US v. Tiru-Plaza

Filing

OPINION issued by Juan R. Torruella, Appellate Judge; Timothy Belcher Dyk, Appellate Judge and William J. Kayatta , Jr., Appellate Judge. Published. [13-1888]

Case: 13-1888

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Entry ID: 5851376

United States Court of Appeals
For the First Circuit

No. 13-1888
UNITED STATES OF AMERICA,
Appellee,
v.
JOSÉ TIRU-PLAZA,
Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jay A. García-Gregory, U.S. District Judge]

Before
Torruella, Dyk,* and Kayatta,
Circuit Judges.

K. Hayne Barnwell, with whom Rebecca A. Jacobstein, Office of
Appellate Advocacy, was on brief, for appellant.
John A. Mathews II, Assistant United States Attorney, with
whom Rosa Emilia Rodríguez-Vélez, United States Attorney, and
Nelson Pérez-Sosa, Assistant United States Attorney, Chief,
Appellate Division, were on brief, for appellee.

September 9, 2014

*

Of the Federal Circuit, sitting by designation.

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TORRUELLA, Circuit Judge. Defendant-Appellant José TiruPlaza ("Tiru") appeals from the district court's denial of his
motion to suppress the firearm discovered when a police officer
pat-frisked him during a traffic stop.
After stopping a car -- in which Tiru was a passenger -for a traffic infraction, officers from the Puerto Rico Police
Department, evidently suspecting that the car might have been
stolen, ordered the driver to exit the vehicle and open the hood to
permit inspection of the vehicle identification number (the "VIN")
stamped on the engine block.

When the driver complied, the

movement revealed a gun tucked into his waistband.

The officers

then detained the driver, ordered Tiru to exit the vehicle, and
pat-frisked him, revealing a firearm hidden in Tiru's waistband.
Subsequently, Tiru was placed into custody and charged with being
a felon in possession of a firearm.
as the fruit of an illegal search.
Tiru's motion, and he now appeals.

He sought to suppress the gun
The district court denied
Concluding that the officers

had an objectively reasonable basis to frisk Tiru, we affirm.
I.
A.

Background

The Traffic Stop and Frisks
We present the facts as found in the evidentiary hearing

and in the matter "most compatible" with the district court's
ruling, consistent with record support.

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See United States v.

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McGregor, 650 F.3d 813, 816 (1st Cir. 2011) (citing United States
v. Dancy, 640 F.3d 455, 457-58, 460-61 (1st Cir. 2011)).1
On March 10, 2012, at around 11:00 p.m., Officers José
Casiano-García

("Officer

Casiano")

and

Edwin

Martínez-Vargas

("Officer Martínez") spotted a Mitsubishi Lancer driving down a
road in Yauco, Puerto Rico. The car's driver, Jenson Morales-Ramos
("Morales"), was accompanied by Tiru and two young women.

The

officers -- seeing the metal glint of a disengaged buckle over
Morales's shoulder -- concluded that the car's occupants were not
wearing seat belts.
When the officers turned on their lights to signal that
the car should pull over, Morales failed to stop immediately.2
After traveling only a short distance, and without speeding up or
taking evasive action, however, he obeyed the officers' command.
After approaching the vehicle, Officer Casiano asked Morales for
his driver's license and registration.

Morales could not provide

a driver's license, and he handed the officer a photocopy of the

1

Though Tiru disputes some of these facts, "[w]e summarize the
facts as found by the district court in its denial of [the
defendant's] motion to suppress, which are consistent with record
support and are not clearly erroneous," and "[w]e supplement that
description with testimony from the record." Dancy, 640 F.3d at
458 (internal citations omitted).
2

The highway did not have a shoulder, and Morales continued to
drive until the first available exit.
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car's original registration3 on which the VIN could not be made
out.

The illegible registration and failure to provide a license

gave rise to some suspicion that the car may have been stolen.4

On

that basis, Officer Casiano asked Morales to exit the vehicle and
open the hood for purposes of inspecting the VIN on the car's
engine.

When Morales obliged, the resulting movement caused his

shirt to lift up and revealed a green pistol grip in his waistband.
Seeing

the

gun,

Officer

Casiano

yelled

"arma"5

and

ordered Morales to place his hands on the hood of the vehicle.
Having been alerted to the presence of a firearm by his partner,
Officer Martínez ordered Tiru to exit the vehicle and submit to a
pat-frisk.

