United States v. Pacheco

• Decision Date: 28 October 2016
• Docket Number: No. 16-3376,16-3376
• Citation: 841 F.3d 384
• Parties: United States of America, Plaintiff–Appellee, v. Jose A. Pacheco, Defendant–Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

841 F.3d 384

United States of America, Plaintiff–Appellee,

v.Jose A. Pacheco, Defendant–Appellant.

No. 16-3376

United States Court of Appeals, Sixth Circuit.

Decided and Filed: October 28, 2016

ON BRIEF: Frederick D. Benton, Jr., FREDERICK D. BENTON, JR., LP A, Columbus, Ohio, for Appellant. Peter K. Glenn–Applegate, UNITED STATES ATTORNEY'S OFFICE, Columbus, Ohio, for Appellee.

Before: DAUGHTREY, GIBBONS, and COOK, Circuit Judges.

OPINION

JULIA SMITH GIBBONS, Circuit Judge.

Defendant-appellant Jose Pacheco appeals the district court's denial of his motion to suppress evidence discovered during a Terry stop and subsequent pat-down search. During this precautionary pat down for weapons, an officer discovered that Pacheco had over $3,000 in currency and a half-kilogram of brick cocaine in his cargo shorts. The district court found that, based on the totality of the circumstances, the officer had reasonable suspicion to justify the pat down of Pacheco for weapons, and that the cocaine and currency were properly seized pursuant to the plain-view and plain-feel doctrines.

Because the Terry stop, the removal of Pacheco from the vehicle, the pat down, and the seizure of contraband and currency were all within the bounds of the Fourth Amendment, we affirm the district court's decision.

I.

On the evening of December 10, 2010, Detective William Best received a call from Sergeant Jeff Lipp, informing him that a confidential source had information about “subjects moving medium to large quantity narcotics in and around the Kimberly Parkway area” of Columbus, Ohio. Best was intimately familiar with this part of town. He testified that “[l]ike most neighborhoods, you have 5 percent of people that cause problems,” but noted that the area was prone to “a lot of gang activity.” (DE 69, Tr. of Mot. to Supp. Hearing, Page ID 238.)

The source feared retaliation for sharing information but agreed to meet Best in-person. The two met in a parking lot at the corner of Kimberly Parkway and South Hamilton Road. There, the source informed Best that two Hispanic men in a silver Lincoln Aviator were moving narcotics from the Chatham Village apartment complex in the Kimberly Parkway area.

After receiving this information, Best set up surveillance in an unmarked car. In order to gain a strategic view of the Chatham Village apartments, which are on the north side of Kimberly Parkway, Best stationed himself in a parking lot on the south side of the parkway. The source told Best only that the subjects would be moving the narcotics “in the evening,” and he was unsure of precisely when to expect them. (Id . at 233.) Best had never met this source and did not know his accuracy, reliability, or credibility. However, within forty-five minutes, Best saw a silver SUV exit Chatham Village.

Best was unsure if this was his target vehicle but decided to attempt to verify that it was. The silver SUV was traveling eastbound on Kimberly Parkway, and Best pulled out and positioned himself behind it. Best could now see that this vehicle was a silver Lincoln Aviator that precisely matched the description given by the informant, but he still needed to verify whether the occupants of the vehicle potentially matched the source's description. Best and the Aviator stopped at the well-lit corner of Kimberly Parkway and South Hamilton Road. The target vehicle was in the far left of two left-turn lanes. Best pulled up along the passenger-side of the Aviator and observed what he believed were two Hispanic males in the vehicle.

Now that “everything started adding up,” just as the source had stated it would, Best called Officer Jeremy Phalen, a patrol officer he knew worked in the area. (Id . at 235, 237.) As the Aviator was turning, Best had witnessed the driver fail to properly signal a turn, and he relayed this information, and information about his narcotics tip, to Phalen and his partner, Officer Kenneth Trivette.

Best dropped back and allowed Phalen and Trivette to move in behind the Aviator in their patrol car. Phalen was also very familiar with the Kimberly Parkway area and stated that it was a “hotbed for gang activity.” (Id . at 256.) With this in mind, he and Trivette followed the Aviator until they saw it unexpectedly swerve across the double-yellow lines. Phalen turned on his emergency lights and the Aviator pulled to the side of the road, ultimately coming to a stop in a gas-station parking lot.

Phalen and Trivette exited their patrol car and approached the Aviator. Phalen approached the driver's side of the vehicle, while Trivette took the passenger's side. Phalen spoke with the driver, later identified as Mario Calderon, and discovered that he had no valid driver's license. He also observed Calderon visibly shaking while he spoke with him and decided to remove him from the Aviator. He proceeded to pat down Calderon and place him in the back of the police cruiser so that he could aid Trivette.

