United States Court of Appeals
For the First Circuit
No. 00-2031
UNITED STATES OF AMERICA,
Appellee,
v.
EDGARDO VELEZ-SALDANA,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Salvador E. Casellas, U.S. District Judge]
Before
Selya and Boudin, Circuit Judges,
and Schwarzer,* Senior District Judge.
Robert W. Odasz for appellant.
Aixa Maldonado-Quinones, Assistant United States Attorney,
with whom Guillermo Gil, United States Attorney, Jorge E. Vega-
Pacheco, Assistant United States Attorney, Chief, Criminal
Division, and Thomas F. Klumper, Assistant United States
Attorney, were on brief for the United States.
*Of the Northern District of California, sitting by
designation.
June 8, 2001
BOUDIN, Circuit Judge. The question on this appeal is
whether the police had reasonable suspicion to stop, and
(thereafter) probable cause to arrest, Edgardo Velez-Saldana.
There are two chapters to the story: the first is the nighttime
seizure of drugs, and the second is the arrest of Velez-Saldana
the following morning. The pertinent facts are undisputed, save
as indicated below.
Shortly after midnight on March 29, 1998, two police
officers were patrolling near the Los Limones sector in the
Guayama district of Puerto Rico. Guayama is on the south side
of the island, and Los Limones is close to the water. San Juan,
the capital, is about fifty miles north of Los Limones. The
police describe Los Limones as an isolated and swampish area
with many mangrove trees; the area is cut by alleyways and known
to be used by drug smugglers.
At approximately 12:20 a.m., the police patrol spotted
a minivan, with only its parking lights illuminated, edging onto
the main road through such an alleyway. At the sight of the
police car, the minivan's headlights flashed on, it accelerated,
and a chase ensued. The police saw one person jump from the van
and, shortly thereafter, the driver also jumped after losing
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control. Police searched the crashed van and found in it almost
a thousand kilograms of cocaine.
At 3 a.m., the police arrested a man wearing clothes
matching those worn by the first person who jumped from the van.
However, when officers Jorge Guzman and Jose Melendez reported
for work at the Guayama Police Station at 8:00 a.m. the next
morning, the driver had still not been apprehended. The two
officers were told that the drugs had been seized in the Los
Limones sector, that "some people" were under arrest, and that
they should proceed to Los Limones to "provide support" to
investigating units.
At about 8:30 a.m., as the two officers approached Los
Limones, they spotted Velez-Saldana on foot coming out of a
patch of mangroves. The area was sparsely populated, and the
officers did not recognize Velez-Saldana and believed that he
was a stranger in the ward. The officers pulled their car over
to the roadside, and Melendez, exiting from the car, hailed
Velez-Saldana. Melendez was in uniform with his weapon
holstered but visible at the time. At the later suppression
hearing, Melendez gave this description of what ensued.
Asked where he was from, Velez-Saldana answered that
he came from San Juan; he said that he had been dropped off by
a friend named "Danny" so that he could get some breakfast and
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that his friend would return to pick him up. Velez-Saldana did
not give his name and claimed to have no identification.
Melendez continued:
While I was asking him this question
[how did he get there], while I was
interviewing him I was able to notice that
he was sweaty. He was agitated. He had
pieces of the mangrove roots--when mangrove
becomes wet, the roots emit some sort of
black substance, so he had that on his
chest. In addition to that, I was able to
see that the lower portion of his blue jeans
was wet. It appeared to be darker than the
rest of the blue jean.
He tells me that he had come there to
eat; however, the place that he came out of
and where we saw him, where we had the
intervention with him, is rather far from
any establishment. So all these elements,
him being sweaty, having the mangrove
residue, having his pants wet, and being far
from away from a supposed store where he was
going to buy some food, gave me a motive to
determine that he might have been involved
and that he could be one of the individuals
that had escaped in the early morning hours
when the drug shipment was seized.
In his own testimony at the suppression hearing,
Officer Guzman confirmed the gist of Melendez' testimony and
added one further element. Guzman said that Velez-Saldana
asserted that he had come to Guayama from Barrio Obrero--a
district of San Juan (Melendez recalled that Velez-Saldana had
said Puerto Nuevo, a different part of San Juan)--and that he
had left Barrio Obrero at about 8 a.m. Yet, at about 8:30 a.m.,
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Melendez and Guzman had encountered Velez-Saldana at a place in
Guayama about 45 miles from Barrio Obrero. Guzman regarded
Velez-Saldana's statement as plainly implausible.
After questioning Velez-Saldana for ten to fifteen
minutes, the officers arrested him and took him back to the
police station. The police secured further evidence pursuant to
the arrest, and based in part on this evidence, Velez-Saldana
(with three others) was ultimately charged with one count of
possessing with intent to distribute 959.3 kilograms of cocaine.
21 U.S.C. § 841(a)(1) (1994).
In September 1998, Velez-Saldana moved to suppress the
evidence secured as a result of his arrest. The district court
held a three-day hearing in March 1999, at which detailed
testimony was taken from both arresting officers; Velez-Saldana
did not testify. On July 30, 1999, the district court issued a
lengthy decision refusing to suppress the evidence. In February
2000, Velez-Saldana entered a guilty plea, reserving the right
to appeal from the denial of his motion to suppress. He was
subsequently sentenced to a term of ten years' imprisonment.