When Officer Martínez ran his hands along Tiru's waist

he felt a hard object that he believed could be a weapon, inserted
two fingers under his waistband, and extracted a black pistol.
Tiru was then taken into police custody.

After the arrival of two

3

Morales had borrowed the vehicle while his own car was being
repaired. The car's owner, who ran a rental business, explained
that he always keeps original registrations on file in his office
and places copies in his rental vehicles.
4

Although the officers testified that their suspicions were
further raised because the VIN on the car's doorjamb had been
removed, this testimony was not credited by the district court.
Tiru introduced photos, taken after his arrest, showing an intact,
17-character VIN on a painted white surface.
5

In English, "weapon."
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more police officers, the female passengers were also detained,
although they were later released without charges.6
B.

Denial of Tiru's Motion to Suppress His Firearm
Tiru was indicted for being a felon in possession of a

firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2).

He

filed a motion to suppress the firearm evidence, principally
arguing that: (1) the officers lacked any reasonable suspicion to
stop the vehicle or to order Morales to open the hood, requiring
suppression of the gun as fruit of an unlawful search; and (2) even
if the initial stop and subsequent frisk of Morales were legal, the
officers lacked any reasonable suspicion that Tiru was dangerous or
engaged in criminal activity, making his pat-frisk unlawful.
The case was referred to a magistrate judge, who held an
evidentiary hearing on October 29, 2012.

The magistrate judge's

report and recommendation concluded that the initial traffic stop
was lawful, and that Tiru lacked standing to challenge the legality

6

One of the car's female passengers offered testimony for the
defense contradicting the officers' version of events in certain
respects. She stated that after the officers approached the car
and asked for Morales's license and registration, they asked
Morales if he "liv[ed] out there" -- presumably referencing a
nearby public housing project. The officers then pulled out their
weapons, ordered all four occupants from the car, and frisked
Morales. An officer "st[]uck his hand down [Morales's] pants, and
he pulled out a gun, and he started shouting "[g]un." Another two
officers arrived in a separate patrol car, and "they searched
[Tiru]."
Thus, the testimony offered by the defense, though
differing in some respects from the government's narrative, was
consistent with the government's evidence that Tiru was pat-frisked
only after the officers discovered Morales's firearm.
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of the officer's attempt to search under the vehicle's hood.
However, the magistrate judge ultimately found that, under a
totality-of-the-circumstances

test,

there

was

no

objectively

reasonable basis to suspect that Tiru was armed or dangerous.

The

report therefore recommended suppression.
The district court disagreed with the magistrate judge's
conclusion as to the totality of the circumstances surrounding
Tiru's pat-frisk. The district court found that certain "facts are
undisputed in this case": the young age7 and number of occupants in
the car (four); the late hour (11:00 p.m.); Morales's failure to
immediately pull over and stop the car when prompted to do so by
the police officers; and the discovery of Morales's gun.

On the

basis of these factors, the district court found an objectively
reasonable basis for the officer's frisk of Tiru.

The court thus

denied the motion to suppress.
Tiru pleaded guilty to being a felon in possession of a
firearm and was sentenced to thirty-three months' imprisonment and
a

supervised-release

term

of

three

years.

Nevertheless,

he

reserved the right to seek appellate review of the district court's
decision to deny suppression.

He now exercises that right.

7

Officer Casiano testified that Morales, the driver, was "a young
man," and that one of the female passengers was "a young lady."
Officer Martínez also testified that Morales was "[a]nother young
man."
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II. Discussion
On an appeal from a denial of a motion to suppress, our
review of the district court's decision is bifurcated.

First,

factual conclusions and credibility determinations are reviewed
only for clear error.
(1st

Cir.

2011).

significant

United States v. Camacho, 661 F.3d 718, 723
Under

deference

to

this
the

clear-error

district

review,

court,

we

grant

overturning

its

findings only if, after a full review of the record, we possess "a
definite and firm conviction" that a mistake was made.

McGregor,

650 F.3d at 820 (citing United States v. Woodbury, 511 F.3d 93, 96
(1st Cir. 2007)); see also United States v. Cruz-Jiménez, 894 F.2d
1,

7

(1st

Cir.

