13-409-cr
United States v. Lopez
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO
A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007 IS PERMITTED AND IS
GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT'S
LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED
WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION "SUMMARY ORDER"). A PARTY
CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT
REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Thurgood Marshall United
States Courthouse, 40 Foley Square, in the City of New York, on
the 13th day of January, two thousand fourteen.
PRESENT: DENNY CHIN,
SUSAN L. CARNEY,
CHRISTOPHER F. DRONEY,
Circuit Judges.
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UNITED STATES OF AMERICA,
Appellee,
-v- 13-409-cr
ALBERT LOPEZ,
Defendant-Appellant.
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FOR APPELLEE: NDIDI N. MOSES, Assistant United States
Attorney (Jonathan S. Freimann and
Robert M. Spector, Assistant United
States Attorneys, on the brief), for
Deirdre M. Daly, Acting United States
Attorney for the District of
Connecticut, New Haven, Connecticut.
FOR DEFENDANT-APPELLANT: CHARLES F. WILLSON, Nevins Law Group
LLP, East Hartford, Connecticut.
Appeal from the United States District Court for the
District of Connecticut (Underhill, J.).
UPON DUE CONSIDERATION, IT IS ORDERED, ADJUDGED, AND
DECREED that the judgment of the district court is AFFIRMED.
Defendant-appellant Albert Lopez appeals from the
district court's judgment entered January 18, 2013, convicting
him, following a plea of guilty, of one count of unlawful
possession of a firearm by a convicted felon, in violation of 18
U.S.C. § 922(g)(1). The district court sentenced Lopez
principally to a term of imprisonment of 60 months.
Lopez challenges the district court's decision entered
August 6, 2012, denying his motion (1) to suppress evidence
obtained during a purportedly unlawful search following a
traffic stop and (2) for sanctions based on the government's
destruction of video and audio recordings of the stop.1 Lopez
conditioned his guilty plea on his right to appeal the district
court's denial of his motion to suppress.
We assume the parties' familiarity with the underlying
facts, the procedural history of the case, and the issues
presented for review.
A. The Motion to Suppress
On appeal, Lopez does not argue that the traffic stop
was unlawful. Instead, Lopez argues that (1) the state trooper
1
Judge Eginton conducted the suppression hearing and issued the
decision denying the motion. The case was thereafter transferred to Judge
Underhill, who presided over the sentencing.
detained him for an unreasonable duration, (2) the trooper did
not have reasonable suspicion to continue to detain him or to
pat him down, and (3) he did not voluntarily consent to the pat-
down.
A police officer may briefly detain an individual for
questioning "if the officer has a reasonable suspicion that
criminal activity may be afoot." United States v. Colon, 250
F.3d 130, 134 (2d Cir. 2001) (internal quotation marks omitted)
(quoting Terry v. Ohio, 392 U.S. 1, 30 (1968)). "An officer's
inquiries into matters unrelated to the justification for the
traffic stop . . . do not convert the encounter into something
other than a lawful seizure, so long as the inquiries do not
measurably extend the duration of the stop." Arizona v.
Johnson, 555 U.S. 323, 333 (2009). Once an officer properly
stops an individual, he is "entitled to conduct a patdown
search" following "problematic response[s]" to police inquiries
suggesting that the individual may be armed. United States v.
Muhammad, 463 F.3d 115, 123 (2d Cir. 2006). "When evaluating
the reasonableness of a Terry stop, the reviewing court must
consider the totality of the circumstances . . . through the
eyes of a reasonable and cautious police officer on the scene,
guided by his experience and training." United States v.
Bayless, 201 F.3d 116, 133 (2d Cir. 2000) (internal quotation
marks and citations omitted).
"On an appeal from a ruling on a motion to suppress,
we review a district court's findings of historical fact for
clear error, but analyze de novo the ultimate determination of
such legal issues as probable cause . . . ." United States v.
Valentine, 539 F.3d 88, 93 (2d Cir. 2008) (citations and
internal quotation marks omitted). As the suppression motion
was denied below, we construe the facts in the government's
favor. United States v. Singh, 415 F.3d 288, 293 (2d Cir.
2005).
