13-409-cr
United States v. Lopez


                  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 TO 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
for the Second Circuit, held at the Thurgood Marshall United
States Courthouse, 40 Foley Square, in the City of New York, on
the 13th day of January, two thousand fourteen.

PRESENT:    DENNY CHIN,
            SUSAN L. CARNEY,
            CHRISTOPHER F. DRONEY,
                      Circuit Judges.

- - - - - - - - - - - - - - - - - - - - - -x

UNITED STATES OF AMERICA,
                    Appellee,

                         -v-                            13-409-cr

ALBERT LOPEZ,
                         Defendant-Appellant.

- - - - - - - - - - - - - - - - - - - - - -x

FOR APPELLEE:                  NDIDI N. MOSES, Assistant United States
                               Attorney (Jonathan S. Freimann and
                               Robert M. Spector, Assistant United
                               States Attorneys, on the brief), for
                               Deirdre M. Daly, Acting United States
                               Attorney for the District of
                               Connecticut, New Haven, Connecticut.

FOR DEFENDANT-APPELLANT: CHARLES F. WILLSON, Nevins Law Group
                         LLP, East Hartford, Connecticut.
            Appeal from the United States District Court for the

District of Connecticut (Underhill, J.).

            UPON DUE CONSIDERATION, IT IS ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED.

            Defendant-appellant Albert Lopez appeals from the

district court's judgment entered January 18, 2013, convicting

him, following a plea of guilty, of one count of unlawful

possession of a firearm by a convicted felon, in violation of 18

U.S.C. § 922(g)(1).      The district court sentenced Lopez

principally to a term of imprisonment of 60 months.

            Lopez challenges the district court's decision entered

August 6, 2012, denying his motion (1) to suppress evidence

obtained during a purportedly unlawful search following a

traffic stop and (2) for sanctions based on the government's

destruction of video and audio recordings of the stop.1             Lopez

conditioned his guilty plea on his right to appeal the district

court's denial of his motion to suppress.

            We assume the parties' familiarity with the underlying

facts, the procedural history of the case, and the issues

presented for review.

A.   The Motion to Suppress

            On appeal, Lopez does not argue that the traffic stop

was unlawful.     Instead, Lopez argues that (1) the state trooper

1
            Judge Eginton conducted the suppression hearing and issued the
decision denying the motion. The case was thereafter transferred to Judge
Underhill, who presided over the sentencing.
detained him for an unreasonable duration, (2) the trooper did

not have reasonable suspicion to continue to detain him or to

pat him down, and (3) he did not voluntarily consent to the pat-

down.

          A police officer may briefly detain an individual for

questioning "if the officer has a reasonable suspicion that

criminal activity may be afoot."     United States v. Colon, 250

F.3d 130, 134 (2d Cir. 2001) (internal quotation marks omitted)

(quoting Terry v. Ohio, 392 U.S. 1, 30 (1968)).     "An officer's

inquiries into matters unrelated to the justification for the

traffic stop . . . do not convert the encounter into something

other than a lawful seizure, so long as the inquiries do not

measurably extend the duration of the stop."     Arizona v.

Johnson, 555 U.S. 323, 333 (2009).     Once an officer properly

stops an individual, he is "entitled to conduct a patdown

search" following "problematic response[s]" to police inquiries

suggesting that the individual may be armed.     United States v.

Muhammad, 463 F.3d 115, 123 (2d Cir. 2006).     "When evaluating

the reasonableness of a Terry stop, the reviewing court must

consider the totality of the circumstances . . . through the

eyes of a reasonable and cautious police officer on the scene,

guided by his experience and training."     United States v.

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

marks and citations omitted).
           "On an appeal from a ruling on a motion to suppress,

we review a district court's findings of historical fact for

clear error, but analyze de novo the ultimate determination of

such legal issues as probable cause . . . ."    United States v.

Valentine, 539 F.3d 88, 93 (2d Cir. 2008) (citations and

internal quotation marks omitted).   As the suppression motion

was denied below, we construe the facts in the government's

favor.   United States v. Singh, 415 F.3d 288, 293 (2d Cir.

2005).