1990)

interpretations of the

("Where

there

are

two

competing

evidence, the district court's choice of

one of them cannot be clearly erroneous.").
Second, in contrast, we review legal conclusions -including

the

district

court's

probable

cause

and

reasonable

suspicion determinations, as well as its ultimate decision to grant
or deny the motion to suppress -- de novo.

Camacho, 661 F.3 at

723; United States v. Crespo-Ríos, 645 F.3d 37, 41 (1st Cir. 2011).
In

assessing

these

legal

conclusions,

however,

we

also

give

appropriate weight to the inferences drawn by the district court
and the on-scene officers, recognizing that they possess the
advantage of immediacy and familiarity with the witnesses and
events. See United States v. Dapolito, 713 F.3d 141, 147 (1st Cir.

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2013) (citing Ornelas v. United States, 517 U.S. 690, 698-99
(1996)); United States v. Smith, 423 F.3d 25, 35 (1st Cir. 2005)
("De novo review in this particular context is not unmindful of the
district court's reasoning (nor the reasoning of the officers)
. . . .").
A.

The Fundamentals: the Fourth Amendment and Terry Stops
The Fourth Amendment protects an individual's right to be

free from unreasonable searches and seizures by the government.
See U.S. Const. amend. IV; see, e.g., Terry v. Ohio, 392 U.S. 1, 9
(1968) (quoting Elkins v. United States, 364 U.S. 206, 222 (1960)).
Warrantless searches are per se unreasonable, unless they fall
within a well-defined and specifically enumerated exception to the
warrant requirement.

See Coolidge v. New Hampshire, 403 U.S. 443,

454-55 (1971); see also Camacho, 661 F.3d at 724 (citing Arizona v.
Gant, 556 U.S. 332, 338 (2009)). The Fourth Amendment's protection
is ensured by, among other means, the exclusionary rule, which in
certain circumstances requires suppression of evidence that is the
product of an unlawful search or seizure.

See, e.g., Terry, 392

U.S. at 12; Camacho, 661 F.3d at 724.
Included in the Fourth Amendment's protective ambit are
Terry stops -- those "brief investigatory stops of persons or
vehicles that fall short of traditional arrest."

United States v.

Arvizu, 534 U.S. 266, 273 (2002); see also Camacho, 661 F.3d at 724
("The protections of the Fourth Amendment apply not only to

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traditional arrests, but also to those brief investigatory stops
generally known as Terry stops."); United States v. Chhien, 266
F.3d

1,

5

(1st

Cir.

2001)

(recognizing

that

a

traffic

stop

constitutes a Fourth Amendment seizure of both the vehicle and its
occupants (citing Delaware v. Prouse, 440 U.S. 648, 653 (1979)).
Such stops are reasonable, and consequently do not offend the
Fourth Amendment, only where officers have "a reasonable suspicion
supported by articulable facts that criminal activity 'may be
afoot.'"

United States v. Sokolow, 490 U.S. 1, 7 (1989) (quoting

Terry, 392 U.S. at 30)); Camacho, 661 F.3d at 724-25 (describing
the reasonable suspicion required to validate a Terry stop).
During a valid Terry stop, a police officer may perform pat-frisks
or search a car's interior for weapons if the officer "has some
articulable, reasonable suspicion that the persons stopped may be
dangerous."

McGregor, 650 F.3d at 820; see also United States v.

Ruidíaz, 529 F.3d 25, 32-33 (1st Cir. 2008) (holding that, during
a traffic stop and when an officer has concern for his own safety,
the officer may "order a passenger out of the car as a security
measure" and may perform a protective pat-down once he "has formed
a reasonable belief that a detained person may be armed and
dangerous").
Reasonable suspicion is a less exacting requirement than
probable cause, but requires "something more than an inchoate and
unparticularized suspicion or 'hunch.'"

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(quoting Terry, 392 U.S. at 27) (internal quotation marks omitted);
see also Chhien, 266 F.3d at 6 (same).