The relevant facts, as found by the district court,
are as follows: Marcin Pirog, a Connecticut state trooper,
stopped Lopez on Interstate 91 because Lopez had exhibited
erratic driving behavior. During his initial exchange with
Lopez, Pirog noticed two cellular phones and an air freshener in
Lopez's car, which the trooper identified as "indicators of
criminal activity." United States v. Lopez, No. 3:11–CR–139–
WWE, 2012 WL 3231014, at *1 (D. Conn. Aug. 6, 2012). Pirog also
observed that Lopez was shaking and breathing irregularly.
Lopez also had difficulty answering questions about his travel
plans. These facts, taken together, were sufficient to give an
investigating officer reasonable suspicion that criminal
activity was afoot.
Further, Pirog's questioning did not "measurably
extend the duration of the stop." Pirog questioned Lopez for
less than five minutes before requesting consent for a pat-down.
Lopez provided consent: after exiting the vehicle, Lopez turned
around and raised his hands, without prompting, and when Pirog
requested Lopez's consent, Lopez said, "Go ahead."
Accordingly, we agree with the district court that the
detention and questioning were justified by reasonable suspicion
and therefore were permissible under Terry and its progeny.
Even assuming arguendo that the pat-down was not
supported by reasonable suspicion, we conclude that the district
court did not clearly err in finding that Lopez voluntarily
consented to the search. Police officers may ask for an
individual's consent to a search, provided they do not induce
cooperation by coercive means. United States v. Drayton, 536
U.S. 194, 201 (2002). There is no indication in the record that
Pirog used coercive means. To the contrary, Lopez consented to
the pat-down immediately after exiting his vehicle.
B. The Request for Sanctions
Lopez also argues that the district court erred in
denying his request for sanctions. Lopez contends that the
government intentionally destroyed video and audio recordings of
the traffic stop. These recordings were allegedly made on
equipment belonging to Trooper Kevin Dowe, the second trooper to
arrive on the scene.
In response, the government contends that Lopez waived
his right to appeal the district court's denial of his request
for sanctions, as Lopez's plea agreement does not expressly
reserve the right to appeal this denial. Lopez argues that the
plea agreement is ambiguous and that his request for sanctions
should be considered part of his motion to suppress. We need
not address the waiver argument, however, as we conclude that
Lopez's appeal fails on the merits.
We review a district court's denial of a motion for
sanctions for abuse of discretion. United States v. Seltzer,
227 F.3d 36, 39 (2d Cir. 2000). "A district court would
necessarily abuse its discretion if it based its ruling on an
erroneous view of the law or on a clearly erroneous assessment
of the evidence." Residential Funding Corp. v. DeGeorge Fin.
Corp., 306 F.3d 99, 107 (2d Cir. 2002) (internal quotation marks
omitted) (citing Cooter & Gell v. Hartmarx Corp., 496 U.S. 384,
405 (1990)).
To prevail on a motion for sanctions for the loss or
destruction of evidence, a defendant must show that (1) the
government acted in bad faith by destroying the evidence, see
Arizona v. Youngblood, 488 U.S. 51, 57 (1988); (2) the evidence
possessed an "exculpatory value that was apparent before it was
destroyed," California v. Trombetta, 467 U.S. 479, 489 (1984);
and (3) the defendant was "unable to obtain comparable evidence
by other reasonably available means," id.
The district court found that "the evidence at issue
would not have any exculpatory value because the audio and video
evidence provided by the primary officer's recording was clear."
United States v. Lopez, No. 3:11–CR–139–WWE, 2012 WL 3231014, at
*3 (D. Conn. Aug. 6, 2012). Furthermore, the district court
found that, even if a second set of recordings did exist, they
would be inferior in quality in comparison to Trooper Pirog's
recordings. Id.
Here, Lopez not only had access to Trooper Pirog's
recordings but the opportunity to question Trooper Dowe at the
suppression hearing. Lopez therefore cannot show that he was
"unable to obtain comparable evidence by other reasonably
available means." Accordingly, we conclude that the district
court did not abuse its discretion in denying Lopez's request
for sanctions.
We have considered Lopez's remaining arguments and
conclude they are without merit. For the foregoing reasons, we
AFFIRM the judgment of the district court.
FOR THE COURT:
Catherine O'Hagan Wolfe, Clerk