16-1024-cr United States v. Serrano

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NO T 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 FILE D WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION A 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 Ma rshall United States Courthouse, 40 Foley Square, in the City of New York, on the 16 th day of August, two thousand seventeen. PRESENT: AMALYA L. KEARSE, JOHN M. WALKER, Jr., PETER W. HALL, Circuit Judges

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_____________________________________ U NITED S TATES OF A MERICA , Appellee , v. 16-1024-cr A NDY S ERRANO , Defendant-Appellant ,

_____________________________________ For Appellant: J AMES M. B RANDEN , Esq., New York, NY.2 For Appellee: R EBEKAH A. D ONALESKI AND B RIAN R. B LAIS , Assistant United States Attorneys, for Preet Bharara, United States Attorney for the Southern District of New York. Appeal from a judgment of the United States District Court for the Southern District of New York (Preska, C.J. ). UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED

. Following a bench trial before then-Chief Judge Preska, Defendant-Appellant Andy Serrano was found guilty of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). He ch allenges a pre-trial ruling by Judge Duffy denying his motion to suppress evidence of the firearm and his post-arrest statement. We assume the parties’ familiarity with the underlying facts, procedural history, and issues on appeal. On appeal from a district court’s rulin g on a motion to suppress evidence, “we review legal conclusions de novo and findings of fact for clear error.” United States v. Freeman , 735 F.3d 92, 95 (2d Cir. 2013). We also review de novo mixed questions of law and fact. Id. (citing United States v. Lucky , 569 F.3d 101, 105–06 (2d Cir. 2009)). We “pay special deference to the district court’s factual determinations going to witness credibility.” United States v. Jiau , 734 F.3d 147, 151 (2d Cir. 2013).3 Serrano first contends that the district court erred in determining that reasonable suspicion existed to stop him. He asserts that he was seized within the meaning of the Fourth Amendment the moment police first approached him and that such a seizure was not supported by reasonable suspicion because it was based solely on an unreliable, anonymous tip. Se rrano overlooks the fact that the district court found that he was not seized within the meaning of the Fourth Amendment until he was arrested and that ther e was probable cause for the arrest. 1 For the purposes of the Fourth Amen dment, a police encounter becomes a seizure when, “in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.” United States v. Mendenhall , 446 U.S. 544, 554 (1980). “Not ev ery encounter between a police officer and an individual is a seizure implicating the fourth amendment’s protections.” United States v. Lee , 916 F.2d 814, 819 (2d Cir. 1990). Indeed, “a police officer is free to approach a person in public and ask a few questions; such conduct, without more, does not constitute a seizure.” Id. (citing Florida v. Royer , 460 U.S. 491, 497 (1983) (plurality opinion of White, J. )); see also United States v. Peterson , 100 F.3d 7, 11 (2d Cir. 1996). In determining whether a seizure has occurred, this Court considers “the overall coercive effect of the police conduct.” Lee ,