In determining whether

reasonable suspicion existed, we apply an objective standard,
rather than assessing the subjective intent of an individual
officer,

and

we

appropriately

surrounding circumstances."
This

consider

the

"totality

of

the

Ruidíaz, 529 F.3d at 29.

reasonableness

inquiry

deals

with

"degrees

of

likelihood, not . . . certainties or near certainties," United
States v. Arnott, No. 13-1881, 2014 WL 2959288, at *3 (1st Cir.
July

2,

2014),

and

ultimately

we

must

make

a

"practical,

commonsense judgment" based on the intricacies of each case.
Chhien, 266 F.3d at 6. In so doing, we appropriately grant respect
to the ability of trained and experienced police officers8 to draw
from the attendant circumstances inferences that would "elude an
untrained person."

United States v. Cortez, 449 U.S. 411, 418

(1981); see also Ruidíaz, 529 F.3d at 29 (same).

We also seek to

"balance 'the nature and quality of the intrusion on personal
security against the importance of the governmental interests
alleged to justify the intrusion.'" Chhien, 266 F.3d at 6 (quoting
United States v. Sowers, 136 F.3d 24, 27 (1st Cir. 1998)).

8

At the suppression hearing, Officer Casiano testified that he
had worked as a police officer for eighteen years; Officer Martínez
testified that he had worked for the Puerto Rico Police Department
for approximately seventeen years and six months.
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Arguing that evidence of his firearm should have been
suppressed, Tiru principally levies three interrelated arguments.
First,

Tiru

asserts

that

the

police

illegally

extended

his

detention when they ordered Morales, the driver, to open the hood
of the car.

Second, he maintains that the gun was discovered when

the police searched him pursuant to an unlawful arrest.

Third, he

argues that the police officers were not justified in pat-frisking
him pursuant to a valid Terry stop because none of the factors that
the district court relied upon were particular to him.

We address

each argument in turn.
B.

Did the Police Illegally Extend Tiru's Detention by Ordering
Morales to Open the Hood of the Car?
Tiru argues that the police officers unlawfully extended

his detention during the traffic stop by searching under the hood.9
See, e.g., United States v. Acosta-Colón, 157 F.3d 9, 14 (1st Cir.
1998) ("Terry was intended to carve out an exception to the
probable cause requirement only for relatively brief, non-arrest
detentions; plainly, a seizure that is, de facto, tantamount to an
arrest cannot fit within that exception.").

9

In assessing whether

On appeal, Tiru does not dispute the district court's
determination that he lacked standing to challenge any search of
Morales's person or of the car itself.
See, e.g., Rakas v.
Illinois, 439 U.S. 128, 148-49 (1978) (establishing that a
vehicle's passenger generally does not have an expectation of
privacy over areas like a car's glove compartment, trunk, or underseat area).
Instead, Tiru argues that the police illegally
extended the traffic stop as to Tiru himself when they asked
Morales to open the hood of the car.
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the duration of a Terry stop is so long that it becomes unlawful,
there is no bright-line rule.

United States v. Pontoo, 666 F.3d

20, 30 (1st Cir. 2011) (citing Florida v. Royer, 460 U.S. 491, 50607 (1983)).

Rather, we apply a totality-of-the-circumstances

approach, considering, among other things, "the length of the
detention, the restrictions placed on an individual's personal
movement, the force (if any) that was exerted, the information
conveyed to the detainee, and the severity of the intrusion."
Sowers, 136 F.3d at 28.
Morales failed to provide the police officers with a
driver's license and a legible car registration.10

Under these

circumstances, it was reasonable for the officers to suspect that
the car might have been stolen.

See Terry, 392 U.S. at 27

(allowing officers to rely on "reasonable inferences . . . draw[n]
from the facts in light of [their] experience").

Based on that

suspicion, Officer Casiano asked Morales to get out of the car and
open the hood, in order to check the VIN on the car's engine and
compare it with the VIN number on the dashboard. This would enable
the officer to determine whether there was an inconsistency between
the numbers, indicating a stolen car, or to check the VIN numbers

10

The district court did not make an express determination
regarding whether the registration was in fact illegible, but we
view the record in light most favorable to the court's ruling on
suppression. See Arnott, 2014 WL 2959288, at *4 ("Although the
district court made no express findings on this point, we must view
the record and the reasonable inferences extractable therefrom in
the light most favorable to the court's suppression ruling.").
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with

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a

stolen

vehicles

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database.

