Sanchez reach for his waistband. Also, he (in his words)
"observed a hard object within" Sanchez's "grasp and underneath"
the "[t]-shirt." And based on his experience, he reasonably
interpreted Sanchez's reaching action as suggesting that Sanchez
had a gun. Taking everything together, we believe the police had
a sufficient "security-related" basis to pat Sanchez down for a
weapon. See United States v. Arnott, 758 F.3d 40, 45 (1st Cir.
2014) (noting too that "[t]he connection between drugs and violence
is, of course, legendary"); see also United States v. Alston, 112
F.3d 32, 33-34 (1st Cir. 1997) (concluding that "a tip from a
previously reliable informant" — that a man near a particular
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street was carrying a gun — justified the "pat-down search");
United States v. Trullo, 809 F.2d 108, 113–14 (1st Cir. 1987)
(finding a Terry frisk justified in part by officer's concern that
a bulge in defendant's clothing was a weapon).
Ever persistent, Sanchez tries to throw cold water on
Templeman's interpretation by calling it nothing more than a pure
"hunch." He is right that reasonable suspicion is something more
than a mere hunch. See Arnott, 758 F.3d at 44 (explaining that
"[r]easonable suspicion" lies in the area between "a naked hunch"
and "probable cause"). But the problem for him is that the judge
essentially rejected the pure-hunch theory — after all, the judge
specifically credited Templeman's experience-based
interpretation. And we cannot say that the judge clearly erred in
doing so. Cf. Toye v. O'Donnell (In re O'Donnell), 728 F.3d 41,
46 (1st Cir. 2013) (noting that clear error means the judge's
action was "wrong with the force of a 5 week old, unrefrigerated,
dead fish" (quoting S Indus., Inc. v. Centra 2000, Inc., 249 F.3d
625, 627 (7th Cir. 2001))).
The bottom line is that we see no need to reverse the
judge on the Terry-frisk issue, just as we saw no need to reverse
the judge on the Terry-stop issue. So we affirm the judge's
refusal to suppress the evidence against Sanchez.
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Statement-Suppression Issue
As we said earlier, Sanchez also attacks the judge's
decision not to suppress his drug-dealer response to Toledo's
employment-status question. To hear him tell it, Toledo extracted
his response during a custodial interrogation without benefit of
Miranda warnings. Once again we review the judge's factual
findings for clear error and his legal ruling de novo. See, e.g.,
United States v. Hinkley, 803 F.3d 85, 90 (1st Cir. 2015). And
once again we affirm.
Miranda Basics
Miranda's familiar warnings (e.g., that you have the
right to remain silent and that anything you say can be used
against you) are required for custodial interrogations — it is the
combination of "custody" and "interrogation" that warrants the
giving of these warnings. See, e.g., Miranda v. Arizona, 384 U.S.
436, 473-79 (1966); United States v. Molina-Gómez, 781 F.3d 13,
21-22 (1st Cir. 2015). Neither side disputes that Sanchez was in
custody at the time of booking (he was an arrestee at that point,
remember). But they fight like mad over whether Toledo's
employment query constituted interrogation. So we focus our
energies on that issue.
Interrogation for Miranda purposes includes "any words
or actions on the part of the police . . . that the police should
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know are reasonably likely to elicit an incriminating response
from the suspect." Rhode Island v. Innis, 446 U.S. 291, 301
(1980); accord United States v. Davis, 773 F.3d 334, 339 (1st Cir.
2014); cf. generally Miranda, 384 U.S. at 478 (making the
commonsense point that "[a]ny statement given freely and
voluntarily without any compelling influences is, of course,
admissible in evidence"). An exception exists for routine booking
questions seeking background info, such as the "suspect's name,
address, and related matters." See United States v. Doe, 878 F.2d
1546, 1551 (1st Cir. 1989); accord United States v. McLean, 409
F.3d 492, 498 (1st Cir. 2005); see also United States v. Reyes,
225 F.3d 71, 76-77 (1st Cir. 2000) (noting that questions asked at
booking regarding a defendant's date of birth and social-security
number fit comfortably within the purview of this exception, given
the circumstances of that case). Driving this "booking exception"
(as the cases call it) is the idea that questions of this sort
"rarely elicit an incriminating response" — "even when asked after
an arrest." See Doe, 878 F.2d at 1551; see also Pennsylvania v.