As Phalen had approached the driver's side of the vehicle, Trivette had done the same on the passenger's side, where Pacheco was sitting. Trivette noted that Pacheco was not wearing his seatbelt. Trivette asked Pacheco for identification, but Pacheco did not respond. Instead, Pacheco began rummaging through the glove compartment, ruffling papers but removing nothing. Trivette testified that Pacheco was extremely nervous, and was glancing around the vehicle. Pacheco again opened the glove compartment and looked down at the floorboard and over at his left leg, near the center console. All of this concerned Trivette, who testified that the glove box, the floorboard, and the area between the seat and center console are all often used to conceal weapons. Trivette was also disturbed by Pacheco's “fidgeting around,” lack of eye contact, and his failure to acknowledge any of Trivette's questions. (Id . at 271.) Considering all of these factors, Trivette testified that “something wasn't right.” (Id .) Trivette then asked Pacheco to exit the vehicle. Pacheco did not respond or comply with this order. Trivette asked Pacheco to exit again, this time opening the door for him.

Pacheco exited the vehicle, and Trivette initiated a pat down of his person. On Pacheco's right side, Trivette felt “a large chunk of money on his right cargo pocket.” (Id . at 275.) Trivette then switched his focus to Pacheco's left leg, and immediately noticed the top of a brick-like object, wrapped in brown paper and tape, protruding approximately one inch out of the top of Pacheco's left cargo pocket. As Trivette patted this area down, he could feel that the object in that cargo pocket was “like a solid brick,” and was approximately six-to-eight inches long. (Id . at 275, 288.) Based on these observations, and his experience working with narcotics, Trivette recognized, “within seconds,” that the object was very likely brick cocaine. (Id . at 277, 288.) Trivette seized the contraband and currency, and Pacheco was detained and placed in the rear of the cruiser with Calderon.

II.

Pacheco was charged with violating 21 U.S.C. §§ 841(a), 846 by possessing with intent to distribute, and conspiring with others with intent to distribute, 494 grams of cocaine. Pacheco filed a motion to suppress the cocaine and currency discovered on his person, claiming that Trivette's pat down violated his Fourth Amendment rights prohibiting unreasonable searches and seizures. Specifically, Pacheco claimed Trivette lacked the requisite “reasonable suspicion” to justify the pat-down search, and accordingly, discovery of the cocaine and currency should be suppressed. The district court held a hearing at which Best, Phalen, and Trivette testified. After the hearing, the district court issued a memorandum opinion and order, denying Pacheco's motion to suppress. In its order, the district court found that, considering the totality of the circumstances, Trivette had reasonable suspicion that Pacheco was armed and dangerous, justifying the pat-down search, and that the seizure of contraband and currency was reasonable.

In support of its finding, the district court listed ten factors that it found supported a finding of reasonable suspicion:

(1) Detective Best relayed information about a tip that two Hispanic males driving a Lincoln Aviator were involved in cocaine distribution; (2) Mr. Pacheco appeared nervous in the car; (3) Mr. Pacheco looked back and forth to avoid eye contact with Officer Trivette; (4) Mr. Pacheco avoided conversation with Officer Trivette; (5) Mr. Pacheco disregarded Officer Trivette's commands to exit his vehicle; (6) Mr. Pacheco shuffled through the glove box, making furtive gestures; (7) Mr. Pacheco looked down to the floorboard under his seat; (8) Officer Trivette could not identify Mr. Pacheco; (9) the stop occurred at night when it was dark; and (10) the stop occurred in a high crime area.

(DE 40, Op. & Order, Page ID 143–145.) The district court then proceeded to find that the seizure of contraband and currency was not overly intrusive, relying on the plain-view and plain-feel doctrines as applicable to contraband seized during pat-down searches.

After his motion to suppress was denied, Pacheco entered into a conditional plea agreement in which he reserved his right to appeal the district court's denial of his motion to suppress. Pacheco then filed this timely appeal.

III.

When reviewing a denial of a motion to suppress, the district court's factual determinations are reviewed for clear error and its legal conclusions are reviewed de novo . United States v. Herndon , 501 F.3d 683, 687 (6th Cir. 2007) (citing United States v. Ostrander , 411 F.3d 684, 694 (6th Cir. 2005) ). “Whether an officer had reasonable suspicion under the circumstances to frisk a suspect is a mixed question of law and fact that we review de novo.” United States v. Noble , 762 F.3d 509, 519 (6th Cir. 2014) (quoting United States v. Stepp , 680 F.3d 651, 660 (6th Cir. 2012) ). Likewise, any probable-cause determination is reviewed de novo . United...