United States v. Diaz

• Decision Date: 08 September 2015
• Docket Number: Docket Nos. 14–2505,14–3689.
• Citation: 802 F.3d 234
• Parties: UNITED STATES of America, Appellant, v. Felipe DIAZ, aka Sealed Defendant 1, and Wellington Diaz, aka Sealed Defendant 2, Defendants–Appellees.
• Court: U.S. Court of Appeals — Second Circuit

802 F.3d 234

UNITED STATES of America, Appellant

v.Felipe DIAZ, aka Sealed Defendant 1, and Wellington Diaz, aka Sealed Defendant 2, Defendants–Appellees.

Docket Nos. 14–2505

14–3689.

United States Court of Appeals, Second Circuit.

Argued: June 3, 2015.

Decided: Sept. 8, 2015.

Joshua A. Naftalis (Brian A. Jacobs, on the brief), for Preet Bharara, United States Attorney for the Southern District of New York, for Appellant.

Susan Jewell Walsh, Vladeck, Waldman, Elias & Engelhard, P.C., New York, NY, for Defendant–Appellee Wellington Diaz.

Jesse M. Siegel, New York, NY, joining the brief of Wellington Diaz, for Defendant–Appellee Felipe Diaz.

Before: SACK, WESLEY, and HALL, Circuit Judges.

Opinion

SACK, Circuit Judge:

This is an appeal from orders of the United States District Court for the Southern District of New York (Alvin K. Hellerstein, Judge ) granting the motions of defendants Wellington Diaz and Felipe Diaz, respectively, to suppress evidence obtained following the stop and search of a vehicle driven by Wellington and owned by his brother and passenger, Felipe.¹ The district court granted the motions on the ground that the police officer who conducted the stop lacked reasonable suspicion to conclude that a traffic violation had occurred under the relevant state law. We conclude, however, that the officer's observation of several of the defendants' vehicle's wheels twice touching or crossing the solid painted line separating the right lane of the highway from the shoulder gave rise to reasonable suspicion that a traffic violation had occurred. We therefore reverse and remand with instructions to the district court to consider the parties' remaining arguments as to the constitutionality of the stop and ensuing search, which the court, having granted the motions on other grounds, did not reach.

BACKGROUND

Factual Background

On the evening of November 19, 2013, Senior Police Officer Gordon Christopher Read² of the Meridian Police Department in Meridian, Mississippi, was within that city patrolling Interstate Highway 20 (“I–20”)/Interstate Highway 59 (“I–59”)³ in his police vehicle pursuant to his ordinary traffic-monitoring duties.⁴

Sometime between 8:15 and 8:30 p.m., Read received a telephone call from a United States Department of Homeland Security (“DHS”) agent, who asked that Read assist with the stop of an 18–wheel tractor-trailer that DHS believed might be involved in narcotics trafficking. The agent explained that the vehicle would be red or white, bearing a “Triple K Logistics” or “Triple Y Logistics” logo and New York license plates. The agent indicated that he had information that the truck was about an hour-and-a-half away from Read's location. The agent did not describe his basis for thinking the truck might be involved in narcotics trafficking.

By about 10:45 p.m., Read noticed that more than one-and-a-half hours had elapsed and assumed that the DHS-identified vehicle had not passed him or that he had missed it. Read began driving eastbound on I–20/I–59, a four-lane highway with two lanes running in each direction, to resume his ordinary duties.

As he drove in the right eastbound lane of I–20/I–59, Read approached a black 18–wheel tractor-trailer traveling in the same direction and lane. The truck did not match the description given by the DHS agent: It was solid black, not red or white, and bore New Jersey, not New York, license plates. According to Read, as he followed the truck over the course of about three miles, he saw the right rear wheels of the tractor-trailer “cross” the solid painted white line separating the right lane of traffic from the right shoulder of the road on two occasions. According to Wellington, the vehicle did not cross the line. Read decided to stop the tractor-trailer because he thought that the two instances in which the tractor-trailer crossed the line constituted careless driving in violation of Mississippi state traffic law.⁵

Read activated his vehicle's flashing lights in a successful effort to effect a stop of the tractor-trailer. The activation of the lights also automatically initiated the police vehicle's audio and video recording system. The driver of the tractor-trailer, later identified as Wellington, pulled the vehicle to the side of the road. Read exited his vehicle and approached the passenger side window of the tractor-trailer. He asked Wellington to produce his driver's license, registration, and insurance information and to exit the vehicle and walk with him to the rear of the vehicle in the interests of safety. Wellington complied.

