NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

_____________ No. 10

- 4362

_____________ UNITED STATES OF AMERICA

v.
CARLOS DIAZ a/k/a Carlos Alberto Martine, Appellant

_______________ On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. No. 09

- cr - 531) District Judge: Hon. Timothy J. Savage

_______________ Submitted Under Third Circuit LAR 34.1(a)

September 16, 2011
Before: RENDE LL, JORDAN and BARRY, Circuit Judges

.

(Filed: September 19, 2011 )

_______________ OPINION OF THE COURT

_______________2

JORDAN, Circuit Judge

. Carlos Diaz was tried and convicted in the United States District Court for the Eastern District of Penn sylvania on charges of conspiracy to interfere with interstate commerce by robbery and interference with interstate commerce by robbery, as well as carrying and using a firearm during a crime of violence. On appeal, he challenges the District Court‟s ruli ngs on his pre

- trial motion to suppress evidence. We will affirm.
I. Background The District Court found the following facts after an evidentiary hearing on the suppression motion. At about 9:30 p.m. on October 16, 2008, Keith Prout, an assistant
manager of the PJP Marketplace in Philadelphia, closed t h e store and went outside to discover that his sport utility vehicle had a flat tire . He had beg u n chan ging it when two men approached. One jabbed Prout in the ribs with a gun and demanded that he go insid e and open the store‟s safe. When Prout refused, the men pushed him against the back of the vehicle and verbally threatened him. Just then, Philadelphia Police Officer Brian Spearman arrived, and Prout‟s assailants fled. Off icer Spearman chased one of t hem and saw him throw a gun behind the store . The officer quickly apprehended him, and Prout identified the man as one of the robbers. Prout then got into a police car and was driven around in search of the other man. Meanwhile, Philadelphia Police Serge ant Jonah Conway responded to a radio call of the disturbance at the PJP Marketplace, which stated that while one suspect was in custody, another, a Hispanic male in blue jeans and a camouflage vest, was at large. Sergeant Conway drove behind the store wh ere the first suspect had thrown the gun, and3

he saw a Fo rd Explorer bearing Washington S tate tags parked illegally on railroad tracks. Sergeant Conway looked in a window of the Explorer and saw duct tape and rubber gloves inside. He then opened the unlo cked passenger door, looked in the glove compartment, found no vehicle registration or insurance card , but found traffic citations issued to someone named “Martinez.” Sergeant Conway felt the hood of the Explorer and discovered that it was warm. Suspecti ng that the Explorer was connected to the attempted robbery, he disabled it by puncturing one of its tires. Sergeant Conway then watched the Explorer from a short distance away , and within a few minutes , a man emerged from the weeds along the railroad trac ks, got into the vehicle, and attempted to drive away. Sergeant Conway stopped the Explorer and asked the driver, later identified as Diaz, for his license and registration. Diaz was unable to produce either. Sergeant Conway then asked Diaz what he was doing in the area, and Diaz stated that he had been driving when he noticed that one of the tires was low, so he pulled over and walked to a nearby gas station to call his father. The police officer noticed that during the questioning, Diaz was sweating, out of breath, and very nervous. At that point, the police car in which Prout was riding pulled up, and Prout immediately recognized Diaz, who was still sitting in the driver‟s seat of the Explorer, as one of the men who had assaulted him. Diaz was taken out of the Explorer and placed in handcuffs, Prout positively identified Diaz in response to a police question, and Diaz was arrested. A grand jury in the Eastern District of Pennsylvania returned a three

- count indictment charging Diaz with conspiracy to interfere with interstate commerce by robbery, in violation of 18 U.S.C. § 1951(a); attempted interference with interstate4

commerce by robbery, in violation of 18 U.S.C. §§ 1951(a) and 2; and carrying and using a firearm during a crime of violence, in viol ation of 18 U.S.C. §§ 924(c) (1) and 2. Diaz moved to suppress Prout‟s on

- scene identification, arguing that it was unnecessarily suggestive . In the same motion, he sought to suppress his statement to Sergeant Conway regarding why he was in the area, argu ing that he was effectively in custody when he gave it, though he had not received Miranda warnings, and that it was the fruit of an illegal seizure. After a hearing, the District Court denied the motion. A jury convicted Diaz on all three counts. Diaz now appeals.
II. Discussion 1
A. The Show

- Up Diaz contends that Prout‟s on

- scene identification should have been suppressed because the procedure violated his due process rights. He also argues that Prout‟s subsequent in

- court identification during the tria l should have been ruled inadmissible, because the in

- court identification was tainted by the on

- scene identification.

