U.S. v. Ramos

• Decision Date: 17 December 2010
• Docket Number: No. 09-2251,09-2251
• Citation: 629 F.3d 60
• Parties: UNITED STATES of America, Appellee, v. Edgar RAMOS, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

629 F.3d 60

UNITED STATES of America, Appellee,

v.Edgar RAMOS, Defendant, Appellant.

No. 09-2251.

United States Court of Appeals,First Circuit.

Heard Nov. 2, 2010.

Decided Dec. 17, 2010.

Tamara Fisher, with whom Catherine K. Byrne, Assistant Federal Public Defender, was on brief, for appellant.

Mark T. Quinlivan, Assistant United States Attorney, with whom Carmen M. Ortiz, United States Attorney, was on brief, for appellee.

Before LYNCH, Chief Judge, SELYA and HOWARD, Circuit Judges.

LYNCH, Chief Judge.

The issue presented is whether, within weeks of the Madrid commuter rail bombings in 2004, Massachusetts Bay Transit Authority (MBTA) police had reasonable suspicion of a terrorist plot on a major Boston bus and rail station permitting an officer to open the door of a van, which was, unusually, sitting stationary but with a driver and passengers inside, in the station's commuter parking lot. The prosecution and defendant agree that this action of the MBTA police, for Fourth Amendment purposes, amounted to a "seizure," requiring reasonable suspicion that criminal activity may have been afoot. That this proved not to be a criminal terrorist plot at all but rather a criminal plot to transport aliens illegally is immaterial.

The driver of the van, Edgar Ramos, moved to suppress evidence stemming from the MBTA's investigative search. The district court held four days of evidentiary hearings and ultimately denied the motion, concluding in a well-reasoned opinion that there was reasonable suspicion. See United States v. Ramos, 591 F.Supp.2d 93 (D.Mass.2008). Ramos then conditionally pled guilty to illegally transporting aliens in Charlestown, Massachusetts. See 8 U.S.C. § 1324(a)(1)(A)(ii). We affirm the district court's denial of Ramos's motion to suppress.

I.

We recount the facts briefly. We refer the reader who wishes to read more details to the district court opinion.

Thousands of public transit passengers use the Sullivan Square MBTA station, in Charlestown, Massachusetts, every day. Sullivan Square Station is a terminal for both subway and bus lines and is located underneath a heavily used interstate highway, I-93. Adjacent to the station, there is a parking lot owned by the MBTA that holds over 200 cars. Drivers may pay to park, or may pull into the lot briefly to pick up or drop off passengers at the station.

On May 28, 2004, the Friday before Memorial Day, MBTA inspector Patricia Pitts noticed, as she arrived at work at Sullivan Square Station around 6:50 a.m., that a white passenger van with two visible occupants was parked in the station's parking lot. On May 28, the MBTA was on high alert as to a possible terrorist attack and employees were asked to be particularly observant. ¹

The day before, Pitts had attended a one-day MBTA training seminar on identifying potential terrorist threats. With this training in mind, she found the van worthy of concern because it was irregular for vehicles to remain parked in the lot with occupants inside. She knew, from her more than twenty years of experience at the MBTA, that people usually park in the lot in order to "park and ride," leaving their cars and then riding either a bus or the subway. People use a specific area, on the side of the parking lot nearest the station, to stop briefly to pick up or discharge passengers. The van was not parked near the pick-up and discharge area, but rather at the far end of the lot.

Observing from the station, Pitts realized that there were more than two men in the van when she saw several men step out of the van. She saw one write something on a piece of paper. Her terrorism training seminar had taught her that people writing notes at MBTA stations could be planning where to plant explosives. Furthermore, she thought, if the writing concerned legitimate work at the MBTA lot, the van's occupants should have stopped at the station and displayed a work permit, which they had not done. The men soon got back in the van, after just enough time to stretch their legs. This too was irregular behavior. Pitts decided to take a closer look at the van and took a bus from the station to the far side of the parking lot where the van was parked.