Read identified himself and explained that he was “making sure [Wellington] hadn't had anything to drink, [he wasn't] falling asleep or anything, or [hadn't] dropped [his] cell phone or something.” Tr. Suppression H'rg, J.A. 46. Wellington responded that he had been looking in his side mirrors. Read returned to his vehicle and checked Wellington's license and registration. The officer's research revealed that the license was valid and there were no outstanding warrants. Read also spoke with the passenger, Felipe.

Meridian Police Department officers subsequently searched the tractor-trailer. According to the government, both Wellington and Felipe consented to this search; Wellington and Felipe deny that they did. The search yielded approximately five kilograms of heroin and four kilograms of cocaine, apparently recovered from behind a speaker in the rear wall of the truck's sleeping berth.

Procedural History

In December 2013, a federal grand jury in the Southern District of New York returned an indictment against both Felipe and Wellington for conspiracy to possess with intent to distribute (1) one kilogram or more of substances containing a detectable amount of heroin in violation of 21 U.S.C. § 841(b)(1)(A), and (2) 500 grams or more of substances containing a detectable amount of cocaine in violation of 21 U.S.C. § 841(b)(1)(B). The indictment also charged that Felipe drove from the Bronx, New York, to Texas to collect narcotics in furtherance of the conspiracy.

In April 2014, Wellington moved in the district court to suppress the drugs recovered from the tractor-trailer as evidence. He argued that suppression was warranted because (1) the officer lacked reasonable suspicion to believe that a traffic violation had occurred; (2) even if the requisite reasonable suspicion existed, the stop exceeded its permissible scope; (3) even if the stop was constitutional, the search that ensued was not; and (4) even if the search was permissible at the outset, it exceeded its permissible scope.

At the April 2014 suppression hearing, the government called one witness—Read. Wellington did not call any witnesses. Read testified that the vehicle's relatively slow speed initially attracted his attention, although he later characterized the truck's speed of about 70 miles per hour as unsurprising in light of the many truck stops in the area.⁶ Read also testified that there were no vehicles between his vehicle and the tractor-trailer, the road was straight, and his vehicle was within approximately eight to fifty yards of the tractor-trailer on each occasion he saw it cross the line. With respect to the alleged line-crossing, Read testified that he observed the tractor-trailer “cross[ ] over, [come] back over, and then again cross[ ] over again.” Tr. Suppression H'rg, J.A. 37. Read explained that although he could only see the rearmost set of tires, “the whole right side of the truck merged over on the ... white line.” Id., J.A. 38.

The court orally granted Wellington's motion to suppress. The court noted that the tractor-trailer's width “almost equaled the width of the lane” in which it was traveling. Id., J.A. 137. In light of that observation, the court expressed skepticism that such “large trucks [could] always be encompassed within the perimeters of the lanes.” Id., J.A. 138. The court concluded that although it found Read's testimony credible to the extent that “at one point or a second point the back of the truck, the back four wheels, may have hit those [rumble] strips,”⁷ it was, in the court's view, “impossible for the very back of the truck to drive an exactly parallel line to the front wheels of the tractor.” Id. The court concluded that the government had failed to demonstrate specific and articulable facts in support of a stop based on a violation of Mississippi's careless driving statute. Having granted the motion to suppress on that ground, the court did not reach the remainder of Wellington's arguments in support of the motion.

The court confirmed its oral ruling in a June 10, 2014, written order. The order memorialized the court's view that Read's testimony failed to establish “specific and articulable facts why momentary touching by the back four wheels of a 53 foot truck along the right line dividing the driving lane from the shoulder was ‘careless and imprudent’ driving.” Order Granting Def.'s Mot. to Suppress at 2, J.A. 145. The court noted that “aside from the argument based on the two momentary touches of the highway divider, there was no evidence whatsoever of any other careless or imprudent driving.” Id. A motion for reconsideration brought by the government was denied orally and in writing later that month.

Felipe filed a similar suppression motion in September 2014, after he was unable to reach a cooperation agreement with the government. The court granted the motion orally for the same reasons as it had granted Wellington's motion; it later confirmed the oral ruling in a written order.

The government timely appealed as to both defendants.

DISCUSSION

The government argues primarily that its evidence “that the defendants' truck drove over the fog line⁸ twice in the absence of adverse conditions established an objectively reasonable suspicion to believe that a traffic violation had occurred,” Appellant's Br. at 13, and that it was error for the court to conclude otherwise. We agree.

I. Right to Appeal and Standard of Review

The United...