United States v. Santillan, No. 16-1112 (2d Cir. 2018)
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The Second Circuit affirmed defendant's conviction and sentence for 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. The court held that the police officer conducting the traffic stop had reasonable suspicion to extend the stop when defendant 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; and, although certain evidence was improperly seized during a frisk, the physical evidence would have inevitably been discovered and thus suppression was not warranted. The court also held that accompanying statements should have been suppressed but the error was harmless. The court found no merit in defendant's remaining challenges.
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16-1112-cr United States v. Santillan 1 2 In the 3 United States Court of Appeals 4 For the Second Circuit 5 ________ 6 AUGUST TERM, 2017 7 8 ARGUED: OCTOBER 11, 2017 DECIDED: AUGUST 24, 2018 9 10 11 No. 16-1112-cr 12 13 UNITED STATES OF AMERICA, Appellee, 14 15 16 v. 17 18 HECTOR SANTILLAN (AKA “BANE”), Defendant-Appellant, 19 20 21 JUNIOR RIVERA-VASQUEZ, Defendant. ∗ ________ 22 23 24 25 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. ________ 26 27 28 29 30 ∗ The Clerk of Court is directed to amend the caption to conform to the above. 2 1 2 3 16-1112-cr Before: WALKER, POOLER, Circuit Judges, and CRAWFORD, District Judge.∗∗ ________ 4 5 Defendant-Appellant Hector Santillan appeals his conviction 6 and sentence entered in the United States District Court for the 7 Southern District of New York (Robert W. Sweet, J.) following a jury 8 trial. Santillan was convicted of participating in a conspiracy to 9 distribute or possess with intent to distribute heroin, oxycodone, and 10 cocaine, and distributing and possessing with intent to distribute 11 500 grams or more of cocaine. He was sentenced to 151 months’ 12 imprisonment. 13 Santillan’s primary argument on appeal is that the district court 14 erred in denying his pre-trial motion to suppress physical evidence 15 recovered and statements made during a traffic stop and search. 16 Specifically, Santillan argues that: (1) the traffic stop was 17 unreasonably prolonged to the point that it became a de facto arrest 18 for which probable cause was lacking; (2) there was no reasonable 19 basis to frisk Santillan for weapons; (3) his statements were used 20 against him in violation of Miranda v. Arizona, 384 U.S. 436 (1966); and 21 (4) police officers obtained consent to search a car in which he was a 22 passenger through coercion. Santillan also argues that the 23 government impermissibly vouched for its cooperating witness ∗∗ Judge Geoffrey W. Crawford, of the United States District Court for the District of Vermont, sitting by designation. 3 16-1112-cr 1 during trial, his trial counsel was ineffective, and the district court 2 committed procedural errors when calculating his sentence. 3 In this opinion, we address Santillan’s challenges to the stop 4 and search. We conclude that the police officer conducting the traffic 5 stop had reasonable suspicion to extend the stop when Santillan and 6 the driver appeared nervous and were unable to provide information 7 about where they were coming from. The stop did not ripen into a de 8 facto arrest because the police officer used reasonable methods and 9 intrusions to confirm or dispel his suspicions. Although certain 10 evidence was improperly seized during a frisk, the physical evidence 11 would have inevitably been discovered and thus suppression was not 12 warranted. While accompanying statements should have been 13 suppressed, the error was harmless. We find no merit in each of 14 Santillan’s other challenges to his sentence and conviction, which are 15 resolved by a summary order issued simultaneously with this 16 opinion. Accordingly, we AFFIRM Santillan’s conviction and 17 sentence. 18 Judge POOLER dissents in a separate opinion. 4 16-1112-cr ________ 1 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. 2 3 4 5 6 7 8 MICHELLE ANDERSON BARTH, Law Office of Michelle Anderson Barth, Burlington, VT, for Defendant-Appellant. 9 10 11 12 Hector Santillan, Ayer, MA, pro se. ________ 13 14 15 JOHN M. WALKER, JR., Circuit Judge: 16 Defendant-Appellant Hector Santillan appeals his conviction 17 and sentence entered in the United States District Court for the 18 Southern District of New York (Robert W. Sweet, J.) following a jury 19 trial. Santillan was convicted of participating in a conspiracy to 20 distribute or possess with intent to distribute heroin, oxycodone, and 21 cocaine, and distributing and possessing with intent to distribute 22 500 grams or more of cocaine. He was sentenced to 151 months’ 23 imprisonment. 24 Santillan’s primary argument on appeal is that the district court 25 erred in denying his pre-trial motion to suppress physical evidence 26 recovered and statements made during a traffic stop and search. 27 Specifically, Santillan argues that: (1) the traffic stop was 5 16-1112-cr 1 unreasonably prolonged to the point that it became a de facto arrest 2 for which probable cause was lacking; (2) there was no reasonable 3 basis to frisk Santillan for weapons; (3) his statements were used 4 against him in violation of Miranda v. Arizona, 384 U.S. 436 (1966); and 5 (4) police officers obtained consent to search a car in which he was a 6 passenger through coercion. Santillan also argues that the 7 government impermissibly vouched for its cooperating witness 8 during trial, his trial counsel was ineffective, and the district court 9 committed procedural errors when calculating his sentence. 10 In this opinion, we address Santillan’s challenges to the stop 11 and search. We conclude that the police officer conducting the traffic 12 stop had reasonable suspicion to extend the stop when Santillan and 13 the driver appeared nervous and were unable to provide information 14 about where they were coming from. The stop did not ripen into a de 15 facto arrest because the police officer used reasonable methods and 16 intrusions to confirm or dispel his suspicions. Although certain 17 evidence was improperly seized during a frisk, the physical evidence 18 would have inevitably been discovered and thus suppression was not 19 warranted. While accompanying statements should have been 20 suppressed, the error was harmless. We find no merit in each of 21 Santillan’s other challenges to his sentence and conviction, which are 22 resolved by a summary order issued simultaneously with this 6 16-1112-cr 1 opinion. Accordingly, we AFFIRM Santillan’s conviction and 2 sentence. BACKGROUND 3 On February 12, 2013, Santillan was a passenger in a car that 4 5 Junior 6 Massachusetts. 7 Department of Public Safety Officer Isai Moreira, who was patrolling 8 in a marked car on the Hutchinson River Parkway, observed Rivera- 9 Vasquez commit five violations of New York’s Vehicle and Traffic 10 laws over a three-minute span: (1) tires touching the fog line; (2) 11 speeding; (3) changing lanes without signaling; (4) a second incident 12 of tires touching the fog line; and (5) following too closely. Officer 13 Moreira signaled for Rivera-Vasquez to pull to the side of the 14 highway. He testified at the suppression hearing that he planned for 15 the vehicle stop to occur in a “safety zone,” but the car pulled over 16 approximately 50 feet ahead of that zone. Joint Appendix (“J.A.”) 47. 17 At that point, the shoulders of the heavily trafficked Hutchinson River 18 Parkway were narrowed somewhat by snow that had accumulated as 19 a result of a recent storm. 20 Rivera-Vasquez Early in was the driving from afternoon, Manhattan Westchester to County Officer Moreira approached the driver’s side window and, after 21 obtaining Rivera-Vasquez’s 22 Rivera-Vasquez where the two men were going to and coming from. 23 Officer Moreira testified license at the and registration, suppression hearing asked that 7 16-1112-cr 1 Rivera-Vasquez told him they were going back to Massachusetts but 2 was “unable to provide an answer [to where they were coming from]. 3 He basically looked over to [Santillan] and said we’re coming from 4 his aunt’s house,” but “could not give me any location specifically.” 