NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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No. 10-4362

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UNITED STATES OF AMERICA

v.

CARLOS DIAZ 

a/k/a Carlos Alberto Martine, 

 Appellant

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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

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Submitted Under Third Circuit LAR 34.1(a)

September 16, 2011

Before: RENDELL, JORDAN and BARRY, Circuit Judges.

(Filed: September 19, 2011)

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OPINION OF THE COURT

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JORDAN, Circuit Judge.

Carlos Diaz was tried and convicted in the United States District Court for the 

Eastern District of Pennsylvania 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 rulings 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 the store and went outside to 

discover that his sport utility vehicle had a flat tire. He had begun changing it when two 

men approached. One jabbed Prout in the ribs with a gun and demanded that he go inside 

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. Officer Spearman chased one of them 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 Sergeant 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 where the first suspect had thrown the gun, and 
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he saw a Ford Explorer bearing Washington State 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 unlocked 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. Suspecting 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 tracks, 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 interstate 
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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 violation 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, arguing 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. Discussion1

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 trial 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 in the wake 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 underlying 

facts and conduct plenary review of the District Court‟s application of the law to those 

facts. United States v. Perez, 280 F.3d 318, 336 (3d Cir. 2002). 
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would be a denial of due process.” Id. (citing 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 failure 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” given the “totality of the circumstances.” Id. at 139. Factors we 

consider in that analysis include: “(1) the opportunity of the witness to view the criminal 

at the time of the crime; (2) the witness‟[s] degree of attention; (3) the accuracy of the 

witness‟[s] prior description of the criminal; (4) the level of certainty demonstrated by the 

witness at the confrontation; and (5) the length of time between the crime and 

confrontation.” Id. (citing Neil v. Biggers, 409 U.S. 188, 199 (1972)). The burden to 

show 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,” 

Brownlee, 454 F.3d at 138, Diaz has not shown that the identification provided by Prout 

was the product of an unnecessarily suggestive procedure or that it created a substantial 

risk of misidentification. Diaz contends that the identification procedure was unduly 

suggestive because “[d]uring the identification procedure, [he], while in handcuffs, was 
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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 found, “Prout immediately recognized the man in the driver‟s seat of 

the Explorer as the heavier one who had assaulted him,” and “[a]fter Prout recognized 

him, [Diaz] was taken out of the Explorer and placed in handcuffs.” (App. at 10 

(emphasis added).) We cannot say that these factual findings by the District Court were

clearly erroneous, given Prout‟s testimony at the suppression hearing.

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 police 

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 and 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 enforcement 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. 
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(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 identified 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 less suggestive line-up or photo array).

Second, whether an identification procedure is “unnecessarily suggestive” rests 

not only on its effect, its “suggestiveness,” but also on its cause, whether there was “some 

good reason [(or motivation)] for the failure to resort to [a] less suggestive procedure[].” 

Brownlee, 454 F.3d at 137. Here, Prout‟s prompt identification of Diaz was done when

Prout‟s memory was still fresh and would have enabled the police to quickly release Diaz 

if he were not identified as the culprit and to continue 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 States 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 quick 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 police to 

resume the search for the fleeing culprit while the trail is fresh.‟” (quoting Bates v. United 

States, 405 F.2d 1104, 1106 (D.C. Cir. 1968), cert. denied, 406 U.S. 927 (1972)).
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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 rights. Prout had ample opportunity to view Diaz at the time of the 

crime, and he positively identified him shortly after the crime was committed. 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 due process rights, the District Court did not err in refusing to suppress the 

on-scene identification 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 should 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 officer 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 suspicion is “a less 

demanding standard than probable cause,” Illinois v. Wardlow, 528 U.S. 119, 123 (2000), 
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and “can be established with information that is different in quantity or content than that 

required to establish probable cause.” Alabama v. White, 496 U.S. 325, 330 (1990). In 

deciding 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 

involved 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 warrantless 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 warrantless 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 to believe it contains contraband”) (internal 

quotation marks omitted), Sergeant Conway already had, for the reasons already noted, 
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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 refused 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 custodial 

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 defendant 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 

authorities, 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) (quoting 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 equivalent of an arrest.” Appellant‟s Br. at 15. That argument fails. As 
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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 registration, 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, he 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 – convert the encounter into a custodial interrogation. Thus, no Miranda

warning was required. 

III. 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, because it is irrelevant to the issues before us, 

we make no comment whatsoever on the lawfulness or wisdom of the police officer‟s

decision to puncture the tire.