Walking past the van, she saw that it had a paper license plate over a regular license plate, which her terrorism training seminar had taught her was suspicious and should be reported. She also observed that the van had tinted windows, partially obscuring the view of the van's interior. She saw there were more than five men sitting in the van, including in the vehicle's back seats. She looked at the other vehicles in the parking lot, and saw that none had people sitting in them; only this van did. Further, the two men in the driver's and front passenger's seats appeared to Pitts to be Middle Eastern. ² The court asked Pitts what characteristics she had observed that caused her to think the peoplein the van looked Middle Eastern. Pitts answered, "like myself, they [were] darker in the skin. Their skin was darker."

Pitts called an MBTA dispatcher and stated her suspicions and the reasons for them. Pitts is not herself in the MBTA police; she had been trained to give information to the dispatcher to give to the police. The dispatcher put out a dispatch to the MBTA police explaining that there were two vans in the parking lot at Sullivan Square Station, "and one of them had a paper plate. A couple of guys got out of them, believe it or not, of Middle Eastern descent." The dispatcher continued, stating that an MBTA inspector had reported that "[i]t made her feel very uncomfortable. She saw them congregatin' and one had a paper plate." This was a report of suspicious behavior, although it did not detail all of Pitts's reasons and mistakenly said there were two vans.

MBTA Officers O'Hara and Silen responded within five minutes, parking their patrol car behind the white van. Officer O'Hara, with several years of MBTA experience, had received specialized terrorism training, was aware of the commuter train bombings less than three months before in Madrid, Spain, and was aware that metropolitan transit systems were considered likely terrorist targets. More specifically, he had been taught to be suspicious of vehicles large enough to hold a significant amount of explosives, such as this van.

Concerned about their safety, the two officers approached the van in "tactical form." Instead of going straight to the side of the van, they approached "at an angle so we'd get the best visuals of anybody that might have been looking through the windows or that could come at us," giving themselves "a better chance for cover, God forbid, if something happened." One reason for this approach was that the officers could not see what was happening through the tinted rear and rear side windows of the van.

Officers O'Hara and Silen walked from the rear toward the passenger's side of the van while an officer from another cruiser, which had just arrived, walked toward the driver's side. O'Hara could not see the driver of the van.

At this point, O'Hara knew that an MBTA inspector had expressed suspicion after observing that there were several people sitting in a parked van, that those people had congregated outside the van, and that the van had a temporary paper plate. From his own observations and his experience as a transit police officer, Officer O'Hara also knew:

1. Transit rail stations were, especially after the recent Madrid bombings, considered likely targets for terrorist attacks.

2. The van was parked in the farthest corner of the parking lot.

3. Drivers did not usually remain in their vehicles after parking, but the occupants of the van had remained in the van for at least twenty minutes (since the first observation by Pitts) by the time the officers had arrived. O'Hara could not recall even one time when he had seen people sitting in a parked vehicle in these MBTA parking spaces for any such time.

4. The van had tinted, not clear, windows except for the front seat windows. Despite tinted windows, the shadows of several heads were visible in the back of the van.

5. The van had a temporary paper, Texas license plate over the regular plate; paper license plates were suspicious generally and out-of-state licenseplates, especially from states so far away, were unusual.

6. Large vehicles like vans are more likely than smaller vehicles to be able to hold a significant amount of explosives.

7. He had been trained in particular to look for box vans and while this was not a box van, it was a large passenger van, which raised the same concerns that it could carry a large amount of explosives.

8. While the dispatcher had stated the van's occupants were of Middle Eastern descent, O'Hara could not remember whether he had personally made this observation.³

Officer O'Hara had also been trained to keep his eyes on a person's hands, to make sure the person does not have weapons or potential detonation devices like cell phones, but he could not see the passenger's hands. When O'Hara reached the front passenger door, he opened the door in order to see the passenger's hands, asking, "what are you guys doing here?" When the male passenger did not immediately respond, he ordered him out of the van.

Officer O'Hara was aware that another officer was at the driver's side communicating with the driver, Ramos. That officer had knocked on the driver's side window. Once O'Hara ordered the passenger out of the van, the other officer ordered Ramos out as well, and the officers opened the rear doors and ordered the remaining passengers out one by one.

Defendant Ramos, who is of Mexican descent, produced a Texas driver's license. The passengers in the back of the van, when asked for identification, produced Brazilian passports, each with entry stamps for Mexico, but no indication of lawful entry into the United States.

The officers had all of the van's occupants transported to MBTA headquarters, where they were questioned by U.S. Immigration and Customs Enforcement (ICE)...