5 J.A. 49. Officer Moreira then asked Santillan for his identification, and 6 Santillan provided a photocopy of a state license. Officer Moreira 7 repeated his question about where the two men had come from. 8 Santillan “was mentioning some type of city or town in—he 9 eventually mentioned New Jersey.” J.A. 50–51. Officer Moreira 10 testified that he spoke to the men in a combination of English and 11 Spanish, and that he is fluent in both languages. Officer Moreira 12 testified that both men “appeared very nervous, were avoiding 13 making eye contact,” “their voice was kind of shaky and they were 14 speaking in a low voice,” and that Rivera-Vasquez’s “hands were 15 shaking as he [handed] over the documents.” J.A. 50. Officer Moreira 16 returned to his patrol car to conduct license checks. Rivera-Vasquez’s 17 license and registration were valid, and there were no outstanding 18 warrants for either party. We note that the nervousness Officer 19 Moreira witnessed occurred even though neither man had an 20 outstanding warrant. 21 It is undisputed that at this point, approximately eight minutes 22 after initially stopping the car, Officer Moreira had the information 23 necessary to cite Rivera-Vasquez for the traffic violations he had 8 16-1112-cr 1 observed. However, Officer Moreira continued his investigation. At 2 Officer Moreira’s request, Rivera-Vasquez got out of the car and 3 answered additional questions in Spanish regarding his relationship 4 with Santillan, their trip to Santillan’s aunt’s house, and Santillan’s 5 aunt’s name. Rivera-Vasquez did not know the name of Santillan’s 6 aunt or the location of her home, where, he said, he and Santillan had 7 stayed overnight. He said he did not know Santillan well. Officer 8 Moreira performed a pat-down of Rivera-Vasquez, removed his 9 wallet and cell phone, then asked him to sit (uncuffed) in the back of 10 the patrol car. He told Rivera-Vasquez that he was not in trouble. 11 Officer Moreira then asked Santillan a few questions in Spanish 12 before asking him to get out of the car. Officer Moreira asked Santillan 13 where he and Rivera-Vasquez were coming from and how well they 14 knew each other. Santillan responded that he did not know Rivera- 15 Vasquez well, that they had stayed for one or two nights at Santillan’s 16 aunt’s house, and that his aunt lived somewhere in New Jersey, 17 although “[h]e had difficulty pronouncing the name [of the location] 18 and [Officer Moreira] had difficulty understanding [it].” J.A. 57. 19 During this conversation, Officer Moreira saw that there were energy 20 drinks and “multiple cell phones,” which he later clarified to mean 21 more than one cell phone, in the center console. J.A. 58, 191. At this 22 point, Officer Moreira had already removed Rivera-Vasquez’s cell 23 phone from his pocket, and thus had reason to believe that the car 9 16-1112-cr 1 contained more cell phones than occupants. At some point, Officer 2 Moreira noticed the passenger seat was higher than the driver’s seat. 3 J.A. 59, 177. Officer Moreira also “observed [Santillan] to be very 4 hesitant in exiting” the car and “observed [Santillan] kind of look 5 down in his general area as a quick look over before he exited.” J.A. 6 58–59. 7 In response to further questions, Santillan indicated that he had 8 no luggage, but had extra clothes in the car, and that he had $80 on 9 him. Officer Moreira patted Santillan down and removed $1,000 from 10 Santillan’s back pants pocket. When Officer Moreira asked why he 11 had “lied” about the amount of money he had on him, Santillan 12 replied that he thought Officer Moreira was only asking about the 13 money in his front pockets. J.A. 61. Officer Moreira asked Santillan to 14 sit (uncuffed) in the back of a second patrol car which had arrived 15 during the stop. As with Rivera-Vasquez, Officer Moreira informed 16 Santillan that he was not in trouble or under arrest. 17 By this time, approximately 17 minutes had elapsed since 18 Officer Moreira first initiated the traffic stop. Officer Moreira then 19 asked for and received Rivera-Vasquez’s verbal consent to search the 20 car. Officer Moreira and another officer searched the car for 21 approximately 20 minutes, during which time they noticed that the 22 seat material covering the passenger seat appeared to be different 23 than and newer than the material on the driver’s seat. In addition, the 10 16-1112-cr 1 officers noticed that there was plastic wrapping in the space between 2 the cushion and the backrest of the passenger seat. According to 3 Officer Moreira’s experience, which was based in part on Drug 4 Enforcement Administration training, the plastic wrapping was 5 consistent with wrapping used to transport narcotics. Officer Moreira 6 then requested a narcotics dog. 7 At this point, approximately 37 minutes after the stop began, 8 Officer Moreira wrote Rivera-Vasquez citations for three of the five 9 violations of New York’s Traffic and Vehicle laws. About 67 minutes 10 after the stop began, the “narcotics canine” arrived on the scene and 11 indicated that the front passenger seat of the car was positive for the 12 presence of drugs. J.A. 75. Officer Moreira pulled back the seat and 13 found two packages of material later determined to contain cocaine. 14 Approximately 80 minutes after the stop began, both 15 Rivera-Vasquez and Santillan were arrested. At the police station, 16 Rivera-Vasquez signed a written consent to search form, which 17 Officer Moreira stated was to “reassure the consent that [he] had 18 received on the scene.” J.A. 82. Shortly thereafter, both Rivera- 19 Vasquez and Santillan were arraigned on a complaint charging them 20 with drug offenses. 21 Santillan, joined by co-defendant Rivera-Vasquez, moved to 22 suppress all evidence found on his person and in the car, as well as 23 his statements to Officer Moreira. He argued in relevant part that the 11 16-1112-cr 1 officers lacked probable cause or reasonable suspicion to detain him 2 longer than eight minutes into the stop, the point at which Officer 3 Moreira had the information needed to issue traffic citations. He also 4 argued that the pat-down of his person was not supported by a 5 reasonable suspicion to believe that he was armed, that his statements 6 regarding the $1,000 should be suppressed because they were the fruit 7 of illegally obtained evidence, and that his other pre-arrest statements 8 should be suppressed because they were obtained through the 9 coercive nature of a de facto arrest without Miranda warnings. The 10 district court denied this motion and a motion to reconsider following 11 Rodriguez v. United States, 135 S. Ct. 1609 (2015), in which the Supreme 12 Court addressed the unlawful prolongation of traffic stops. 13 After the suppression motion was denied, Rivera-Vasquez 14 agreed to plead guilty and to become a cooperating witness against 15 Santillan. Rivera-Vasquez testified at Santillan’s trial regarding 16 Santillan’s role in distributing cocaine, heroin, oxycodone, and 17 Percocet. He testified that he had delivered oxycodone to Santillan 18 “several times” in packages of “between 1,500 and 2,000 pills.” J.A. 19 517–18. Rivera-Vasquez also testified that Santillan had engaged in 20 other criminal activity, including the possession of an assault rifle 21 while trafficking in drugs and an attempted kidnapping of a person 22 whom Santillan and others suspected of stealing narcotics and 23 narcotics proceeds. According to Rivera-Vasquez’s testimony, 12 16-1112-cr 1 Santillan and two other men asked the target of the attempted 2 kidnapping to join them in a car. When the target opened the car door 3 and saw Santillan holding an assault rifle, he fled. Rivera-Vasquez 4 testified that he had seen Santillan with a specific assault rifle, and 5 identified that assault rifle as the same one pictured in photographs 6 recovered from Santillan’s phone. 7 The jury convicted Santillan on both counts of conspiracy and 8 possession of drugs with intent to distribute. The district court 9 sentenced Santillan principally to 151 months’ imprisonment, at the 10 bottom of his sentencing guidelines range of 151 to 188 months. 