United States v. Singletary

• Decision Date: 14 July 2015
• Docket Number: Docket No. 14–3243–cr.
• Citation: 798 F.3d 55
• Parties: UNITED STATES of America, Appellant, v. Laverne SINGLETARY, Defendant–Appellee.
• Court: U.S. Court of Appeals — Second Circuit

798 F.3d 55

UNITED STATES of America, Appellant

v.Laverne SINGLETARY, Defendant–Appellee.

Docket No. 14–3243–cr.

United States Court of Appeals, Second Circuit.

Argued: June 17, 2015.

Decided: July 14, 2015.

Joseph J. Karaszewski, Assistant United States Attorney, for William J. Hochul, Jr., United States Attorney for the Western District of New York, Buffalo, New York, for Appellant.

Jon P. Getz, Muldoon, Getz & Reston, Rochester, New York, for Defendant–Appellee.

Before: LEVAL, STRAUB, and RAGGI, Circuit Judges.

Opinion

REENA RAGGI, Circuit Judge:

The United States appeals from an order of the United States District Court for the Western District of New York (Frank P. Geraci, Jr., Judge; Jonathan W. Feldman, Magistrate Judge), suppressing drugs and a firearm seized incident to the arrest of defendant Laverne Singletary. See United States v. Singletary, 37 F.Supp.3d 601 (W.D.N.Y.2014). The district court concluded that the seized contraband was the fruit of an initial unlawful investigatory stop made without the reasonable suspicion of criminal activity required by Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). In urging reversal, the government maintains that reasonable suspicion to investigate defendant for possible violation of a local open-container ordinance was supported by articulable, objective facts, including defendant's observed (1) carrying of a beer-can-sized object (2) concealed in a brown paper bag and (3) held in such a manner as to avoid spillage. We agree and reverse the challenged suppression order.

I. Background

A. The Challenged Stop and Ensuing Arrest and Seizures¹

The stop at issue occurred at approximately 10:45 p.m. on October 6, 2012, in the vicinity of Roth and Flower Streets in Rochester, New York. Rochester Police Officer Amy Pfeffer was on car patrol with Monroe County Probation Officer Robert Masucci, when she saw a man, subsequently identified as defendant Laverne Singletary, walking on the sidewalk.² Pfeffer proceeded to shine her vehicle's spotlight on the man because the area had a high incidence of violence. Pfeffer saw that the man was holding an object wrapped in a brown paper bag. Although she could not tell for certain what the object was, she saw that it was the size of a standard beer can. Based on seven years' police experience, Pfeffer knew that persons frequently concealed open containers of alcohol in brown paper bags because such possession in public was prohibited by local law. See Rochester Mun.Code § 44–9(C) (“No person shall possess an open container of any alcoholic beverage in a public place with the intent to consume the beverage in a public place.”).³ Pfeffer further saw that the man was holding the bag-wrapped container very steadily, as if to avoid spilling its contents. From the totality of these circumstances, Pfeffer concluded that it was possible that the man was violating the open-container ordinance and that further investigation was warranted.

Bringing the police car she was driving to a halt, Pfeffer told Officer Masucci to “stop that guy, he's got an open container.” Oct. 10, 2013 Suppression Hr'g Tr. (“Hr'g Tr.”) 67. Both officers exited their vehicle, first Masucci and then Pfeffer, whereupon the latter ordered Singletary to stop. Singletary replied, “Who me?” and quickly walked away. Id. at 14. This prompted Masucci, who was positioned in front of Singletary, to put his hand on Singletary's right shoulder to deter further movement. Instantly, Singletary tossed the bagged can he was carrying behind him, pushed Masucci's hand away, and proceeded to run from the officers. As Singletary did so, some of the can's contents spilled on Pfeffer, who could smell that it was, in fact, beer.

The officers gave chase, but as they were about to tackle Singletary, he stumbled, such that all three persons fell to the ground. A struggle ensued before the officers were able to handcuff Singletary and place him under arrest. As they lifted him off the ground, the officers observed a handgun at the site of the struggle, which they proceeded to seize. A search of Singletary's person resulted in the further seizure of thirteen bags of marijuana found inside the front pocket of his sweatshirt.

B. Procedural History

On April 30, 2013, a federal grand jury in the Western District of New York indicted Singletary for possession of marijuana with intent to distribute, possession of a firearm in furtherance of a drug trafficking crime, and possession of a firearm by a convicted felon.⁴ See 21 U.S.C. § 841(a)(1), (b)(1)(D) ; 18 U.S.C. §§ 922(g), 924(c). Singletary moved to suppress the physical evidence seized from him incident to arrest, including the charged firearm and drugs. He maintained that these seizures were the tainted fruit of an initial stop made without reasonable suspicion of criminal activity.