The

officers'

Entry ID: 5851376

suspicion

eventually led them to send the car to the police department's
Stolen Vehicles Division for inspection.
Tiru's argument focuses on the duration of the stop; he
suggests that the time it took to have Morales open the hood
unreasonably elongated the initial Terry stop.11

We cannot agree.

"The appropriate length of a Terry stop is gauged by whether the
officer diligently pursued a reasonable investigative approach
calculated to ensure officer safety and, at the same time, confirm
or dispel his suspicions." Pontoo, 666 F.3d at 31. Here, although
nothing in the record describes the precise length of time it took
for Morales to exit the vehicle, approach its front, and open the
hood, no reasonable reading of the facts could allow us to conclude
that the duration of time in which these events occurred was
anything but brief. Cf. United States v. Owens, 167 F.3d 739, 74849

(1st

Cir.

1999)

(finding

a

fifty-five-minute

Terry

stop

reasonable under the circumstances).
Moreover, whatever its length, this sequence of events
occurred immediately after the officers began to suspect that the
car might be stolen, and it was a "reasonable investigative
approach" intended to dispel that suspicion. Flowers v. Fiore, 359

11

We note that the other relevant factors, such as the degree of
police intervention, cut strongly against Tiru's claim. During the
time that Morales exited the car and sought to open the vehicle's
hood, Tiru remained in the back seat and was not subject to any
officer intervention.
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F.3d 24, 31 (1st Cir. 2004) (holding the duration of a stop to be
reasonable where the officers diligently sought to dispel their
suspicions); cf. United States v. Place, 462 U.S. 696, 703 (1983)
(balancing the intrusiveness of a search against the governmental
interest served); United States v. Ware, 457 F.2d 828, 829 (7th
Cir. 1972) (validating a search under the hood "where the officer
has a legitimate reason to identify the automobile"); United States
v. Dadurian, 450 F.2d 22, 25 (1st Cir. 1971) (finding a "reasonable
ground" to inspect a VIN under an engine based on a discrepancy
between the vehicle's two visible VINs).

Therefore, this argument

necessarily fails, and we find that the officers did not unlawfully
extend Tiru's detention.
C.

Was Tiru Searched Pursuant to an Unlawful Arrest?
Tiru next argues that the pat-frisk conducted by Officer

Martínez was not a Terry frisk at all, but rather was a search
incident to an unlawful arrest.

Citing testimony from Officer

Martínez, Tiru claims that after discovering Morales's gun the
officers immediately placed all of the vehicle's occupants under
arrest, despite the absence of probable cause that he or the female
passengers had engaged in a crime.12

12

Tiru bases this argument

This argument was not directly raised before the district court,
which is a proper grounds for waiver. See, e.g., United States v.
Oquendo-Rivas, 750 F.3d 12, 16-17 (1st Cir. 2014). Because the
government did not raise a claim of waiver, however, we skip over
any possible waiver argument and we treat the claim on its merits.
See Knight v. United States, 37 F.3d 769, 772 n.2 (1st Cir. 1994)
("[A]s the government has not objected on this ground, and as the
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entirely on Officer Martínez's testimony in response to being asked
why he frisked Tiru; Martínez replied that after his partner
discovered a firearm on Morales "everyone in the vehicle [was]
placed under arrest."

Tiru's argument on this point fails to

persuade.
Whatever the intended meaning of Officer Martínez's
statement, the facts do not support a claim that Tiru was placed
under arrest prior to being frisked.

After the discovery of

Morales's firearm, the progression of events -- as explicitly found
by the district court -- was as follows: Tiru was asked to step out
of the vehicle, while the two female passengers remained inside;
Officer Martínez pat-frisked Tiru; the frisk revealed a weapon; and
only then was Tiru handcuffed and detained.

See Camacho, 661 F.3d

at 723 (recognizing that factual findings related to a motion to
suppress are reviewed by our court only for clear error).

These

facts do not support the claim that, prior to the frisk of Tiru, he
was placed under formal or even de facto arrest by Officer Casiano.
We have held that there is no "scientifically precise
formula" demarcating the line between investigatory Terry stops and
a de facto arrest.
Cir. 1994).

United States v. Zapata, 18 F.3d 971, 975 (1st

Instead, we have said that "a de facto arrest occurs

when 'a reasonable man in the suspect's position would have

claim fails in any event, we overlook that it was not raised
below.").
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understood his situation . . . to be tantamount to being under
arrest.'"

