U.S. v. Stewart

• Decision Date: 08 January 2009
• Docket Number: Docket No. 07-3003-cr.
• Citation: 551 F.3d 187
• Parties: UNITED STATES of America, Appellant, v. Brett STEWART, Defendant-Appellee.
• Court: U.S. Court of Appeals — Second Circuit

551 F.3d 187

UNITED STATES of America, Appellant, v. Brett STEWART, Defendant-Appellee.

Docket No. 07-3003-cr.

United States Court of Appeals, Second Circuit.

Argued: June 24, 2008.

Decided: January 8, 2009.

David A. O'Neil, Assistant United States Attorney (Michael J. Garcia, United States Attorney, on the brief, Katherine Polk Failla, Assistant United States Attorney, of counsel), United States Attorney's Office for the Southern District of New York, New York, NY, for Appellant United States of America.

Edward S. Zas, Federal Defenders of New York, Inc., New York, NY, for Defendant-Appellee Brett Stewart.

Before: WINTER, MINER, and CABRANES, Circuit Judges.

JOSÉ A. CABRANES, Circuit Judge:

The government appeals from a June 13, 2007 order of the United States District Court for the Southern District of New York (Alvin K. Hellerstein, Judge) granting defendant-appellee Brett Stewart's motion to suppress evidence from his trial for violating 18 U.S.C. § 922(g), which prohibits a felon from possessing a firearm. See United States v. Stewart, 491 F.Supp.2d 423, 430 (S.D.N.Y.2007). This appeal requires us to determine whether the District Court erred by suppressing evidence seized by the police pursuant to a traffic stop because (a) the police lacked probable cause to believe that a traffic violation had occurred or, in the alternative, (b) lacked reasonable suspicion that "criminal activity may be afoot" because traffic violations are not "criminal activity." As set forth more fully below, we conclude that the District Court erred because reasonable suspicion of a traffic violation provides a sufficient basis under the Fourth Amendment for law enforcement officers to make a traffic stop.

BACKGROUND¹

In the early morning of August 29, 2006, Brett Stewart rode as a passenger in a livery cab² driven by Wilfredo Jimenez, bound for a destination in the Bronx. At the intersection of 165th Street and Brook Avenue, the livery cab stopped at a red light. From the opposite direction, two officers of the New York City Police Department ("NYPD"), Robert Regnier and Angel Torres, approached the intersection in an unmarked sedan. The officers testified that, as they crossed the intersection they saw the livery cab's front wheels unlawfully encroaching on the crosswalk. See N.Y. Veh. & Traf. Law § 1172(a) ("[E]very driver of a vehicle approaching a stop sign . . . shall stop before entering the crosswalk on the near side of the intersection."). In response, Regnier and Torres made a "u-turn," pulled up behind the cab, turned on their police lights, and ordered the cab to pull over. The officers approached the car, and Torres asked Jimenez whether "everything was alright." Stewart, 491 F.Supp.2d at 425-26. Regnier, meanwhile, walked to the back of the cab, where Stewart was sitting, and asked to see Stewart's hands. Stewart complied at first, putting both hands on his lap, but then he hid his right hand behind his right buttock. Regnier then ordered Stewart out of the car, and Stewart exited, but once outside the car, he turned his body such that his right side was shielded from Regnier's view. Id. at 426. Regnier responded by instructing Stewart to place his hands on the trunk of the livery cab. When Stewart failed to comply promptly, Regnier seized Stewart, turned him around, and forced his hands on the trunk of the cab. Stewart responded, according to the police officers: "Take it easy, officer; I only have a little thirty-eight." Id. Regnier recovered a ".25 caliber Raven Arms semiautomatic handgun" from Stewart's right rear pocket and arrested him. Id.

Stewart was charged with possession of a firearm after a prior conviction of a crime punishable by a term of imprisonment that exceeds one year, in violation of 18 U.S.C. § 922(g). He moved to suppress the evidence against him on Fourth Amendment grounds, and on March 28, 2007, the District Court held an evidentiary hearing, after which it granted Stewart's motion. On the question of whether the livery cab encroached on the crosswalk, the District Court found Jimenez's testimony more persuasive than that of the police officers:

While Torres and Regnier both testified that they observed that the front wheels and front portion of the taxicab were on or over the crosswalk line(s) and, therefore, in the intersection as they passed through in the patrol car, Jimenez insisted that he had come to a full and complete stop before the intersection, and that the wheels and front end of his vehicle had not passed the lines of the crosswalk. Jimenez testified that he knew this because he had noticed the red light from a distance as he approached, and that he had decelerated well before arriving at the intersection.

