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United States v. Cardona-Vicente

United States Court of Appeals, First Circuit

March 29, 2016

UNITED STATES OF AMERICA, Appellee,
v.
HECTOR GABRIEL CARDONA-VICENTE, Defendant, Appellant

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

         Andrew McCutcheon, Research and Writing Specialist, with whom Eric A. Vos, Federal Public Defender, Vivianne M. Marrero-Torres, Assistant Federal Public Defender, Supervisor, Appeals Section, and Patricia A. Garrity, Research and Writing Specialist, were on brief, for appellant.

         Susan Z. Jorgensen, Assistant United States Attorney, with whom Rosa Emilia Rodrí guez-Vé lez, United States Attorney, and Nelson Pé rez-Sosa, Assistant United States Attorney, Chief, Appellate Division, were on brief, for appellee.

         Before Howard, Chief Judge, Torruella and Lynch, Circuit Judges.

          OPINION

Page 824

          LYNCH, Circuit Judge.

          A jury convicted Hector Cardona-Vicente (" Cardona" ) of two counts of possession of a controlled substance with intent

Page 825

to distribute and one count of possession of a firearm in furtherance of a drug trafficking crime. On appeal, Cardona argues that the district court erred in denying his motion to suppress evidence obtained from him after a police officer, during the course of a traffic stop, conducted a pat-frisk of a fanny pack that Cardona was wearing, which contained a Glock pistol, ammunition, drugs, and cash. Upholding the district court's finding that the facts were sufficient to give rise to a reasonable suspicion that Cardona was armed and dangerous at the time of the pat-frisk, we affirm.

         I.

          " In reviewing the denial of a motion to suppress, '[w]e recount the relevant facts as the trial court found them, consistent with record support,'" United States v. Romain, 393 F.3d 63, 66 (1st Cir. 2004) (alteration in original) (quoting United States v. Lee, 317 F.3d 26, 30 (1st Cir. 2003)), and " [w]e view the facts in the light most favorable to the district court's ruling," United States v. Soares, 521 F.3d 117, 118 (1st Cir. 2008) (quoting United States v. Kimball, 25 F.3d 1, 3 (1st Cir. 1994)).

         On May 17, 2013, Officer Melvin Martí nez, a fifteen-year veteran of the Puerto Rico Police Department, was on motorcycle patrol in Caguas, Puerto Rico. While meeting up with another police officer in front of the Plaza del Carmen shopping center, Martí nez saw that the driver of a nearby black Jeep Cherokee was not wearing a seatbelt, a violation of Puerto Rico law. Martí nez and his fellow officer followed the Jeep and initiated a traffic stop. Inside were the driver, Cardona in the front passenger seat, and a minor in the back seat.

         Martí nez obtained the vehicle's registration from the driver, who told Martí nez that he did not have his driver's license. Martí nez then went around the back of the Jeep to check its registration sticker, known as a " marbete" and located at the front of the vehicle, which he did " in a tactical manner so that the occupants of [the] vehicle would not have a good visibility regarding as to where [he] was."

         As he rounded the Jeep, Martí nez saw Cardona in the passenger seat grabbing a fanny pack wrapped around Cardona's waist in such a way that, based on Martí nez's experience, led him to believe that there was a gun in the fanny pack. Cardona appeared to him to be nervous. Martí nez then asked Cardona if he had a license to carry a firearm. According to Martí nez, Cardona " gestured to [him] that he did not." This testimony was supported by the driver of the Jeep. According to Special Agent Gabriel Ortiz of Homeland Security Investigations -- who later interviewed both Cardona and the driver, and testified during the suppression ...


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