14-531

United States v. Long

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.

1 At a stated term of the United States Court of Appeals

2 for the Second Circuit, held at the Thurgood Marshall United

3 States Courthouse, 40 Foley Square, in the City of New York,

on the 5th 4 day of December, two thousand fourteen.

5

6 PRESENT: AMALYA L. KEARSE,

7 DENNIS JACOBS,

8 REENA RAGGI,

9 Circuit Judges.

10

11 - - - - - - - - - - - - - - - - - - - -X

12 UNITED STATES OF AMERICA, 

13 Appellee,

14

15 -v.- 14-531

16

17 MARCUS LONG, 

18 Defendant-Appellant.

19 - - - - - - - - - - - - - - - - - - - -X

20

21 FOR APPELLANT: DARRELL B. FIELDS, Federal

22 Defenders of New York, New York,

23 New York.

24

25 FOR APPELLEE: JUSTIN ANDERSON (Michael Gerber,

26 on the brief), for Preet

27 Bharara, United States Attorney

1
1 for the Southern District of New

2 York, New York, New York.

3

4 Appeal from a judgment of the United States District

5 Court for the Southern District of New York (Seibel, J.).

6

7 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED

8 AND DECREED that the judgment of the district court be

9 AFFIRMED. 

10

11 Appellant Marcus Long appeals from the judgment of the

12 United States District Court for the Southern District of

13 New York (Seibel, J.), convicting him of possessing a

14 firearm following a prior felony conviction. Long argues

15 that he was stopped unlawfully and that the district court

16 erred in denying his motion to suppress evidence obtained

17 following the unlawful stop. We assume the parties’

18 familiarity with the underlying facts, the procedural

19 history, and the issues presented for review. 

20

21 On appeal of a district court’s ruling on a motion to

22 suppress, we review factual findings for clear error and

23 legal conclusions de novo. United States v. Murphy, 703

24 F.3d 182, 188 (2d Cir. 2012). A district court’s factual

25 finding is clearly erroneous only if “on the entire evidence

26 [the reviewing court] is left with the definite and firm

27 conviction that a mistake has been committed”; there is no

28 clear error if “there are two permissible views of the

29 evidence.” Id. at 188-89 (citation and internal quotation

30 marks omitted). In other words, the record must be viewed

31 in the light most favorable to the prevailing party below. 

32 Id. at 189.

33

34 The record below, viewed in the light most favorable to

35 the government, establishes the following. While on

36 undercover patrol in April 2012, Police Officer William

37 Pataky saw Long get out of a stopped car, lean into the

38 car’s backseat, and make repeated circular motions with his

39 arms. Officer Pataky could not see who, if anyone, was in

40 the backseat. Long got back into the front passenger seat a

41 couple minutes later, and the car drove off. At that point,

42 Officer Pataky, having called for back-up, stopped and

43 approached the car. He questioned the driver, Janel

44 Johnson, about what Long had been doing and was told that

45 Long had been tying down the car’s trunk through the

46 backseat. Officer Pataky checked the backseat to see

47 whether anyone appeared injured; the backseat occupant,

2
1 Stephen Washington, appeared uninjured. While Officer

2 Pataky was speaking with Johnson, Officers William Quirk and

3 Albert Hughes arrived and went to the passenger side of the

4 car. Officer Quirk observed a bullet in between Long’s

5 thighs and communicated this observation to the other

6 officers. The officers then ordered all three occupants--

7 Long, Johnson, and Washington--out of the car. A pat-down

8 of Long revealed a gun in his back pocket. Long was

9 arrested and, following the arrest, made a number of

10 statements to police officers.

11

12 “[P]olice may briefly detain an individual for

13 questioning if they have a reasonable suspicion that

14 criminal activity is afoot, and may frisk him if they

15 reasonably believe he is armed and dangerous.” United

16 States v. Elmore, 482 F.3d 172, 178 (2d Cir. 2007) (citing

17 Terry v. Ohio, 392 U.S. 1 (1968)). Reasonable suspicion

18 must be supported by “specific and articulable facts which,

19 taken together with rational inferences from those facts,

20 reasonably warrant the intrusion on a citizen’s liberty

21 interest.” Elmore, 482 F.3d at 178-79 (citation, brackets,

22 and internal quotation marks omitted). “Reasonable

23 suspicion is an objective standard.” United States v.

24 Bayless, 201 F.3d 116, 133 (2d Cir. 2000).

25

26 The district court did not err, much less clearly err,

27 in ruling that Officer Pataky’s stop of the car was

28 supported by reasonable suspicion. A reasonable officer

29 observing what Officer Pataky undisputedly saw--Long’s

30 circular arm motions, consistent with punching into the

31 backseat--could reasonably suspect that Long had assaulted a

32 passenger. That Long’s conduct was in fact innocent is not

33 determinative. United States v. Arvizu, 534 U.S. 266, 277

34 (2002) (“A determination that reasonable suspicion exists,

35 however, need not rule out the possibility of innocent

36 conduct.”). 

37

38 Long’s argument that Officer Pataky did not act as

39 though he believed an assault had taken place provides no

40 basis for reversal. See Bayless, 201 F.3d at 133 (“[T]he

41 subjective intentions or motives of the officer making the

42 stop are irrelevant.”). The district court did not clearly

43 err in crediting Officer Pataky’s testimony that his delay

44 in stopping the car was motivated by concern over his safety

45 as an undercover officer. See Murphy, 703 F.3d at 189

46 (“When . . . credibility determinations are at issue, we

3
1 give particularly strong deference to a district court

2 finding.” (citation and internal quotation marks omitted)).

3

4 Long argues that, even if the initial stop was

5 supported by reasonable suspicion, the justification for the

6 stop dissipated as soon as Officer Pataky saw that no one

7 was injured in the backseat. However, this argument was not

8 raised below, and has therefore been waived. United States

9 v. Klump, 536 F.3d 113, 120 (2d Cir. 2008). Such an

10 “oversight will be excused only ‘[f]or good cause,’” id.

11 (quoting Fed. R. Crim. P. 12(e)), and no showing of good

12 cause has been made here. In any event, the argument would

13 not assist Long. A stop based on reasonable suspicion must

14 be “‘reasonably related in scope to the circumstances which

15 justified the interference in the first place’” and must not

16 continue once the basis for the stop has been dispelled. 

17 United States v. Babwah, 972 F.2d 30, 33 (2d Cir. 1992)

18 (quoting Terry, 392 U.S. at 20). The record establishes

19 that: (1) Officers Quirk and Hughes arrived within one

20 minute of the initial stop, while Officer Pataky was still

21 questioning Johnson about what Long had been doing, and (2)

22 upon arrival, Officer Quirk directed his flashlight at the

23 passenger seat and saw the bullet. Thus, at the point when

24 Officer Quirk observed the bullet, Officer Pataky still had

25 not ruled out the basis for the initial stop. There was

26 nothing unreasonable about the duration of the stop

27 preceding Officer Quirk’s observation. Cf. Babwah, 972 F.2d

28 at 33 (finding forty-minute detention unreasonable when

29 initial search dispelled basis for stop).

30

31 For the foregoing reasons, and finding no merit in

32 Long’s other arguments, we hereby AFFIRM the judgment of the

33 district court.

34

35 FOR THE COURT:

36 CATHERINE O’HAGAN WOLFE, CLERK

37

38

4