United States v. Vaccaro, No. 18-1753 (7th Cir. 2019)
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Officers stopped Vaccaro for running a red light. Vaccaro made a “ferocious move,” leaning “his entire top torso and both arms into the back seat.” Afraid that Vaccaro might be trying to “gain control of something from the back seat,” the officers ordered Vaccaro out of his car, immediately handcuffed Vaccaro and patted him down. Vaccaro expressed frustration, stating that “people are trying to kill me” and that he merely “took [his] coat off” when he pulled over. Vaccaro appeared to be in a “real amped‐up state,” making the officers believe that Vaccaro was under the influence of drugs. There was a GPS monitor on Vaccaro’s ankle. Vaccaro confirmed that he was on supervision for “false imprisonment,” which the officers understood to be a felony. The officers noticed a rifle case in the backseat but did not want to alert an “agitated” Vaccaro that they had seen it. They locked Vaccaro in the backseat of their squad car, removed a coat on top of the rifle case, and found a rifle inside. Vaccaro conditionally pled guilty to possessing a firearm as a felon. The Seventh Circuit upheld the denial of his motion to suppress the gun. Based on Vaccaro’s “furtive movements,” the pat-down was lawful under Terry v. Ohio. The sweep of the car was permissible because Vaccaro was not under arrest and would have been allowed to return to his car; could have gained “immediate control of weapons.”
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In the United States Court of Appeals For the Seventh Circuit ____________________ No. 18 1753 UNITED STATES OF AMERICA, Plaintiff Appellee, v. TRAVIS S. VACCARO, Defendant Appellant. ____________________ Appeal from the United States District Court for the Eastern District of Wisconsin. No. 17 CR 84 JPS — J.P. Stadtmueller, Judge. ____________________ ARGUED DECEMBER 11, 2018 — DECIDED FEBRUARY 7, 2019 ____________________ Before WOOD, Chief Judge, and RIPPLE, and BARRETT, Circuit Judges. BARRETT, Circuit Judge. Travis Vaccaro entered a condi tional guilty plea to possessing a firearm as a felon, 18 U.S.C. § 922(g), preserving his right to appeal the denial of his mo tion to suppress the gun. Vaccaro contests both the pat down search that occurred seconds after police o cers pulled over his car and the search of the car that yielded the gun. The pat down was lawful under Terry v. Ohio, 392 U.S. 1 (1968). The 2 No. 18 1753 sweep of the car, which the district court upheld under Mich igan v. Long, 463 U.S. 1032 (1983), is a closer call, but we con clude that it too was permissible. Accordingly, we a rm. Our summary of the facts is taken from an evidentiary hearing on Vaccaro’s motion to suppress. Milwaukee police o cers Aaron Frantal and Matthew Tracy stopped Vaccaro for running a red light. O cer Frantal testified that Vaccaro stopped his car and made a “very ferocious move” by “bend ing at the waist.” Vaccaro then leaned toward the passenger seat and “made another aggressive move with his entire top torso and both arms into the back seat of the vehicle.” O cer Tracy added that he saw Vaccaro “double over bending at the waist” and then reach toward the passenger side of the car. O cer Frantal testified that Vaccaro’s movements took under five seconds. Afraid that Vaccaro might be trying to “gain con trol of something from the back seat,” O cer Frantal drew his gun and ordered Vaccaro out of his car. The o cers immedi ately handcu ed Vaccaro, and O cer Frantal patted him down. Meanwhile, O cer Tracy asked Vaccaro questions about his movements. Vaccaro expressed frustration to the o cers and mentioned that “people are trying to kill me.” Vaccaro also said that he merely “took [his] coat o ” when he pulled over. After saying that he was going to search the car, O cer Tracy asked Vaccaro seven times whether there was a gun in the car. Vaccaro responded once to reiterate that someone was trying to kill him and another time to say “I don’t have any thing.” O cer Tracy added that Vaccaro appeared to be “ex tremely nervous” and in a “real amped up state,” which con tributed to the o cer’s belief that Vaccaro was under the in fluence of drugs. No. 18 1753 3 As O cer Tracy questioned Vaccaro, O cer Frantal found a GPS monitor