13‐1432‐cr United States v. Lee

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 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 27th day of February, two thousand fourteen.

PRESENT: RICHARD C. WESLEY CHRISTOPHER F. DRONEY, Circuit Judges, RONNIE ABRAMS, District Judge.* ______________________

UNITED STATES OF AMERICA,

Appellee, ‐v.‐ No. 13‐1432‐cr

DWAYNE LEE,

Defendant‐Appellant. * The Honorable Ronnie Abrams, of the United States District Court for the Southern District of New York, sitting by designation.

1 ______________________

FOR APPELLANT: George E. Baird, Assistant Federal Public Defender (Molly Corbett, on the brief), for Lisa A. Peebles, Federal Public Defender for the Northern District of New York, Albany, NY.

FOR APPELLEE: Brenda K. Sannes, Assistant United States Attorney, for Richard S. Hartunian, United States Attorney for the Northern District of New York, Syracuse, NY.

Appeal from the United States District Court for the Northern District of New York (Frederick J. Scullin, Jr., Judge).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED AND DECREED that the judgment is AFFIRMED.

Dwayne Lee appeals from a judgment of conviction entered following a

guilty plea in the United States District Court for the Northern District of New

York (Frederick J. Scullin, Jr., Judge). On August 20, 2012, prior to Lee’s guilty

plea, the district court entered a Memorandum‐Decision and Order denying

Lee’s motion to suppress the physical evidence obtained at his December 1, 2010

arrest. In his guilty plea, Lee reserved the right to appeal the district court’s

suppression ruling. We assume the parties’ familiarity with the underlying facts,

procedural history, and issues for review.

2 We review the district court’s legal conclusions de novo and factual

findings for clear error, viewing the evidence in the light most favorable to the

government. See United States v. Getto,

(2d Cir. 2013). We

“grant particularly strong deference to” the district court’s factual findings

“premised upon credibility determinations.” United States v. Mendez,

(2d Cir. 2002).

First, contrary to Lee’s contention, the district court correctly concluded

that the confidential informant’s detailed tip, which the officers were able to

corroborate in multiple respects, had sufficient indicia of reliability to provide

the officers with reasonable suspicion to stop the pickup truck within which Lee

was a passenger. See United States v. Elmore,

(2d Cir. 2007).

Second, because the officers had reasonable suspicion to believe that Lee

was armed, their decision to pull him from the truck, handcuff him, and then

frisk him was reasonable under the Fourth Amendment. See United States v.

Garcia,

(2d Cir. 2003).

Lastly, the district court’s decision to credit Detective Wood’s suppression

hearing testimony over his testimony at Lee’s prior parole hearing did not

constitute clear error. The district court, which did recognize Wood’s prior

3 inconsistent statement, based its decision on the fact that Detective Slingerland,

whose credibility the district court found no reason to question, corroborated the

relevant aspects of Wood’s testimony. The record admits of no clear error here.

We have considered Lee’s remaining arguments and find them to be

without merit. For the reasons stated above, the judgment of the district court is

AFFIRMED.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk

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