          United States Court of Appeals
                     For the First Circuit


No. 15-1188

                    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. García-Gregory, U.S. District Judge]


                             Before

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


     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 Rodríguez-Vélez, United States Attorney, and
Nelson Pérez-Sosa, Assistant United States Attorney, Chief,
Appellate Division, were on brief, for appellee.


                         March 29, 2016
           LYNCH, Circuit Judge.        A jury convicted Hector Cardona-

Vicente ("Cardona") of two counts of possession of a controlled

substance with intent 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 Martínez, a fifteen-year

veteran of the Puerto Rico Police Department, was on motorcycle

patrol in Caguas, Puerto Rico.           While meeting up with another


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police officer in front of the Plaza del Carmen shopping center,

Martínez saw that the driver of a nearby black Jeep Cherokee was

not wearing a seatbelt, a violation of Puerto Rico law.    Martínez

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.

           Martínez obtained the vehicle's registration from the

driver, who told Martínez that he did not have his driver's

license.   Martínez 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, Martínez saw Cardona in the

passenger seat grabbing a fanny pack wrapped around Cardona's waist

in such a way that, based on Martínez's experience, led him to

believe that there was a gun in the fanny pack.    Cardona appeared

to him to be nervous.    Martínez then asked Cardona if he had a

license to carry a firearm.        According to Martínez, 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

hearing -- the driver told him that Cardona "remained silent and


                                - 3 -
looked down and acknowledged non-verbally that he did not [have a

license to carry a firearm]."

             Martínez, who was fearful for his life at this point,

told Cardona to get out of the vehicle. Martínez opened the Jeep's

door "in a tactical manner" to prevent Cardona from fleeing. After

Cardona stepped out of the vehicle, Martínez touched the fanny

pack and felt a gun.

             Martínez said to Cardona, "you have a weapon there," to

which Cardona responded, "yes."       Martínez then "verified" that

there was a firearm in the fanny pack; the driver told Ortiz that

Cardona unzipped the fanny pack to reveal the weapon.        At that

point, Martínez read Cardona his rights and placed him under

arrest.

             The fanny pack contained a .40 caliber Glock pistol with

one round of ammunition in the chamber, eleven additional rounds

in the magazine, $597 in cash, and fourteen baggies of cocaine.

After Martínez confirmed that there was a gun in the fanny pack,

he asked Cardona if there was anything else illegal in the car.

Cardona told him there were more items under the rear seat of the

vehicle. Martínez's fellow officer looked under the seat and found

a cigar box with marijuana cigars and twenty-two baggies of

marijuana.

             Cardona was then taken to the Caguas police precinct.

Martínez read Cardona his rights, in Spanish, and also gave them


                                 - 4 -
to him in writing.      Cardona signed the statement of rights and

indicated on the form that he understood his rights and that he

wished to give a statement.      He then gave a written statement in

which he said, in Spanish, "what they took, well, is mine." Later,

another officer again read Cardona his rights and provided them to

him in Spanish. After acknowledging that he understood his rights,

Cardona signed a waiver of rights.       Cardona was then interviewed

by Ortiz.

                                  II.

             On May 29, 2013, Cardona was indicted on two counts of

possession of a controlled substance (cocaine and marijuana) with

intent to distribute, 21 U.S.C. § 841(a)(1), and one count of

possession of a firearm in furtherance of a drug trafficking crime,

18 U.S.C. § 924(c).     The indictment also included a firearms and

ammunition forfeiture allegation. 18 U.S.C. § 924(d)(1); 28 U.S.C.

§ 2461(c).

             On September 16, 2013, Cardona filed a motion to suppress

all materials seized from him by the police as well as statements

he made to the police "as fruit of the traffic stop, illegal

search, and seizure." Cardona argued that "[b]ased on the totality

of the circumstances known to [the Puerto Rico Police Department]

at [the time of the traffic stop] they had no basis to suspect an

ongoing criminal activity," that Martínez was operating on a mere

"hunch," and that Cardona's detention consequently did "not fall


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within the reasonable investigatory stop of Terry v. Ohio, 392

U.S. 1 (1968)."

           A suppression hearing was held before a magistrate judge

on November 14, 2013.        Both Martínez and Ortiz testified at the

hearing,   and    the   government       submitted   seven     documents   into

evidence without objection.          Cardona did not take the stand or

submit any evidence in support of his motion.                  In a Report and

Recommendation issued on November 18, 2013, the magistrate judge

recommended denial of Cardona's motion, concluding that "under the

totality of the circumstances, there was reasonable suspicion to

stop the vehicle in which defendant Cardona was an occupant," that

Cardona's warrantless arrest was based on probable cause, that the

subsequent   search     of   the   car   was   legal,    and   that   Cardona's

statements were admissible.