United States v. Jones, 700 F.3d 615, 624 (1st Cir.

2012) (quoting Zapata, 18 F.3d at 975).
facts here do not meet that standard.

As outlined above, the

Prior to the discovery of

Morales's gun, Tiru was seated in the back seat of the car during
a traffic stop for a traffic violation -- we do not think that a
reasonable person in Tiru's position would have considered himself
to be under arrest at that time.

See id.

Nor do we think that, in

the brief instant between the discovery of Morales's gun and the
pat-frisk of Tiru, a reasonable person in Tiru's shoes would have
considered himself to be under arrest. See id.
to

examine

the

validity

of

the

initial

Therefore, we turn

Terry

stop

and

the

reasonableness of the officers' actions thereafter.
D.

The Terry Stop and Subsequent Pat-Frisk of Tiru
Our review of an investigatory Terry stop proceeds in two

steps.

First, we assess whether the stop was "justified [by

reasonable suspicion] at its inception."

Pontoo, 666 F.3d at 26.

Second, we ask whether the officers' actions during the stop bear
a

reasonable

relationship

justifying the stop.
(1st Cir. 2006).

to

the

circumstances

originally

United States v. Henderson, 463 F.3d 27, 45
Within this second step, we recognize that

information gained subsequent to the initial stop may provide a
"'basis

for

expanding

[the

officers']

investigation.'"

Id.;

Chhien, 266 F.3d at 6 ("[W]hile an officer's actions must bear some

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relation to the purpose of the original stop, he may shift his
focus and increase the scope of his investigation by degrees if his
suspicions mount during the course of the detention."); Sowers, 136
F.3d at 27 (requiring that "the actions undertaken by the officer
following the stop [be] reasonably responsive to the circumstances
justifying the stop in the first place, as augmented by information
gleaned by the officer during the stop").
1.

Legitimacy of the Initial Terry Stop

Although he disputed this fact in his motion to suppress,
Tiru's appeal does not challenge the district court's factual
determination that the car's occupants were not wearing their seat
belts.

We agree with the district court's determination that this

traffic infraction was sufficient to justify the initial stop. See
Whren v. United States, 517 U.S. 806, 819 (1996) ("[T]he officers
had probable cause to believe that petitioners had violated the
traffic code.

That rendered the stop reasonable under the Fourth

Amendment . . . ."); McGregor, 650 F.3d at 820 ("An officer can
stop a car if he sees a driver commit a traffic offense, even if
the stop is just an excuse to investigate something else.");
Chhien, 266 F.3d at 6 ("[T]he appellant does not question the
legitimacy of the initial detention: [the officer] clearly had
cause to stop him for tailgating and operating an automobile
equipped with blue-tinted lights.").

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Reasonableness of the Officer's Subsequent Actions

Resolution of this case rests on determining whether the
officers' actions subsequent to the initial stop, which culminated
in Tiru's pat-frisk, were a reasonable investigatory response
intended to dispel suspicions related to the evolving circumstances
of that stop.

See Ruidíaz, 529 F.3d at 29 (disavowing a test that

treats Terry stops like a "snapshot of events frozen in time and
place"); Chhien, 266 F.3d at 6 (allowing for officers to respond
reasonably to the "emerging tableau" of facts observed after an
initial stop).
To begin, it is clear that the officers' request that
Morales exit the vehicle was permissible.

Pennsylvania v. Mimms,

434 U.S. 106, 111 n.6 (1977) ("We hold only that once a motor
vehicle has been lawfully detained for a traffic violation, the
police officers may order the driver to get out of the vehicle
without

violating

the

Fourth

Amendment's

proscription

of

unreasonable searches and seizures."); United States v. Coplin, 463
F.3d 96, 102 (1st Cir. 2006) ("[A] police officer may, as a matter
of course, require the driver of a car lawfully stopped for a
suspected traffic violation to step out of his vehicle." (citation
omitted)).
Similarly, the officers' request for Tiru to exit the
vehicle was also permissible. Given the scope of Tiru's appeal, we
appropriately focus on the events occurring subsequent to the

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officers' request to view the engine.

Entry ID: 5851376

When Morales attempted to

open the vehicle's hood, Officer Casiano noticed that Morales had
a visible gun in his waistband.

