NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 10-1650
_____________
UNITED STATES OF AMERICA
v.
ROGELIO LOPEZ,
Appellant
_____________
Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Criminal No. 1-06-cr-00199-024)
District Judge: Honorable Christopher C. Conner
_____________
Submitted Under Third Circuit LAR 34.1(a)
July 14, 2011
Before: RENDELL, SMITH and ROTH, Circuit Judges.
(Opinion Filed: August 10, 2011)
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OPINION OF THE COURT
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RENDELL, Circuit Judge.
Rogelio Lopez appeals the District Court’s denial of his motion to suppress
cocaine and cellular phones seized during an investigatory stop. For the reasons set forth
below, we will affirm.1
I.
The following facts were developed at the District Court hearing on the motion to
suppress. The District Court, in its Memorandum opinion denying Lopez’s motion to
suppress, provided a comprehensive account of its findings of fact. See United States v.
Lopez, 2009 WL 1140096 (M.D. Pa. Apr. 28, 2009). Because we write solely for the
benefit of the parties, we refer only to those facts pertinent to our discussion.
At around 10:45 pm on May 26, 2008, Officers William Fasan and Peter
Kochanny were patrolling the area around Polaski Road in Chicago, Illinois when they
observed a black Pontiac Grand Am and a green minivan parked near one another in a
remote section of a Burger King parking lot. They observed an interaction among
appellant Rogelio Lopez and two other men, Martin Lopez2 and Luiz Zuniga,3 in which
the three men glanced around to determine if anyone was watching, conversed briefly,
then brought their hands together as if they were passing a small article between them.
1
The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We have appellate
jurisdiction pursuant to 28 U.S.C. § 1291.
2
The record contains no evidence of a familial relationship between Rogelio and
Martin. We will refer to them by their first names to avoid confusion.
3
Martin Lopez was tried with Rogelio as a co-defendant, but he is not a party to this
appeal. Zuniga was ultimately released from custody without any charges filed against
him.
2
The police officers could not see what the men exchanged, but, based on their experience
and training, they suspected that the men had conducted a hand-to-hand drug transaction.
When the officers drove towards the three men to investigate the situation, they
noticed that the men had actually exchanged car keys, not narcotics. This observation,
combined with their knowledge that the area has a reputation for hosting large-scale drug
transactions, made them suspect that the men were engaged in a “car switch,” which
occurs when two traffickers meet at a predetermined location and swap vehicles, one of
which contains contraband. Such transactions, which are typically used to transport large
quantities of drugs, allow the participants to exchange products quickly and prevent them
from handling controlled substances in public view.
The officers conducted an investigatory stop based on their suspicion that the three
men had conducted a car-switch drug transaction. They verified that vehicle keys had
been swapped and requested identification from all three individuals. After concluding
that defendants’ conduct bore indicia of drug trafficking, and based on their knowledge
that drug dealers often possess firearms in connection with trafficking activity, the
officers conducted a preliminary pat-down search of the suspects’ outer clothing. Officer
Kohanny removed a phone clipped to Martin’s belt, and Officer Fasan discovered at least
two bulky items4 in Rogelio’s pockets that he removed and identified as cellular phones.
In total, the officers removed about six or seven phones from the three suspects, which
they confiscated because, in the officers’ experience, arrestees sometimes carry blunt
4
As the District Court noted, Officer Fasan testified that Rogelio was carrying
multiple cellular phones but did not specify the exact number.
3
objects similar in size and shape to cell phones that can be used to injure an officer and
phones can be used to conceal knives or other dangerous implements.
The officers then questioned the three men about the car switch, and Rogelio
stated that he was borrowing the minivan from Martin to take his family on vacation.
The explanation further aroused the officers’ suspicion, because the car switch took place
late at night and at the end of a holiday weekend. Based on their heightened suspicion,
the officers requested and received Martin and Rogelio’s oral consent to search the
minivan. Though he consented to the search, Rogelio informed the officers that he did
not own the van.
The officers’ search of the vehicle discovered a black brick containing narcotics.
The three men were then arrested and read their Miranda rights, which both Martin and
Rogelio indicated that they understood.5 Police ultimately seized a total of ten kilograms
of cocaine from the minivan.