Muniz, 496 U.S. 582, 601 (1990) (plurality opinion) (noting that
the booking exception "exempts from Miranda's coverage questions
to secure the biographical data necessary to complete booking or
pretrial services" (internal quotation marks omitted)). There is
an exception to this exception, however: the booking exception
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does not apply "where the law enforcement officer, in the guise of
asking for background information, seeks to elicit information
that may incriminate." Doe, 878 F.2d at 1551. Ultimately, the
booking exception's applicability turns on an "objective" test
that asks "whether the questions and circumstances were such that
the officer should have reasonably expected the questions to elicit
an incriminating response," see Reyes, 225 F.3d at 77 — meaning
"the officer's actual belief or intent," though "relevant," is in
no way "conclusive," see Doe, 878 F.2d at 1551.
No Miranda Problem
Sanchez does not contest that routine employment
questions might fall within the booking exception. And it is easy
to see why. Years ago we intimated that employment questions could
fit within the booking exception, depending on the situation. See
United States v. Duarte, 160 F.3d 80, 82 (1st Cir. 1998) (per
curiam) (dicta) (citing United States v. Gotchis, 803 F.2d 74, 78-
79 (2d Cir. 1986)).2 The idea is that employment questions,
"ordinarily innocent of any investigative purpose, do not pose the
dangers" that Miranda sought "to check" — the answers to these
2 The police in Duarte read the defendant his Miranda rights twice
before asking him about his employment situation. Id. at 81. So
we had no need to decide whether his answer fell within the booking
exception — though we noted, citing Gotchis, that "[a] quick review
of the record and caselaw indicate . . . that the exception would
apply." Id. at 82.
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questions give the judiciary important info (the info can help
with setting a defendant's bail, for example), and thus are so
central to the booking and pretrial process that they are usually
exempt from Miranda's coverage. See Gotchis, 803 F.2d at 79 (cited
with approval in Duarte); see also 18 U.S.C. § 3142(g)(3)(A).3
Persuaded by this line of reasoning, we now turn Duarte's dicta
into holding — i.e., we put routine booking questions about
employment (ones not reasonably likely to generate incriminating
info) on the list of Miranda-exempt background questions.
Perhaps anticipating what we might do with Duarte
(transforming its intimation into binding law), Sanchez argues
that the employment question asked here crossed the constitutional
line because Toledo posed it "to elicit an incriminating" answer
(i.e., he invokes the exception to the booking exception). Not
so, we conclude.
As a nonmember of the team that investigated Sanchez,
Toledo asked only routine questions to help with the booking
process — not to strengthen the case against the arrestee (he did
not, for example, ask any follow-up questions when Sanchez said he
3 This section tells judges to consider a defendant's "employment"
in deciding whether there are conditions that would reasonably
assure he comes to court if bail is granted, see § 3142(g)(3)(A)
— the thought being that having a job shows stability and might
make him less likely to flee.
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was employed as a drug dealer). And this testimony — which the
judge did not clearly err in crediting — supports the conclusion
that the booking exception applies. See Reyes, 225 F.3d at 77(finding the booking exception applied in large part because (a)
"[t]he booking interview was conducted separate from any
substantive interrogation, by a different officer and in a separate
room at a separate time" and (b) the booking officer "asked only"
standard police questions, "with no reference whatsoever to the
offense for which appellant had been arrested"). Also,
importantly, the circumstances of this case are far removed from
those presenting a "closer" question on the exception's
applicability. See id. These closer-question cases all involve
situations where the police asked questions to extract answers
"clearly" and "directly" tied to the "suspected" criminal
activities. See id. (noting, by way of illustration, that asking
someone to give his social-security number "might be likely to
elicit an incriminating response where the person is charged with
[s]ocial [s]ecurity fraud"). And Sanchez offers no persuasive
basis for us to conclude that there is a similar direct link
between the employment question and his suspected offenses. Cf.
generally Gotchis, 803 F.2d at 79 (deeming booking questions about
employment permissible in a case where the police arrested
defendant for a drug offense).
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With that, we uphold the judge's decision not to suppress
the statement.
Wrap Up
For the reasons recorded above, we affirm the judge's
refusal to suppress the incriminating evidence and comment.
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