United States v. Jose Pacheco

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 16a0265p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
UNITED STATES OF AMERICA, ┐
Plaintiff-Appellee, │
│
│
v. > No. 16-3376
│
│
JOSE A. PACHECO, │
Defendant-Appellant. │
┘
Appeal from the United States District Court
for the Southern District of Ohio at Columbus.
No. 2:14-cr-00258—James L. Graham, District Judge.
Decided and Filed: October 28, 2016
Before: DAUGHTREY, GIBBONS, and COOK, Circuit Judges.
_________________
COUNSEL
ON BRIEF: Frederick D. Benton, Jr., FREDERICK D. BENTON, JR., LPA, Columbus, Ohio,
for Appellant. Peter K. Glenn-Applegate, UNITED STATES ATTORNEY’S OFFICE,
Columbus, Ohio, for Appellee.
_________________
OPINION
_________________
JULIA SMITH GIBBONS, Circuit Judge. Defendant-appellant Jose Pacheco appeals the
district court’s denial of his motion to suppress evidence discovered during a Terry stop and
subsequent pat-down search. During this precautionary pat down for weapons, an officer
discovered that Pacheco had over $3,000 in currency and a half-kilogram of brick cocaine in his
cargo shorts. The district court found that, based on the totality of the circumstances, the officer
1
No. 16-3376 United States v. Pacheco Page 2
had reasonable suspicion to justify the pat down of Pacheco for weapons, and that the cocaine
and currency were properly seized pursuant to the plain-view and plain-feel doctrines.
Because the Terry stop, the removal of Pacheco from the vehicle, the pat down, and the
seizure of contraband and currency were all within the bounds of the Fourth Amendment, we
affirm the district court’s decision.
I.
On the evening of December 10, 2010, Detective William Best received a call from
Sergeant Jeff Lipp, informing him that a confidential source had information about “subjects
moving medium to large quantity narcotics in and around the Kimberly Parkway area” of
Columbus, Ohio. Best was intimately familiar with this part of town. He testified that “[l]ike
most neighborhoods, you have 5 percent of people that cause problems,” but noted that the area
was prone to “a lot of gang activity.” (DE 69, Tr. of Mot. to Supp. Hearing, Page ID 238.)
The source feared retaliation for sharing information but agreed to meet Best in-person.
The two met in a parking lot at the corner of Kimberly Parkway and South Hamilton Road.
There, the source informed Best that two Hispanic men in a silver Lincoln Aviator were moving
narcotics from the Chatham Village apartment complex in the Kimberly Parkway area.
After receiving this information, Best set up surveillance in an unmarked car. In order to
gain a strategic view of the Chatham Village apartments, which are on the north side of
Kimberly Parkway, Best stationed himself in a parking lot on the south side of the parkway. The
source told Best only that the subjects would be moving the narcotics “in the evening,” and he
was unsure of precisely when to expect them. (Id. at 233.) Best had never met this source and
did not know his accuracy, reliability, or credibility. However, within forty-five minutes, Best
saw a silver SUV exit Chatham Village.
Best was unsure if this was his target vehicle but decided to attempt to verify that it was.
The silver SUV was traveling eastbound on Kimberly Parkway, and Best pulled out and
positioned himself behind it. Best could now see that this vehicle was a silver Lincoln Aviator
that precisely matched the description given by the informant, but he still needed to verify
No. 16-3376 United States v. Pacheco Page 3
whether the occupants of the vehicle potentially matched the source’s description. Best and the
Aviator stopped at the well-lit corner of Kimberly Parkway and South Hamilton Road. The
target vehicle was in the far left of two left-turn lanes. Best pulled up along the passenger-side
of the Aviator and observed what he believed were two Hispanic males in the vehicle.
Now that “everything started adding up,” just as the source had stated it would, Best
called Officer Jeremy Phalen, a patrol officer he knew worked in the area. (Id. at 235, 237.)
As the Aviator was turning, Best had witnessed the driver fail to properly signal a turn, and he
relayed this information, and information about his narcotics tip, to Phalen and his partner,
Officer Kenneth Trivette.