11 Santillan timely appealed. DISCUSSION 12 13 Santillan argues that we should vacate his conviction and 14 sentence because the district court erred by denying his motion to 15 suppress evidence seized from the vehicle and from his person and 16 statements he made during the course of the stop. His principal 17 contention is that the stop was unreasonably prolonged in violation 18 of the Fourth Amendment. 1 See Rodriguez, 135 S. Ct. at 1612, 1616. 19 Under Rodriguez, authority for a traffic-stop seizure ends when the 20 tasks tied to the traffic infraction are—or reasonably should have 21 been—completed, unless the officer develops reasonable suspicion of 1 On appeal, Santillan does not challenge the basis of the traffic stop. 13 16-1112-cr 1 criminal activity sufficient to extend the stop. Id. at 1614–15. We 2 disagree with Santillan. 3 First, we conclude that Officer Moreira had reasonable 4 suspicion to extend the traffic stop. Second, we determine that Officer 5 Moreira had reasonable suspicion to believe that Santillan was armed, 6 and therefore had sufficient justification to frisk him. Although the 7 $1,000 recovered during the frisk should not have been removed from 8 Santillan’s pockets, it would have inevitably been discovered and 9 admitting Santillan’s statements about it was harmless error. Third, 10 Santillan was never subject to custodial arrest and Miranda warnings 11 were not required. Fourth, Santillan’s detention never ripened into a 12 de facto arrest, either due to the stop’s duration or to the fact that 13 Santillan was placed in a police car, because Officer Moreira took 14 reasonable steps under the circumstances, and therefore probable 15 cause for Santillan’s detention was not required. Finally, Santillan 16 cannot challenge the search of the car because he had no reasonable 17 expectation of privacy in it. 18 I. Officer Moreira had Reasonable Suspicion to Prolong the 19 Stop of Santillan and his Investigatory Tactics Were 20 Reasonable 21 On review of a challenged suppression order, we examine the 22 district court’s findings of fact for clear error, reviewing de novo 23 questions of law and mixed questions of law and fact, including the 14 16-1112-cr 1 existence of reasonable suspicion to stop or extend a stop. See United 2 States v. Singletary, 798 F.3d 55, 59 (2d Cir. 2015). We view the totality 3 of the circumstances through the eyes of a reasonable and cautious 4 officer on the scene, whose insights are necessarily guided by the 5 officer’s experience and training. Id. at 60–62. See also United States v. 6 Bayless, 201 F.3d 116, 133 (2d Cir. 2000) (noting that we ask “if the 7 conduct would appear suspect to one familiar with the practices of 8 narcotics couriers,” even if it would appear innocuous to an untrained 9 observer) (internal quotation marks omitted). 10 “Reasonable suspicion requires more than an inarticulate 11 hunch.” United States v. Compton, 830 F.3d 55, 61 (2d Cir. 2016) 12 (internal quotation marks and alteration omitted). “The suspicion 13 must derive from specific and articulable facts which, taken together 14 with rational inferences from those facts, provide detaining officers 15 with a particularized and objective basis for suspecting wrongdoing.” 16 Id. (internal quotation marks omitted). The reasonable suspicion 17 standard is “not high” and is “less demanding than probable cause, 18 requiring only facts sufficient to give rise to a reasonable suspicion 19 that criminal activity may be afoot.” Singletary, 798 F.3d at 60 (internal 20 quotation marks and citation omitted). Conduct that is as consistent 21 with innocence as with guilt may provide the basis for reasonable 22 suspicion where there is some indication of possible illicit activity. See 23 United States v. Padilla, 548 F.3d 179, 187 (2d Cir. 2008). “[N]ervous, 15 16-1112-cr 1 evasive behavior is a pertinent factor in determining reasonable 2 suspicion.” Illinois v. Wardlow, 528 U.S. 119, 124 (2000). 3 In determining whether a traffic stop has reasonably been 4 extended into an investigatory seizure, we consider whether: (1) the 5 officer’s action was justified at its inception; and (2) the officer 6 diligently pursued a means of investigation that was likely to confirm 7 or dispel his or her suspicions quickly, during which time it was 8 necessary to detain the defendant. United States v. Foreste, 780 F.3d 9 518, 526 (2d Cir. 2015). 10 Here, Santillan does not dispute that the traffic stop, based 11 upon driving infractions, was valid at its inception. Santillan argues, 12 rather, that Officer Moreira lacked reasonable suspicion to prolong 13 the stop past the eight-minute mark, when the tasks needed to issue 14 the traffic citations were complete. We disagree. Officer Moreira had 15 reasonable suspicion to prolong the stop taking into account the 16 circumstances as a whole, including Santillan and Rivera-Vasquez’s 17 nervous behavior, illustrated by their avoidance of eye contact with 18 Officer Moreira and visibly shaking hands, coupled with their 19 inability to provide a clear answer as to where they had come from— 20 a fact that cannot be explained as the result of a language barrier 21 because Officer Moreira is fluent in Spanish and spoke to the men in 22 both English and Spanish. 16 16-1112-cr 1 We recognize that this is a close case, and that the factors 2 establishing reasonable suspicion are not overwhelming. We 3 conclude, however, that they were sufficient here to provide Officer 4 Moreira, an experienced police officer trained in narcotics trafficking 5 interdiction, with articulable and specific facts leading him to believe 6 that the two men may have been involved in some type of criminal 7 activity and that Officer Moreira had the authority to investigate 8 further. 9 Officer Moreira testified that Rivera-Vasquez and Santillan 10 were “very nervous” despite having no outstanding warrants that 11 could have explained their nervousness. J.A. 50. 2 Nervousness, 12 particularly extreme nervousness, is a factor supporting reasonable Although Judge Pooler professes shock that we would permit a negative inference based upon Rivera-Vasquez and Santillan being “very nervous” despite there being no open warrants against them, this is but one reasonable inference that an experienced officer could draw from the circumstances, as Officer Moreira did at trial. See J.A. 446. Judge Pooler devotes considerable attention to the factor of nervousness in her dissent, and we agree that there may be innocent explanations for showing some degree of nervousness in the presence of law enforcement officers. We disagree, however, that such possible innocent explanations negate reasonable suspicion here, where nervousness is just part of the totality of circumstances that Officer Moreira was permitted to consider. We assess reasonable suspicion from the perspective of a trained law enforcement officer on the scene, not from the perspective of an appellate judge. Thus, rather than spinning out innocent explanations for each factor piece by piece or substituting our view, in hindsight, for that of an experienced officer, our task is to consider the entire picture—as understood by the officer—to determine whether his suspicion had a reasonable basis. 2 17 16-1112-cr 1 suspicion. See United States v. Bailey, 743 F.3d 322, 334 (2d Cir. 2014); 2 id. at 350 (Pooler, J., concurring in part and dissenting in part) 3 (“Understandably, nervousness, odd, or furtive behavior have all 4 been identified by the Supreme Court as . . . important factor[s] in the 5 reasonable suspicion analysis, because such behavior in the presence 6 of law enforcement is reasonably linked to criminal activity.”). 7 In addition, Santillan and Rivera-Vasquez’s joint inability to 8 readily explain where they had just come from—even though 9 Rivera-Vasquez was driving and Santillan was purportedly related to 10 the woman from whose house they had allegedly come—provided 11 further basis for Officer Moreira to continue the investigation. We 12 have long recognized that reasonable suspicion may be based, at least 13 in part, on an implausible story, an implausible explanation of the 14 purpose of a trip, or a story that simply does not ring true. See United 15 States v. Reyes, 821 F.2d 168, 169–70 (2d Cir. 1987) (collecting cases). 