United States v. Diaz, 041817 FED2, 15-3776-cr

Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
Attorney:Robert W. Allen (Anna M. Skotko, on the brief), Assistant United States Attorney, for Joon H. Kim, Acting United States Attorney for the Southern District of New York, for Appellee. Daniel Habib, Federal Defenders of New York, Inc., Appeals Bureau, New York, NY, for Defendant-Appellant. Jordan We...
Judge Panel:Before: Walker, Sack, and Chin, Circuit Judges.
Opinion Judge:Sack, Circuit Judge.
Party Name:United States of America, Appellee, v. Jose Diaz, Defendant-Appellant.
Case Date:April 18, 2017
Docket Nº:15-3776-cr
 
FREE EXCERPT

United States of America, Appellee,

v.

Jose Diaz, Defendant-Appellant.

No. 15-3776-cr

United States Court of Appeals, Second Circuit

April 18, 2017

          Argued: November 29, 2016

         An officer observed the defendant in an apartment-building stairwell with an open container of alcohol, an apparent violation of New York City's open- container law. The officer initially intended only to issue a summons for the violation, not to make an arrest. But after discovering a firearm in the defendant's jacket pocket, she arrested him. He was ultimately found guilty of possessing a firearm as a previously convicted felon, in violation of 18 U.S.C. § 922(g). The principal question presented on appeal is whether the district court (Jesse M. Furman, Judge) erred in denying the defendant's motion to suppress the gun on Fourth Amendment grounds. We conclude that it did not because the officer held an objectively reasonable belief that the defendant had violated the open-container law and the gun was discovered by means of a lawful search incident to an arrest.

          Robert W. Allen (Anna M. Skotko, on the brief), Assistant United States Attorney, for Joon H. Kim, Acting United States Attorney for the Southern District of New York, for Appellee.

          Daniel Habib, Federal Defenders of New York, Inc., Appeals Bureau, New York, NY, for Defendant-Appellant.

          Jordan Wells, Alexis Karteron, (on the brief), for Amicus Curiae New York Civil Liberties Union Foundation.

          Before: Walker, Sack, and Chin, Circuit Judges.

          Sack, Circuit Judge.

         During a routine patrol of a Bronx apartment building, New York City Police Department ("NYPD") Officer Chris Aybar observed defendant Jose Diaz sitting in a stairwell while holding a plastic cup that seemed to Aybar to smell of alcohol. Officer Aybar initially intended only to issue Diaz a summons-not to make an arrest-for violating New York's open-container law. She ordered him to stand against the wall and produce identification. Diaz stood and then, as if to retrieve something, fumbled with his hands in his jacket pockets and rearranged his waistband. Officer Aybar frisked Diaz and felt a bulge on the side of his jacket; she opened his jacket pocket and discovered a loaded handgun. She then arrested Diaz, who was later found guilty, by the presiding district judge (Jesse M. Furman, Judge) acting as trier of fact, of being a previously convicted felon in possession of a firearm in violation of 18 U.S.C. § 922(g). He received a sentence of thirty-three months' imprisonment.

         Before the trial, Diaz filed a motion to suppress evidence about the presence of the gun on Fourth Amendment grounds. The district court denied the motion, concluding that the search was a lawful search incident to an arrest supported by probable cause. Having thereafter been convicted, Diaz now appeals that denial, arguing that (1) Officer Aybar lacked probable cause to arrest and search Diaz for violating New York City's open-container law, N.Y.C. Admin. Code § 10-125(b), because an apartment-building stairwell is not a "public place" within the meaning of that law, and (2) in any event, the warrantless search was not a lawful search incident to an arrest because Officer Aybar did not intend to arrest Diaz when she began the search.

          We disagree. We conclude that Officer Aybar had probable cause to arrest Diaz inasmuch as she had a reasonable belief that an apartment-building stairwell is a public place for purposes of the open-container law and that Diaz was violating that law. And because she had probable cause to arrest Diaz-and ultimately did arrest him-the warrantless search was a lawful search incident to an arrest, even though Officer Aybar testified that before finding the gun she intended only to issue a summons, not to make an arrest.