“ The standard for admitting evidence of a pretrial identification is the same as the standard for permitting an in

- court identification i n the wak e of a pretrial identification.” United States v

. Clausen , 328 F.3d 708, 713 (3d Cir. 2003). “ In both cases, the eyewitness testimony will be permitted unless

... admitting the identification testimony

1 The District Court had jurisdiction pursuant to 18 U.S.C. § 3231 , which grants to district courts “original jurisdiction, exclusive of the courts of the States, of all offenses against the laws of the United States.” We have jurisdiction under 28 U.S.C. § 1291

. We review a denial of a motion to suppress for clear error as to the unde rlying facts and conduct plenary review o f the District Court‟s application of the law to those facts. United States v. Perez , 280 F.3d 318, 336 (3d Cir. 2002)

.5

wo uld be a denial of due process.” Id. (citi ng United States v. Mathis , 264 F.3d 321, 330 (3d Cir. 2001) )

. “ An identification procedure that is both (1) unnecessarily suggestive and (2) creates a substantial risk of misidentification violates due process. ” United States v. Brownlee , 454 F.3d 131 , 137 (3d Cir. 2006) (citing Manson v. Brathwaite , 432 U.S. 98, 107 (1977) )

. “ Unnecessary suggestiveness contains two component parts: that concerning the suggestiveness of the identification, and that concerning whether there was some good reason for the f ailure to resort to less suggestive procedures.” Id. ( internal quotations marks omitted ). An unnecessarily suggestive identification procedure does not create a substantial risk of misidentification if it “possesses sufficient aspects of reliability” gi ven the “ totality of the circumstance s.” Id. at 139. Factors we consider in that analysis include: “ (1) the opportunity of the witness to view the criminal at the tim e of the crime; (2) the witness‟[s] degree of attention; (3) the accuracy of the witnes s‟[s] prior description of the criminal; (4) the level of certainty demonstrated by the witness at the confrontation; and (5) the length of time betwe en the crime and confrontation.” Id. (citing Neil v. Biggers , 409 U.S. 188, 199 (1972) )

. The burden to

s how that the suggestiveness of an identification procedure violates due process is borne by the defendant. See United States v. Lawrence , 349 F.3d 109, 115 (3d Cir. 2003)

. Although a show

- up procedure , like the one here , is “inherently suggestive,”
Brown lee , 454 F.3d at 138, Diaz has not shown tha t the identification provided by Prout was the product of an unnecessarily suggestive procedure or that it created a substa ntial risk of misidentification

. Diaz contends that the identification procedure was und uly suggestive because “[d]uring the identification procedure, [he], while in handcuffs, was6

brought out of a marked police vehicle under the escort of several police officers who stood next to him during the procedure.” Appellant‟s Br. at 5

. While that may be true, 2
Prout was able to identify Diaz before he was arrested and handcuffed. As the District Court specifically fou nd, “Prout immediately recognized the man in the driver‟s seat of the Explorer as the heavier one who had assaulted him,” and “ [a]ft er Prout recognized him, [Diaz] was taken out of the Explorer and placed in handcuffs.” ( App. at 10 (emphasis added). ) W e cannot say that these factual finding s by the District Court w ere clearly erroneous , given Prout‟s testimony at the suppression hear ing. Even if these findings were clearly erroneous, however, the fact that Diaz was in handcuffs and surrounded by police alone does not make the identification procedure “unnecessarily suggestive.” First, if a suspect is handcuffed and surrounded by poli ce officers during an on

- scene show

- up, the show

- up is not automatically unduly suggestive. See, e.g. , United States v. King , 148 F.3d 968, 970 (8th Cir. 1998) (“ Necessary incidents of on

