14-531 United States v. Long



### UNITED STATES COURT OF APPEALS **FOR THE SECOND CIRCUIT**



## SUMMARY ORDER

**R ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT**  **. C**  **ITATION TO A SUMMARY ORDER FILED**
**ON OR AFTER J** **ANUARY 1,**  **2007, IS PERMITTED AND IS GOVERNED BY**  **F EDERAL**  **R ULE OF**  **A PPELLATE**  **P ROCEDURE**  **32.1 AND THIS COURT**  **’ S**  **L OCAL**  **R ULE**  **32.1.1. W**  **HEN CITING A SUMMARY ORDER IN A**
**DOCUMENT FILED WITH THIS COURT ,**  **A PARTY MUST CITE EITHER THE F** **EDERAL A** **PPENDIX 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** 1 **for the Second Circuit, held at the Thurgood Marshall United** 2 **States Courthouse, 40 Foley Square, in the City of New York,** 3 **on the 5 th** **day of December, two thousand fourteen.** 4 5 **PRESENT: AMALYA L. KEARSE,** 6 **DENNIS JACOBS,** 7 **REENA RAGGI,** 8 **Circuit Judges**

**.** 9 10
- - - - - - - - - - - - - - - - - - - -X 11 **UNITED STATES OF AMERICA,** 12 **Appellee ,**  13 14 **-v.- 14-531** 15 16 **MARCUS LONG,** 17 **Defendant-Appellant**

**.** 18
- - - - - - - - - - - - - - - - - - - -X 19 20 **FOR APPELLANT:** DARRELL B. FIELDS, Federal 21 Defenders of New York, New York, 22 New York. 23 24 **FOR APPELLEE:** JUSTIN ANDERSON (Michael Gerber, 25 on the brief ), forPreet 26 Bharara, United States Attorney 27

1for the Southern District of New 1 York, New York, New York. 2 3 Appeal from a judgment of the United States District 4 Court for the Southern District of New York (Seibel, J. ). 5 6 **UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED** 7 **AND DECREED**that the judgment of the district court be 8
**AFFIRMED**

. 9 10 Appellant Marcus Long appeals from the judgment of the 11 United States District Court for the Southern District of 12 New York (Seibel, J. ), convicting him of possessing a 13 firearm following a prior felony conviction. Long argues 14 that he was stopped unlawfully and that the district court 15 erred in denying his motion to suppress evidence obtained 16 following the unlawful stop. We assume the parties’ 17 familiarity with the underlying facts, the procedural 18 history, and the issues presented for review. 19 20 On appeal of a district court’s ruling on a motion to 21 suppress, we review factual findings for clear error and 22 legal conclusions de novo. United States v. Murphy , 703 23 F.3d 182, 188 (2d Cir. 2012). A district court’s factual 24 finding is clearly erroneous only if “on the entire evidence 25 [the reviewing court] is left with the definite and firm 26 conviction that a mistake has been committed”; there is no 27 clear error if “there are two permissible views of the 28 evidence.” Id. at 188-89 (citation and internal quotation 29 marks omitted). In other words, the record must be viewed 30 in the light most favorable to the prevailing party below. 31 Id. at 189. 32 33 The record below, viewed in the light most favorable to 34 the government, establishes the following. While on 35 undercover patrol in April 2012, Police Officer William 36 Pataky saw Long get out of a stopped car, lean into the 37 car’s backseat, and make repeated circular motions with his 38 arms. Officer Pataky could not see who, if anyone, was in 39 the backseat. Long got back into the front passenger seat a 40 couple minutes later, and the car drove off. At that point, 41 Officer Pataky, having called for back-up, stopped and 42 approached the car. He questioned the driver, Janel 43 Johnson, about what Long had been doing and was told that 44 Long had been tying down the car’s trunk through the 45 backseat. Officer Pataky checked the backseat to see 46 whether anyone appeared injured; the backseat occupant, 47