           The relevant facts, as found by the district court,

are as follows: Marcin Pirog, a Connecticut state trooper,

stopped Lopez on Interstate 91 because Lopez had exhibited

erratic driving behavior.   During his initial exchange with

Lopez, Pirog noticed two cellular phones and an air freshener in

Lopez's car, which the trooper identified as "indicators of

criminal activity."   United States v. Lopez, No. 3:11–CR–139–

WWE, 2012 WL 3231014, at *1 (D. Conn. Aug. 6, 2012).    Pirog also

observed that Lopez was shaking and breathing irregularly.

Lopez also had difficulty answering questions about his travel

plans.   These facts, taken together, were sufficient to give an

investigating officer reasonable suspicion that criminal

activity was afoot.

           Further, Pirog's questioning did not "measurably

extend the duration of the stop."    Pirog questioned Lopez for
less than five minutes before requesting consent for a pat-down.

Lopez provided consent: after exiting the vehicle, Lopez turned

around and raised his hands, without prompting, and when Pirog

requested Lopez's consent, Lopez said, "Go ahead."

          Accordingly, we agree with the district court that the

detention and questioning were justified by reasonable suspicion

and therefore were permissible under Terry and its progeny.

          Even assuming arguendo that the pat-down was not

supported by reasonable suspicion, we conclude that the district

court did not clearly err in finding that Lopez voluntarily

consented to the search.     Police officers may ask for an

individual's consent to a search, provided they do not induce

cooperation by coercive means.     United States v. Drayton, 536

U.S. 194, 201 (2002).   There is no indication in the record that

Pirog used coercive means.     To the contrary, Lopez consented to

the pat-down immediately after exiting his vehicle.

B.   The Request for Sanctions

          Lopez also argues that the district court erred in

denying his request for sanctions.     Lopez contends that the

government intentionally destroyed video and audio recordings of

the traffic stop.   These recordings were allegedly made on

equipment belonging to Trooper Kevin Dowe, the second trooper to

arrive on the scene.
          In response, the government contends that Lopez waived

his right to appeal the district court's denial of his request

for sanctions, as Lopez's plea agreement does not expressly

reserve the right to appeal this denial.   Lopez argues that the

plea agreement is ambiguous and that his request for sanctions

should be considered part of his motion to suppress.    We need

not address the waiver argument, however, as we conclude that

Lopez's appeal fails on the merits.

          We review a district court's denial of a motion for

sanctions for abuse of discretion.    United States v. Seltzer,

227 F.3d 36, 39 (2d Cir. 2000).   "A district court would

necessarily abuse its discretion if it based its ruling on an

erroneous view of the law or on a clearly erroneous assessment

of the evidence."   Residential Funding Corp. v. DeGeorge Fin.

Corp., 306 F.3d 99, 107 (2d Cir. 2002) (internal quotation marks

omitted) (citing Cooter & Gell v. Hartmarx Corp., 496 U.S. 384,

405 (1990)).

          To prevail on a motion for sanctions for the loss or

destruction of evidence, a defendant must show that (1) the

government acted in bad faith by destroying the evidence, see

Arizona v. Youngblood, 488 U.S. 51, 57 (1988); (2) the evidence

possessed an "exculpatory value that was apparent before it was

destroyed," California v. Trombetta, 467 U.S. 479, 489 (1984);
and (3) the defendant was "unable to obtain comparable evidence

by other reasonably available means," id.

          The district court found that "the evidence at issue

would not have any exculpatory value because the audio and video

evidence provided by the primary officer's recording was clear."

United States v. Lopez, No. 3:11–CR–139–WWE, 2012 WL 3231014, at

*3 (D. Conn. Aug. 6, 2012).   Furthermore, the district court

found that, even if a second set of recordings did exist, they

would be inferior in quality in comparison to Trooper Pirog's

recordings.   Id.

          Here, Lopez not only had access to Trooper Pirog's

recordings but the opportunity to question Trooper Dowe at the

suppression hearing.   Lopez therefore cannot show that he was

"unable to obtain comparable evidence by other reasonably

available means."   Accordingly, we conclude that the district

court did not abuse its discretion in denying Lopez's request

for sanctions.

          We have considered Lopez's remaining arguments and

conclude they are without merit.   For the foregoing reasons, we

AFFIRM the judgment of the district court.

                               FOR THE COURT:
                               Catherine O'Hagan Wolfe, Clerk