         BACKGROUND

         On the night of March 21, 2015, NYPD Officers Chris Aybar and Jose Espinal entered a four-story, twelve-unit private apartment building located at 584 East 167th Street in New York City's Borough of the Bronx, to conduct a floor-by-floor patrol as part of the NYPD's "Clean Halls" program, [1] pursuant to which officers enter common spaces in residential buildings with the building owner's consent in an effort to deter crime, principally drug dealing and trespassing. Upon entering the apartment building through the front door, which was propped open with a newspaper, [2] the officers immediately smelled marijuana.

         They proceeded to climb the stairs to the third-floor landing, where they saw three men: defendant Jose Diaz, Collin Maloney, and Joshua Knox. Diaz was sitting next to a bottle of vodka and holding a red plastic cup. As Officer Aybar approached Diaz, she saw clear liquid in the cup and smelled what seemed to be alcohol. Maloney was also holding a red plastic cup, and Knox was holding a lit "blunt" (marijuana cigarette) in one hand and a box of "roaches" (butts of smoked marijuana cigarettes) in the other.

         Officer Aybar testified that she did not initially intend to arrest Diaz, only to issue him a summons for violating New York's open-container law, [3] which provides that "[n]o person shall drink or consume an alcoholic beverage, or possess, with intent to drink or consume, an open container containing an alcoholic beverage in any public place . . . .” N.Y.C. Admin. Code § 10-125(b). Officer Aybar had previously received training on the open-container law and had issued approximately fifty summonses for open-container violations, often in apartment buildings.[4]

         Because Officer Aybar did not feel safe confronting Diaz while he was seated, she ordered him to stand against the wall and produce his identification. Diaz stood, and then, as if to retrieve something, fumbled with his hands in his jacket pockets and rearranged his waistband. Fearing, because of his movements, that her safety was threatened, Officer Aybar frisked Diaz and felt a bulge on his jacket. She opened his jacket pocket and discovered a loaded .380 caliber Taurus firearm. She then handcuffed Diaz and transported him to the police station, where she issued him a summons for the open-container violation.

         On May 5, 2015, a grand jury returned a single-count indictment charging Diaz with possessing a firearm as a previously convicted felon in violation of 18 U.S.C. § 922(g). Diaz filed a motion to suppress evidence concerning the firearm on Fourth Amendment grounds. On July 24, 2015, during an evidentiary hearing on that motion, Diaz testified that (1) he was not drinking alcohol in the apartment-building stairwell; (2) he produced his identification when Officer Aybar asked for it; and (3) Officer Aybar took the jacket (which he was not wearing) from him and searched it rather than frisking him.

         Following the hearing, the district court denied the suppression motion by opinion and order dated August 14, 2015. See United States v. Diaz, 122 F.Supp.3d 165, 181 (S.D.N.Y. 2015). Crediting the officers' testimony[5] over that of Diaz, id. at 168, the district court found that "Officer Aybar indisputably had probable cause to believe that Diaz was drinking alcohol or possessing alcohol with intent to drink it, " based on Officer Aybar's testimony that "she smelled alcohol" and "observed Diaz holding a red [plastic] cup containing a clear liquid while sitting in close proximity to an open bottle of vodka, " id. at 173.

          The district court rejected Diaz's argument that Officer Aybar lacked probable cause to arrest him on the ground that an apartment-building stairwell is not a "public place" within the meaning of the open-container law. See id. at 173-76. It noted that "a compelling argument [could] certainly be made that the common areas of residential buildings do not qualify as public places for purposes of the [] law/ but ultimately concluded that it "need not resolve that unsettled question of state law because, even if Officer Aybar was mistaken in her belief that the stairwell qualified as a 'public place' for purposes of the open-container law, her mistake was an objectively reasonable one" that did not violate the Fourth Amendment. Id. at 174.

         The district court also rejected Diaz's argument that the search could not be justified as a search incident to an arrest because Officer Aybar did not intend to arrest Diaz until after she found the gun. See id. at 176-81. In reaching this conclusion, it relied on United States v. Ricard, 563 F.2d 45 (2d Cir. 1977), where we held that a search conducted in similar circumstances was a constitutional search incident to an arrest, id. at 49. The district court noted, however, a tension between Ricard and the Supreme Court's subsequent decision in Knowles v. Iowa, 525 U.S. 113 (1998), in which it held unlawful a search conducted after an officer had already issued a citation for a traffic infraction. See Diaz, 122 F.Supp.3d at 178-80 (citing Knowles,...

To continue reading

REQUEST YOUR FREE TRIAL