United States v. Ramos

United States Court of Appeals
For the First Circuit

No. 09-2251

UNITED STATES OF AMERICA,

Appellee,

v.

EDGAR RAMOS,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Mark L. Wolf, U.S. District Judge]

Before

Lynch, Chief Judge,
Selya and Howard, Circuit Judges.

Tamara Fisher, with whom Catherine K. Byrne, Assistant Federal
Public Defender, was on brief, for appellant.
Mark T. Quinlivan, Assistant United States Attorney, with whom
Carmen M. Ortiz, United States Attorney, was on brief, for
appellee.

December 17, 2010
 LYNCH, Chief Judge. The issue presented is whether,

within weeks of the Madrid commuter rail bombings in 2004,

Massachusetts Bay Transit Authority (MBTA) police had reasonable

suspicion of a terrorist plot on a major Boston bus and rail

station permitting an officer to open the door of a van, which was,

unusually, sitting stationary but with a driver and passengers

inside, in the station's commuter parking lot. The prosecution and

defendant agree that this action of the MBTA police, for Fourth

Amendment purposes, amounted to a "seizure," requiring reasonable

suspicion that criminal activity may have been afoot. That this

proved not to be a criminal terrorist plot at all but rather a

criminal plot to transport aliens illegally is immaterial.

The driver of the van, Edgar Ramos, moved to suppress

evidence stemming from the MBTA's investigative search. The

district court held four days of evidentiary hearings and

ultimately denied the motion, concluding in a well-reasoned opinion

that there was reasonable suspicion. See United States v. Ramos,

591 F. Supp. 2d 93 (D. Mass. 2008). Ramos then conditionally pled

guilty to illegally transporting aliens in Charlestown,

Massachusetts. See 8 U.S.C. § 1324(a)(1)(A)(ii). We affirm the

district court's denial of Ramos's motion to suppress.

I.

We recount the facts briefly. We refer the reader who

wishes to read more details to the district court opinion.

-2-
 Thousands of public transit passengers use the Sullivan

Square MBTA station, in Charlestown, Massachusetts, every day.

Sullivan Square Station is a terminal for both subway and bus lines

and is located underneath a heavily used interstate highway, I-93.

Adjacent to the station, there is a parking lot owned by the MBTA

that holds over 200 cars. Drivers may pay to park, or may pull

into the lot briefly to pick up or drop off passengers at the

station.

On May 28, 2004, the Friday before Memorial Day, MBTA

inspector Patricia Pitts noticed, as she arrived at work at

Sullivan Square Station around 6:50 a.m., that a white passenger

van with two visible occupants was parked in the station's parking

lot. On May 28, the MBTA was on high alert as to a possible

terrorist attack and employees were asked to be particularly

observant.1

The day before, Pitts had attended a one-day MBTA

training seminar on identifying potential terrorist threats. With

this training in mind, she found the van worthy of concern because

it was irregular for vehicles to remain parked in the lot with

occupants inside. She knew, from her more than twenty years of

experience at the MBTA, that people usually park in the lot in

1
The MBTA's internal alert system was related but not
identical to state and national systems. The alert level changed
in response to both threats in other countries and the MBTA's
internal training needs, and was set on high alert while MBTA
employees received antiterrorist training.

-3-
order to "park and ride," leaving their cars and then riding either

a bus or the subway. People use a specific area, on the side of

the parking lot nearest the station, to stop briefly to pick up or

discharge passengers. The van was not parked near the pick-up and

discharge area, but rather at the far end of the lot.

Observing from the station, Pitts realized that there

were more than two men in the van when she saw several men step out

of the van. She saw one write something on a piece of paper. Her

terrorism training seminar had taught her that people writing notes

at MBTA stations could be planning where to plant explosives.

Furthermore, she thought, if the writing concerned legitimate work

at the MBTA lot, the van's occupants should have stopped at the

station and displayed a work permit, which they had not done. The

men soon got back in the van, after just enough time to stretch

their legs. This too was irregular behavior. Pitts decided to

take a closer look at the van and took a bus from the station to

the far side of the parking lot where the van was parked.