In light of this discovery,

Officer

Tiru

Martínez's

request

that

exit

the

vehicle

was

reasonable and was responsive to the needs of officer safety.
Ruidíaz, 529 F.3d at 32 ("When a Terry stop is effected in
connection with a traffic violation and an officer's concern for
his own safety is implicated, it is within the officer's authority
to order a passenger out of the car as a security measure."); see
also Maryland v. Wilson, 519 U.S. 408, 414-15 (1997) (holding that
"an officer making a traffic stop may order passengers to get out
of the car pending completion of the stop," because "the motivation
of a passenger to employ violence to prevent apprehension of such
a crime is every bit as great as that of the driver" and that
"danger to an officer from a traffic stop is likely to be greater
when there are passengers in addition to the driver in the stopped
car");

McGregor,

650

F.3d

at

820

(stating

that

an

officer

conducting a traffic stop can "order the occupants out of the
auto").

Indeed, Officer Martínez testified that when Officer

Casiano yelled, "weapon," Martínez "immediately feared for my life
and for the life of my fellow officer, and for the lives of the
people in the car."
Tiru

and

the

government

disagree

about

whether

the

subsequent pat-frisk was undergirded by a reasonable suspicion that

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Tiru was dangerous.

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See McGregor, 650 F.3d at 820 (allowing for

officers to pat-frisk a car's occupants after a traffic stop when
there is an "articulable, reasonable suspicion that the persons
stopped may be dangerous"); Pontoo, 666 F.3d at 30 ("In a world
fraught with peril, officer safety must have a place at the
forefront of police work.

It follows logically that a pat-frisk

may accompany an investigatory stop whenever an officer has reason
to believe that the suspect is armed and dangerous." (internal
quotation marks and citation omitted)).
Tiru asserts that the district court's denial of his
motion to suppress relied only on general or environmental factors
-- for example, his youth and the time of night -- that lacked all
bearing to Tiru specifically.

In Tiru's estimation, reliance

solely on these facts is an insufficient ground for a search, and
it reveals a telling absence of any reasonable suspicion that he
was

dangerous.

Tiru

claims

that

his

frisk

was

necessarily

unreasonable, as any suspicion was based merely on his proximity to
Morales.

In support of this position, Tiru asks us to reject what

he deems to be a "theory of guilt by association," relying on the
Supreme Court's decision in Ybarra v. Illinois, 444 U.S. 85 (1979),
for the proposition that "a person's mere propinquity to others
independently suspected of criminal activity does not, without
more, give rise to probable cause to search that person."
91.

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Ybarra, however, is readily distinguished from the case
at bar. In Ybarra, the police officers "knew nothing in particular
about" the defendant prior to pat-frisking him, "except that he was
present, along with several other customers, in a public tavern at
a time when the police had reason to believe that the bartender
would have heroin for sale."

Id.

No firearms or other weapons

were found prior to the frisk of Ybarra.

Id. at 87-89.

Other than

their mere presence in the same bar, there were no facts connecting
Ybarra to the bartender suspected of selling heroin.

Id.

Under

those circumstances, the Supreme Court held that "[t]he initial
frisk of [the defendant] was simply not supported by a reasonable
belief that he was armed and presently dangerous, a belief which
this Court has invariably held must form the predicate to a patdown
of a person for weapons."
Here,

we

are

Id. at 92-93.
confronted

with

markedly

different

circumstances than those presented in Ybarra. Viewing the facts of
the instant case in their totality, we are unconvinced by Tiru's
argument.

We recapitulate briefly: during the night, two officers

found themselves having stopped four individuals in a car that the
officers had some reason to believe might be stolen.

The officers

then discovered that the driver had a firearm concealed in his
waistband.

Objectively, this situation gives rise to a reasonable

concern for officer safety -- the officers were outnumbered, in
relative darkness, and could reasonably believe that they were

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dealing with the volatile situation of a possible car theft.

See

Wilson, 519 U.S. at 414 ("It would seem that the possibility of a
violent encounter stems not from the ordinary reaction of a
motorist stopped for a speeding violation, but from the fact that
evidence of a more serious crime might be uncovered during the
stop.