- the

- scene identifications, such as the suspects being handcuffed an d in police custody, do not render the identification procedure impermissibly suggestive. ”); United
States v. Bautista , 23 F.3d 726, 730 (2d Cir. 1994) cert. denied , 513 U.S. 862 (1994) (“The fact that the suspects were handcuffed, in the custody of law en forcement officers, and illuminated by flashlights also did not render the pre

- trial identification procedure unnecessarily suggestive. In this case, handcuffs, custody, and flashlights were all necessary incidents of an on

- the

- scene identification ... .”) ; cf. Brownlee , 454 F.3d at 138

2 Sergeant Conway testified to this effect at the suppression hearing. See App. at 86

- 88.7

(holding that a show

- up was unnecessarily suggestive when not only the suspect was

“ handcuffed, surrounded by police officers, and either seated inside or standing beside a police cruiser ” but also multiple witnesses identifi ed the suspect “while exposed to the suggestive influence of other[] [witnesses, bystanders, and police],” the suspect was brought to the scene of the crime for identification, and there was no reason why the witnesses could not identify the suspect in a l ess suggestive line

- up or photo array). Second, whether an identification procedure is “u nnecess arily suggestive” rests not only on its effect, its “suggestiveness,” but also on its cause, whether there was “ some good reason [(or motivation)] for the failu re to resort to [a] less suggestive procedure[].” Brownlee , 454 F.3d at 137. Here, Prout‟s prompt identifi cation of Diaz was done when Prout‟s memory was st ill fresh and would have enabled the police t o quickly release Diaz if he were not identified as t he culprit and to c ontinue their search for the actual criminal. Given the level of suggestiveness of the identification procedure, those motivations were reasonably sufficient to justify the failure to resort to a less suggestive procedure. See United S tates v. Sleet , 54 F.3d 303, 309 (7th Cir. 1995) (holding that immediate show

- ups

can serve important interests, such as “ allow [ing] identification

... while the witness‟ [s] memory is fresh[] and permit [ting] the qui ck release of innocent persons ” (internal quotation marks omitted) ) ; United States ex rel. Cummings v. Zelker , 455 F.2d 714, 716 (2d Cir. 1972 ) ( “ [P] rompt confrontation [is] desirable because it serve[s] to insure „the immediate release of an innocent suspect and at the same time

... enable [s] the p olice to resume the search for the fleeing cul prit while the trai l is fresh.‟ ” (quoting Bates v. United
States , 405 F.2d 1104, 1106 (D.C. Cir. 1968), cert. denied , 406 U.S. 927 (1972) )

.8

Moreover, even if we were to assume that the identification procedure here was unnecessarily suggestive, it was nevertheless sufficiently reliable to not have violated Diaz‟s due process right s . Prout had ample opportunity to view Diaz at the time of the crim e , and he positively identified him shortly after the crime was co mmitted. Thus, given the totality of the circumstances, the identification procedure here did not create a substantial risk of misidentification since it “possess[ed] sufficient aspects of reliability .” See Brownlee , 454 F.3d at 139

- 140 (listing factors which establish “sufficient aspects of reliability” and holding that “ the totality of the circumstances establish [ed] that the identifications were reliable ” ). Therefore, because the identification procedure used by the police here did not violate Diaz‟s d ue process rights, the District Court did not err in refusing to suppress the

on - scene identi fication of Diaz made by Prout and the identification could not have tainted the in

- court identification.
B. The Terry Stop Diaz argues that the District Court s hould have suppressed Prout‟s identification and Diaz‟s statements to Sergeant Conway as fruits of an illegal seizure, because Sergeant Conway lacked reasonable suspicion to stop the Explorer. Under Terry v. Ohio , 392 U.S. 1 (1968) , and its progeny, “ an of ficer may, consistent with the Fourth Amendment , conduct a brief, investigatory stop when the officer has a reasonable, articulable suspicion that criminal activity is afoot. ” United States v. Valentine , 232 F.3d 350, 353 (3d Cir. 2000). Reasonable suspi cion is “ a less demanding standard than probable cause ,” Illinois v. Wardlow , 528 U.S. 119, 123 (2000),9

and “ can be established with information that is different in quantity or content than that required to establish probable cause .” Alabama v. White , 49 6 U.S. 325, 330 (1990)