Walking past the van, she saw that it had a paper license

plate over a regular license plate, which her terrorism training

seminar had taught her was suspicious and should be reported. She

also observed that the van had tinted windows, partially obscuring

the view of the van's interior. She saw there were more than five

men sitting in the van, including in the vehicle's back seats. She

looked at the other vehicles in the parking lot, and saw that none

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had people sitting in them; only this van did. Further, the two

men in the driver's and front passenger's seats appeared to Pitts

to be Middle Eastern.2 The court asked Pitts what characteristics

she had observed that caused her to think the people in the van

looked Middle Eastern. Pitts answered, "like myself, they [were]

darker in the skin. Their skin was darker."

Pitts called an MBTA dispatcher and stated her suspicions

and the reasons for them. Pitts is not herself in the MBTA police;

she had been trained to give information to the dispatcher to give

to the police. The dispatcher put out a dispatch to the MBTA

police explaining that there were two vans in the parking lot at

Sullivan Square Station, "and one of them had a paper plate. A

couple of guys got out of them, believe it or not, of Middle

Eastern descent." The dispatcher continued, stating that an MBTA

inspector had reported that "[i]t made her feel very uncomfortable.

She saw them congregatin' and one had a paper plate." This was a

report of suspicious behavior, although it did not detail all of

Pitts's reasons and mistakenly said there were two vans.

MBTA Officers O'Hara and Silen responded within five

minutes, parking their patrol car behind the white van. Officer

2
Pitts, who is African-American, was mistaken. The men
were not Middle Eastern. The driver, Ramos, and front-seat
passenger were of Mexican descent.

Others made the same mistake. Later, after the occupants
got out of the van, one of the officers present radioed the
dispatcher, saying, "We're suspicious, Middle Eastern male."

-5-
O'Hara, with several years of MBTA experience, had received

specialized terrorism training, was aware of the commuter train

bombings less than three months before in Madrid, Spain, and was

aware that metropolitan transit systems were considered likely

terrorist targets. More specifically, he had been taught to be

suspicious of vehicles large enough to hold a significant amount of

explosives, such as this van.

Concerned about their safety, the two officers approached

the van in "tactical form." Instead of going straight to the side

of the van, they approached "at an angle so we'd get the best

visuals of anybody that might have been looking through the windows

or that could come at us," giving themselves "a better chance for

cover, God forbid, if something happened." One reason for this

approach was that the officers could not see what was happening

through the tinted rear and rear side windows of the van.

Officers O'Hara and Silen walked from the rear toward the

passenger's side of the van while an officer from another cruiser,

which had just arrived, walked toward the driver's side. O'Hara

could not see the driver of the van.

At this point, O'Hara knew that an MBTA inspector had

expressed suspicion after observing that there were several people

sitting in a parked van, that those people had congregated outside

the van, and that the van had a temporary paper plate. From his

-6-
own observations and his experience as a transit police officer,

Officer O'Hara also knew:

1. Transit rail stations were, especially after the

recent Madrid bombings, considered likely targets

for terrorist attacks.

2. The van was parked in the farthest corner of the

parking lot.

3. Drivers did not usually remain in their vehicles

after parking, but the occupants of the van had

remained in the van for at least twenty minutes

(since the first observation by Pitts) by the

time the officers had arrived. O'Hara could not

recall even one time when he had seen people

sitting in a parked vehicle in these MBTA parking

spaces for any such time.

4. The van had tinted, not clear, windows except for

the front seat windows. Despite tinted windows,

the shadows of several heads were visible in the

back of the van.

5. The van had a temporary paper, Texas license

plate over the regular plate; paper license

plates were suspicious generally and out-of-state

license plates, especially from states so far

away, were unusual.

-7-
 6. Large vehicles like vans are more likely than

smaller vehicles to be able to hold a significant

amount of explosives.

7. He had been trained in particular to look for box

vans and while this was not a box van, it was a

large passenger van, which raised the same

concerns that it could carry a large amount of

explosives.

8. While the dispatcher had stated the van's

occupants were of Middle Eastern descent, O'Hara

could not remember whether he had personally made

this observation.3

Officer O'Hara had also been trained to keep his eyes on

a person's hands, to make sure the person does not have weapons or

potential detonation devices like cell phones, but he could not see

the passenger's hands. When O'Hara reached the front passenger

door, he opened the door in order to see the passenger's hands,

asking, "what are you guys doing here?" When the male passenger

did not immediately respond, he ordered him out of the van.

Officer O'Hara was aware that another officer was at the

driver's side communicating with the driver, Ramos. That officer

had knocked on the driver's side window. Once O'Hara ordered the

3
There is no suggestion he had reason to doubt the
information he was given.

-8-
passenger out of the van, the other officer ordered Ramos out as

well, and the officers opened the rear doors and ordered the

remaining passengers out one by one.