on Vaccaro’s ankle. Vaccaro confirmed that he was on supervision for “false imprisonment,” which the o cers understood to be a felony. O cer Frantal did not discover a weapon during the frisk. But both o cers testified that they noticed a rifle case in the backseat. Neither o cer said anything, they testified, for fear of their safety; they did not want to alert an “agitated” Vaccaro that they had seen the case. The o cers then locked Vaccaro, still handcu ed, in the backseat of their squad car. O cer Frantal testified that Vac caro “did not appear to be fully stable” as he was led to the car. O cer Frantal called in the tra c violation to dispatch, which drew back up o cers to the scene. Meanwhile, O cer Tracy returned to Vaccaro’s car and began searching the front seats. O cer Frantal then ap proached the vehicle. He soon remarked that he saw a rifle case in the backseat. The o cers then removed a coat on top of the rifle case and eventually confirmed that a rifle was in side it. The magistrate judge recommended that the district court deny Vaccaro’s motion to suppress. She credited the o cers’ testimony that Vaccaro had made furtive movements because Vaccaro had admitted to taking o his jacket; therefore, she said, the o cers had reasonable suspicion to frisk Vaccaro for weapons. But she discredited the o cers’ testimony that they had seen a rifle case in the back of Vaccaro’s car before locking him in the squad car. The legality of the search therefore de pended on whether Vaccaro’s furtive gestures provided the o cers with reasonable suspicion to search the passenger 4 No. 18 1753 compartment of the car in addition to Vaccaro’s person. She concluded that they did. Vaccaro objected to the magistrate judge’s report and rec ommendation, arguing that the immediate frisk was not jus tified by reasonable suspicion and that the search of the car was not a lawful protective search under Long. The govern ment argued that both the frisk and car search were reasona ble. Vaccaro’s furtive movements justified the pat down search, the government said, and locking Vaccaro in the squad car before the vehicle search enabled the o cers to “avert[] a calamitous and explosive event.” The district judge sided with the government and denied Vaccaro’s motion to suppress. The judge accepted the magis trate judge’s findings of fact and discredited the o cers’ tes timony that they had observed the rifle case in the backseat before they searched the car. But Vaccaro’s furtive movements provided the o cers with reasonable suspicion that he had “potentially armed himself or concealed a firearm,” which warranted a protective frisk. The district judge also concluded that the vehicle search was reasonable under Long. Although Vaccaro was handcu ed and locked in a squad car during the search, he was not under arrest and could still be “dangerous” or gain “immediate access” to weapons. While the o cers’ “stated bases for their suspicion of dangerousness … are few,” the judge observed, he was “constrained” to find that the o cers had reasonable suspicion that Vaccaro was dan gerous based on his “furtive movements,” the “relatively late” time of the stop, and the o cers’ belief that Vaccaro was on drugs. Citing United States v. Arnold, 388 F.3d 237 (7th Cir. 2004), the judge further explained that, had “the tra c stop resulted only in the issuance of a citation for running a red No. 18 1753 5 light, Vaccaro would have been permitted to re enter his ve hicle.” Vaccaro then conditionally pleaded guilty to knowingly possessing a firearm as a felon. 18 U.S.C. § 922(g). He ex pressly reserved the right to challenge the denial of his motion to suppress. On appeal, Vaccaro renews his challenge to the pat down frisk and to the search of his car. We review the district court’s underlying factual findings for clear error, and we review de novo the district court’s legal conclusions, including its deter minations of reasonable suspicion. See Ornelas v. United States, 517 U.S. 690, 699 (1996); United States v. Ruiz, 785 F.3d 1134, 1140–41 (7th Cir. 2015). Vaccaro contends that the district court mistakenly cred ited the o cers’ testimony that he made furtive movements before exiting his car. This argument can be dispatched quickly. Vaccaro protests that because the o cers lied about seeing