Rogelio, along with eight other defendants, was subsequently charged with
conspiracy to distribute and possession with intent to distribute cocaine, crack cocaine,
and marijuana in violation of 21 U.S.C. § 846; distribution and possession with intent to
distribute cocaine in violation of 21 U.S.C. § 841(a)(1); and various criminal forfeitures.
In addition, he was charged along with one other co-defendant of distribution and
possession with intent to distribute marijuana in violation of 21 U.S.C. § 841(a)(1).6 His
5
See Miranda v. Arizona, 384 U.S. 436 (1966).
6
Not all the charges against Rogelio stemmed directly from the drugs seized during
his arrest. In the spring of 2008, Rogelio was also the subject of a Drug Enforcement
4
case was transferred from the Northern District of Illinois to the Middle District of
Pennsylvania, where he was tried.
Prior to trial, Rogelio filed a motion to suppress evidence seized during his arrest.
The District Court, after holding a suppression hearing, denied Rogelio’s motion in a
memorandum and order filed on April 28, 2009.7 The Court concluded that Officers
Fasan and Kochanny properly stopped defendants for the purpose of investigating
suspected criminal activity; that the officers properly removed defendants’ cell phones
during the preliminary pat-down search; that defendants granted consent to search the
minivan; and that Rogelio’s consent was valid despite the fact that the minivan was not
his.8 Lopez, 2009 WL 1140096, at *4-*8.
II.
“We review the District Court’s denial of a motion to suppress for clear error as to
the underlying factual findings and we exercise plenary review over questions of law.”
United States v. Brown, 448 F.3d 239, 245 (3d Cir. 2006). We note that “assessments of
credibility by the trial court are entitled to great deference at the appellate level.” United
Agency (“DEA”) investigation led by Special Agent Mark O’Donnell, which was
unrelated to his arrest. Agent O’Donnell’s investigation included the use of a
confidential informant who had given him information regarding prior drug dealings with
the defendant. Agent O’Donnell testified at the suppression hearing, and the informant
testified at trial as a government witness.
7
A jury trial of Rogelio and three co-defendants ensued, where the jury found
Rogelio guilty of the conspiracy and substantive cocaine counts and not guilty of the
marijuana distribution account.
8
Martin also challenged the admissibility of a statement he made once in custody, and
the District Court found that the statement was admissible.
5
States v. Brothers, 75 F.3d 845, 853 (3d Cir. 1996). “This review is more deferential
with respect to determinations about the credibility of witnesses, and when the district
court’s decision is based on testimony that is coherent and plausible, not internally
inconsistent and not contradicted by external evidence, there can almost never be a
finding of clear error.” United States v. Igbonwa, 120 F.3d 437, 441 (3d Cir. 1997).
Rogelio argues that the officers engaged in a series of unlawful actions, each of
which requires the suppression of the physical evidence found in the minivan and on
Rogelio’s person. He claims that the officers did not have a lawful basis to perform an
investigatory stop or to frisk him and that the scope of their search of his person was too
broad. With regard to the search of the minivan, he claims that his consent to the search
was nullified by the fact that he and Martin had been unlawfully seized at the time and
that the officers lacked probable cause to search the automobile. Finally, he argues that
the evidence seized from the minivan, which belonged to Martin, should not have been
admissible against him because he never had dominion or control over the vehicle or the
drugs.
Investigatory Stop and Frisk
Police may perform an investigatory stop of a person when they have a reasonable,
articulable suspicion that criminal activity is afoot. Terry v. Ohio, 392 U.S. 1, 30 (1968).
Reasonable suspicion is a “less demanding standard than probable cause . . . in the sense
that reasonable suspicion can arise from information that is less reliable than that required
to show probable cause.” Alabama v. White, 496 U.S. 325, 330 (1990). In determining
the legality of a Terry stop, we consider the totality of the circumstances, United States v.
6
Robertson, 305 F.3d 164, 167 (3d Cir. 2002), and, in so doing, “give considerable
deference to police officers’ determinations of reasonable suspicion.” United States v.
Mosley, 454 F.3d 249, 252 (3d Cir. 2006) (internal citation omitted).
Given this standard, the District Court correctly determined that reasonable
suspicion supported the investigatory detention of Rogelio. The officers, while working a
nighttime shift, observed Martin, Rogelio, and Zuniga exit their vehicles in an isolated
section of an otherwise empty parking lot. The men walked toward each other while
continually surveying their surroundings, and the officers saw them exchange a small
article without first shaking hands. The officers knew that the area around the parking
was a high-crime area, and they suspected that they had just witnessed a hand-to-hand
narcotics transaction.