Best dropped back and allowed Phalen and Trivette to move in behind the Aviator in
their patrol car. Phalen was also very familiar with the Kimberly Parkway area and stated that it
was a “hotbed for gang activity.” (Id. at 256.) With this in mind, he and Trivette followed the
Aviator until they saw it unexpectedly swerve across the double-yellow lines. Phalen turned on
his emergency lights and the Aviator pulled to the side of the road, ultimately coming to a stop in
a gas-station parking lot.
Phalen and Trivette exited their patrol car and approached the Aviator. Phalen
approached the driver’s side of the vehicle, while Trivette took the passenger’s side. Phalen
spoke with the driver, later identified as Mario Calderon, and discovered that he had no valid
driver’s license. He also observed Calderon visibly shaking while he spoke with him and
decided to remove him from the Aviator. He proceeded to pat down Calderon and place him in
the back of the police cruiser so that he could aid Trivette.
As Phalen had approached the driver’s side of the vehicle, Trivette had done the same on
the passenger’s side, where Pacheco was sitting. Trivette noted that Pacheco was not wearing
his seatbelt. Trivette asked Pacheco for identification, but Pacheco did not respond. Instead,
Pacheco began rummaging through the glove compartment, ruffling papers but removing
nothing. Trivette testified that Pacheco was extremely nervous, and was glancing around the
vehicle. Pacheco again opened the glove compartment and looked down at the floorboard and
over at his left leg, near the center console. All of this concerned Trivette, who testified that the
No. 16-3376 United States v. Pacheco Page 4
glove box, the floorboard, and the area between the seat and center console are all often used to
conceal weapons. Trivette was also disturbed by Pacheco’s “fidgeting around,” lack of eye
contact, and his failure to acknowledge any of Trivette’s questions. (Id. at 271.) Considering all
of these factors, Trivette testified that “something wasn’t right.” (Id.) Trivette then asked
Pacheco to exit the vehicle. Pacheco did not respond or comply with this order. Trivette asked
Pacheco to exit again, this time opening the door for him.
Pacheco exited the vehicle, and Trivette initiated a pat down of his person. On Pacheco’s
right side, Trivette felt “a large chunk of money on his right cargo pocket.” (Id. at 275.) Trivette
then switched his focus to Pacheco’s left leg, and immediately noticed the top of a brick-like
object, wrapped in brown paper and tape, protruding approximately one inch out of the top of
Pacheco’s left cargo pocket. As Trivette patted this area down, he could feel that the object in
that cargo pocket was “like a solid brick,” and was approximately six-to-eight inches long. (Id.
at 275, 288.) Based on these observations, and his experience working with narcotics, Trivette
recognized, “within seconds,” that the object was very likely brick cocaine. (Id. at 277, 288.)
Trivette seized the contraband and currency, and Pacheco was detained and placed in the rear of
the cruiser with Calderon.
II.
Pacheco was charged with violating 21 U.S.C. §§ 841(a), 846 by possessing with intent
to distribute, and conspiring with others with intent to distribute, 494 grams of cocaine. Pacheco
filed a motion to suppress the cocaine and currency discovered on his person, claiming that
Trivette’s pat down violated his Fourth Amendment rights prohibiting unreasonable searches and
seizures. Specifically, Pacheco claimed Trivette lacked the requisite “reasonable suspicion” to
justify the pat-down search, and accordingly, discovery of the cocaine and currency should be
suppressed. The district court held a hearing at which Best, Phalen, and Trivette testified. After
the hearing, the district court issued a memorandum opinion and order, denying Pacheco’s
motion to suppress. In its order, the district court found that, considering the totality of the
circumstances, Trivette had reasonable suspicion that Pacheco was armed and dangerous,
justifying the pat-down search, and that the seizure of contraband and currency was reasonable.