After an evidentiary hearing at which only Officer Pfeffer testified as to the circumstances of the stop and ensuing arrest and seizures,⁵ Magistrate Judge Feldman filed a report with the district court recommending suppression of the seized evidence. The report concluded that the initial stop was supported by only a “hunch” that Singletary was violating the open-container ordinance when walking down the street, not the reasonable suspicion demanded by Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868. See United States v. Singletary, 37 F.Supp.3d at 611. The report further concluded that because Singletary discarded the bag-wrapped can during an unlawful stop, the beer spilled on Pfeffer as a result could not provide untainted evidence of probable cause for Singletary's arrest that independently validated the challenged seizures.See id. at 611–13.

The government filed objections to the report, which the district court rejected in its August 8, 2014 memorandum adopting the report and recommendation in its entirety and ordering suppression of the charged firearm and drugs. See id. at 603–06.

The government timely filed this interlocutory appeal. See 18 U.S.C. § 3731.

II. Discussion

On review of a challenged suppression order, we examine the district court's findings of fact for clear error, while applying de novo review to its resolution of questions of law and mixed questions of law and fact, such as the existence of reasonable suspicion to stop and probable cause to arrest. See Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996) ; United States v. Lucky, 569 F.3d 101, 105–06 (2d Cir.2009). These standards inform our consideration of the two arguments advanced by the government in urging reversal of the suppression order in this case. First, the government defends the initial stop, maintaining that it was supported by reasonable suspicion to think Singletary might be violating Rochester's open-container ordinance. Second, and in any event, it contends that Singletary's ensuing actions in discarding the bagged can and fleeing the scene sufficiently attenuated any initial illegality and provided independent probable cause for his arrest and the seizures incident thereto. We agree with the first argument and, thus, need not reach the second.

A. Investigatory Stops

The Fourth Amendment states that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” U.S. Const. amend. IV. As this language indicates, the Amendment's “ultimate touchstone ... is ‘reasonableness,’ ” Riley v. California, ––– U.S. ––––, 134 S.Ct. 2473, 2482, 189 L.Ed.2d 430 (2014) (internal quotation marks omitted), “a matter generally determined by balancing the particular need to search or seize against the privacy interests invaded by such action,” United States v. Bailey, 743 F.3d 322, 331 (2d Cir.2014) (collecting cases). Such balancing usually demands that searches be conducted pursuant to judicial warrants supported by probable cause, but “neither a warrant nor probable cause ... is an indispensable component of reasonableness in every circumstance.” National Treasury Emps. Union v. Von Raab, 489 U.S. 656, 665, 109 S.Ct. 1384, 103 L.Ed.2d 685 (1989).

In Terry v. Ohio, the Supreme Court “expressly recognized that government interests in ‘effective crime prevention and detection,’ as well as in officer and public safety while pursuing criminal investigations, could make it constitutionally reasonable ‘in appropriate circumstances and in an appropriate manner’ temporarily to detain a person” to investigate possible criminality even in the absence of a warrant or probable cause for arrest. United States v. Bailey, 743 F.3d at 331–32 (quoting Terry, 392 U.S. at 22–25, 88 S.Ct. 1868 ). To justify a Terry stop, there must be “a reasonable basis to think that the person to be detained ‘is committing or has committed a criminal offense.’ ” Id. (quoting Arizona v. Johnson, 555 U.S. 323, 326–27, 129 S.Ct. 781, 172 L.Ed.2d 694 (2009) ).

This standard requires more than a “hunch” to justify an investigatory stop. Terry v. Ohio, 392 U.S. at 27, 88 S.Ct. 1868. It demands “specific and articulable facts which, taken together with rational inferences from those facts,” id. at 21, 88 S.Ct. 1868, provide detaining officers with a “particularized and objective basis for suspecting legal wrongdoing,” United States v. Arvizu, 534 U.S. 266, 273, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002) (internal quotation marks omitted). The reasonable-suspicionnn n standard is “not high.” Richards v. Wisconsin, 520 U.S. 385, 394, 117 S.Ct. 1416, 137 L.Ed.2d 615 (1997). Certainly, it is less demanding than probable cause, “requiring only facts sufficient to give rise to a reasonable suspicion that criminal activity ‘may be afoot.’ ” United States v. Bailey, 743 F.3d at 332 (emphasis added) (quoting Terry, 392 U.S. at 30, 88 S.Ct. 1868 ); see United States v. Arvizu, 534 U.S. at 273, 122 S.Ct. 744 (collecting cases); United States v. Padilla, 548 F.3d 179, 186–87 (2d Cir.2008) (stating that reasonable suspicion requires ...