14-3243-cr
United States v. Singletary
In the
United States Court of Appeals
For the Second Circuit
________________
August Term, 2014
(Argued: June 17, 2015 Decided: July 14, 2015)
Docket No. 14‐3243‐cr
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UNITED STATES OF AMERICA,
Appellant,
—v.—
LAVERNE SINGLETARY,
Defendant‐Appellee.
________________
Before:
LEVAL, STRAUB, and RAGGI, Circuit Judges.
________________
On interlocutory appeal from a suppression order entered in the Western
District of New York (Geraci, J.; Feldman, M.J.), the United States contends that
contraband seized incident to arrest was not the fruit of an unlawful initial stop.
1
We conclude that the challenged stop was lawful under Terry v. Ohio, 392 U.S. 1
(1968), in that it was supported by reasonable suspicion of an open‐container
violation, evidenced by such articulable, objective facts as defendant’s observed
(1) carrying of a beer‐can‐sized object (2) concealed by a brown paper bag and
(3) held in such a manner as to avoid spillage.
REVERSED AND REMANDED.
________________
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.
________________
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
2
the reasonable suspicion of criminal activity required by Terry v. Ohio, 392 U.S. 1
(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
1 The facts reported herein were developed at a suppression hearing before
Magistrate Judge Feldman. The critical issue on this appeal, as it was before the
district court, is whether these facts were sufficient, as a matter of law, to give
police officers reasonable suspicion of criminal activity warranting a brief
investigatory stop.
3
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
2 The two officers had just concluded a “Night Watch” detail, whereby members
of the Rochester Police Department accompanied probation officers on
unscheduled visits to probationers’ homes. Singletary was not on probation at
the time of the events at issue.
3 The ordinance, which is available at http://www.ecode360.com/8675322 (last
accessed July 6, 2015), also creates a “rebuttable presumption” that a person in
possession “of an open container of an alcoholic beverage in a public place . . .
intends to consume the beverage in such place.” Rochester Mun. Code
§ 44‐9(E)(1).
4
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
5
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
4 The indictment alleges that Singletary has previously been convicted of four
violent felonies, in 1989, 1998, 2005, and 2009, respectively.
5 A second witness, Public Safety Aide Julie Gulino, authenticated a videotape of
the incident. The district court denied Singletary’s motion to suppress the video
evidence, and that aspect of the court’s decision is not before us on this appeal.
6
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. 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
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existence of reasonable suspicion to stop and probable cause to arrest. See
Ornelas v. United States, 517 U.S. 690, 699 (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, 134 S. Ct. 2473, 2482 (2014) (internal quotation marks omitted), “a
matter generally determined by balancing the particular need to search or seize
8
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 (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). 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 (2009)).
This standard requires more than a “hunch” to justify an investigatory
stop. Terry v. Ohio, 392 U.S. at 27. It demands “specific and articulable facts
9
which, taken together with rational inferences from those facts,” id. at 21,
provide detaining officers with a “particularized and objective basis for
suspecting legal wrongdoing,” United States v. Arvizu, 534 U.S. 266, 273 (2002)
(internal quotation marks omitted). The reasonable‐suspicion standard is “not
high.” Richards v. Wisconsin, 520 U.S. 385, 394 (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); see
United States v. Arvizu, 534 U.S. at 273 (collecting cases); United States v. Padilla,
548 F.3d 179, 186–87 (2d Cir. 2008) (stating that reasonable suspicion requires
“less than a fair probability of wrongdoing, and considerably less than . . . a
preponderance of the evidence” (internal quotation marks omitted)). Thus,
“conduct that is as consistent with innocence as with guilt may form the basis for
an investigative stop where there is some indication of possible illicit activity.”
United States v. Padilla, 548 F.3d at 187 (internal quotation marks omitted); see
Navarette v. California, 134 S. Ct. 1683, 1691 (2014).
An indication of possible illicit activity is properly informed by
“commonsense judgments and inferences about human behavior.” Illinois v.
10
Wardlow, 528 U.S. 119, 125 (2000). And while a reviewing court cannot merely
defer to police officers’ judgment in assessing reasonable suspicion, the court
must view the totality of the circumstances through the eyes of a reasonable and
cautious police officer on the scene, whose insights are necessarily guided by his
experience and training. See United States v. Bailey, 743 F.3d at 332; United
States v. Bayless, 201 F.3d 116, 133 (2d Cir. 2000).
B. Singletary’s Initial Stop Was Supported by Reasonable Suspicion
Applying these principles here, we must reject the district court’s
determination that Singletary’s initial stop was unreasonable because it rested
only on a “hunch” of criminal activity. See United States v. Singletary, 37 F.
Supp. 3d at 605, 611. A hunch is an “‘inchoate and unparticularized suspicion,’”
Illinois v. Wardlow, 528 U.S. at 124 (quoting Terry v. Ohio, 392 U.S. at 27), i.e., a
conclusion derived from intuition in the absence of articulable, objective facts.
