United States v. Long ( 2014 )

14-531
United States v. Long
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED
ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST
SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 5th day of December, two thousand fourteen.
5
6 PRESENT: AMALYA L. KEARSE,
7 DENNIS JACOBS,
8 REENA RAGGI,
9 Circuit Judges.
10
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12 UNITED STATES OF AMERICA,
13 Appellee,
14
15 -v.- 14-531
16
17 MARCUS LONG,
18 Defendant-Appellant.
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20
21 FOR APPELLANT: DARRELL B. FIELDS, Federal
22 Defenders of New York, New York,
23 New York.
24
25 FOR APPELLEE: JUSTIN ANDERSON (Michael Gerber,
26 on the brief), for Preet
27 Bharara, United States Attorney
1
1 for the Southern District of New
2 York, New York, New York.
3
4 Appeal from a judgment of the United States District
5 Court for the Southern District of New York (Seibel, J.).
6
7 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
8 AND DECREED that the judgment of the district court be
9 AFFIRMED.
10
11 Appellant Marcus Long appeals from the judgment of the
12 United States District Court for the Southern District of
13 New York (Seibel, J.), convicting him of possessing a
14 firearm following a prior felony conviction. Long argues
15 that he was stopped unlawfully and that the district court
16 erred in denying his motion to suppress evidence obtained
17 following the unlawful stop. We assume the parties’
18 familiarity with the underlying facts, the procedural
19 history, and the issues presented for review.
20
21 On appeal of a district court’s ruling on a motion to
22 suppress, we review factual findings for clear error and
23 legal conclusions de novo. United States v. Murphy, 703
24 F.3d 182, 188 (2d Cir. 2012). A district court’s factual
25 finding is clearly erroneous only if “on the entire evidence
26 [the reviewing court] is left with the definite and firm
27 conviction that a mistake has been committed”; there is no
28 clear error if “there are two permissible views of the
29 evidence.” Id. at 188-89 (citation and internal quotation
30 marks omitted). In other words, the record must be viewed
31 in the light most favorable to the prevailing party below.
32 Id. at 189.
33
34 The record below, viewed in the light most favorable to
35 the government, establishes the following. While on
36 undercover patrol in April 2012, Police Officer William
37 Pataky saw Long get out of a stopped car, lean into the
38 car’s backseat, and make repeated circular motions with his
39 arms. Officer Pataky could not see who, if anyone, was in
40 the backseat. Long got back into the front passenger seat a
41 couple minutes later, and the car drove off. At that point,
42 Officer Pataky, having called for back-up, stopped and
43 approached the car. He questioned the driver, Janel
44 Johnson, about what Long had been doing and was told that
45 Long had been tying down the car’s trunk through the
46 backseat. Officer Pataky checked the backseat to see
47 whether anyone appeared injured; the backseat occupant,
2
1 Stephen Washington, appeared uninjured. While Officer
2 Pataky was speaking with Johnson, Officers William Quirk and
3 Albert Hughes arrived and went to the passenger side of the
4 car. Officer Quirk observed a bullet in between Long’s
5 thighs and communicated this observation to the other
6 officers. The officers then ordered all three occupants--
7 Long, Johnson, and Washington--out of the car. A pat-down
8 of Long revealed a gun in his back pocket. Long was
9 arrested and, following the arrest, made a number of
10 statements to police officers.
11
12 “[P]olice may briefly detain an individual for
13 questioning if they have a reasonable suspicion that
14 criminal activity is afoot, and may frisk him if they
15 reasonably believe he is armed and dangerous.” United
16 States v. Elmore, 482 F.3d 172, 178 (2d Cir. 2007) (citing
17 Terry v. Ohio, 392 U.S. 1 (1968)). Reasonable suspicion
18 must be supported by “specific and articulable facts which,
19 taken together with rational inferences from those facts,
20 reasonably warrant the intrusion on a citizen’s liberty
21 interest.” Elmore, 482 F.3d at 178-79 (citation, brackets,
22 and internal quotation marks omitted). “Reasonable
23 suspicion is an objective standard.” United States v.
24 Bayless, 201 F.3d 116, 133 (2d Cir. 2000).
25
26 The district court did not err, much less clearly err,
27 in ruling that Officer Pataky’s stop of the car was
28 supported by reasonable suspicion. A reasonable officer
29 observing what Officer Pataky undisputedly saw--Long’s
30 circular arm motions, consistent with punching into the
31 backseat--could reasonably suspect that Long had assaulted a
32 passenger. That Long’s conduct was in fact innocent is not
33 determinative. United States v. Arvizu, 534 U.S. 266, 277
34 (2002) (“A determination that reasonable suspicion exists,
35 however, need not rule out the possibility of innocent
36 conduct.”).
37
38 Long’s argument that Officer Pataky did not act as
39 though he believed an assault had taken place provides no
40 basis for reversal. See Bayless, 201 F.3d at 133 (“[T]he
41 subjective intentions or motives of the officer making the
42 stop are irrelevant.”). The district court did not clearly
43 err in crediting Officer Pataky’s testimony that his delay
44 in stopping the car was motivated by concern over his safety
45 as an undercover officer. See Murphy, 703 F.3d at 189
46 (“When . . . credibility determinations are at issue, we
3
1 give particularly strong deference to a district court
2 finding.” (citation and internal quotation marks omitted)).
3
4 Long argues that, even if the initial stop was
5 supported by reasonable suspicion, the justification for the
6 stop dissipated as soon as Officer Pataky saw that no one
7 was injured in the backseat. However, this argument was not
8 raised below, and has therefore been waived. United States
9 v. Klump, 536 F.3d 113, 120 (2d Cir. 2008). Such an
10 “oversight will be excused only ‘[f]or good cause,’” id.
11 (quoting Fed. R. Crim. P. 12(e)), and no showing of good
12 cause has been made here. In any event, the argument would
13 not assist Long. A stop based on reasonable suspicion must
14 be “‘reasonably related in scope to the circumstances which
15 justified the interference in the first place’” and must not
16 continue once the basis for the stop has been dispelled.
17 United States v. Babwah, 972 F.2d 30, 33 (2d Cir. 1992)
18 (quoting Terry, 392 U.S. at 20). The record establishes
19 that: (1) Officers Quirk and Hughes arrived within one
20 minute of the initial stop, while Officer Pataky was still
21 questioning Johnson about what Long had been doing, and (2)
22 upon arrival, Officer Quirk directed his flashlight at the
23 passenger seat and saw the bullet. Thus, at the point when
24 Officer Quirk observed the bullet, Officer Pataky still had
25 not ruled out the basis for the initial stop. There was
26 nothing unreasonable about the duration of the stop
27 preceding Officer Quirk’s observation. Cf. Babwah, 972 F.2d
28 at 33 (finding forty-minute detention unreasonable when
29 initial search dispelled basis for stop).
30
31 For the foregoing reasons, and finding no merit in
32 Long’s other arguments, we hereby AFFIRM the judgment of the
33 district court.
34
35 FOR THE COURT:
36 CATHERINE O’HAGAN WOLFE, CLERK
37
38
4