The District Court did not err in holding that these circumstances gave rise to an
inference of drug-related activity and, thus, that the officers properly detained defendants
for the purpose of conducting a Terry stop. Though presence in a high-crime area and the
lateness of the hour do not, without more, give rise to reasonable suspicion, they may be
considered in the totality of the circumstances. See Illinois v. Wardlow, 528 U.S. 119,
124 (2000); United States v. Whitfield, 634 F.3d 741, 744 (3d Cir. 2010); United States v.
Nelson, 284 F.3d 472, 483 (3d Cir. 2002). These factors, when combined with the
behavior that the officers observed, amount to a totality of circumstances that supports
the officers’ reasonable suspicion. See United States v. Paulette, 457 F.3d 601, 602, 606
(6th Cir. 2006) (holding that officers had reasonable suspicion that defendant in high
7
drug-crime area was engaged in criminal activity based on his hand movements, which
were consistent with a hand-to-hand drug transaction).
In objecting to the District Court’s ruling that the officers had reasonable
suspicion, Rogelio also argues that the officers’ testimony was confusing and
contradictory regarding what they observed when they arrived at the scene. The District
Court found that the officers’ account of the events that took place on May 26, 2008 was
credible. Our review of the testimony from the evidentiary hearing indicates that the
officers’ testimony had sufficient indicia of reliability to withstand clear error review.
See United States v. Givan, 320 F.3d 452, 464 (3d Cir. 2003). Accordingly, we defer to
the District Court’s factual findings and, in light of those facts, hold that reasonable
suspicion supported the investigatory stop of Rogelio in the parking lot.
We also agree with the District Court that the officers acted appropriately in
frisking Rogelio after the investigatory stop and in removing the cell phones from his
person. “When an officer is justified in believing that the individual whose suspicious
behavior he is investigating at close range is armed and presently dangerous to the officer
or to others,” the officer may conduct a pat-down search “to determine whether the
person is in fact carrying a weapon.” Terry, 392 U.S. at 24.9 If the officer discovers
9
See also United States v. Yamba, 506 F.3d 251, 255-56 (3d Cir. 2007) (holding that
officer was justified in patting down suspect during a stop whom he believed to be armed
and presently dangerous); United States v. Fryer, 974 F.2d 813, 819 (7th Cir. 1992)
(noting that officers’ pat-down search of both driver and passenger was justified when,
during a routine traffic stop, “the officer observed furtive movements between the driver
and passenger, as if they were passing something between them”); United States v. Colin,
928 F.2d 676, 678 (5th Cir. 1991) (upholding the frisk of a passenger where the officer
observed the passenger stoop down and move from side to side).
8
contraband during the course of this search, he may seize it without a warrant. See
Minnesota v. Dickerson, 508 U.S. 366, 375 (1993) (“If a police officer lawfully pats
down a suspect’s outer clothing and feels an object whose contour or mass makes its
identity immediately apparent, there has been no invasion of the suspect’s privacy
beyond that already authorized by the officer’s search for weapons . . . .”).
As the District Court held, reasonable suspicion supported the pat-down search in
which Officers Fasan and Kochanny removed defendants’ cellular phones. Upon seeing
the officers approach, Rogelio, Martin, and Zuniga hurried toward opposite vehicles from
those in which they had arrived. When the officers got closer to the suspects, they
noticed that the suspects had exchanged vehicle keys rather than contraband. At this
point, the officers suspected that the men had conducted a car-switch transaction, rather
than a hand-to-hand sale. We agree with the District Court that, based on the officers’
experience with and knowledge of car-switch transactions – which often involve large
amounts of drugs and armed participants – it was reasonable for the officers to believe
that the suspects may have been armed and dangerous. See United States v. Crippen, 627
F.3d 1056, 1063 (8th Cir. 2010) (“A suspicion on the part of police that a person is
involved in a drug transaction supports a reasonable belief that the person may be armed
and dangerous because weapons and violence are frequently associated with drug
transactions.”); United States v. Garcia, 459 F.3d 1059, 1064 (10th Cir. 2006) (“[A]
connection with drug transactions can support a reasonable suspicion that a suspect is
armed and dangerous.”). Further, as the District Court ruled, it was reasonable for
Officer Fasan, out of concern for his safety, to remove the multiple cell phones he felt
9
during his frisk of Rogelio from Rogelio’s pockets. See United States v. Edwards, 53
F.3d 616, 619 (3d Cir. 1995).
