United States v. Santillan, 082418 FED2, 16-1112-cr

Docket Nº:16-1112-cr
Opinion Judge:John M. Walker, Jr., Circuit Judge.
Party Name:United States of America, Appellee, v. Hector Santillan (AKA 'Bane'), Defendant-Appellant, Junior Rivera-Vasquez, Defendant.
Attorney:Kristy J. Greenberg, Assistant United States Attorney (Noah Solowiejczyk, Michael Ferrara, Assistant United States Attorneys, on the brief), for Geoffrey S. Berman, United States Attorney for the Southern District of New York, New York, NY, for Appellee. Michelle Anderson Barth, Law Office of Mic...
Judge Panel:Before: Walker, Pooler, Circuit Judges, and Crawford, District Judge. POOLER, Circuit Judge.
Case Date:August 24, 2018
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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United States of America, Appellee,

v.

Hector Santillan (AKA "Bane"), Defendant-Appellant,

Junior Rivera-Vasquez, Defendant.[*]

No. 16-1112-cr

United States Court of Appeals, Second Circuit

August 24, 2018

Argued: October 11, 2017

Appeal from the United States District Court for the Southern District of New York. No. 1:13-cr-138-1 - Robert W. Sweet, District Judge.

Defendant-Appellant Hector Santillan appeals his conviction and sentence entered in the United States District Court for the Southern District of New York (Robert W. Sweet, J.) following a jury trial. Santillan was convicted of participating in a conspiracy to distribute or possess with intent to distribute heroin, oxycodone, and cocaine, and distributing and possessing with intent to distribute 500 grams or more of cocaine. He was sentenced to 151 months' imprisonment.

Santillan's primary argument on appeal is that the district court erred in denying his pre-trial motion to suppress physical evidence recovered and statements made during a traffic stop and search. Specifically, Santillan argues that: (1) the traffic stop was unreasonably prolonged to the point that it became a de facto arrest for which probable cause was lacking; (2) there was no reasonable basis to frisk Santillan for weapons; (3) his statements were used against him in violation of Miranda v. Arizona, 384 U.S. 436 (1966); and (4) police officers obtained consent to search a car in which he was a passenger through coercion. Santillan also argues that the government impermissibly vouched for its cooperating witness during trial, his trial counsel was ineffective, and the district court committed procedural errors when calculating his sentence.

In this opinion, we address Santillan's challenges to the stop and search. We conclude that the police officer conducting the traffic stop had reasonable suspicion to extend the stop when Santillan and the driver appeared nervous and were unable to provide information about where they were coming from. The stop did not ripen into a de facto arrest because the police officer used reasonable methods and intrusions to confirm or dispel his suspicions. Although certain evidence was improperly seized during a frisk, the physical evidence would have inevitably been discovered and thus suppression was not warranted. While accompanying statements should have been suppressed, the error was harmless. We find no merit in each of Santillan's other challenges to his sentence and conviction, which are resolved by a summary order issued simultaneously with this opinion. Accordingly, we AFFIRM Santillan's conviction and sentence.

Kristy J. Greenberg, Assistant United States Attorney (Noah Solowiejczyk, Michael Ferrara, Assistant United States Attorneys, on the brief), for Geoffrey S. Berman, United States Attorney for the Southern District of New York, New York, NY, for Appellee.

Michelle Anderson Barth, Law Office of Michelle Anderson Barth, Burlington, VT, for Defendant-Appellant.

Hector Santillan, Ayer, MA, pro se.

Before: Walker, Pooler, Circuit Judges, and Crawford, District Judge. [**]

John M. Walker, Jr., Circuit Judge.

Defendant-Appellant Hector Santillan appeals his conviction and sentence entered in the United States District Court for the Southern District of New York (Robert W. Sweet, J.) following a jury trial. Santillan was convicted of participating in a conspiracy to distribute or possess with intent to distribute heroin, oxycodone, and cocaine, and distributing and possessing with intent to distribute 500 grams or more of cocaine. He was sentenced to 151 months' imprisonment.