Here, however, the challenged stop did not depend on intuition or inchoate
speculation. It was supported by numerous objective facts that, when considered
in their totality, provided the requisite reasonable suspicion to think Singletary
was violating Rochester’s open‐container ordinance, thereby warranting further
investigation. See United States v. Arvizu, 534 U.S. at 274–75 (emphasizing that
11
“‘totality of the circumstances’ principle” governs determination of reasonable
suspicion); accord United States v. Bailey, 743 F.3d at 335–36.
First, Officer Pfeffer observed Singletary walking down a public street
carrying an object that was the “standard size of a beer” can. Hr’g Tr. at 13. In
short, Singletary was plainly carrying not a bag of groceries, his laundry, or the
trash, but what appeared to be a container frequently used for alcohol. To be
sure, a standard beer can is similar in size to a soft drink can, but the law “does
not demand that all possible innocent explanations be eliminated before conduct
can be considered as part of the totality of circumstances supporting a reasonable
basis to believe that criminal activity may be afoot.” United States v. Bailey, 743
F.3d at 333; see Navarette v. California, 134 S. Ct. at 1691.
Second, Pfeffer saw that Singletary was carrying the beer‐sized can
wrapped in a brown paper bag. See Hr’g Tr. at 17. A reviewing court properly
views this fact through the eyes of Officer Pfeffer, who knew from experience—
not simply from intuition—that persons carrying open containers of alcohol in
public frequently conceal that proscribed activity by covering the containers with
brown paper bags. See id.; United States v. Bailey, 743 F.3d at 332; United States
v. Bayless, 201 F.3d at 133. “[C]ommonsense judgments and inferences about
12
human behavior,” Illinois v. Wardlow, 528 U.S. at 125, are consistent with this
experience because persons drinking non‐alcoholic beverages have little reason
to conceal them in brown paper bags. Further, case law confirms the prevalence
of the practice experienced by Pfeffer among persons violating open‐container
laws. See, e.g., United States v. Grote, 629 F. Supp. 2d 1201, 1204 (E.D. Wash.
2009) (crediting officer’s suspicion that bottle wrapped in brown paper located
next to driver contained alcohol because “liquor stores typically put such bottles
in brown paper bags”), aff’d, 408 F. App’x 90 (9th Cir. 2011) (mem. decision);
United States v. Pullen, 884 F. Supp. 410, 411–12 (D. Kan. 1995) (identifying
reasonable suspicion in case of bottle wrapped in brown paper on car seat), aff’d,
82 F.3d 427 (10th Cir. 1996) (unpublished table decision); People v. Bothwell, 261
A.D.2d 232, 234, 690 N.Y.S.2d 231, 234 (1st Dep’t 1999) (identifying probable
cause in case of bottle partially concealed by brown paper bag); see also United
States v. Ortiz, No. 06‐CR‐6076, 2007 WL 925731, at *5 (W.D.N.Y. Mar. 26, 2007)
(citing officer’s knowledge “that paper bags were utilized to conceal the label on
. . . alcoholic beverages” among facts supporting arrest for open‐container
violation); United States v. McPhatter, No. 03‐CR‐911 (FB), 2004 WL 350439, at *2
(E.D.N.Y. Feb. 24, 2004) (citing fact that bottle was “covered by a paper bag”
13
among reasons for crediting officer’s suspicion that it contained beer); cf. Peterec
v. City of N.Y., No. 14‐CV‐309 (RJS), 2015 WL 1027367, at *3 (S.D.N.Y. Mar. 6,
2015) (concluding that officer’s suspicion of open‐container violation based on
defendant carrying large can obscured by brown paper bag did not amount to
probable cause because defendant voluntarily showed officer can of iced tea).
Thus, as the Seventh Circuit has observed, “[i]t is not hard to imagine facts that
could lead an officer to reasonably suspect that [a beer‐can‐sized container in] a
brown bag in fact contained open alcohol.” Johnson v. United States, 604 F.3d
1016, 1022 (7th Cir. 2010) (remanding for factual development of issue). There is
no need to “imagine” such facts in this case. The record provides them.
Third, Pfeffer saw that Singletary was carrying the brown‐bagged beer‐
can‐sized object in a “very steady” manner, as if he “did not want it to spill.”
Hr’g Tr. at 17. The “commonsense judgments and inferences about human
behavior” to be drawn from such carrying, Illinois v. Wardlow, 528 U.S. at 125,
provide reasonable suspicion to think the container was open and contained
liquid. In urging otherwise, Singletary emphasizes that the officers did not see
him actually drinking from the bag‐covered can, nor did they directly observe
him engage in activity proscribed by law. Neither argument persuades.
14
To be sure, the inference that Singletary was carrying an open container
would be stronger still—indeed, virtually certain—if the officers had seen him
drink from the bag‐wrapped can. But reasonable suspicion does not demand
certainty, or even probability. It requires only “specific and articulable facts”
admitting a “rational inference[].” Terry v. Ohio, 392 U.S. at 21. The rational
inference of openness to be drawn from the cautious manner in which Singletary
was carrying the bag‐wrapped can finds support not only in common sense, but
also in actual experience as reflected in case law. See, e.g., United States v.