Defendant Ramos, who is of Mexican descent, produced a

Texas driver's license. The passengers in the back of the van,

when asked for identification, produced Brazilian passports, each

with entry stamps for Mexico, but no indication of lawful entry

into the United States.

The officers had all of the van's occupants transported

to MBTA headquarters, where they were questioned by U.S.

Immigration and Customs Enforcement (ICE) agents. They were

eventually taken to the Boston ICE office, where they were informed

of their Miranda rights and questioned further. This criminal

prosecution followed.

II.

We review the district court's ultimate Fourth Amendment

"reasonable suspicion" determination de novo. Ornelas v. United

States, 517 U.S. 690, 699 (1996). We take the underlying factual

determinations as found unless they are clearly erroneous. Id.

There is no serious claim of error in the district court's detailed

findings of fact, which were carefully done and meticulous.

The prosecution concedes that the opening of the van door

amounted to a temporary "seizure" for purposes of investigation

under the Fourth Amendment, and we do not test that proposition.

-9-
There is no claim that, so long as the initial seizure is found to

be reasonable, the ensuing actions by the officers were

unreasonable, and there is no challenge to the arrests.

We note as a preliminary matter that the nature of the

intrusion in opening the front passenger door was minimal. Cf.

United States v. Stanfield, 109 F.3d 976, 982 (4th Cir. 1997)

(finding opening of vehicle door for officer safety a de minimis

intrusion during otherwise lawful traffic stop). Officer O'Hara,

it is true, could have knocked on the van door and asked for

identification, without raising Fourth Amendment concerns. United

States v. Espinoza, 490 F.3d 41, 48 (1st Cir. 2007) ("[E]ven

without reasonable suspicion, [an officer] ha[s] the right to

approach the parked vehicle and talk to its occupants if that

interview [is] purely consensual."); see also United States v.

Drayton, 536 U.S. 194, 200 (2002) ("[O]fficers do not violate the

Fourth Amendment[] . . . merely by approaching individuals . . .

and putting questions to them if they are willing to listen.").

That he chose instead to open the van door (apparently in order to

see the passenger's hands), while another officer talked to the

driver, did involve a greater intrusion into privacy, but it was a

small one.4

4
Because we find there was reasonable suspicion to justify
this action, we do not consider the effect of Pennsylvania v.
Mimms, 434 U.S. 106 (1977), and Maryland v. Wilson, 519 U.S. 408
(1997).

-10-
 Ramos's argument on appeal is that the officers did not

have a reasonable suspicion permitting them to open the door of the

van under Terry v. Ohio, 392 U.S. 1 (1968), and its progeny. Terry

held that the police can stop and briefly detain a person for

investigative purposes even if the officer lacks probable cause if

the officer has reasonable suspicion supported by articulable

facts, id. at 20-21, that "criminal activity may be afoot," id. at

30. See also United States v. Monteiro, 447 F.3d 39, 43 (1st Cir.

2006) (explaining the requirement of reasonable suspicion of

criminal activity arising from specific and articulable facts).

The Terry analysis is commonly said to have two steps, the first

concerned with the initial seizure, and the second with the

reasonableness of the actions taken thereafter. Schubert v. City

of Springfield, 589 F.3d 496, 501 (1st Cir. 2009). Ramos presents

his argument as concerning only the first step.

Under a Fourth Amendment reasonableness inquiry, there

are no per se exclusions or inclusions of any particular fact. See

United States v. Arvizu, 534 U.S. 266, 274-75 (2002) (holding that

courts may not simply exclude facts susceptible of innocent

explanation from reasonable suspicion analysis). A fact may be

relevant or not to the existence of reasonable suspicion depending

on context and circumstance. Id. at 275-76. Those same

considerations may determine what weight, if any, an objectively

reasonable officer would give to a particular fact.

-11-
 The thrust of Ramos's argument is that, on the facts

stated above, there was no reasonable suspicion justifying the

"seizure," the reference to Middle Eastern appearance could not

supply the missing ingredient, and any consideration of the fact

that Ramos appeared to be "Middle Eastern" was impermissible and

tainted the district court's conclusion.5 We disagree.