No. 16-3376 United States v. Pacheco Page 5
In support of its finding, the district court listed ten factors that it found supported a
finding of reasonable suspicion:
(1) Detective Best relayed information about a tip that two Hispanic males driving
a Lincoln Aviator were involved in cocaine distribution; (2) Mr. Pacheco
appeared nervous in the car; (3) Mr. Pacheco looked back and forth to avoid eye
contact with Officer Trivette; (4) Mr. Pacheco avoided conversation with Officer
Trivette; (5) Mr. Pacheco disregarded Officer Trivette’s commands to exit his
vehicle; (6) Mr. Pacheco shuffled through the glove box, making furtive gestures;
(7) Mr. Pacheco looked down to the floorboard under his seat; (8) Officer Trivette
could not identify Mr. Pacheco; (9) the stop occurred at night when it was dark;
and (10) the stop occurred in a high crime area.
(DE 40, Op. & Order, Page ID 143–145.) The district court then proceeded to find that the
seizure of contraband and currency was not overly intrusive, relying on the plain-view and plain-
feel doctrines as applicable to contraband seized during pat-down searches.
After his motion to suppress was denied, Pacheco entered into a conditional plea
agreement in which he reserved his right to appeal the district court’s denial of his motion to
suppress. Pacheco then filed this timely appeal.
III.
When reviewing a denial of a motion to suppress, the district court’s factual
determinations are reviewed for clear error and its legal conclusions are reviewed de novo.
United States v. Herndon, 501 F.3d 683, 687 (6th Cir. 2007) (citing United States v. Ostrander,
411 F.3d 684, 694 (6th Cir. 2005)). “Whether an officer had reasonable suspicion under the
circumstances to frisk a suspect is a mixed question of law and fact that we review de novo.”
United States v. Noble, 762 F.3d 509, 519 (6th Cir. 2014) (quoting United States v. Stepp,
680 F.3d 651, 660 (6th Cir. 2012)). Likewise, any probable-cause determination is reviewed de
novo. United States v. Martin, 526 F.3d 926, 936 (6th Cir. 2008). However, the evidence must
be viewed in a light most likely to support the district court’s decision. Id. (citing United States
v. Frazier, 423 F.3d 526, 531 (6th Cir. 2005)).
The Fourth Amendment guarantees “[t]he right of the people to be secure in their persons
. . . against unreasonable searches and seizures.” U.S. Const. amend. IV. When a motorist is
No. 16-3376 United States v. Pacheco Page 6
stopped by the police, he, and all of his passengers, are “seized” within the meaning of the
Fourth Amendment.1 Brendlin v. California, 551 U.S. 249, 256–59 (2007). A police officer
may stop a motorist when he possesses probable cause of a civil infraction or has reasonable
suspicion of criminal activity. United States v. Lyons, 687 F.3d 754, 763 (6th Cir. 2012); see
also Noble, 762 F.3d at 518 (citing Lyons for the same). Here, Phalen and Trivette not only
received information about Calderon failing to signal his turn, but also witnessed the vehicle
swerve over the double-yellow line. Although Pacheco does not outright challenge the traffic
stop, he suggests throughout his briefing that the officers’ true motive for stopping the vehicle
was “to pursue a narcotics investigation.” (R. 12, Appellant Br. at 8.) However, “[s]ubjective
intentions play no role in ordinary, probable-cause Fourth Amendment analysis.” Whren v.
United States, 517 U.S. 806, 813 (1996). Thus, the two traffic infractions justified Phalen and
Trivette in stopping the Aviator.
It also is well-established that, during a traffic stop, an officer may order passengers out
of the vehicle pending the completion of the stop. Maryland v. Wilson, 519 U.S. 408, 414–15
(1997). The officers do not need independent justification to remove the driver or passengers
from the vehicle. Id. at 413 & n.1. This is so, in large part, because traffic stops are “fraught
with danger” for police officers. Michigan v. Long, 463 U.S. 1032, 1047 (1983). Thus, after
permissibly stopping the Aviator for prior traffic violations, Phalen and Trivette were permitted
to remove Calderon and Pacheco from the SUV.
This leaves two actions to review: the pat-down search of Pacheco and the seizure of the
cocaine and currency found on his person pursuant to that search.
A.
When an officer makes a Terry stop, he may also perform a precautionary search—
known as a “frisk” or “pat down”—whenever he has “reasonable suspicion” that the person
searched may be armed and dangerous. Knowles v. Iowa, 525 U.S. 113, 118 (1998).
