United States v. Santillan
| Decision Date | 24 August 2018 |
| Docket Number | No. 16-1112-cr,August Term, 2017,16-1112-cr |
| Citation | 902 F.3d 49 |
| Parties | UNITED STATES of America, Appellee, v. Hector SANTILLAN (aka "Bane"), Defendant-Appellant, Junior Rivera-Vasquez, Defendant. |
| Court | U.S. Court of Appeals — Second Circuit |
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.**
Judge POOLER dissents in a separate opinion.
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, 86 S.Ct. 1602, 16 L.Ed.2d 694 (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.
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 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 Santillan a few questions in Spanish before asking him to get out of the car. Officer Moreira asked Santillan where he and Rivera-Vasquez were coming from and how well they knew each other. Santillan responded that he did not know Rivera-Vasquez well, that they had stayed for one or two nights at Santillan's aunt's house, and that his aunt lived somewhere in New Jersey, although "[h]e had difficulty pronouncing the name [of the location] and [Officer Moreira] had difficulty understanding [it]." J.A. 57. During this conversation, Officer Moreira saw that there were energy drinks and "multiple cell phones," which he later clarified to mean more than one cell phone, in the center console. J.A. 58, 191. At this point, Officer Moreira had already removed Rivera-Vasquez's cell phone from his pocket, and thus had reason to believe that the car contained more cell phones than occupants. At some point, Officer Moreira noticed the passenger seat was higher than the driver's seat. J.A. 59, 177. Officer Moreira also "observed [Santillan] to be very hesitant in exiting" the car and "observed [Santillan] kind of look down in his general area as a quick look over before he exited." J.A. 58–59.
In response to further questions, Santillan indicated that he had no luggage, but had extra clothes in the car, and that he had $80 on him. Officer Moreira patted Santillan down and removed $1,000 from Santillan's back pants pocket. When Officer Moreira asked why he had "lied" about the amount of money he had on him, Santillan replied that he thought Officer Moreira was only asking about the money in his front pockets. J.A. 61. Officer Moreira asked Santillan to sit (uncuffed) in the back of a second patrol car which had arrived during the stop. As with Rivera-Vasquez, Officer Moreira informed Santillan that he was not in trouble or under arrest.
By this time, approximately 17 minutes had elapsed since Officer Moreira first initiated the traffic stop. Officer Moreira then asked for and received Rivera-Vasquez's verbal consent to search the car. Officer Moreira and another officer searched the car for approximately 20 minutes, during which time they noticed that the seat material covering the passenger seat appeared to be different than and newer than the material on the driver's seat. In addition, the officers noticed that there was plastic wrapping in the space between the cushion and the backrest of the passenger seat. According to Officer Moreira's experience, which was based in part on Drug Enforcement Administration training, the plastic wrapping was consistent with wrapping used to transport narcotics. Officer Moreira then requested a narcotics dog.
At this point, approximately 37 minutes after the stop began, Officer Moreira wrote Rivera-Vasquez citations for three of the five violations of New York's Traffic and Vehicle laws. About 67 minutes after the stop began, the "narcotics canine" arrived on the scene and indicated that the front passenger seat of the car was positive for the presence of drugs. J.A. 75. Officer Moreira pulled back the seat and found two packages of material later determined to contain cocaine.
Approximately 80 minutes after the stop began, both Rivera-Vasquez and Santillan were arrested. At the police station, Rivera-Vasquez signed a written consent to search form, which Officer Moreira stated was to "reassure the consent that [he] had received on the scene." J.A. 82. Shortly thereafter, both...
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