The initial premise of Ramos's argument appears to be

that only the particular circumstances directly related to the

seizure are relevant. Not so. That premise runs afoul of two

established strands of Fourth Amendment law. The first strand is

that whether the seizure violated the Fourth Amendment must be

evaluated against the "totality of the circumstances," rather than

by a "divide-and-conquer" approach. Arvizu, 534 U.S. at 274;

United States v. Wright, 582 F.3d 199, 205, 212-213 (1st Cir. 2009)

(finding circumstances combined to support reasonable suspicion,

even though most of those circumstances were potentially innocent

when considered individually). The second strand is that weight

must be given to police officers' training and experience. See

Ornelas, 517 U.S. at 700 (finding in probable cause context that "a

police officer may draw inferences based on his own experience");

Wright, 582 F.3d at 207 (stating that police officers' subjective

inferences are relevant to the extent they reflect officers'

5
There is no need to enter the controversy Ramos tries to
create about whether the district court did or did not consider
what Ramos refers to as his "perceived Middle Eastern ethnicity."

-12-
experience and expertise). It was entirely appropriate on these

facts to consider the larger context.

Both Inspector Pitts and Officer O'Hara had received

training in response to the increased threat of terrorism, and were

particularly alert to the risk of attacks on public transit systems

in light of the coordinated terrorist attacks on the Madrid

commuter rail trains and stations on March 11, 2004, less than

three months earlier. The basic facts about those attacks are not

in dispute and are matters of public record.6 Thirteen improvised

bag bombs were hidden in rucksacks or backpacks on trains; ten

exploded while the trains were in or near stations, and three that

failed to explode were found in other cars of the trains. The

attacks killed 191 people and injured at least 1400 others. A

group claiming to be linked to Al Qaeda, the terrorist group based

in the Middle East that carried out the September 11, 2001 attacks

on the United States, quickly took credit for the bombings and,

significantly, stated that it intended to strike next in the United

States. There followed other claims of Al Qaeda responsibility and

6
For the details on the Madrid train bombings recounted
here, see, for example, Lawrence Right, The Terror Web, The New
Yorker, Aug. 2, 2004, at 40; Tim Golden & David Johnston, Bombings
in Madrid: The Investigation, N.Y. Times, March 16, 2004, at A17;
Elaine Sciolino, Bombings in Madrid: The Attack, N.Y. Times, March
12, 2004, at A1.

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of plans for future attacks in the United States and other

countries.7

The investigation by Spanish authorities, at the time

Ramos was arrested, suggested that most of the persons involved in

the attack were of Middle Eastern descent or origin. The prior

October, an audiotape reportedly made by Osama bin Laden, the

leader of Al Qaeda, had specifically threatened an attack on Spain

in retribution for Spain's assistance to the United States in the

Iraq war. The date of the Madrid attacks--3/11/2004--was exactly

six months after the 9/11 anniversary and was the day after 911

days had elapsed since 9/11. On April 3, 2004, militants suspected

in the attacks killed themselves with a suicide bomb rather than be

taken in a Spanish police raid, complicating the investigation. We

also note that the Madrid attacks took place during peak morning

rush hour, the same time of day as the events in Ramos's case.

In response to the real prospect of terrorist attacks on

public transit, the MBTA conducted specific antiterrorism training

for its personnel, who were instructed to be on the alert for any

activity that might suggest a terrorist attack was being planned or

expected on the MBTA system.

7
Ultimately, the attacks were found to have been carried
out by a group inspired by and ideologically aligned with Al Qaeda,
rather than by the central Al Qaeda organization itself. See
Right, The Terror Web. There is no evidence that this information
was known to the officers when they approached the van in the
Sullivan Square parking lot.

-14-
 Within this broad context, it was appropriate for the

police to take into account the location of the suspicious conduct

and the degree of the potential danger being investigated. What is

not suspicious in one location may be highly suspicious in another.

See, e.g., United States v. Martinez-Fuentes, 428 U.S. 543, 563-64

& nn.16-17 (1976) (stating that fact of Mexican appearance is more

relevant to reasonable suspicion near Mexican border than near

Canadian border); United States v. Ivery, 427 F.3d 69, 73 (1st Cir.

2005) (stating that the high-crime character of a particular

neighborhood is one relevant circumstance). The degree of risk may

bear on the facts required to support a reasonable suspicion. E.g.