the rifle case before locking him in the squad car, they were also incorrect (or untruthful) about his movements. But the district court may credit all or part of a witness’s testi mony, especially when there is more than one permissible reading of the evidence. See United States v. McGraw, 571 F.3d 624, 629 (7th Cir. 2009). And although Vaccaro maintains that the o cers’ views through the rear window were obstructed by the headrests and a temporary license card, the judge cred ited the o cers’ testimony about the movements they ob served, bolstered by Vaccaro’s own admission that he took o his coat when he was pulled over. In light of Vaccaro’s admis sion that he was indeed moving around, we are not left with a “definite and firm conviction” that the district court mistak enly credited the o cers’ testimony. See United States v. 6 No. 18 1753 Thurman, 889 F.3d 356, 363–64 (7th Cir. 2018) (finding no clear error when court faced with “he said versus they said” situa tion). Because Vaccaro cannot show that the district court clearly erred in finding that he made furtive movements before leav ing the car, he cannot show that the pat down was unlawful. Vaccaro’s movements, including bending forward at the waist and reaching toward the passenger and rear seats, reasonably suggested that he could be reaching for or concealing a weapon. See United States v. Evans, 994 F.2d 317, 321 (7th Cir. 1993); United States v. Denney, 771 F.2d 318, 322 (7th Cir. 1985). Moreover, Vaccaro appeared to be “having di culty with something that the o cer could not see,” so the o cers had reasonable suspicion to order him out of the car and to per form a pat down search. See United States v. Hendricks, 319 F.3d 993, 1004 (7th Cir. 2003). Vaccaro o ered an innocent ex planation for his movements, but an o cer need not be abso lutely certain that a suspect is armed before conducting a pro tective pat down. See Terry, 392 U.S. at 27; United States v. Ford, 872 F.3d 412, 415 (7th Cir. 2017). Vaccaro also protests that the frisk was unreasonable be cause the o cers handcu ed him unnecessarily. Handcu ng a suspect during a pat down search for weapons should be the rare case. See United States v. Smith, 3 F.3d 1088, 1094 (7th Cir. 1993). But there is “a limited set of circumstances in which handcu s are appropriate without converting a Terry stop into a full arrest,” and “[c]hief among them is o cer safety and the possibility of the presence of a weapon.” Howell v. Smith, 853 F.3d 892, 898 (7th Cir. 2017). Based on the o cers’ concern that Vaccaro might have armed himself with a No. 18 1753 7 weapon when they observed his “aggressive” movements, handcu ng him to conduct the frisk was reasonable. Vaccaro next argues that the district court should have suppressed the rifle because the o cers discovered it during an unlawful search of his car. The government asserts that Michigan v. Long justified the search. The Long exception to the warrant requirement permits the police to search a vehicle when there are “genuine safety or evidentiary concerns.” Ar izona v. Gant, 556 U.S. 332, 347 (2009). Long holds: “[T]he search of the passenger compartment of an automobile, lim ited to those areas in which a weapon may be placed or hid den, is permissible if the police o cer possesses a reasonable belief based on ‘specific and articulable facts which, taken to gether with the rational inferences from those facts, reasona bly warrant’ the o cers in believing that the suspect is dan gerous and the suspect may gain immediate control of weap ons.” 463 U.S. at 1049–50 (quoting Terry, 392 U.S. at 21). In ap plying this test, the key question is whether the search was reasonable. See United States v. Correa, 908 F.3d 208, 217 (7th Cir. 2018). Long searches are grounded in concern for o cer safety, see 463 U.S. at 1050, so if that concern is not present, Long does not justify the search. See Gant, 556 U.S. at 338–39 (discussing how searches incident to arrest are not reasonable if concerns underlying exception to warrant requirement are absent). Long’s first prong is satisfied here because the o cers had reasonable suspicion to believe that Vaccaro was dangerous at the time they searched the car. In addition to Vaccaro’s fur tive movements, the o cers suspected that Vaccaro was un der the influence of