23-6385-cr United States of America v. Barnes

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 2nd day of October, two thousand twenty-four.

PRESENT: REENA RAGGI, RICHARD C. WESLEY, RAYMOND J. LOHIER, JR., Circuit Judges. ------------------------------------------------------------------ UNITED STATES OF AMERICA,

Appellee,

v. No. 23-6385-cr

ALTON BARNES, AKA SEALED DEFENDANT 1,

Defendant-Appellant. ------------------------------------------------------------------ FOR APPELLEE: EDWARD C. ROBINSON JR., Assistant United States Attorney (David Abramowicz, Assistant United States Attorney, on the brief), for Damian Williams, United States Attorney for the Southern District of New York, New York, NY

FOR DEFENDANT-APPELLANT: IAN H. MARCUS AMELKIN, Federal Defenders of New York, Inc., Appeals Bureau, New York, NY

Appeal from a judgment of the United States District Court for the

Southern District of New York (Edgardo Ramos, Judge).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment of the District Court is AFFIRMED.

Defendant-Appellant Alton Barnes appeals from a judgment of conviction

entered on April 18, 2023, in the United States District Court for the Southern

District of New York (Ramos, J.), after a bench trial at which he was found guilty

of one count of possessing a firearm after having been convicted of a felony, in

violation of

(g)(1). On appeal, Barnes argues that the District

Court erred in denying his motion to suppress the gun seized during his arrest

without an evidentiary hearing. We assume the parties’ familiarity with the

2 underlying facts and the record of prior proceedings, to which we refer only as

necessary to explain our decision to affirm.

I. Request for an Evidentiary Hearing

Barnes contends that an evidentiary hearing was required to determine

whether to deny his motion to suppress the gun recovered from his backpack.

“[A]n evidentiary hearing on a motion to suppress ordinarily is required if the

moving papers are sufficiently definite, specific, detailed, and nonconjectural to

enable the court to conclude that contested issues of fact going to the validity of

the search are in question.” United States v. Pena,

(2d Cir. 1992)

(quotation marks and citation omitted). We review the District Court’s decision

not to hold an evidentiary hearing for abuse of discretion. United States v. Finley,

(2d Cir. 2001).

First, Barnes argues that an evidentiary hearing was necessary to resolve

whether the officers who stopped and frisked him had the full or only a partial

description of the shooting suspect they were seeking. Since he did not match

the full description of the shooting suspect, Barnes asserts that a factual dispute

existed as to whether the officers in this case lacked reasonable suspicion based

on the full description. We disagree. The District Court found that, even

3 assuming the officers heard the full description, they had reasonable suspicion to

stop and frisk Barnes because he “matched the shooter’s general description”

and “was found in the vicinity of the shooting.” App’x 253. Even though

Barnes did not precisely match some aspects of the suspect’s full description, we

agree with the District Court that the match was “clearly close enough for an

officer to reasonably believe that Barnes could have been the shooter.” App’x

250; see United States v. Lawes,

(2d Cir. 2002). The validity of

the stop and frisk did not depend on whether the officers had the full

description.

Barnes also argues that a hearing was required to elicit testimony from the

officers as to what they thought they felt while patting down Barnes’s backpack.

Barnes asserts that the officers were incapable of feeling the gun from the outside

of the backpack and therefore lacked a reasonable basis to open it. We are not

persuaded. The District Court acted within its discretion in relying on the

police officers’ body-camera footage to assess the reasonableness of the search,

which is “judged against an objective standard,” not a subjective one. Terry v.

Ohio,

(1968); see United States v. Hussain,

(2d Cir.

2016). Upon reviewing the footage, the District Court determined that Barnes’s

4 bag appeared “fairly slack,” the officers “concentrated on an object in the lower

right-hand side of the backpack,” and “the instant reaction” of the officer who

looked inside the bag clearly contradicted Barnes’s declaration that the gun was

wrapped inside clothing. App’x 252. Given the availability of the video, which

we have ourselves reviewed and are satisfied provided clear evidence as to the

objective reasonableness of the search, the District Court did not abuse its

discretion in determining that Barnes failed to show with sufficient specificity

that material facts were in dispute.

Accordingly, the District Court did not abuse its discretion in denying

Barnes’s request for an evidentiary hearing.

II. Motion to Suppress

Citing Minnesota v. Dickerson,

(1993), Barnes also contends

that, even accepting that the officers felt an object that could be a gun, they

violated his Fourth Amendment rights “by exploring [his] backpack by

squeezing and manipulating it for almost 30 seconds.” Appellant’s Br. 21. But

Dickerson is inapposite because it prohibits an officer’s “continued exploration”

for nonthreatening contraband during a protective stop “after having concluded”

5 that there was no weapon present.

(emphasis added). 1 Here,

after having stopped Barnes as a possible suspect in a shooting, the officers

frisked his bag to determine whether it contained a weapon. After feeling an

object that could be a weapon, the officers were entitled, under the

circumstances, to continue their search by further frisking, squeezing, or opening

the bag until they “ascertain[ed] whether it [was], in fact, a weapon.” United

States v. Oates,

, 61–62 (2d Cir. 1977). Because the search was “limited

to a protective frisk for weapons” and the officers had “reason to believe that the

suspect may be armed and dangerous,”

, the officers did not exceed the

bounds of the Fourth Amendment. Reviewing the District Court’s conclusions

of law de novo, United States v. Ojudun,

(2d Cir. 2019), therefore,

we see no error of law and affirm the denial of the suppression motion.

1 Barnes also relies on Bond v. United States,

(2000), which held that an officer’s “physical manipulation of [a] bag violated the Fourth Amendment,”

. But Bond is likewise inapposite because it concerned an immigration officer’s “exploratory” search of a bag at a border checkpoint without any predicate suspicion rather than a protective stop where an officer has reason to believe that a suspect is armed.

. 6 CONCLUSION

We have considered Barnes’s remaining arguments and conclude that they

are without merit. For the foregoing reasons, the judgment of the District Court

is AFFIRMED.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court

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