09-0836-cr
United States v. Rodriguez

                                    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.

         At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York, on
the 3rd day of March, two thousand and ten.

PRESENT:

          JOSÉ A. CABRANES,
          BARRINGTON D. PARKER,
                 Circuit Judges,
          EVAN J. WALLACH ,
                 Judge.*

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UNITED STATES OF AMERICA ,

                               Appellee,

          v.                                                                               No. 09-0836-cr

ANTONIO RODRIGUEZ , also known as Anthony Rodriguez,

                               Defendant-Appellant.

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FOR APPELLANT:                                       DANIEL MEYERS, New York, New York.



          *
         The Honorable Evan J. Wallach, of the United States Court of International Trade, sitting
by designation.

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FOR APPELLEE:                            ZACHARY FEINGOLD , Assistant United States Attorney (Preet
                                         Bharara, United States Attorney, and Katherine Polk Failla,
                                         Assistant United States Attorney, on the brief), Office of the
                                         Untied States Attorney for the Souther District of New York,
                                         New York, New York.

       Appeal from a January 16, 2009 judgment of conviction of the United States District Court for
the Southern District of New York (Deborah A. Batts, Judge).

     UPON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of the District Court is AFFIRMED.

         Defendant-appellant Antonio Rodriguez (“defendant”) was convicted in the District Court
of one count of possessing a firearm subsequent to three previous convictions for serious drug
offenses. See 18 U.S.C. §§ 922(g)(1), 924(e). He appeals the judgment of conviction arguing that the
District Court, following a suppression hearing, erred by declining to suppress evidence—including
the firearm that formed the basis of his conviction—seized by police during his arrest. We assume
the parties’ familiarity with the underlying facts and the procedural history of this action.

        In an appeal of a suppression decision, we review a district court’s legal determinations de
novo and its factual determinations for clear error. See, e.g., United States v. Singh, 415 F.3d 288, 293
(2d Cir. 2005); United States v. Lewis, 386 F.3d 475, 480 (2d Cir. 2004). We have described the
“clearly erroneous” standard as follows:

            A finding is clearly erroneous when although there is evidence to support
            it, the reviewing court on the entire evidence is left with the definite and
            firm conviction that a mistake has been committed. [W]here there are
            two permissible views of the evidence, the factfinder’s choice between
            them cannot be clearly erroneous. When, as here, credibility
            determinations are at issue, we give particularly strong deference to a
            district court finding.

United States v. Iodice, 525 F.3d 179, 185 (2d Cir. 2008) (quotation marks and citations omitted).

        After hearing the testimony and reviewing the exhibits introduced in the suppression
hearing, the District Court found that “the arresting officer had probable cause to arrest the
defendant when the defendant attempted to leave the lobby of 2181 Barnes Avenue with an opened
bottle of liquor in his hand” because, “[a]s such, he was about to violate the New York City
Administrative Code.” App. 20; see also N.Y. City Admin. Code § 10-125(b)-(c) (prohibiting
“possess[ion], with intent to drink or consume, an open container containing an alcoholic beverage
in any public place” and creating a “rebuttable presumption that [a] person did intend to consume”
the beverage when the person was found in “[p]ossession of an open container” in a public place).

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The District Court concluded that, because the officer had probable cause to arrest defendant, the
officer’s subsequent search of defendant’s possessions was constitutional, and the evidence seized in
that search was admissible at trial. App. 20-21.

         On appeal, defendant argues (1) that the District Court erred in finding that he was carrying
open bottle of liquor at the time of his arrest and (2) that, even if he was carrying an open bottle of
liquor, the District Court erred in finding that he was in the process of leaving the lobby and thereby
possessing an open bottle of liquor in a public place. Neither argument has merit.

         First, each of the two officers who was present at defendant’s arrest testified that defendant
was holding an open bottle of liquor when he was arrested. See Supp. App. 20, 24, 123. Although
defendant submitted an affidavit that made no mention of a bottle of liquor, it was not clearly
erroneous for the District Court to credit the officers’ testimony over defendant’s affidavit. See
Iodice, 525 F.3d at 185 (“[W]here [as here] there are two permissible views of the evidence, the
factfinder’s choice between them cannot be clearly erroneous. When, as here, credibility
determinations are at issue, we give particularly strong deference to a district court finding.”).

         Second, defendant admitted in his affidavit that he saw the police officers as “[he] was about
to exit the lobby of [his] building” and that the officers stopped him “[a]s [he] opened the front
door.” App. 78. In any event, one of the officers testified that defendant “opened the door and
continued to walk [through it] as if [the officers] were invisible.” Supplemental App. 22; see also id.
(“He just continued to walk almost through me.”); id. at 23 (“He opened the door, walked—tried to
walk past us, as I said, through me actually.”). It was not clearly erroneous for the District Court to
credit that testimony and find that defendant was in the process of leaving the building.

       Accordingly, it was not clearly erroneous for the District Court to find that the officers had
probable cause to arrest defendant because he “was about to violate the New York City
Administrative Code” § 10-125(b)-(c). App. 20. We have considered defendant’s remaining
arguments on appeal and have concluded that they are meritless.

                                           CONCLUSION

        For the foregoing reasons, January 16, 2009 judgment of the District Court is AFFIRMED.


                                                FOR THE COURT,

                                                Catherine O’Hagan Wolfe, Clerk of Court




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