On this appeal, Velez-Saldana's first challenge is to
the initial stop. Without either reasonable suspicion or
probable cause, the police are free to question a citizen in
public so long as he is not detained against his will and
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remains free to leave. Florida v. Bostick, 501 U.S. 429, 434
(1991). However, the government concedes that the police
detained Velez-Saldana at the outset, initially engaging in a
so-called Terry stop. Terry v. Ohio, 392 U.S. 1, 19-20 & n.6
(1968). The test for a Terry stop is whether there is
"reasonable suspicion" that the person detained was engaged in
criminal activity. Id. at 21-22.
Although a Terry stop cannot be justified merely by
hunch or intuition, Terry, 392 U.S. at 21-22 & n.18, in this
case the police did proffer specific, articulable facts that
reasonably warranted halting and questioning Velez-Saldana at
least briefly. The police saw him emerging from a remote
mangrove swamp at 8:30 a.m. on a Sunday morning, not far from
where a shipment of nearly a thousand kilograms of cocaine had
been seized eight hours earlier. The area was sparsely
populated and the officers had never seen this individual
before.
The "suspicion" needed for a brief stop and questioning
need not be severe, because the intrusion is so limited. United
States v. Young, 105 F.3d 1, 7-8 (1st Cir. 1997). It is quite
true, as Velez-Saldana's counsel ably argues, that there was
nothing at the outset that directly linked Velez-Saldana with
the crime. All the police had was a criminal incident, an
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isolated location, an unfamiliar face, and a coincidence of time
and location. But "suspicion" does not require a direct
connection; it is enough that the police had specific reason to
think that Velez-Saldana may have been connected to the crime.
See United States v. Cortez, 449 U.S. 411, 417-18 (1981).
Velez-Saldana does not directly challenge the scope of
the Terry stop, which must also be reasonable. United States
v. Sharpe, 470 U.S. 675, 682 (1985). In all events, the nature
of the questioning--basic inquiries as to who Velez-Saldana was
and why he was in the neighborhood--appears reasonable. As to
the length of the encounter, there is no bright-line rule, id.
at 687-88, but ten to fifteen minutes, at least in the
circumstances of this case, is within reasonable bounds.
Compare United States v. Owens, 167 F.3d 739, 749 (1st Cir.),
cert. denied, 528 U.S. 894 (1999); United States v. Robinson, 30
F.3d 774, 784-85 (7th Cir. 1994).
Alternatively, Velez-Saldana asserts that at the end
of the interview, the police lacked probable cause to arrest
him. Here, the matter is complicated by the fact that he
challenges not only the ultimate probable cause determination,
which we review de novo, but also certain of the factual
findings by the district judge, which are reviewed only for
clear error. Young, 105 F.3d at 5. Because the findings are
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the predicate to any inference of probable cause, we begin with
them.
In summing up the various circumstances that added up
to probable cause, the district judge mentioned (among others)
two that Velez-Saldana now contests: the judge said that Velez-
Saldana had "refused" to give his name when initially questioned
and that "he provided implausible information regarding the time
it took him to get to where he was when he was detained"--a
reference back to Guzman's testimony that the "defendant stated
that he had come to Guayama from Barrio Obrero, and that he had
left Barrio Obrero at about 8:00 a.m." Velez-Saldana asserts
that the record does not show that he refused to give his name
or that he claimed to have started from Barrio Obrero at 8:00
a.m.
We have read the testimony of both officers with some
care and agree that the evidentiary issue is debatable in each
case. What Melendez said about asking Velez-Saldana to identify
himself is that he asked for Velez-Saldana's name and that
Velez-Saldana "never gave it." As to what Velez-Saldana said
about leaving from Barrio Obrero, Guzman did give the testimony
that the district judge attributed to him; but our own reading
of the transcript suggests that there may have been some
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confusion on Guzman's part as to whether Velez-Saldana actually
said that the 8:00 a.m. departure was from Barrio Obrero.1
Nevertheless, failing to give one's name after being
asked by the police could in this case be viewed as a suspicious
circumstance, even if there was no outright refusal. And Guzman
testified explicitly to what the judge found as to when the
defendant left Barrio Obrero; we have nothing more than
suspicion that Guzman may have misunderstood what Velez-Saldana
was saying. In neither case can we say that the district judge
committed clear error, although we need not accept the
characterization of Velez-Saldana's failure to give a name as a
"refusal."
Accordingly, the facts available to the officers at the
time of the arrest included the following: that a major drug
shipment had been seized near the Los Limones mangrove swamp
hours earlier and "some people" were under arrest; that not far
from the scene of the drug seizure, a strange man walked out of
the mangroves and looked as if he had been wandering in the
swamp for some time; and that he had no identification, did not
1Guzman did say expressly that Velez-Saldana claimed to have
left Barrio Obrero at 8 a.m.; but a reader of the transcript
could infer that Velez-Saldana claimed only to have been left by
his companion in the Los Limones area at around 8 a.m. and that
Guzman was confused on this point.
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provide his name when asked, and gave an unpersuasive account of
his presence.
The question, then, is whether "an objectively
reasonable police officer" would believe that Velez-Saldana was
involved with the drug shipment, Ornelas v. United States, 517
U.S. 690 (1996), giving "due weight to inferences drawn from
[the] facts" by the arresting officer. Id. at 699. Here, the
timing and location were suspicious; Velez-Saldana was a
stranger to the area; his appearance suggested that he had been
wandering or hiding in the mangroves; and his manner and failure
to account plausibly for his presence reinforced initial doubts.
Viewing the matter de novo, we agree that the police had basis
enough for an arrest.
Affirmed.
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