           Cardona filed an objection to the magistrate judge's

Report and Recommendation on December 23, 2013, arguing, inter

alia, that an officer's "speculation resulting from the way a

person holds a fanny pack is insufficient" to justify a search.

The government opposed Cardona's objection.

           On February 26, 2014, the district court adopted the

magistrate judge's Report and Recommendation and denied Cardona's

motion to suppress.      United States v. Cardona-Vicente, No. 13-cr-

308, 2014 WL 794591 (D.P.R. Feb. 26, 2014).             Though the magistrate

judge had not done so, the district court engaged in an independent


                                     - 6 -
Fourth Amendment analysis of the pat-frisk of the fanny pack.                 Id.

at *1–2.    The court recognized that a pat-frisk must be supported

by "reasonable suspicion that the person subjected to the frisk is

armed and dangerous," id. at *1 (quoting Arizona v. Johnson, 555

U.S. 323, 327 (2009)), and it explained that "there [were] at least

three    factors    here   alerting     Agent     Martinez:    (1)   Cardona's

nervousness, (2) the type of fanny pack around Cardona's waist,

(3) the manner in which Cardona grabbed the fanny pack," id. at

*2.     The court concluded that these factors "were sufficient to

give Agent Martinez reasonable suspicion that Cardona was armed

and dangerous," and that once the pat-frisk was conducted, "the

arrest was justified."       Id.

            After plea bargaining broke down, a two-day jury trial

was held on July 15 and 16, 2014.              Cardona was convicted on all

three    counts    and   sentenced    to   a    total   of   sixty   months    of

imprisonment.      This appeal followed.

                                      III.

            On appeal, Cardona argues that "[a]lthough [he] does not

challenge the validity of the original Terry stop, it is [his]

contention that the district court erred in finding that factors

utilized as justification for the subsequent frisk . . . [gave]

rise to the sort of particularized suspicion necessary to support




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a pat-frisk under Terry."1         He argues that the items seized from

him, as well as statements he later gave to the police, should be

suppressed as fruits of the unconstitutional pat-frisk. See United

States v. Camacho, 661 F.3d 718, 728–29 (1st Cir. 2011) (explaining

fruit of the poisonous tree doctrine).

             When reviewing the denial of a motion to suppress, we

review the district court's legal determinations de novo and its

factual findings for clear error.              United States v. Collins, 811

F.3d 63, 65 (1st Cir. 2016).

             "[I]n   determining       whether   a    pat-down    search     is      an

appropriate step following a valid Terry stop, the key is whether,

under the circumstances, 'the officer is justified in believing

that the person is armed and dangerous to the officer or others.'"

Romain, 393 F.3d at 71 (quoting United States v. Schiavo, 29 F.3d

6, 8 (1st Cir. 1994)).         "It is insufficient that the stop itself

is valid; there must be a separate analysis of whether the standard

for   pat-frisks     has   been   met.     To    assess     the   legality      of    a

protective     frisk,      a   court    looks    at   the    totality      of     the

circumstances to see whether the officer had a particularized,




      1   It is not clear from the record whether there was a pat-
frisk of his person. As best we can tell, there was never a frisk
of the defendant's person, just a touching by Martínez of the fanny
pack after Cardona got out of the car. Assuming that the touching
of the fanny pack was nonetheless a search, Cardona's claim fails,
as we explain below.


                                       - 8 -
objective basis for his or her suspicion." United States v. McKoy,

428 F.3d 38, 39 (1st Cir. 2005).

            The "touchstone" of this inquiry is the reasonableness

of the officer's actions, which, in turn, "depends on what the

officer knows (or has reason to believe) and how events unfold."

Romain,   393   F.3d    at   71.    "Evaluating       whether      an    officer's

suspicions are (or are not) reasonable is a fact-sensitive task,

bound up in the warp and woof of the surrounding circumstances."

United    States   v.    Chhien,   266    F.3d   1,    8    (1st    Cir.   2001).

Accordingly, "[d]eference is due to the experienced perceptions of

the officers, . . . but not blind deference; these perceptions

must be reasonable under an objective standard."              United States v.

Woodrum, 202 F.3d 1, 7 (1st Cir. 2000) (citing Ornelas v. United

States, 517 U.S. 690, 699–700 (1996)); see Terry, 392 U.S. at 27

("And in determining whether the officer acted reasonably in such

circumstances, due weight must be given, not to his inchoate and

unparticularized       suspicion   or    'hunch,'     but   to     the   specific

reasonable inferences which he is entitled to draw from the facts

in light of his experience." (emphasis added)). Indeed, the Fourth

Amendment analysis "makes due allowance for the need for police

officers to draw upon their experience and arrive at inferences

and deductions that 'might well elude an untrained person.'"

United States v. Arnott, 758 F.3d 40, 44 (1st Cir. 2014) (quoting

United States v. Arvizu, 534 U.S. 266, 273 (2002)).