“Reasonable suspicion is based on the totality of the circumstances.” Joshua v. DeWitt, 341 F.3d
1
Due to their usually brief nature, traffic stops are more akin to the so-called “Terry” stop than a full-blown
arrest. See United States v. Noble, 762 F.3d 509, 519 (6th Cir. 2014) (citing Berkemer v. McCarty, 468 U.S. 420,
439 (1984)). Accordingly, the traffic stop in this case will also be referred to as a Terry stop.
No. 16-3376 United States v. Pacheco Page 7
430, 443 (6th Cir. 2003). Ultimately, the test is whether “a reasonably prudent [person] in the
circumstances would be warranted in the belief that his [or her] safety or that of others was in
danger.” Noble, 762 F.3d at 521–22 (alteration in original) (quoting Terry v. Ohio, 392 U.S. 1, 27
(1968)).
“Reasonable suspicion” is recognized for being an abstract concept, but this is a product
of design, not accident or error, and the Supreme Court has “deliberately avoided reducing it to
‘a neat set of legal rules.’” United States v. Arvizu, 534 U.S. 266, 274 (2002) (quoting Ornelas v.
United States, 517 U.S. 690, 695–96 (1996)); see also Illinois v. Gates, 462 U.S. 213, 232 (1983)
(noting that “probable cause is a fluid concept—turning on the assessment of probabilities in
particular factual contexts—not readily, or even usefully, reduced to a neat set of legal rules”).
With this abstract, context-specific framework in mind, the Supreme Court has also cautioned
reviewing courts not to consider factors in the reasonable-suspicion analysis in isolation from
one other. Arvizu, 534 U.S. at 274. A “divide-and-conquer” analysis—where each factor is
singled out and the court engages in a post-hoc search for an innocent explanation—is not
permitted. Id. And, while the Supreme Court has wrestled with the precedential difficulties
created by this fact-specific approach, it has suggested that “[e]ven if in many instances the
factual ‘mosaic’ analyzed for a reasonable-suspicion determination would preclude one case
from squarely controlling another, ‘two decisions when viewed together may usefully add to the
body of law on the subject.’” Id. at 275 (quoting Ornelas, 517 U.S. at 697–98).
This case and Noble are two such decisions. In Noble, we reversed a district court’s
denial of a motion to suppress, finding that the officer did not have reasonable suspicion to
perform a pat-down search of the defendant. 762 F.3d at 525–26. A review of the facts of that
case demonstrates why affirming the district court’s denial of Pacheco’s motion to suppress is
appropriate here.
In fall of 2012, law-enforcement officials were investigating a methamphetamine-
distribution network in Eastern Kentucky. Id. at 514. Officers received a tip that two
individuals—Brooks and Adkins—were picking up contraband in Louisville and routing it
through Lexington and into various counties in Eastern Kentucky. Id. Initially, the informant
told the officers to be on the lookout for a white Jeep Cherokee, but, after failing to find that
No. 16-3376 United States v. Pacheco Page 8
vehicle, the informant stated that the target vehicle might be a “dark-colored Chevrolet Tahoe”
instead. Id. Officers eventually spotted a vehicle matching that description, and, after
witnessing the Tahoe cross from the center lane into the right lane without using a signal, and
noticing that its windows were most likely illegally tinted, they pulled it over. Id. at 514–15. An
officer approached the vehicle from the passenger side, and upon confronting the passenger
there, noted that the passenger, later identified as Noble, was extremely nervous. Id. at 515.
After talking with Noble, the officer returned to the cruiser, tested the window tint of the Tahoe,
and assisted his partner in administering a field-sobriety test on the driver. Id. at 515–16. The
officer eventually ordered Noble out of the Tahoe and performed a pat-down search of his person
for weapons. Id. at 516. The grounds for this pat down were Noble’s nervousness and that
Noble was in a car suspected of being involved with narcotics trafficking. Id. Additionally, the
officer knew from his training and experience that those who deal in narcotics often carry
weapons to protect themselves. Id. During the pat down, the officer discovered contraband and
a handgun on Noble’s person. Id.