City of Indianapolis v. Edmond, 531 U.S. 32, 44 (2000) ("[T]he

Fourth Amendment would almost certainly permit an appropriately

tailored roadblock set up to thwart an imminent terrorist

attack."); Florida v. J.L., 529 U.S. 266, 273-74 (2000) ("We do not

say, for example, that a report of a person carrying a bomb need

bear the indicia of reliability we demand for a report of a person

carrying a firearm before the police can constitutionally conduct

a frisk."). Further, "[f]or the words 'reasonably' and

'circumstances' an important consideration is the calendar--the

times," and officers may take into account current events when

evaluating potential risks. United States v. Villanueva, 15 F.3d

197, 199 (1st Cir. 1994) (finding MBTA officer's pat-down of a

-15-
disorderly teen reasonable given the high prevalence of youth gun

possession at the time).

The Supreme Court has also made it clear that in a

reasonable suspicion inquiry, a person's appearance is not per se

an impermissible or irrelevant consideration. See United States v.

Brignoni-Ponce, 422 U.S. 873, 886-87 (1975) (holding that in border

area searches, an individual's apparent Hispanic ethnicity is a

relevant factor in a reasonable suspicion inquiry); see also

Martinez-Fuentes, 428 U.S. at 563-64 & nn.16-17 (same). There is

nothing on the particular facts of this case to forbid the

officers' consideration of the information that at least two of the

van's occupants "appeared" to be Middle Eastern. Groups claiming

to be affiliated with Middle Eastern terrorist groups had made a

specific threat to the United States just weeks earlier, and

metropolitan transit services were considered at risk of such

attacks. The location involved was a major urban transit system,

the threat was highly timely, the risk involved many lives, and the

concern about terrorism was intense.

It is true that the officers were not responding to an

observer's account of an ongoing crime in which descriptions of the

ethnic appearances of the participants had been given. Cf. United

States v. Brown, 500 F.3d 48, 55-56 (1st Cir. 2007) (finding

reasonable suspicion for investigative stop when informant

specified race of individual suspect along with other identifying

-16-
information). However, a report of a threat of a crime that

credibly identifies the threat as from persons likely to have a

particular appearance is also germane. Cf. United States v.

Condelee, 915 F.2d 1206, 1210 (8th Cir. 1990) (finding agents at

airport could take into account information that gangs would likely

use sharply dressed black drug couriers); United States v. Weaver,

966 F.2d 391, 394 & n.2 (8th Cir. 1992) (finding agents at airport

could consider defendant's race as one factor given agents'

knowledge that young men of that race frequently transported

cocaine into the city).

While in other situations there may be merit to the

argument that a description of ethnic appearance is irrelevant and

nothing more than impermissible profiling, the argument fails on

the facts here. The MBTA attempted to learn from the recent

lessons of Madrid and had so trained its employees. Not just the

recent history of Middle East-originated terrorism, but also the

explicit warnings, issued some eleven weeks before, of future

strikes by the same groups in the United States, meant it was

material for the officers to consider, among other facts, the risk

of terrorist attacks on transit stations in major urban centers and

that the persons they were investigating had a Middle Eastern

appearance. This is not a case about stereotyping or selective

prosecution. See Whren v. United States, 517 U.S. 806, 813 (1996)

("[T]he constitutional basis for objecting to intentionally

-17-
discriminatory application of laws is the Equal Protection Clause,

not the Fourth Amendment.")

We wish to be very clear. Just as it cannot be said that

the appearance, even ethnic appearance, of a suspect is never

relevant, it certainly cannot be said that it is always or even

generally relevant. See United States v. Manzo-Jurado, 457 F.3d

928, 939-40 (9th Cir. 2006) (finding no reasonable suspicion where

Border Patrol relied solely on "factors forming a broad profile

that would cover many lawful, newly-arrived immigrants"). If the

events in this case took place at a different time or place or

under other circumstances, an attribution of "Middle Eastern"

appearance may not necessarily be as relevant a fact.

This is not a case in which the only basis for suspicion

was Ramos' appearance.8 Under the totality of circumstances, the

officers had reasonable suspicion criminal activity was afoot.

Affirmed.

8
Ramos argues that but for the reference to Middle Eastern
appearance, O'Hara would not have had any suspicion whatsoever of
possible terrorism. There is no evidence to support this argument;
moreover, the reasonable suspicion test is objective, not
subjective. See Bolton v. Taylor, 367 F.3d 5, 7 (1st Cir. 2004)
("Whether a reasonable suspicion exists is treated as an objective
inquiry: the actual . . . thought process of the officer is not
plumbed."); see also Whren v. United States, 517 U.S. 806, 812-13
(1995).

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