Pullen, 884 F. Supp. at 411–12 (concluding that officer reasonably suspected that
bottle wrapped in brown paper on car seat was open because bottle “looked as if
it had been carefully placed on the driver’s seat and leaned against the back rest
so as to prevent spilling”); People v. Bothwell, 261 A.D.2d at 234, 690 N.Y.S.2d at
234 (rejecting lower court’s holding that defendant could not be arrested for
open‐container violation where officer had not seen him drink from bottle
partially concealed by brown paper bag and concluding that “the manner in
which defendant held [the bottle] in front of him while engaged in conversation”
was sufficient to suggest that it “was not empty”). Thus, we reject the idea that
15
reasonable suspicion of an open‐container violation necessarily requires an
observation of someone drinking from the container at issue.
Nor does reasonable suspicion demand actual observation of a person
engaged in prohibited conduct. This is evident from precedent recognizing that
reasonable suspicion can arise even where a defendant’s conduct is as consistent
with innocence as with guilt so long as there is “some indication of possible illicit
activity.” United States v. Padilla, 548 F.3d at 187 (internal quotation marks
omitted). Indeed, if officers had observed actual prohibited conduct, they would
have had probable cause to arrest. It is precisely because reasonable suspicion is
based on something less that it approves only a brief investigatory stop.
Here, we conclude that the trio of “specific and articulable facts” just
discussed, when “taken together with rational inferences” drawn therefrom,
provided the detaining officers with a sufficient particularized and objective
basis to suspect that criminal activity—in the form of an open‐container
violation—was afoot. See Terry v. Ohio, 392 U.S. at 21, 30. In such
circumstances, it was constitutionally reasonable for the officers briefly to detain
16
Singletary in order “to confirm or dispel their suspicions.” United States v.
Sharpe, 470 U.S. 675, 686 (1985); see United States v. Bailey, 743 F.3d at 336.6
Singletary submits that, even if the stop was supported by reasonable
suspicion, Officer Masucci was not authorized by New York law to effect
detentions unrelated to his probation or parole duties. We are skeptical. New
York law authorizes a probation officer to arrest any individual who commits an
offense in the officer’s presence, see N.Y. Crim. Proc. Law §§ 2.10(24),
140.25(3)(a), and, thus, might well allow a probation officer to conduct a brief
investigatory stop when he has reasonable suspicion to think that an offense is
being committed in his presence. In any event, Masucci was not acting on his
own in stopping Singletary, but on the orders of and together with a police
officer whose detention authority Singletary does not, and cannot, question. We
6 The circumstances here are distinguishable from those that our sister circuits
have deemed insufficient to give rise to reasonable suspicion of an open‐
container violation. See United States v. Williams, 615 F.3d 657, 667–68 (6th Cir.
2010) (holding that reasonable suspicion of open‐container violations by some
members of group of people on sidewalk insufficient for reasonable suspicion of
such violations by other persons in group who were not observed with beverage
containers); United States v. Jones, 584 F.3d 1083, 1086–87 (D.C. Cir. 2009)
(holding that officers lacked reasonable suspicion to stop individual walking on
sidewalk carrying large Styrofoam cup in one hand and brown bag under arm in
vicinity of 15–20 other persons having street party). Here, by contrast, Singletary
was himself seen cautiously carrying a beer‐sized can wrapped in brown paper.
17
need not pursue this point further, however, because constitutional
reasonableness does not demand that a seizure comport with state procedural
law, and Singletary fails to show how Masucci’s involvement implicates
constitutional concerns. See Virginia v. Moore, 553 U.S. 164 (2003); Whren v.
United States, 517 U.S. 806 (1996); accord United States v. Bernacet, 724 F.3d 269,
277 (2d Cir. 2013) (“Read together, Moore and Whren stand for the proposition
that the Fourth Amendment does not generally incorporate local statutory or
regulatory restrictions on seizures and that the violation of such restrictions will
not generally affect the constitutionality of a seizure” that is otherwise
constitutionally reasonable. (internal quotation marks omitted)).
Accordingly, we identify no Fourth Amendment violation in the
challenged stop and, therefore, reverse the order suppressing items seized from
Singletary incident to his ensuing arrest.
III. Conclusion
To summarize, we conclude as a matter of law that the officers’
observations of Singletary walking down a public street, carrying a beer‐sized
can wrapped in a brown paper bag, which object he held in a cautious manner so
as to avoid spillage, are articulable, objective facts that together provided
18
reasonable suspicion to support a brief stop to investigate whether Singletary
was then violating a local open‐container ordinance. Accordingly, Singletary’s
ensuing arrest and the seizure of contraband incident thereto were not tainted by
an unlawful stop warranting suppression of the seized items. We therefore
REVERSE the district court’s suppression order and REMAND this case for
further proceedings consistent with this opinion.
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United States v. Singletary
Combined Opinion