We found that the three grounds mentioned above were insufficient to create a reasonable
suspicion that Noble was armed and dangerous. Id. at 525. Specifically, we were critical of
nervousness as an indicator of dangerousness, noting that, because many law-abiding citizens are
nervous during traffic stops, it is unreliable. Id. at 522–23. We found that Noble’s nervousness
should be discounted because, after witnessing his alleged nervousness, the officer returned to
his cruiser, inspected the window tint, and performed a field-sobriety test on the driver, and then
performed the pat down on Noble. Id. at 523. These actions, we concluded, reflected a lack of
suspicion as to a suspect’s dangerousness, which an officer needs in order to justify a pat down
for weapons. We also noted that mere presence in a vehicle suspected of trafficking in narcotics
is not “an automatic green light” for frisking that person. Id. at 523. Instead, the officer must be
able to give specific, articulable reasons for believing that a particular person is dangerous before
he or she may frisk the suspect. Id. (citing United States v. Cortez, 449 U.S. 411, 417 (1981)).
And, while the Noble court acknowledged that drug dealers are frequently armed, it also noted
that we have always required some corroboration that particular individuals are involved in drug
trafficking before allowing a frisk for weapons. Id. at 524 (citing United States v. Branch, 537
F.3d 582, 589 (6th Cir. 2008)). The majority also highlighted several important factors that were
No. 16-3376 United States v. Pacheco Page 9
missing from Noble. The court noted that there was no testimony that Noble failed to comply
with an officer’s commands. Id. Further, Noble did not avoid all eye contact with the officers,
fidget with his pockets, or behave as if he was concealing something. Id. Considering all of
these absent factors, we found a lack of reasonable suspicion. Id. at 529.
Importantly, both the majority and the dissent in Noble acknowledged that the
circumstances there presented a close case. Id. at 522, 529. Many of the factors missing from
Noble are present here, and taken together, they nudge this case across the boundary into
constitutionally permissible conduct.
The tip in this case was more detailed and further corroborated than that in Noble. This
made it more likely that the two men inside the Aviator were engaged in narcotics trafficking,
and thus—given the strong association between drug dealing and firearms—more likely that they
were potentially armed. See Branch, 537 F.3d at 589 (holding that officers can rely on their
training and experience that drug dealers frequently carry weapons); see also United States v.
Jacob, 377 F.3d 573, 579 (6th Cir. 2004) (holding the same).2 In Noble, the tipster originally
claimed that the target car would be a white Jeep Cherokee. 762 F.3d at 514. When officers
failed to locate such a car, the tip changed, and the source claimed that it might be a dark-colored
Tahoe instead. Id. In addition to changing the make, model, and color of the vehicle, the tip also
failed to give law enforcement any indication of how many occupants to expect or how to
identify them. Id. Here, by contrast, the confidential source gave authorities not only the make,
model, and color of the vehicle—which turned out to be accurate the first time—but also
provided them with the number of occupants to expect, along with their ethnicity. And, the
source provided the location and time of day to expect the vehicle. This is a more detailed tip
than the one provided in Noble, which identified only a vehicle connected with narcotics
trafficking. Noble, 762 F.3d at 514–15. Additionally, Officer Best testified that he had never
before heard of a Lincoln Aviator, likely because the Aviator was produced only for model years
2003–2005, making it a relatively unusual vehicle. See Lincoln Aviator, Edmunds (2016),
www.edmunds.com/lincoln/aviator/. Thus, the tip was further substantiated when Best was able
2
All three officers involved in this stop testified that, based on their training and experience, they knew that
those who traffic narcotics are frequently armed.
No. 16-3376 United States v. Pacheco Page 10
to pull up behind the target vehicle and confirm that it was, in fact, a Lincoln Aviator. The tip
was also corroborated, at least in part, when the Aviator contained two occupants, both males
that Best believed were Hispanic.
The Supreme Court has declined to hold that reasonable suspicion can never be created
by an anonymous tip, and has further held that where “an informant is shown to be right about
some things, he is probably right about other facts that he has alleged, including the claim that
the object of the tip is engaged in criminal activity.”3 Alabama v. White, 496 U.S. 325, 331–332
(1990) (citing Gates, 462 U.S. at 244). As the night’s events unfolded, the source’s predictions
continued to come true. Though not dispositive of reasonable suspicion that Pacheco was armed,
the informant’s corroborated tip adds support to Trivette’s decision to perform a pat-down
search.