                                    - 9 -
            Though the seatbelt violation that justified the initial

stop of the Jeep would have been clearly insufficient to justify

a pat-frisk, several factors became apparent as the traffic stop

progressed which were sufficient to give rise to a reasonable

suspicion that there was a gun in Cardona's fanny pack.                    See

Soares, 521 F.3d at 120.       The driver of the car could not produce

a driver's license, suggesting the Jeep may have been stolen.

Cardona, the passenger, appeared nervous during the stop.                  As

Martínez was walking around the Jeep to check the registration

sticker, he saw that Cardona was clutching a fanny pack in a manner

that, based on his experience, was consistent with there being a

gun inside.    See United States v. Sanchez, No. 15-1107, 2016 WL

1127764, at *4 (1st Cir. Mar. 23, 2016) (affirming the denial of

a motion to suppress and crediting an officer's belief, "based on

his experience," that the manner in which a suspect reached for

his waistband "suggest[ed] that [the suspect] had a gun"); see

also United States v. Young, 105 F.3d 1, 7 (1st Cir. 1997) (noting

that "[c]onduct innocent in the eyes of the untrained may carry

entirely    different   'messages'   to     the   experienced    or   trained

observer"   (alteration   in    original)    (quoting   United    States   v.

Stanley, 915 F.2d 54, 56 (1st Cir. 1990))).              Indeed, Martínez

testified that "of course" he feared for his life when he saw the

manner in which Cardona held the fanny pack.         See Soares, 521 F.3d

at 120 ("The facts demonstrate that the officers believed that


                                  - 10 -
their safety was at risk.").    With his suspicions already aroused,

Martínez asked Cardona if he had a license to carry a firearm;

Cardona heightened Martínez's concerns when he evasively responded

by looking down and then non-verbally, gesturing with his head,

admitting that he did not have a license.   This sequence of events

was sufficient to give rise to a reasonable suspicion that Cardona

was armed and dangerous, and Martínez was justified in asking him

to get out of the car and in touching the fanny pack.

          Cardona attempts to liken his case to the facts of McKoy,

a case, unlike this one, in which we affirmed a district court's

grant of a motion to suppress filed by a defendant who was pat-

frisked after his car was stopped for a parking violation.      428

F.3d at 39.   There, the government appealed and in the district

court had only "relie[d] on two factors as rationales for the

officers' concern for their safety: (1) the dangerousness of the

neighborhood and (2) McKoy's nervous appearance and movements

inside the car."   Id. at 40.   The court gave little weight to the

dangerousness of the neighborhood,2 noting that "[w]hile police


     2    The government here makes much of the fact that Martínez
described Caguas as a high-crime area.      See United States v.
Rabbia, 699 F.3d 85, 90 (1st Cir. 2012) ("[O]fficers are not
required to ignore the relevant characteristics of a location in
determining whether the circumstances are sufficiently suspicious
to warrant further investigation." (quoting Illinois v. Wardlow,
528 U.S. 119, 124 (2000))). Neither the magistrate judge nor the
district court made any findings as to the dangerousness of the
area in which the pat-frisk occurred. We decline to draw our own
conclusion "because this is a factual issue best left to the


                                - 11 -
are permitted to take the character of a neighborhood into account

when   assessing   whether   a   stop   is   appropriate,"     the    evidence

presented "len[t] only weak support to the officers' perception

that McKoy was armed and dangerous."         Id.   And we agree with McKoy

that "[n]ervousness is a common and entirely natural reaction to

police presence."    Id.     In McKoy, we concluded, as did the trial

court, that "[i]t is simply not reasonable to infer that a driver

is armed and dangerous because the officers believe that he appears

nervous and reaches toward the car's console when approached by

police, even in a high-crime neighborhood."          Id. at 41.

           Cardona's reliance on McKoy is misplaced.                 Unlike in

McKoy, Martínez's suspicion that Cardona was armed and dangerous

was based on more particularized indicia of danger than mere

nervousness.    See Camacho, 661 F.3d at 726 (noting "the suspicion

must be both objectively reasonable and 'grounded in specific and

articulable facts'" (quoting United States v. Hensley, 469 U.S.

221, 229 (1985))).

           We   appreciate   the   concern    expressed   by    the    Federal

Public Defender in his claim that the Puerto Rico Police Department

routinely conducts unconstitutional searches absent reasonable

suspicion or probable cause.        If true, that would be cause for




district court and, in the end, not necessary to our conclusion."
United States v. Hart, 674 F.3d 33, 39 n.1 (1st Cir. 2012).


                                   - 12 -
concern.   But this case is not characterized by such facts.        There

was reasonable suspicion here.

           Because the pat-frisk was legal, Cardona's fruit of the

poisonous tree argument fails as well.

                                  IV.

           The   district   court's   denial   of   Cardona's   motion   to

suppress is affirmed.




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