drugs, which gave them greater reason to fear for their safety. See Long, 463 U.S. at 1050; United States v. 8 No. 18 1753 Kenerson, 585 F.3d 389, 392 (7th Cir. 2009). The o cers also discovered that Vaccaro was on probation for “false impris onment,” and prior criminal activity is one factor that can con tribute to reasonable suspicion. See United States v. Johnson, 427 F.3d 1053, 1057 (7th Cir. 2005). The second prong of the Long inquiry requires the govern ment to establish that the o cers reasonably suspected that Vaccaro could gain “immediate control” of weapons in the ve hicle. See 463 U.S. at 1049–50; United States v. Stewart, 902 F.3d 664, 674 (7th Cir. 2018). Vaccaro claims that he could not have immediately obtained weapons because he was handcu ed and locked in the back of a squad car. He insists that this case is controlled by Arizona v. Gant, in which the Supreme Court held that o cer safety concerns did not justify a search inci dent to the arrest of a driver who had been handcu ed and locked in the back seat of a squad car. 556 U.S. at 335. The government, on the other hand, contends that Gant doesn’t govern because Vaccaro wasn’t arrested. When a suspect is merely detained, the government argues, United States v. Ar nold controls the Long inquiry. 388 F.3d 237, 241 (7th Cir. 2004). In Arnold, which we decided before Gant, the motorist made furtive movements upon being stopped by police. 388 F.3d at 238. The o cer asked him to step out of the vehicle, patted him down, and “placed [the motorist] in the back seat of the patrol car so that he could ensure that the tra c stop was completed safely.” Id. The o cer then decided to have the car towed because the defendant had been driving with a learner’s permit without a licensed driver. Id. Before towing the vehicle, however, the o cer searched it and discovered a firearm. Id. at 238–39. We held that o cer safety concerns No. 18 1753 9 justified the search under Long. Id. at 241. This was a tra c stop, not an arrest, and the o cer “may have permitted [the motorist] to gather items from the car before leaving the scene even if the o cer would not have permitted him to drive the vehicle.” Id. We also noted that while the motorist was in the back seat of the squad car, he was not handcu ed and there fore “could have broken away from [the o cer’s] control.” Id. At oral argument, we asked the government whether Gant limited or overruled Arnold, and it maintained that Arnold is still good law. We agree. In Arnold, it was reasonable to be lieve that the defendant, who was not under arrest, could have regained access to his vehicle. See id. at 238, 241; see also Gant, 556 U.S. at 352 (Scalia, J., concurring) (“In the no arrest case, the possibility of access to weapons in the vehicle always exists, since the driver or passenger will be allowed to return to the vehicle when the interrogation is completed.”). In Gant, the opposite was true: the defendants were not going to return to the vehicle because they were arrested, handcu ed, and locked in squad cars. See 556 U.S. at 336–37, 344. The cases therefore do not conflict: Arnold applies to Terry stops; Gant applies to arrests. Thus, if Vaccaro had been under arrest, Gant would con trol. And if Vaccaro contended that he had been under arrest, we would face the di cult task of determining whether this Terry stop became an arrest. See, e.g., United States v. Bullock, 632 F.3d 1004, 1016–18 (7th Cir. 2011). But Vaccaro does not argue that the o cers arrested him. To the contrary, he con ceded at oral argument that he had been subjected to a Terry stop, not an arrest, and that he would have been allowed back to his vehicle at the conclusion of his brief detention if the 10 No. 18 1753 o cers had found no contraband.1 Vaccaro’s concession dic tates the disposition of this case. By admitting that he would have been allowed to return to his car, Vaccaro conceded that he could have gained “immediate control of weapons” inside the vehicle. The search was therefore lawful under Long. 463 U.S. at 1049; Arnold, 388 F.3d at 241. The judgment of the district court is AFFIRMED. 1 Vaccaro also conceded that he did not argue in the district court that his detention amounted to an arrest, rather than a Terry stop.
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