16 Our sister circuits are in accord. See United States v. Green, 897 F.3d 17 173, 185–86 (3d Cir. 2018); United States v. Calvetti, 836 F.3d 654, 667 18 (6th Cir. 2016); United States v. Collazo, 818 F.3d 247, 258, 260 (6th Cir. 19 2016); United States v. Sanford, 806 F.3d 954, 956–57 (7th Cir. 2015); 20 United States v. Simpson, 609 F.3d 1140, 1148–51 (10th Cir. 2010); United 21 States v. Foreman, 369 F.3d 776, 784–85 (4th Cir. 2004). Further, Officer 22 Moreira noted at the trial that the stop occurred on the Hutchinson 23 River Parkway, a location that Officer Moreira knew to be a corridor 18 16-1112-cr 1 for drug trafficking. 3 See Wardlow, 528 U.S. at 124; see also Padilla, 548 2 F.3d at 188. 3 Although any one of these factors, standing alone, might not 4 support reasonable suspicion, we do not subject factors pertaining to 5 an officer’s reasonable suspicion to such a “divide-and-conquer 6 analysis.” United States v. Arvizu, 534 U.S. 266, 274 (2002). Rather, we 7 view each factor as part of “the whole picture” from which an officer 8 draws “certain common sense conclusions about human behavior,” 9 United States v. Cortez, 449 U.S. 411, 418 (1981), even if those 10 conclusions “might well elude an untrained person.” Arvizu, 534 U.S. 11 at 273 (internal quotation marks omitted). We consider and weigh 12 these factors “not in terms of library analysis by scholars, but as 13 understood by those versed in the field of law enforcement.” Cortez, 14 449 U.S. at 418. Under this approach, we conclude that these factors, 15 taken together, provided Officer Moreira with reasonable suspicion. 16 The men’s nervousness and inability to specify where they had come 17 from would have suggested to a reasonable officer with Officer 18 Moreira’s experience that the men were struggling to fabricate a cover While “[i]t is settled law that the validity of an arrest or search can be supported by evidence which was adduced at trial even though [it] was not presented at the pretrial suppression hearing,” United States v. Caniesco, 470 F.2d 1224, 1226 (2d Cir. 1972), we need not rely on Officer Moreira’s trial testimony here. The other factors supporting reasonable suspicion were sufficient. 3 19 16-1112-cr 1 story. We therefore hold that Officer Moreira had reasonable 2 suspicion to prolong the traffic stop. 4 3 We next examine whether Officer Moreira diligently pursued a 4 means of investigation that was likely to confirm or dispel his 5 suspicions quickly. Foreste, 780 F.3d at 526. See also United States v. 6 Sharpe, 470 U.S. 675, 685 (1985). For the reasons that follow, we hold 7 that Officer Moreira diligently pursued reasonable means of 8 investigation and that Santillan was never subject to custodial 9 interrogation or a de facto arrest. 10 A. Officer Moreira had reasonable suspicion that Santillan 11 was armed, the $1,000 recovered during the frisk would 12 have 13 Santillan’s statements about it was harmless error inevitably been discovered, and admitting 14 Santillan argues that the $1,000 seized from his pocket should 15 have been suppressed because Officer Moreira lacked reasonable 16 suspicion to subject him to a pat-down or frisk. He reasons that if In response to our decision in United States v. Gomez, 877 F.3d 76 (2d Cir. 2017), the government suggested, for the first time in a letter submitted via Fed. R. App. P. 28(j), that the good-faith exception provides a further basis to affirm because the Supreme Court had not decided Rodriguez when Officer Moreira stopped Santillan. See United States v. Santillan, No. 16-1112cr, Dkt. No. 93 (2d Cir. Dec. 11, 2017). We decline to consider this argument because the government forfeited it and proffered no reason for doing so, particularly after Santillan filed a reconsideration motion predicated on Rodriguez. See No. 16-1112-cr, Dkt. No. 95 (2d Cir. Dec. 14, 2017); J.A. 357– 67; cf. Gomez, 877 F.3d at 94–95. 4 20 16-1112-cr 1 Officer Moreira had truly been concerned for his safety, he would 2 have frisked both Rivera-Vasquez and Santillan immediately upon 3 asking them to get out of the car, or he would not have turned his 4 back on Santillan as Santillan got out. We are not persuaded. 5 For the frisk to have been lawful, Officer Moreira must have 6 had reasonable suspicion that Santillan was armed and dangerous. 7 See Arizona v. Johnson, 555 U.S. 323, 326–27 (2009). Officer Moreira had 8 reasonable suspicion to believe that Santillan was armed and 9 dangerous based on the totality of the circumstances. We have 10 already concluded that Officer Moreira had reasonable suspicion to 11 believe that Santillan was involved in some type of criminal activity. 12 Further questioning heightened rather than dispelled those 13 suspicions. In addition, Officer Moreira testified that he had observed 14 several indicators of possible narcotics activity, specifically the 15 differences between the seat heights and the presence of multiple cell 16 phones. 17 Narcotics activity and weapons often go hand in hand, see 18 United States v. Oates, 560 F.2d 45, 62–63 (2d Cir. 1977), and the type 19 of investigative detention at issue here is fraught with danger for the 20 officer. See Johnson, 555 U.S. at 330–31; Pennsylvania v. Mimms, 434 U.S. 21 106, 110 (1977); see also Oates, 560 F.2d at 63. Officer Moreira had a 22 sufficient basis to suspect that Santillan may have been armed and 23 dangerous to conduct a frisk in order to ensure his own safety and the 21 16-1112-cr 1 safety of other officers as the investigation continued. See United States 2 v. McCargo, 464 F.3d 192, 200 (2d Cir. 2006). 3 Santillan suggests that Officer Moreira’s decision to question 4 Santillan before frisking him casts doubt on whether Officer Moreira 5 had sufficient reason to conduct the frisk. We disagree. Officer 6 Moreira questioned Santillan in order to confirm or dispel his 7 suspicions. Only then did he subject Santillan to a more-intrusive 8 frisk. This course of action was less intrusive, and more in line with the 9 protection of constitutional rights, than requiring Officer Moreira to 10 have frisked Santillan as soon as he left the car or not at all. Neither 11 common sense nor our own precedent demand such a choice. See 12 United States v. Diaz, 854 F.3d 197, 207 (2d Cir. 2017). 13 Santillan next argues that Officer Moreira unlawfully seized 14 $1,000 from his pants pocket and neither the money nor Santillan’s 15 statements about it should have been admitted. We agree with the 16 district court that Officer Moreira’s frisk exceeded Fourth 17 Amendment limitations. During a pat-down or frisk for weapons and 18 contraband, officers are only permitted to remove for further 19 inspection objects that are immediately apparent as such. See, e.g., 20 Minnesota v. Dickerson, 508 U.S. 366, 375–76 (1993). The $1,000 in cash 21 Santillan had on his person was neither weapons nor contraband, and 22 Officer Moreira should not have removed it from Santillan’s pockets 23 during the frisk. Nevertheless, we conclude, as did the district court, 22 16-1112-cr 1 that the $1,000 was admissible because it would have been inevitably 2 discovered during a search incident to arrest after the officers 3 discovered cocaine in the car. See, e.g., Nix v. Williams, 467 U.S. 431, 4 443–44 (1984); United States v. Eng, 971 F.2d 854, 861–62 (2d Cir. 1992). 5 While the $1,000 was admissible, it still was improperly taken 6 and thus Santillan’s statements about it were not admissible. They 7 were the fruit of the poisonous tree and should have been suppressed. 8 See Bailey, 743 F.3d at 341. 