Consent
Rogelio next argues that Martin’s and his consent to the automobile search was
not valid. Martin, Rogelio claims, did not voluntarily consent to the search and, if he did,
that consent was rendered invalid by the prior unlawful actions of the police. Rogelio’s
own consent was invalid because he did not have a significant possessory interest in
Martin’s vehicle to consent to the search.
The District Court found that Martin and Rogelio both voluntarily consented to the
search of the minivan, a factual determination that we review for clear error. See Givan,
320 F.3d 452, 459 (3d Cir. 2003). This finding is supported by facts in the record and is
not clearly erroneous. Officers Fasan and Kochanny, both deemed credible witnesses by
the District Court, testified that Martin and Rogelio orally consented to the officers’
search of the minivan. Although Martin testified that neither officer asked for his
consent, the District Court credited the officers’ account over Martin’s, and we defer to
its credibility determination. See Brothers, 75 F.3d at 853. Because we find the District
Court’s holding that both Martin and Rogelio consented to the search of minivan to be
reasonable, we need not reach the question of whether Rogelio could have consented to
the search had Martin objected to it.10
10
In addressing consent, the District Court also ruled, in the alternative, that the
officers possessed probable cause to search the minivan notwithstanding defendants’
consent. Rogelio challenges this conclusion, arguing that the circumstances the officers
had observed at this point did not give rise to probable cause to search the vehicle.
10
Dominion or Control
Lastly, Rogelio argues that the evidence seized from Martin’s minivan should
have been inadmissible against Rogelio because Rogelio never had dominion or control
over the automobile or the contraband seized from inside of it. The District Court
construed this argument as a challenge to the officers’ probable cause for Rogelio’s arrest
– i.e., because, due to Rogelio’s lack of dominion or control over Martin’s vehicle and
the cocaine in it, the officers had no reason to link Rogelio with the cocaine and, thus,
lacked probable cause for Rogelio’s arrest. The Court rejected that argument, explaining
that, in the context of contraband seizures, the arresting officer may arrest any individual
engaged in a common enterprise with the item. Lopez, 2009 WL 1140096, at *7 (citing
Maryland v. Pringle, 540 U.S. 366, 370 (2003)). Here, the Court said, the officers had
probable cause to believe that the three men were participating in a common scheme with
respect to the cocaine seized from Martin’s minivan – they met under conditions that
suggested a car-switch transaction; Rogelio had the keys to the minivan and was hurrying
towards it when the officers arrived; and Rogelio later admitted that he was borrowing
the minivan, allegedly for a family vacation. Thus, the Court concluded, the officers
were justified in arresting Rogelio for trafficking. Id. at *8.11
Because we find the District Court’s holding that Rogelio and Martin voluntarily
consented to the automobile search to be reasonable, we need not reach the question of
whether the officers had probable cause to search the minivan.
11
The Government contends that Rogelio, and the District Court, mischaracterized
the dominion and control argument as a suppression issue when in fact it is an issue of
Rule 401 evidentiary relevancy. See Fed. R. Evid. 401. We agree that Rogelio does not
precisely identify what he is objecting to with his dominion and control argument – the
11
The District Court did not err in holding that the officers possessed probable cause
for Rogelio’s arrest based on the circumstances known at the time they placed him in
custody. The fact that Rogelio did not own the car in which the drugs were found does
not vitiate the officers’ possession of probable cause.12
III.
For the foregoing reasons, we will affirm the District Court’s denial of Rogelio’s
motion to suppress.
seized cocaine’s connection to him so as to justify a finding of probable cause for his
arrest or its connection to him in a broader sense, so as to make his guilt more likely.
However, because we believe the District Court’s interpretation to be reasonable, we will
treat Rogelio’s dominion and control argument in the same way the Court did – as a
suppression issue.
12
Rogelio also argues that the Court’s decision to admit the allegedly illegally seized
evidence was not harmless error. Because we find that the Court’s admission of this
evidence was not error at all, we need not reach this argument.
12