And the motivation of a passenger to employ violence to

prevent apprehension of such a crime is every bit as great as that
of the driver."); see also United States v. Brake, 666 F.3d 800,
805-06 (1st Cir. 2011) ("We emphasize once again the importance of
police officer safety during a Terry stop . . . .").
Certainly, facts like the late hour (11:00 p.m.) and
number of passengers in the car (four), when each is taken alone,
create

no

suspicion

of

criminal

activity.

But

a

number

of

innocuous facts viewed together may form the basis of reasonable
suspicion.

See United States v. Wright, 582 F.3d 199, 212 (1st

Cir. 2009); Ruidíaz, 529 F.3d at 30.

And although Morales's

inability to provide the officers with a driver's license and a
legible

car

registration

could

admit

of

several

potentially

innocent explanations, these facts might also reasonably give rise
to a suspicion of criminal activity.

See Terry, 392 U.S. at 27

(permitting police officers to draw "reasonable inferences" based
on their experience); Arnott, 2014 WL 2959288, at *3 (stating that
"reasonable suspicion . . . deals with degrees of likelihood, not
with certainties or near certainties," and allows "police officers

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inferences

and

deductions").
Finally,

although

the

discovery

of

a

driver's

dangerousness may not, in every case, create reasonable suspicion
that a passenger has a gun, it would be beyond folly for our court
to ask police officers to ignore the clear relevance of discovering
a

hidden

firearm

on

the

driver.

Moreover,

in

this

case,

consideration of that discovery in no way offends the rule of
Ybarra.

Compare Wyoming v. Houghton, 526 U.S. 295, 304-05 (1999)

("[A] car passenger -- unlike the unwitting tavern patron in Ybarra
-- will often be engaged in a common enterprise with the driver,
and have the same interest in concealing the fruits or the evidence
of their wrongdoing."), with Ybarra, 444 U.S. at 93 (finding, when
police

officers

knew

nothing

about

the

defendant

beyond

his

presence in a tavern where the bartender was suspected of selling
heroin, that the officers lacked any particular reason to suspect
that he was armed and dangerous, as required to justify a frisk).
Reasonable suspicion is ultimately a pragmatic inquiry -one that "must be based on commonsense judgments and inferences
about human behavior."
(2000).
the

Illinois v. Wardlow, 528 U.S. 119, 125

Assessing the totality of the circumstances in this case,

officers'

decision

to

pat-frisk

Tiru

was

grounded

reasonable suspicion that he might be armed and dangerous.

in

a

The

circumstances of the stop, and the facts discovered during its

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progression, sufficed to provide a "specific and articulable" basis
for the decision to pat-frisk Tiru in order to ensure that he did
not pose a direct threat.

See, e.g., United States v. Espinoza,

490 F.3d 41, 47 (1st Cir. 2007) (stating that the "particularity
requirement" underlying our test for reasonableness requires that
a

search

be

"'grounded

in

specific

and

articulable

facts.'"

(quoting United States v. Hensley, 469 U.S. 221, 229 (1985)).
The pat-frisk surely represented a "serious intrusion"
upon Tiru's privacy.

See Terry, 392 U.S. at 17.

It was limited in

scope, however, only to the "bare minimum needed to detect the
presence of a firearm" -- Officer Martínez began the pat-frisk at
Tiru's waist and, upon feeling a hard object, extracted it with two
fingers.

See United States v. Romain, 393 F.3d 63, 72 (1st Cir.

2004) (finding a frisk "reasonable under the circumstances and,
thus,

constitutionally

appropriate,"

when

"the

police

had

a

plausible basis for suspecting that the appellant was armed and
dangerous," and the subsequent frisk "began at the appellant's
waist" and was not more invasive than necessary to determine
whether the defendant had a gun).

In light of the important

interest in officer safety, and the facts buttressing the officers'
belief that Tiru might pose a danger, we find that this significant
but brief intrusion was supported by reasonable suspicion.

See

Sowers, 136 F.3d at 27 (requiring a balance between the "quality of

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the intrusion" and the "importance of the governmental interests
alleged" (quoting Hensley, 469 U.S. at 228)).
III.

Conclusion

The totality of the circumstances in this case indicate
that the officers had reasonable suspicion to pat-frisk Tiru.

We

therefore affirm the district court's denial of Tiru's motion to
suppress the firearm.
Affirmed.

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