9 Nevertheless, where evidence obtained in violation of 10 constitutional rights is wrongfully admitted at trial, the error can be 11 deemed harmless where it appears “beyond a reasonable doubt” that 12 it “did not contribute to the verdict obtained.” See Weaver v. 13 Massachusetts, 137 S. Ct. 1899, 1907 (2017) (quoting Chapman v. 14 California, 386 U.S. 18, 24 (1967)); United States v. Dhinsa, 243 F.3d 635, 15 658–64 (2d Cir. 2001). In order to assess harmlessness, we must 16 “consider the importance of the erroneously admitted statements to 17 the government’s proof of guilt.” Bailey, 743 F.3d at 342. A number of 18 factors inform this analysis, chief among them the strength of the 19 prosecution’s case absent the erroneously admitted statements. See 20 United States v. Okatan, 728 F.3d 111, 120 (2d Cir. 2013). We also 21 consider the materiality of the improperly admitted evidence to 22 critical facts in the case, whether the evidence was cumulative, and 23 the prosecutor’s conduct regarding the evidence. Id. 23 16-1112-cr 1 Although Santillan notes that the government relied on 2 Santillan’s statements throughout his trial, we easily conclude that the 3 statements were cumulative because of the overwhelming evidence 4 of Santillan’s guilt and the relative insignificance of the statements 5 pertaining to the $1,000. The government presented a strong case, 6 consisting of the narcotics uncovered in the car, pictures from 7 Santillan’s cellphone, the $1,000 in cash from Santillan’s person, and 8 the corroborated testimony of Rivera-Vasquez. Santillan’s statements 9 about the $1,000 and the prosecutor’s argument that his initial 10 dishonesty tended to prove that he knew about the narcotics hidden 11 in the car were not of major import in light of the totality of the 12 evidence against Santillan. See Bailey, 743 F.3d at 344–45 (noting that 13 where the government first has to prove exculpatory disclaimers were 14 false, in order to urge the jury to infer consciousness of guilt, those 15 statements cannot be deemed particularly important to the 16 prosecution’s case); United States v. Treacy, 639 F.3d 32, 45–46 (2d Cir. 17 2011). Thus any error in admitting the statements was harmless. 18 19 B. There was no custodial interrogation or de facto arrest and Miranda warnings were not required 20 Santillan argues that all of his statements should have been 21 suppressed because he was subjected to a de facto arrest but was not 22 given Miranda warnings. Thus, any evidence recovered from the car 23 should have been suppressed as the fruit of an unlawful de facto arrest. 24 16-1112-cr 1 We agree with the district court that Santillan was never subject to 2 custodial interrogation or a de facto arrest and thus these arguments 3 are without merit. 4 We review de novo a district court’s determination as to whether 5 a suspect was in custody for the purposes of Miranda. See United States 6 v. Newton, 369 F.3d 659, 668 (2d Cir. 2004). We use a two-step, 7 objective test, that asks whether: (1) a reasonable person in the 8 defendant’s position would have understood that he or she was free 9 to leave; and (2) there was a restraint of freedom of movement akin to 10 that associated with a formal arrest. See United States v. Faux, 828 F.3d 11 130, 135 (2d Cir. 2016). For the second step, relevant factors are 12 whether the suspect is told that he or she is free to leave, the location 13 and atmosphere of the interrogation, the language and tone used by 14 the law enforcement officers, whether the subject is searched or 15 frisked, and the length of the interrogation. Tankleff v. Senkowski, 135 16 F.3d 235, 243–44 (2d Cir. 1998); see also Newton, 369 F.3d at 672 17 (explaining that the Tankleff factors are relevant to the second part of 18 the Miranda custody inquiry, and clarifying the order in which the 19 questions are asked). 20 In considering whether Santillan would reasonably have 21 considered himself free to leave, we note both the similarities and 22 dissimilarities as between this stop and a typical traffic stop. 23 Although we have already concluded that this traffic stop was 25 16-1112-cr 1 prolonged into an investigatory stop, the location and atmosphere of 2 the questioning resembled a traffic stop in those respects that bear on 3 the question of whether Santillan would have been any less free to 4 leave than he would have been during a typical traffic stop. First, 5 Santillan was questioned in public view on the side of the road about 6 his relationship to the driver and details about their travels. Second, 7 Officer Moreira never handcuffed Santillan or displayed a weapon. 8 Although Santillan was frisked and directed to wait in the police car 9 while Officer Moreira and two more officers who arrived later 10 continued their investigation, he was told that he was not under 11 arrest. On the balance, this stop bore a much greater similarity to a 12 traffic stop or Terry stop than to the type of custodial interaction that 13 would trigger the requirement of Miranda warnings. See Berkemer v. 14 McCarty, 468 U.S. 420, 437–39 (1984). 15 As for the “ultimate inquiry” of whether there was a restraint 16 of freedom of movement akin to that associated with a formal arrest, 17 Newton, 369 F.3d at 670, we consider whether a reasonable person in 18 Santillan’s position would have understood that his detention was 19 not likely to be “temporary and brief” and whether a person stopped 20 under the circumstances at issue would feel that he was “completely 21 at the mercy of the police.” Id. at 675 (quoting Berkemer, 468 U.S. at 22 437–38). See also Howes v. Fields, 565 U.S. 499, 509 (2012). In Newton, we 23 addressed the distinctions between a Fourth Amendment and a 26 16-1112-cr 1 Miranda analysis, 369 F.3d at 669–72, concluding that Miranda’s 2 concern is not with the reasonableness of an officer’s actions but with 3 “the facts known to the seized suspect and whether a reasonable 4 person would have understood that his situation was comparable to 5 a formal arrest.” Id. at 675. Here, Santillan was questioned, frisked, 6 and asked to sit in the back of a police car, but he was not handcuffed 7 and was told that he was not under arrest. He could observe two 8 police officers attempting to deal with the difficulties of interviewing 9 two people on a snow-covered shoulder of a heavily trafficked 10 highway following a legitimate traffic stop and could reasonably 11 appreciate that his placement in a patrol car was for safety reasons. 12 Under these circumstances, we conclude that a reasonable person 13 would not have felt that he was subject to a formal arrest, and 14 therefore that Miranda warnings were not required. 15 Our analysis of whether a de facto arrest occurred, however, 16 shifts from Santillan’s perspective of the seizure to Officer Moreira’s. 17 Specifically, we ask whether Officer Moreira’s actions were 18 reasonable under the circumstances. See id. at 673–74. To determine 19 whether a stop is so intrusive that it becomes a de facto arrest, we look 20 to: the amount of force used by police, the need for such force, and 21 the extent to which the suspect’s freedom of movement was 22 restrained. United States v. Vargas, 369 F.3d 98, 101 (2d Cir. 2004). In 23 particular, we consider the number of officers involved, whether the 27 16-1112-cr 1 target of the stop was suspected of being armed, the duration of the 2 stop, and the physical treatment of the suspect, including whether 3 handcuffs were used. United States v. Perea, 986 F.2d 633, 645 (2d Cir. 4 1993). 5 Santillan’s arguments that the stop became a de facto arrest 6 focus on two aspects: (1) he was placed in the back of a police car; and 7 (2) the duration of the stop was too lengthy to be considered an 8 investigatory stop. We disagree. The stop was not extended 9 unreasonably and did not employ tactics more invasive than 10 necessary under the circumstances, which included the dangers and 11 difficulty of questioning two suspects separately on a highway 12 shoulder narrowed by snow. See Florida v. Royer, 460 U.S. 491, 504 13 (1983); Mimms, 434 U.S. at 111. At all times, Officer Moreira and the 14 two officers eventually assisting him were engaged in steps to dispel 15 or confirm their reasonable suspicions. See United States v. Tehrani, 49 16 F.3d 54, 61 (2d Cir. 1995). Although those steps prolonged the stop, 17 they did not do so unreasonably. See Bailey, 743 F.3d at 336. 18 Officer Moreira’s decision to place Santillan in the back of a 19 police car did not transform the stop into an arrest because the 20 decision was a reasonable response to legitimate safety concerns. See 21 Vargas, 369 F.3d at 102. Because we conclude that Officer Moreira’s 22 actions were at all times reasonable steps to confirm or dispel his 23 suspicions and were appropriate responses to the hazardous 28 16-1112-cr 1 conditions presented, we have no reason to explore whether the 2 plastic wrapping discovered in the seat cushions, together with the 3 other evidence, would have provided sufficient probable cause to 4 arrest Santillan earlier in the stop. 5 C. Santillan cannot challenge the search of the car because he 6 had no reasonable expectation of privacy in it and the 7 district court did not clearly err in holding that 8 Rivera-Vasquez consented to the search 9 Finally, Santillan car argues that the evidence should be suppressed from 10 Rivera-Vasquez’s because 11 Rivera-Vasquez’s consent to search was tainted by an unreasonably 12 prolonged and intrusive stop and was therefore not voluntarily given. 