Next, while we have cautioned against relying too heavily on nervousness as indicia of
dangerousness, Pacheco’s nervousness is another factor in the totality-of-the-circumstances
analysis that supports a reasonable-suspicion finding. Noble, 762 F.3d at 522 (citing United
States v. Wilson, 506 F.3d 488, 495–96 (6th Cir. 1995)). While “[n]ervous behavior, standing
alone, is not enough to justify a Terry search,” Wilson, 506 F.3d at 495–96, nervousness is still
relevant to the reasonable-suspicion calculus. Illinois v. Wardlow, 528 U.S. 119, 124 (2000)
(finding that nervous, elusive behavior is a pertinent factor in determining reasonable suspicion).
And we have found reasonable suspicion in other cases based, in part, on the suspect’s
extraordinary nervousness that increased as the traffic stop progressed. Branch, 537 F.3d at 589.
In Noble, there was no testimony that the suspect became increasingly nervous. 762 F.3d at
522–23. Here, in contrast, Trivette testified that Pacheco was “extremely nervous,” and that as
the stop progressed, Pacheco began glancing around the vehicle and rummaging through the
glove box. (DE 69, Tr. of Mot. to Supp. Hearing, Page ID 270–273.)
Additionally, Noble did not avoid all eye contact with the officers, fidget with his
pockets, or otherwise act as if he was concealing something. Noble, 762 F.3d at 523–24 (citing
United States v. Oliver, 550 F.3d 734, 738–39 (8th Cir. 2008); 4 Wayne R. LaFave et al., Search
3
And here, rather than being an anonymous tip, the information was obtained from an informant whom
Lipp knew and whom Best met in person, further supporting its reliability.
No. 16-3376 United States v. Pacheco Page 11
and Seizure: A Treatise on the Fourth Amendment § 9.6(a) (5th ed. 2013) (text accompanying
notes 80–95, collecting behaviors sufficient for a frisk)). In contrast, Trivette testified that
Pacheco “wouldn’t even make eye contact with [him]” and that “he was fidgeting around” as he
opened up the glove box and shuffled papers back and forth, removing nothing. (DE 69, Tr. of
Mot. to Supp. Hearing, Page ID 271.) Further, Trivette testified that Pacheco was looking down
at the floorboard and over at the area between the console and his seat. Trivette claimed that, in
his experience, this is an area where firearms are often concealed. He went on to say that
Pacheco disregarded his presence and that “it was like he was looking for like an avenue of
escape almost.” (Id. at 273.) The absence of these factors weighed against reasonable suspicion
in Noble; their presence weighs in favor here.
Further, Pacheco’s failure to acknowledge Trivette’s presence and his failure to obey the
officer’s commands also support a protective pat-down search. Noble’s compliance with all of
the officer’s commands was an important factor that militated against a finding of reasonable
suspicion. Here, Pacheco did not respond or acknowledge Trivette’s command that he exit the
vehicle until the request was repeated and Trivette opened the door. While many of Pacheco’s
behaviors are now explainable due to his lack of English-language skills, this innocent
explanation was unknown to Trivette at the time of the stop. Additionally, even if Trivette had
known that Pacheco did not speak English, the officer testified that, in his experience, non-
English speakers attempted to communicate via hand motions or otherwise tried to convey that
they did not speak English. Pacheco, by contrast, completely ignored Trivette. Reasonable
suspicion requires reviewing courts to apply an objective standard, and to answer whether “the
facts available to the officer at the moment of the seizure or the search warrant a [person] of
reasonable caution in the belief that the action taken was appropriate?” Terry, 392 U.S. at 21–22
(emphasis added). In the moment, Trivette did not know that Pacheco’s failure to comply with
his commands was because Pacheco did not understand English; instead, all he knew was that he
had a suspect who was ignoring his commands and avoiding eye contact, all the while exhibiting
extremely nervous and concerning behavior.