1 We note that rather than challenge whether probable cause existed justifying his arrest, Serrano contends that the officers lacked reasonable suspicion to briefly detain and question him. Because we conclude that Serrano was not seized until the or der was given to arrest him, however, we need not entertain this argument. In any event, beca use the decision to arrest Serrano was not made until after the officers observed the gun, at that time—because they believed (in light of the anonymous tip) that the gun belonged to both Ch ristina Colon (Serrano’s associate) and Serrano— the officers had probable cause for Serrano’s arrest.4 916 F.2d at 819. “Examples of circumstanc es that might indica te a seizure . . . would be the threatening presence of severa l officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or th e use of language or tone of voice indicating that compliance with the officer’s request might be compelled.” Mendenhall , 446 U.S. at 554. Here, the district court did not err in concluding that Serrano was not seized within the meaning of the Fourth Amendme nt until Officer Santiago was directed to arrest him. At the suppression hearin g, Serrano testified that he was stopped when he was walking into a store and an officer—Officer Santiago—tapped him on the shoulder, directed him out of the store, and took him to the side of the building, where he was questioned. The district court found this testimony not credible, based in part on the fact that Serrano’s affidavit in support of his motion to suppress did not include such an assertion an d in part on the te stimony of Officers Santiago and McLaurin that when they first saw Serrano and approach him, Serrano was standing by a fence. The distri ct court held that the officers’ approach to Serrano and their ensuing conversation with him in those circumstances— without touching him, or displaying weapon s, or receiving any of his possessions or identification, or giving him any orders—w as not a seizure within the meaning of the Fourth Amendment. We agree. Up to that point, the officers had simply asked Serrano for his identification and what he was doing in the neighborhood. This type of interaction between law enforcement and Serrano is akin to a casual, consensual encounter and is not a Fourth Amendment seizure. See United States v. Glover , 9575 F.2d 1004, 1009 (2d Cir. 1992) (c oncluding that it was “plain that no seizure had occurred” where police approa ched the defendant in a public place and, “in a nonthreatening manner, asked [the defend ant] certain questions, requested identification, and asked whether [he] woul d consent to have his bags searched for narcotics” while not displaying any “weapons . . . and there was no physical contact between the officers and [the defendant]”). Under the circumstances presented here, a reasonable person would have felt free to terminate the encounter and leave. Cf. Florida v. Bostick , 501 U.S. 429, 434 (1991) (“[A] se izure does not occur simply because a police officer approaches an indi vidual and asks a few questions.”). Serrano next argues that the district court erroneously concluded that he lacks standing to challenge the search of the handbag containing the gun. “When considering a claimed violation of Fourth Amendment rights, the burden is on the defendant to establish that his own ri ghts under the Fourth Amendment were violated.” United States v. Paulino , 850 F.2d 93, 96 (2d Cir. 1988). “In order to prevail on a contention that a search violated the Fourth Amendment, an accused must show that he had a legitimate expectation of privacy in a searched place or item.” United States v. Rahme , 813 F.2d 31, 34 (2d Cir. 1987). While ownership and possession of the searched item are important considerations in determining whether a legitimate expectation of priv acy exists, neither is dispositive. Id. “The absence of possession, however, may often result in a finding that an accused had no legitimate expectation of privacy because the absence of a right to exclude others6 from access is an important factor milit ating against a legitimate expectation of privacy.” Id. Here, Serrano failed to demonstrate that his rights were violated by the search of the handbag. First, as the district court noted, Serrano’s evidence and claims concerning ownership of the bag are thoroughly inconsistent and difficult to credit. In his affidavit in support of hi s motion to suppress, Serrano repeatedly referred to the handbag as though it belonged to Colon. In fact, he even directly referred to the handbag as “Christina’s.” By using language inconsistent with ownership, moreover, Serrano’s affidavit implies that he was deliberately attempting to distance himself from the handbag. While Serrano contends that although he may have been “non-committ al on the ownership of the [handbag] containing the firearm” in his sworn affida vit supporting his motion to suppress and that he “unequivocally stated that he owned” the bag at the hearing on his motion, we nonetheless are required to afford great deference to the district court’s credibility determinations. See Jiau , 734 F.3d at 51. Because the court’s factual findings concerning ownership are largely based on Serrano’s lack of credibility and he has not demonstrated that such factual determinations are clearly erroneous, we will not disturb the district court’s conclusions in this regard. The district court properly concluded that Serrano did not establish ownership of the bag. Second, not only did Serrano lack ow nership of the bag, but he did not otherwise manifest an expectation of privacy in it. In particular, Serrano gave the bag to Colon and was observed walking away from the bag and Colon when the7 police arrived. See, e.g. , Rawlings v. Kentucky , 448 U.S. 98, 105–06 (1980) (holding that defendant lacked standing to challeng e search of friend’s purse that he had placed narcotics in because he had not demonstrated a legitimate expectation of privacy in the purse). Considered in conj unction with Serrano’s lack of ownership, the district court properly determined that Serrano had not established a legitimate expectation of privacy in the handbag. Se rrano thus lacks standing to contest the search of the bag. Finally, Serrano contends that his post -arrest statement should have been suppressed as fruit of an illegal search and seizure. Because Serrano was not stopped in violation of the Fourth Amendment, however, his post-arrest statement cannot be considered tainted fruit. Cf. United States v. Thompson , 35 F.3d 100, 105 (2d Cir. 1994) (discussing that evidence “indirectly obtained through a Fourth Amendment violation may be excludable as ‘fruit of the poisonous tree’” (quoting Wong Sun v. United States , 371 U.S. 471, 484–87 (1963))). We have considered all of Serrano’s re maining arguments on appeal and find them to be without merit. For the foregoing reasons, the district court’s order denying his motion to suppress and the judgment of conviction are AFFIRMED

. FOR THE COURT: Catherine O’Hagan Wolfe, Clerk