. In decidi ng whether reasonable suspicion supported a stop, “we must consider „ the totality of the circumstances

– the whole picture.‟” United States v. Sokolow , 490 U.S. 1, 8 (1989) (quoting United States v. Cortez , 449 U.S. 411, 417 (1981)). Here, when Sergeant Conway responded to the radio call, he drove behind the PJP Marketplace where the gun had been thrown, found a vehicle with out

- of

- state plates parked illegally on railroad tracks with its hood still warm, noticed that the majority of the businesses in the area were closed, and saw by looking through the Explorer‟s window that duct tape and rubber gloves were inside. Given the totality of these circumstances, Sergeant Conway had reasonable suspicion that the Explorer was
in volved in the assault and attempted robbery that had just happened nearby, and he was thus justified in stopping the vehicle after Diaz emerged from the weeds along the railroad tracks and started driving away. Diaz argues that Sergeant Conway‟s warrantles s entry into the Explorer was illegal and “therefore tainted the subsequent stop of the vehicle,” Appellant‟s Br. at 11, because the stop was based in part on information obtained during the search of the glove compartment. However, assuming that the warr antless entry into the Explorer was illegal, cf . United States v. Burton , 288 F.3d 91, 100 (3d Cir. 2002) (noting that the

“ automobile exception

. . . permits law enforcement to

. . . search an automobile without
a warrant [only] if probable cause exists t o believe it contains contraband”) (internal quotation marks omitted), Sergeant Conway already had, for the reasons already noted,10

reasonable suspicion to stop the vehicle before he opened the door of the Explorer and conducted the search. Put another way , the traffic citations found in the glove compartment were effectively immaterial to the reasonable suspicion calculus. Given that Sergeant Conway had reasonable suspicion to conduct an investigatory stop of the Explorer, the District Court properly refus ed to suppress the identification and statements that resulted from the stop.
C. Diaz’s Statements Finally, Diaz contends that the District Court should have suppressed his statements to Sergeant Conway because those statements were the fruit of a c ustodial interrogation conducted without Diaz having been given a Miranda warning. Under Miranda v. Arizona , 384 U.S. 436 (1966), “ statements obtained during a custodial interrogation are inadmissible under the Fifth Amendment of our Constitution if the de fendant was not informed both of the right to counsel and the right to remain silent .” United States v. Shabazz , 564 F.3d 280, 286 (3d Cir. 2009). “ For a person to be in custody when he has not been arrested, „ something must be said or done by the author ities, either in their manner of approach or in the tone or extent of their questioning, which indicates that they would not have heeded a request to depart or to allow the suspect to do so. ‟” United States v. Willaman , 437 F.3d 354, 359 (3d Cir. 2006) (q uoting Steigler v. Anderson , 496 F.2d 793, 799 (3d Cir. 1974)). Diaz contends that he was in custody, and thus was entitled to a Miranda warning, because Sergeant Conway‟s “disabling [of the Explorer] by puncturing the tires . . . [was] the functional equi valent of an arres t.” Appellant‟s Br. at 15. That argument fails. As11

discussed above, the stop of the Explorer and questioning of Diaz was a Terry investigatory stop based on reasonable suspicion. Had Diaz been able to produce a driver‟s license and re gistration, had he been able to give a plausible explanation for his whereabouts, had he not matched the description of the suspect from the radio call, had he not appeared out of breath and nervous, and had he not been identified as one of the assailants by Prout, then he would have been free to leave, despite the flattened tire. 3 Diaz was placed in custody only after this additional information gave the police probable cause to arrest him. While the flattened tire may have prevented Diaz from fleeing, h e was not in custody because of it

. In short, Sergeant Conway‟s stop of the Explorer driven by Diaz was a Terry investigatory stop, and the prior disabling of the vehicle did not

– under these circumstances

– c onvert the encounter into a custodial interro gation. Thus, no Miranda warning was required.
I II . Conclusion For the foregoing reasons, we will affirm the judgment of conviction entered by the District Court.

3 When and how he may have chosen to deal with the flat tire is not a matter about which we choose to speculate. Likewise, b ecause it is irrelevant to the issues before us, we make no comment what so ever on the lawfulness or wisdom of the police officer‟s decision to puncture the tire

.