13 Although Santillan has standing to challenge the prolongation of the 14 traffic stop, see Brendlin v. California, 551 U.S. 249, 251 (2007), he lacked 15 standing to challenge the search of the car because he had no 16 reasonable expectation of privacy in a car being driven by and 17 registered under the name of a man he claimed not to know very well. 18 See Rakas v. Illinois, 439 U.S. 128, 142–43, 148 (1978). 19 “Fourth Amendment rights are personal rights that may not be 20 asserted vicariously.” Id. at 133. “Accordingly, a defendant’s Fourth 21 Amendment rights are violated ‘only when the challenged conduct 22 invade[s] his legitimate expectation of privacy rather than that of a 23 third party.’” United States v. Haqq, 278 F.3d 44, 47 (2d Cir. 2002) 29 16-1112-cr 1 (quoting United States v. Payner, 447 U.S. 727, 731 (1980)). A 2 “defendant seeking suppression of evidence found without a search 3 warrant must show that he had a reasonable expectation of privacy in 4 the place or object searched.” United States v. Delva, 858 F.3d 135, 148 5 (2d Cir. 2017). One need not be the owner of the property for his 6 privacy interest to be one that the Fourth Amendment protects, so 7 long as he has the right to exclude others from dealing with the 8 property. Perea, 986 F.2d at 639–40. 9 Santillan had no reasonable expectation of privacy in 10 Rivera-Vasquez’s car because he had no right to exclude others from 11 it and he assumed the risk that its owner would grant consent for the 12 search. See United States v. Paulino, 850 F.2d 93, 97 (2d Cir. 1988). See 13 also United States v. Buettner-Janusch, 646 F.2d 759, 764 (2d Cir. 1981). 14 Because Santillan did not have an objectively reasonable expectation 15 of privacy in the area under or behind the passenger seat, he has no 16 standing to challenge whether Rivera-Vasquez’s consent to search 17 was voluntary. We note, however, that the district court found that it 18 was, and we would not disturb such a finding absent a showing of 19 clear error, which Santillan fails to make here. See United States v. 20 Arango-Correa, 851 F.2d 54, 57 (2d Cir. 1988). 21 * * * 22 We have considered each of Santillan’s challenges to the stop, 23 frisk, and search and find them unavailing. We therefore affirm the 30 16-1112-cr 1 district court’s denial of Santillan’s motions to suppress evidence 2 from the car and from his person. While the district court erred in 3 admitting statements regarding the $1,000, the error was harmless. 4 CONCLUSION 5 For the foregoing reasons, we AFFIRM the district court’s 6 denial of Santillan’s motion to suppress evidence recovered from the 7 vehicle search and search of his person and the statements he made 8 over the course of the stop. For the reasons stated in this opinion and 9 in the summary order issued simultaneously with this opinion that 10 addresses Santillan’s remaining arguments, we AFFIRM the 11 judgment of the district court in all respects. 1 POOLER, Circuit Judge: 2 3 I respectfully dissent. I would hold that the officers lacked reasonable 4 suspicion to prolong the stop beyond the time needed to issue the traffic citation, 5 in violation of the Fourth Amendment and Rodriguez v. United States, 135 S. Ct. 6 1609 (2015), and reverse the judgment of the district court. 7 This case is a clear example of officers acting on a “mere hunch,” without 8 reasonable suspicion. Dancy v. McGinley, 843 F.3d 93, 106 (2d Cir. 2016). The 9 indefinite, nondescript nature of the officers’ suspicions is apparent from Officer 10 Moreira’s testimony, which is replete with passages like, “I felt that his behavior 11 was suspicious. It was raising my suspicion, at least. He was too nervous. 12 Something was off…” Joint App’x at 54. As this and similar testimony 13 demonstrates, in deciding to detain, question and search Santillan and Rivera- 14 Vasquez, the officers relied principally on their perception that the men were 15 “too nervous” and “off.” Joint App’x at 50, 54, 59. Such subjective and slippery 16 descriptions simply are not the type of “specific and articulable facts” we require 17 to support reasonable suspicion. United States v. Singletary, 798 F.3d 55, 59 (2d 18 Cir. 2015). Beyond nervousness, the sole additional factor given for prolonging 19 the stop was an unsatisfactory response from the men regarding their point of 1 1 origin. But nearly every stop will produce some answer that could be as vaguely 2 unavailing in the mind of the officer as the answers given here. Accordingly, by 3 condoning the officers’ handling of this incident, I fear the majority may winnow 4 the protections of the Fourth Amendment to a near nullity whenever an officer 5 deems an individual simply “too nervous.” Joint App’x at 54. 6 I. No Reasonable Suspicion to Prolong Traffic Stop 7 In Rodriguez, the Supreme Court clarified that, when an officer conducts a 8 traffic stop, “[a]uthority for the seizure … ends when tasks tied to the traffic 9 infraction are—or reasonably should have been—completed.” 135 S. Ct. at 1614; 10 see also United States v. Gomez, 877 F.3d 76, 89-90 (2d Cir. 2017) (holding that 11 Rodriguez abrogates prior Circuit rule regarding duration of traffic stops). As a 12 result, “unrelated inquiries that prolong or add time to a traffic stop violate the 13 Fourth Amendment absent reasonable suspicion of a separate crime.” Gomez, 877 14 F.3d at 90. 15 Here, Officer Moreira testified that he had obtained all the information he 16 needed to issue the traffic citation eight minutes into the stop. Thus, to comport 17 with the Fourth Amendment, the prolongation of the stop after this point must 18 be justified by reasonable suspicion of an independent crime. 2 As the majority explains, the basis for reasonable suspicion to extend the 1 2 stop past the eight-minute mark effectively amounts to (i) nervousness, and 3 (ii) an unsatisfactory description of the pair’s point of origin. Op. at 15. With 4 regard to nervousness, on direct, Office Moreira gave the following descriptions 5 of Santillan and Rivera-Vasquez’s behavior throughout the stop: • “They appeared very nervous, were avoiding making eye contact. I noticed that their voice was kind of shaky and they were speaking in a low voice, and Mr. Vasquez’s hands were shaking as he was handing me over the documents.” Joint App’x at 50. 6 7 8 9 10 • With regard to Rivera-Vasquez: “I felt that his behavior was suspicious. It was raising my suspicion, at least. He was too nervous. Something was off…” Joint App’x at 54. 11 12 13 14 • With regard to Santillan: “[I noticed] his nervous behavior, the fact that he looked over the area. It was a totality of the situation. He looked over the area where he was sitting. His nervous behavior. … His vague answers, his hesitance to exit the vehicle, his shakiness in the voice, and his nervous behavior was just a little off.” Joint App’x at 59. 1 15 16 17 18 19 I note that these last two answers were given in response to questions about why Officer Moreira felt he needed to frisk Santillan and Rivera-Vasquez. The frisks occurred after the eight-minute mark, and Officer Moreira cited nothing more as justification. I find this testimony pertinent to the analysis of whether reasonable suspicion existed prior to the eight-minute mark because it tracks the behavioral descriptions Officer Moreira gave about the pair both before and after the eight-minute mark: namely, that he found them to be too nervous. At no point did Officer Moreira testify that the men exhibited more extreme behavior. Further, on the separate question of whether the frisks were warranted, in my view, these answers are surely insufficient to establish that Officer Moreira reasonably believed that the pair were “armed and dangerous,” Arizona v. Johnson, 555 U.S. 323, 129 S.Ct. 781, 784 (2009), as needed to justify the frisks. 