Both officers testified that their focus was upon Stewart, seated in the rear right corner of the vehicle, the seat furthest from both the taxicab's front left wheel and the officers' vantage point as they drove through the intersection and the red light. The officers testified also that they did not observe the traffic infraction until they were at least midway through the intersection and observing the vehicle from a "close [ ] . . . side angle." In light of this testimony, and taking notice of the fact that a stationary object may shift in one's visual perception as one moves past it—that an object abutting a straight line may appear to be over that line as an observer moves past and away from that line— [the District Court] find[s] Jimenez's testimony regarding the location of his vehicle in relation to the line to be more credible. Mr. Jimenez had been driving a taxicab for close to a decade, had no criminal record, and had never been arrested. He gave a calm, clear, and consistent account of the events of the early morning hours of August 29, 2006, and his testimony was persuasive. [The Court] find[s], for the purposes of Stewart's suppression motion, that Jimenez did not violate Section 1172(a) of New York Vehicle and Traffic Law.

Id. at 426-27 (internal citations omitted) (first alteration in original). While the District Court found Jimenez's testimony on this issue more persuasive than that of the officers, it did not dismiss the officers' testimony as false. Instead, the District Court concluded that an optical illusion or distraction may have caused the officers to believe that they had seen the livery cab's wheels enter the crosswalk. The District Court also stated that "[w]ith respect to the remainder of the relevant facts, [it] accept[s] the accounts of the police officers." Id. at 427.

Having determined that the cab did not encroach on the crosswalk, the District Court explained that the traffic stop would nevertheless be valid if: (1) the police had probable cause to believe that the livery cab violated New York's motor vehicle code, or (2) the police had a reasonable suspicion that "criminal activity may be afoot." Id. at 428. In the District Court's view, neither was the case.

First, the District Court held that the police lacked probable cause for the traffic stop "[i]n light of the relative movements of the two vehicles, the focus of attention by the police officers on the passenger in the rear seat, and the fact that the officers did not detect an incursion into the intersection until they were even with the stopped taxicab and passing by it." Id. From the District Court's perspective, "an objectively reasonable police officer would not have believed that the taxicab violated New York's motor vehicle code" based on the fleeting observations made by the officers here. Id.

Second, the District Court concluded that "the officers could not have had a reasonable suspicion that `criminal activity may be afoot,'" id. at 428, because "a traffic violation for infringing on an intersection does not qualify as `criminal activity,'" id. at 429. In support of its determination that traffic violations fall outside the scope of "criminal activity," the District Court referred to the practice commentaries for section 225 of the New York Vehicle and Traffic Law, which state that the prosecution of a traffic infraction is performed administratively, under a "clear and convincing" standard of proof, and remedied by monetary penalties only. See id. at 429.³

Accordingly, the District Court held that the stop violated Stewart's right to be free of unreasonable searches and seizures under the Fourth Amendment, and it granted Stewart's motion to suppress evidence obtained from the search. The government then appealed the order that granted Stewart's suppression motion, arguing that the District Court applied the wrong legal standard to determine the validity of the traffic stop.

DISCUSSION

When considering a challenge to the resolution of a suppression motion, we review findings of fact for clear error and legal questions de novo. See, e.g., United States v. Jenkins, 452 F.3d 207, 211-12 (2d Cir.2006). For the reasons that follow, we conclude that the District Court applied the wrong legal standard to determine the permissibility under the Fourth Amendment of searches conducted pursuant to traffic stops.

As noted, the District Court held that a traffic stop comports with the Fourth Amendment so long as (1) police officers have probable cause to believe that a traffic violation occurred, or (2) police officers have a reasonable suspicion of criminal activity, but mere traffic violations do not constitute criminal activity. See Stewart, 491 F.Supp.2d at 428-29. This holding is in tension with—if not directly contradictory to—our precedents. We have held repeatedly that a traffic stop based on a reasonable suspicion of a traffic violation comports with the Fourth Amendment. In United States v. Jenkins, for example, we perceived "no error in the District Court's determination that the initial basis for the stop of the SUV was valid because the officers reasonably believed that the SUV lacked license plates, which would have been a violation of VTL § 402(1)(...