Santillan's primary argument on appeal is that the district court erred in denying his pre-trial motion to suppress physical evidence recovered and statements made during a traffic stop and search. Specifically, Santillan argues that: (1) the traffic stop was unreasonably prolonged to the point that it became a de facto arrest for which probable cause was lacking; (2) there was no reasonable basis to frisk Santillan for weapons; (3) his statements were used against him in violation of Miranda v. Arizona, 384 U.S. 436 (1966); and (4) police officers obtained consent to search a car in which he was a passenger through coercion. Santillan also argues that the government impermissibly vouched for its cooperating witness during trial, his trial counsel was ineffective, and the district court committed procedural errors when calculating his sentence.

In this opinion, we address Santillan's challenges to the stop and search. We conclude that the police officer conducting the traffic stop had reasonable suspicion to extend the stop when Santillan and the driver appeared nervous and were unable to provide information about where they were coming from. The stop did not ripen into a de facto arrest because the police officer used reasonable methods and intrusions to confirm or dispel his suspicions. Although certain evidence was improperly seized during a frisk, the physical evidence would have inevitably been discovered and thus suppression was not warranted. While accompanying statements should have been suppressed, the error was harmless. We find no merit in each of Santillan's other challenges to his sentence and conviction, which are resolved by a summary order issued simultaneously with this opinion. Accordingly, we AFFIRM Santillan's conviction and sentence.

BACKGROUND

On February 12, 2013, Santillan was a passenger in a car that Junior Rivera-Vasquez was driving from Manhattan to Massachusetts. Early in the afternoon, Westchester County Department of Public Safety Officer Isai Moreira, who was patrolling in a marked car on the Hutchinson River Parkway, observed Rivera-Vasquez commit five violations of New York's Vehicle and Traffic laws over a three-minute span: (1) tires touching the fog line; (2) speeding; (3) changing lanes without signaling; (4) a second incident of tires touching the fog line; and (5) following too closely. Officer Moreira signaled for Rivera-Vasquez to pull to the side of the highway. He testified at the suppression hearing that he planned for the vehicle stop to occur in a "safety zone," but the car pulled over approximately 50 feet ahead of that zone. Joint Appendix ("J.A.") 47. At that point, the shoulders of the heavily trafficked Hutchinson River Parkway were narrowed somewhat by snow that had accumulated as a result of a recent storm.

Officer Moreira approached the driver's side window and, after obtaining Rivera-Vasquez's license and registration, asked Rivera-Vasquez where the two men were going to and coming from. Officer Moreira testified at the suppression hearing that Rivera-Vasquez told him they were going back to Massachusetts but was "unable to provide an answer [to where they were coming from]. He basically looked over to [Santillan] and said we're coming from his aunt's house," but "could not give me any location specifically." J.A. 49. Officer Moreira then asked Santillan for his identification, and Santillan provided a photocopy of a state license. Officer Moreira repeated his question about where the two men had come from. Santillan "was mentioning some type of city or town in-he eventually mentioned New Jersey." J.A. 50-51. Officer Moreira testified that he spoke to the men in a combination of English and Spanish, and that he is fluent in both languages. Officer Moreira testified that both men "appeared very nervous, were avoiding making eye contact," "their voice was kind of shaky and they were speaking in a low voice," and that Rivera-Vasquez's "hands were shaking as he [handed] over the documents." J.A. 50. Officer Moreira returned to his patrol car to conduct license checks. Rivera-Vasquez's license and registration were valid, and there were no outstanding warrants for either party. We note that the nervousness Officer Moreira witnessed occurred even though neither man had an outstanding warrant.

It is undisputed that at this point, approximately eight minutes after initially stopping the car, Officer Moreira had the information necessary to cite Rivera-Vasquez for the traffic violations he had observed. However, Officer Moreira continued his investigation. At Officer Moreira's request, Rivera-Vasquez got out of the car and answered additional questions in Spanish regarding his relationship with Santillan, their trip to Santillan's aunt's house, and Santillan's aunt's name. Rivera-Vasquez did not know the name of Santillan's aunt or the location of her home, where, he said, he and Santillan had stayed overnight. He said he did not know Santillan well. Officer Moreira performed a pat-down of Rivera-Vasquez, removed his wallet and cell phone, then asked him to sit (uncuffed) in the back of the patrol car. He told Rivera-Vasquez that he was not in trouble.

Officer Moreira then asked...

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