1 3 1 Officer Moreira also testified that the pair gave answers that he considered 2 inordinately vague about their point of origin. Both Rivera-Vasquez and 3 Santillan said they were coming from Santillan’s aunt’s house. Rivera-Vasquez 4 did not identify a geographical location; Santillan said that the aunt’s house was 5 in New Jersey, and tried to further name “some type of city or town,” which 6 Officer Moreira did not understand. Joint App’x at 50-51. 7 In my view, looking to the totality of the circumstances, these grounds do 8 not provide a basis for anything more than “an inchoate and unparticularized 9 suspicion or hunch,” and are insufficient to satisfy the Fourth Amendment. 10 Illinois v. Wardlow, 528 U.S. 119, 124 (2000) (quotation marks omitted). Though we 11 do not demand much to satisfy the reasonable suspicion standard, I disagree 12 with my colleagues that this case falls just over the line into permissible territory. 13 First, there are myriad reasons to be wary when, as here, an officer appeals 14 repeatedly to his assessment that “something was off.” Joint App’x at 54; see also 15 Joint App’x at 59. It is the very definition of an “inarticulate hunch[].” Terry v. 16 Ohio, 392 U.S. 1, 22 (1968). The protections of the Fourth Amendment depend on 17 requiring something more than a faint statement of intuition. As the Supreme 18 Court has routinely emphasized, “[i]f subjective good faith alone were the test, 4 1 the protections of the Fourth Amendment would evaporate, and the people 2 would be secure in their persons, houses, papers and effects, only in the 3 discretion of the police.” Id. (quotation marks omitted). 4 Beyond the assertions that “something was off,” Officer Moreira testified 5 that Santillan and Rivera-Vasquez were “very nervous,” “too nervous,” and 6 exhibited “nervous behavior.” Joint App’x at 50, 54, 59. A pronounced nervous 7 reaction is, of course, a “pertinent factor in determining reasonable suspicion.” 8 Illinois v. Wardlow, 528 U.S. 119, 124 (2000). Depending on the severity or 9 character of the nervousness, and the combination of other factors present, it may 10 well contribute to a finding of reasonable suspicion. Our inquiry is based on a 11 “totality of the circumstances principle,” United States v. Singletary, 798 F.3d 55, 12 60 (2d Cir. 2015) (quotation marks omitted), and thus we must look to all 13 pertinent indicia of legal wrongdoing—including, naturally, the individual’s 14 actions. See, e.g., United States v. Arvizu, 534 U.S. 266, 276-77 (2002). For example, 15 flight from the police, viewed in conjunction with other factors, may provide 16 sufficient grounds to investigate. See Wardlow, 528 U.S. at 124-25. 17 18 But reports of generalized nervousness, like Officer Moreira gave here, do not independently contribute much towards establishing a “particularized and 5 1 objective basis” for a stop. Wardlow, 528 U.S. at 128. Though less problematic 2 than a statement that “something was off,” an officer’s report of nervousness is 3 similarly subjective, indefinite, and too easily conflated with intuition. “Whether 4 you stand still or move, drive above, below, or at the speed limit, you will be 5 described by the police as acting suspiciously should they wish to stop or arrest 6 you. Such subjective, promiscuous appeals to an ineffable intuition should not be 7 credited.” United States v. Broomfield, 417 F.3d 654, 655 (7th Cir. 2005) (Posner, J.). 8 We must be particularly skeptical where, as here, the reported nervousness is not 9 evidenced by some more extreme behavior—such as flight from the police—but 10 11 only by more generalized observations. Further, we should not blind ourselves to the reality that an individual’s 12 race and ethnicity often will affect assessments of that individual’s behavior. See 13 United States v. Hussain, 835 F.3d 307, 314–15 (2d Cir. 2016) (“Part of our trouble is 14 that stops fitting the same fact pattern (but, say, different passengers of another 15 race, gender, or ethnicity) would, we think, rarely if ever lead the police to 16 suspect the passengers posed an immediate danger.”). Murky descriptors like 17 “nervous” may well implicate biases—which are often implicit and unknown to 18 the officer—that code one individual’s behavior as more suspicious only because 6 1 of the color of her skin. See Al Baker, Confronting Implicit Bias in the New York 2 Police Department, N.Y.Times, July 15, 2018 (discussing NYPD’s recent efforts to 3 address implicit bias among officers). “[S]pecificity in articulating the basis for a 4 stop is necessary in part because according the police unfettered discretion to 5 stop and frisk could lead to harassment of minority groups and severely 6 exacerbate police-community tensions.” Dancy, 843 F.3d at 111 (quotation marks 7 omitted). Relying on an officer’s report of generalized nervousness is simply too 8 imprecise to meet this goal. 9 To the degree that Officer Moreira testified to objective indicia of 10 nervousness—shaky hands, and a “kind of shaky” voice, Joint App’x at 50— 11 these reactions are quite mundane. Nearly everyone is nervous enough to exhibit 12 some type of reaction when stopped by the police. Unlike a sudden flight from 13 law enforcement, Wardlow, 528 U.S. at 124-25, these common indications of 14 nervousness are a normal, routine response to being stopped. We have 15 recognized that many individuals understandably find police contact “stressful 16 and prefer to avoid interactions with law enforcement when possible.” United 17 States v. Compton, 830 F.3d 55, 62-63 (2d Cir. 2016) (Walker, J.). In the context of a 18 traffic stop, the knowledge that an officer may soon issue a ticket, or may take 7 1 further action, is unnerving under the best of circumstances. Thus, using 2 “commonsense judgments and inferences about human behavior,” these 3 common indications of nervousness are of comparatively little value in finding 4 reasonable suspicion. Wardlow, 528 U.S. at 125. 5 Troublingly, in an effort to vindicate the actions of the officers, my 6 colleagues come perilously close to claiming that only guilty people—or those 7 with an open warrant for arrest—should experience nervousness when stopped 8 by police. They write that Santillan and Rivera-Vasquez were “’very nervous’ 9 despite having no outstanding warrants that could have explained their 10 nervousness.” Op. at 16. This is shocking: an open warrant is hardly the only 11 reason an individual might feel nervous. For most of us, the stop alone suffices to 12 upend any feeling of calm. 13 Further, it is worth noting that a review of the dashboard footage, which 14 was introduced at the suppression hearing, casts some doubt on the objective 15 presence of visible nervousness. When both Rivera-Vasquez and Santillan were 16 asked to step out of the vehicle (after the eight-minute mark), the ensuing 17 interactions took place in full view of Officer Moreira’s dashboard camera 18 (though only very limited audio is captured). I would expect any nervousness to 8 1 be on full display at this point, after Officer Moreira escalated the situation by 2 asking the men to step out of the vehicle. But the footage leaves the opposite 3 impression. Officer Moreira testified that both Santillan and Rivera-Vasquez’s 4 nervousness resulted in the pair avoiding eye contact, speaking in a low voice, 5 and, in Rivera-Vasquez’s case, shaky hands. But on the video both Santillan and 6 Rivera-Vasquez seem to be looking the officers in the face, speaking with 7 reasonable animation, and, at one point, even perhaps joking with the officers. I 8 will admit the two appear potentially to be cold. It was, after all, February in 9 New York City, and snow lined the roadsides. But, based on my review of the 10 pair’s demeanor on camera, I simply do not share Officer Moriera’s perception 11 that they were visibly, highly nervous. Thus, while I would not argue that the 12 district court clearly erred in accepting the officers’ testimony to the effect that 13 Santillan and Rivera-Vasquez were nervous, it is worth noting that this case 14 provides a strong example of why nervousness often lies in the eye of the 15 beholder. 