Finally, the time of day and the nature of the neighborhood also support Trivette’s
reasonable-suspicion determination. While “mere presence in a high crime area is insufficient
No. 16-3376 United States v. Pacheco Page 12
‘to support a reasonable, particularized suspicion that the person is committing a crime,’” it is
“‘among the relevant contextual considerations in a Terry analysis.’” Hoover v. Walsh, 682 F.3d
481, 495 (6th Cir. 2012) (quoting Wardlow, 528 U.S. at 124). Likewise, time of day “is relevant
without being independently dispositive.” Id. at 495 (citing United States v. See, 574 F.3d 309,
314 (6th Cir. 2009)). Here, there was testimony that the area was known for its drug trafficking
and gun violence and as a “hotbed” for gang activity. (DE 69, Tr. of Mot. to Supp. Hearing,
Page ID 238, 256.) And the stop occurred at night.
When considering all of the abovementioned factors together, the totality of the
circumstances supports a finding of reasonable suspicion in this case. In applying the totality-of-
the-circumstances test, the Supreme Court has cautioned against separating each factor from the
others and finding an innocent explanation for it. This is so because “sometimes behavior giving
rise to reasonable suspicion is entirely innocent,” and often there may be a “series of acts, each
of them perhaps innocent in itself, but which taken together warrant further investigation.”
Wardlow, 528 U.S. at 130 n.4 (Stevens, J., concurring in part and dissenting in part) (citing
Terry, 392 U.S. at 22–23, 30) (internal citations and quotations omitted). Thus, while many of
the factors here, when considered alone, cannot support a reasonable-suspicion determination,
their collective weight justified Trivette’s pat-down search of Pacheco.
B.
Having found that the pat-down search was supported by reasonable suspicion, we must
next determine whether the seizure of the cocaine and currency was reasonable. During a
protective pat down, an officer does not need to ignore contraband should any be discovered.
Minnesota v. Dickerson, 508 U.S. 366, 374 (1993). But “[i]f the protective search goes beyond
what is necessary to determine if the suspect is armed, it is no longer valid under Terry and its
fruits will be suppressed.” Id. at 373 (citing Sibron v. New York, 392 U.S. 40, 65–66 (1968)).
Employing the plain-view and plain-feel doctrines, the Supreme Court has held that three
elements must be met for contraband to be seized during a Terry pat down: (1) the police must
be in a lawful position from which they view (or feel) the object; (2) the object’s incriminating
nature must be immediately apparent; and (3) the officers must have a lawful right of access to
the object. Id. at 375 (extending the plain-view doctrine to include discoveries of contraband via
No. 16-3376 United States v. Pacheco Page 13
the sense of touch). Because the Terry stop, removal of Pacheco from the car, and the pat-down
search of his person were all constitutionally permissible, Trivette was in a lawful position to
both view the contraband and feel it during the pat-down, and he also had a lawful right of access
to it.4 Thus, all that remains to be determined is whether the brick’s incriminating nature was
immediately apparent.
The requirement that the incriminating nature of seized items be immediately apparent
was “very likely an unhappy choice of words, since it can be taken to imply that an unduly high
degree of certainty as to the incriminatory character of evidence is necessary for an application
of the ‘plain view’ doctrine.” Texas v. Brown, 460 U.S. 730, 741 (1983). That said, that the
incriminating nature of the evidence be immediately apparent “is necessary to prevent officers
from using the plain view doctrine as a means to extend a particularized search authorized by
Fourth Amendment principles into an unlawful exploratory search.” United States v. Garcia,
496 F.3d 495, 510 (6th Cir. 2007) (citing Horton v. California, 496 U.S. 128, 136–37 (1990)). In
assessing whether an object’s incriminatory nature is immediately apparent, the court must “look
to three factors, none of which is necessary but each of which is instructive.” Id. These factors
are:
(1) a nexus between the seized object and the [suspected criminal activity];
(2) whether the intrinsic nature or appearance of the seized object gives probable
cause to believe that it is associated with criminal activity; and (3) whether the
executing officers can at the time of discovery of the object on the facts then
available to them determine probable cause of the object's incriminating nature.