2Stephen Washington, appeared uninjured. While Officer 1 Pataky was speaking with Johnson, Officers William Quirk and 2 Albert Hughes arrived and went to the passenger side of the 3 car. Officer Quirk observed a bullet in between Long’s 4 thighs and communicated this observation to the other 5 officers. The officers then ordered all three occupants-- 6 Long, Johnson, and Washington--out of the car. A pat-down 7 of Long revealed a gun in his back pocket. Long was 8 arrested and, following the arrest, made a number of 9 statements to police officers. 10 11 “[P]olice may briefly detain an individual for 12 questioning if they have a reasonable suspicion that 13 criminal activity is afoot, and may frisk him if they 14 reasonably believe he is armed and dangerous.” United 15 States v. Elmore , 482 F.3d 172, 178 (2d Cir. 2007) (citing 16 Terry v. Ohio , 392 U.S. 1 (1968)). Reasonable suspicion 17 must be supported by “specific and articulable facts which, 18 taken together with rational inferences from those facts, 19 reasonably warrant the intrusion on a citizen’s liberty 20 interest.” Elmore , 482 F.3d at 178-79 (citation, brackets, 21 and internal quotation marks omitted). “Reasonable 22 suspicion is an objective standard.” United States v. 23 Bayless , 201 F.3d 116, 133 (2d Cir. 2000). 24 25 The district court did not err, much less clearly err, 26 in ruling that Officer Pataky’s stop of the car was 27 supported by reasonable suspicion. A reasonable officer 28 observing what Officer Pataky undisputedly saw--Long’s 29 circular arm motions, consistent with punching into the 30 backseat--could reasonably suspect that Long had assaulted a 31 passenger. That Long’s conduct was in fact innocent is not 32 determinative. United States v. Arvizu , 534 U.S. 266, 277 33 (2002) (“A determination that reasonable suspicion exists, 34 however, need not rule out the possibility of innocent 35 conduct.”). 36 37 Long’s argument that Officer Pataky did not act as 38 though he believed an assault had taken place provides no 39 basis for reversal. SeeBayless , 201 F.3d at 133 (“[T]he 40 subjective intentions or motives of the officer making the 41 stop are irrelevant.”). The district court did not clearly 42 err in crediting Officer Pataky’s testimony that his delay 43 in stopping the car was motivated by concern over his safety 44 as an undercover officer. SeeMurphy , 703 F.3d at 189 45 (“When . . . credibility determinations are at issue, we 46

3give particularly strong deference to a district court 1 finding.” (citation and internal quotation marks omitted)). 2 3 Long argues that, even if the initial stop was 4 supported by reasonable suspicion, the justification for the 5 stop dissipated as soon as Officer Pataky saw that no one 6 was injured in the backseat. However, this argument was not 7 raised below, and has therefore been waived. United States 8 v. Klump , 536 F.3d 113, 120 (2d Cir. 2008). Such an 9 “oversight will be excused only ‘[f]or good cause,’” id. 10 (quoting Fed. R. Crim. P. 12(e)), and no showing of good 11 cause has been made here. In any event, the argument would 12 not assist Long. A stop based on reasonable suspicion must 13 be “‘reasonably related in scope to the circumstances which 14 justified the interference in the first place’” and must not 15 continue once the basis for the stop has been dispelled. 16 United States v. Babwah , 972 F.2d 30, 33 (2d Cir. 1992) 17 (quoting Terry , 392 U.S. at 20). The record establishes 18 that: (1) Officers Quirk and Hughes arrived within one 19 minute of the initial stop, while Officer Pataky was still 20 questioning Johnson about what Long had been doing, and (2) 21 upon arrival, Officer Quirk directed his flashlight at the 22 passenger seat and saw the bullet. Thus, at the point when 23 Officer Quirk observed the bullet, Officer Pataky still had 24 not ruled out the basis for the initial stop. There was 25 nothing unreasonable about the duration of the stop 26 preceding Officer Quirk’s observation. Cf. Babwah , 972 F.2d 27 at 33 (finding forty-minute detention unreasonable when 28 initial search dispelled basis for stop). 29 30 For the foregoing reasons, and finding no merit in 31 Long’s other arguments, we hereby **AFFIRM** the judgment of the 32 district court. 33 34 FOR THE COURT: 35 CATHERINE O’HAGAN WOLFE, CLERK 36 37 38

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