16 Finally, in addition to nervousness, the sole other factor at the eight- 17 minute mark was the unsatisfactory answer given by the pair regarding their 18 point of origin. Rivera-Vasquez reported that they were traveling from 9 1 Santillan’s aunt’s house; Santillan said the aunt’s house was in New Jersey, and 2 tried to specify a town, but Officer Moreira was unable to understand him. These 3 answers are hardly suspect. 4 Beginning at the outset of the traffic stop, when asked where they were 5 coming from, Rivera-Vasquez, the driver, said Santillan’s aunt’s house. First, it is 6 important to recall that officers routinely ask similar questions, but drivers are 7 under no obligation to provide such information. See Berkemer v. McCarty, 468 8 U.S. 420, 439 (1984) (during Terry stops, including traffic stops, “detainee is not 9 obliged to respond” to officer’s questions); but see Hiibel v. Sixth Judicial Dist. 10 Court of Nevada, Humboldt Cty., 542 U.S. 177, 187 (2004) (consistent with the 11 Fourth Amendment, state law may require detainee to identify herself during 12 Terry stop). Rivera-Vasquez nonetheless reported that he was coming from 13 Santillan’s aunt’s house. Though perhaps it would have been preferable to give a 14 geographic location, it is not particularly noteworthy that Rivera-Vasquez could 15 not immediately do so. After all, it was Santillan’s aunt’s house, not Rivera- 16 Vasquez’s, where they reported beginning the trip. And both Rivera-Vasquez 17 and Santillan produced identification showing that they were from out of state— 18 Rivera-Vasquez from Massachusetts, and Santillan from New Hampshire. Thus 10 1 Rivera-Vasquez’s reply might well have reflected only a lack of familiarity with 2 the area. Further, in an era when many drivers are fully dependent on computer 3 mapping programs to provide directions, it is unsurprising that the men—both 4 from out of state—may have had a somewhat imprecise understanding of the 5 location of the aunt’s house. Many people today let their cell phone tell them 6 exactly where to go, without troubling themselves as to the specifics. Further, once Officer Moreira moved to the passenger side door, after 7 8 spending approximately one minute at the driver side door, Santillan specified 9 the state of origin as New Jersey. This would seem to be a sufficient answer to an 10 officer’s query of “where are you coming from” on a routine traffic stop in New 11 York. 12 Finally, it is important to emphasize that it is unclear how much may have 13 been lost in translation, since the conversation took place in both English and 14 Spanish. The majority insists that there must not have been any 15 miscommunication since Officer Moreira is a native Spanish speaker, and 16 conversed with the men in both languages. Op. at 15. But Officer Moreira himself 17 testified that he had difficulty understanding Santillan. See Joint App’x at 57 18 (Officer Moreira testimony that Santillan “had difficulty pronouncing the name 11 1 and I had difficulty understanding the name of where he was – the city or 2 township where he was saying, but he did mention that it was in New Jersey”). 3 Thus it is not at all clear that the pair actually failed to provide the more specific 4 answers that Officer Moreira was pressing for; rather, from Officer Moreira’s 5 own recollection, it is clear that at least Santillan attempted to provide further 6 information, but Officer Moreira had difficulty understanding him. 7 Accordingly, in my view, the answers given by the men do not suffice to 8 push this stop across the line and establish reasonable suspicion. The men 9 specified that they were coming from Santillan’s aunt’s house in New Jersey, and 10 there was some difficulty speaking across two different languages, which 11 prevented them from communicating the more specific answer Officer Moreira 12 sought. Many drivers, already nervous, will provide answers that the officer 13 might find just as vaguely wanting as these. 14 Accordingly, in my view, there was not reasonable suspicion to prolong 15 the stop past the eight-minute mark, when Officer Moreira should have 16 completed the traffic citation. Though Officer Moreira felt their answers were 17 unsatisfactory and their behavior “too nervous,” such perceptions could only 18 provide a basis for a hunch (which, of course, was later proven to be correct). But 12 1 they do not provide articulable grounds to believe the pair were engaged in 2 “legal wrongdoing.” Singletary, 798 F.3d at 59. Indeed, I fear that because 3 nervousness is a near-universal response to being pulled over by a police 4 officer—regardless of whether the person has anything to hide—and because an 5 officer may easily find one answer or another vague and unsatisfactory during 6 the typical traffic stop, the majority’s analysis could be used to justify all manner 7 of investigatory stops that have no basis other than the officer’s indistinct 8 suspicion. 9 10 II. Events Following the Eight Minute Mark Because I would not find reasonable suspicion to prolong the stop, I do not 11 address the events following the eight-minute mark in great detail. But I offer a 12 few observations, as Officer Moreira’s actions following the eight-minute mark 13 provide further indication that he was following up on a hunch, in disregard of 14 the strictures of the Fourth Amendment. 15 After the eight-minute mark, Officer Moreira returned from his patrol car 16 and asked Rivera-Vasquez to exit the vehicle. He then frisked Rivera-Vasquez, 17 pulled out his wallet, examined its contents, and asked Rivera-Vasquez to sit in 18 the back of his patrol car, thus locking him in the backseat (after reassuring him 13 1 that he “wasn’t in any trouble,” Joint App’x at 55). Officer Moreira then repeated 2 this process with Santillan, removing the contents of his pockets and asking him 3 to sit in the back of another police car. 4 First, it is plain that these actions violated the Fourth Amendment. Even 5 the majority concludes that the search of Santillan’s pockets was impermissible, 6 since there was no basis to believe that what turned out to be cash was either a 7 weapon or contraband, as required to remove an item for inspection during a 8 safety frisk. Op at 21-22. Of course, removing the contents of the pair’s pockets 9 did serve one clear purpose: allowing Officer Moreira to continue his 10 investigation by riffling through the men’s belongings in hopes of turning up 11 evidence. 12 Second, Officer Moreira’s testimony following the eight-minute mark 13 shows that his suspicions were elevated by a number of utterly commonplace 14 items. For example, Officer Moreira testified to becoming increasingly suspicious 15 after observing energy drinks, one extra cellphone, and cell phone chargers. I 16 imagine many college students might be surprised to hear that energy drinks 17 figured prominently into the calculus. Similarly, anyone who has been required 14 1 to carry a separate cell phone specifically for work might find the officers’ 2 suspicions based on one extra phone rather strained. I certainly do. * 3 4 * * Accordingly, I cannot agree that the officers had reasonable suspicion to 5 prolong the stop any longer than necessary to issue the ticket. Generalized 6 nervousness combined with an imprecise response about the point of origin is 7 simply not enough to satisfy the Fourth Amendment. 8 9 In my view, finding reasonable suspicion based largely on ineffable perceptions that an individual was “too nervous” runs roughshod over the 10 requirement that an officer provide a “particularized and objective basis” for a 11 stop. Wardlow, 528 U.S. at 128. Further, finding reasonable suspicion here risks 12 granting officers unfettered discretion to detain anyone they wish based on a 13 passing hunch. Many—if not most—traffic stops will yield nervous drivers and 14 one or another answer that the officer could find unsatisfactory in some regard. 15 Though reasonable suspicion is not a demanding standard, if it is to retain any 16 meaning, it must require more that the impressionistic suspicions that Officer 17 Moreira supplied here. 18 For these reasons, I respectfully dissent. 15
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