Id. (quotations and citations omitted); see also United States v. Chandler, 437 F. App’x 420,
427–28 (6th Cir. 2011).
Here, there was a strong nexus between the suspected narcotics trafficking and the
cocaine and currency seized. Trivette testified that he “felt a large chunk of money” in
Pacheco’s right cargo pocket. (DE 69, Tr. of Mot. to Supp. Hearing, Page ID 275.) After
removing the currency, Trivette moved to Pacheco’s left side, where he noticed a brick-like
object protruding approximately one inch out of that cargo pocket. He observed that it was
4
We note that Trivette discovered the contraband before his pat-down search of Pacheco was completed,
and thus, while he still had a lawful right of access to Pacheco’s person. Dickerson, 508 U.S. at 373.
No. 16-3376 United States v. Pacheco Page 14
wrapped in brown paper and bound together with tape. Based on his training and experience,
this was consistent with how brick cocaine is packaged. Further, when he patted down the
pocket, he discovered that the brick was solid and around six-to-eight inches long. As Trivette
began to pat down the pocket, Pacheco muttered that the brick was “tortillas,” a fact that seemed
unlikely to Trivette and furthered his suspicion that the object was contraband. (Id. at 276.)
Combining his sight and his touch with his training and experience, Trivette concluded “within
seconds” that this object was probably brick cocaine.5 (Id. at 277.) “[A] reviewing court should
be duly mindful of the executing officers’ particular, subjective training and experiences.”
United States v. Szymkowiak, 727 F.2d 95, 98 (6th Cir. 1984) (citing Brown, 460 U.S. at 745
(Powell, J., concurring)). Here, the district court credited Trivette’s testimony that, in his
training and experience, the packaging of the object, coupled with its size and feel, was
consistent with that of brick cocaine. It was not clearly erroneous to do so. See Arvizu, 534 U.S.
at 276–77 (noting that “due weight” should have been given to the district court’s factual
inferences due to its “superior access to the evidence and the well-recognized inability of
reviewing courts to reconstruct what happened in the courtroom”); see also Herndon, 501 F.3d at
687 (holding that factual determinations are reviewed for clear error).
This case is similar to Texas v. Brown, in which the Supreme Court upheld the seizure of
an uninflated balloon pursuant to the plain-view doctrine. 460 U.S. at 743–44. In his
concurrence, Justice Powell noted that “[e]ven if it were not generally known that a balloon is a
common container for carrying illegal narcotics, we have recognized that a law enforcement
officer may rely on his training and experience to draw inferences and make deductions that
might well elude an untrained person.” Id. at 745 (Powell J., concurring) (citing Cortez, 449
U.S. at 418). And the majority in Brown reminded reviewing courts that “probable cause is a
flexible, common-sense standard” that merely requires that “the facts available to the officer
would warrant a man of reasonable caution in the belief that certain items may be contraband . . .
5
Trivette’s testimony that “within seconds” he realized that the packaging was likely brick cocaine, while
not literally instantaneous, does not undermine a finding that that the brick’s criminal nature was immediately
apparent to him. This court has held that an object’s “incriminating nature is not immediately apparent if it appears
suspicious to an officer but further investigation is required to establish probable cause as to its association with
criminal activity.” Garcia, 496 F.3d at 510–11 (quoting Shamaeizadeh v. Cunigan, 338 F.3d 535, 555 (6th Cir.
2003)). Here, the packaging and feel of the object, combined with all other facts known to Trivette, was sufficient
to create probable cause with no further investigation.
No. 16-3376 United States v. Pacheco Page 15
or useful as evidence of a crime.” Id. at 742 (internal quotations and citations omitted). “[I]t
does not demand any showing that such a belief be correct or more likely true than false.” Id.
Here, a reasonably cautious person, viewing the facts as they were to Trivette, would have been
warranted in the belief that the brick-like object in Pacheco’s pocket was contraband. The
seizure of the brick cocaine and currency did not offend the Fourth Amendment as it was
reasonable and within the bounds of Terry and its progeny.
IV.
For these reasons, we affirm the district court’s denial of the motion to suppress.