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 ________________

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,

(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,

(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,

(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

(a)(1), (b)(1)(D);

(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,

. See United States v. Singletary,

. 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

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

at 603–06.

The government timely filed this interlocutory appeal. See

.

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

7

existence of reasonable suspicion to stop and probable cause to arrest. See

Ornelas v. United States,

(1996); United States v. Lucky,

, 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,

(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,

(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,

(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.’”

(quoting Arizona v.

Johnson,

, 326–27 (2009)).

This standard requires more than a “hunch” to justify an investigatory

stop. Terry v. Ohio,

. It demands “specific and articulable facts

9

which, taken together with rational inferences from those facts,”

,

provide detaining officers with a “particularized and objective basis for

suspecting legal wrongdoing,” United States v. Arvizu,

(2002)

(internal quotation marks omitted). The reasonable‐suspicion standard is “not

high.” Richards v. Wisconsin,

(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,

(emphasis added) (quoting Terry,

); see

United States v. Arvizu,

(collecting cases); United States v. Padilla,

, 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,

(internal quotation marks omitted); see

Navarette v. California,

(2014).

An indication of possible illicit activity is properly informed by

“commonsense judgments and inferences about human behavior.” Illinois v.

10

Wardlow,

(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,

; United

States v. Bayless,

(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,

. A hunch is an “‘inchoate and unparticularized suspicion,’”

Illinois v. Wardlow,

(quoting Terry v. Ohio,

), 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,

; see Navarette v. California,

.

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,

; United States

v. Bayless,

. “[C]ommonsense judgments and inferences about

12

human behavior,” Illinois v. Wardlow,

, 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,

(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,

(9th Cir. 2011) (mem. decision);

United States v. Pullen,

, 411–12 (D. Kan. 1995) (identifying

reasonable suspicion in case of bottle wrapped in brown paper on car seat), aff’d,

(10th Cir. 1996) (unpublished table decision); People v. Bothwell,

,

(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,

, 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),

, 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),

, 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,

(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,

,

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,

. 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,

,

(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,

(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,

. 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,

(1985); see United States v. Bailey,

.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

(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,

, 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,

, 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,

(2003); Whren v.

United States,

(1996); accord United States v. Bernacet,

(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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