11-4670-cr
United States v. Polanco

                  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 21st day of December, two thousand twelve.

PRESENT:    DENNY CHIN,
            CHRISTOPHER F. DRONEY,
                      Circuit Judges,
            JOHN GLEESON,
                      District Judge.*

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UNITED STATES OF AMERICA,
                    Appellee,
                           -v.-                       11-4670-cr
MARINO POLANCO,
                           Defendant-Appellant.
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FOR DEFENDANT-APPELLANT:             MARK J. STEIN (Michael J.
                                     Castiglione, Elizabeth A. Gudis, on
                                     the brief), Simpson Thacher &
                                     Bartlett LLP, New York, New York.

FOR APPELLEE:                        RACHEL P. KOVNER (Katherine P.
                                     Failla, on the brief), Assistant
                                     United States Attorneys for Preet
                                     Bharara, United States Attorney for
                                     the Southern District of New York,
                                     New York, New York.


      *
          The Honorable John Gleeson, of the United States
District Court for the Eastern District of New York, sitting by
designation.
          Appeal from the United States District Court for the

Southern District of New York (Patterson, J.).
          UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment of the district court is AFFIRMED.

          Defendant-appellant Marino Polanco appeals from the

district court's judgment entered November 4, 2011, following a

jury trial, convicting him of conspiracy and distribution and

possession with the intent to distribute heroin, 21 U.S.C.

§§ 841(b)(1)(B) and 846, and imposing a sentence of forty-eight

months of imprisonment, four years of supervised release, and a

$100 special assessment.

          Polanco challenges two rulings of the district court:

its order entered January 19, 2011, denying his motion to

suppress evidence obtained during a purportedly unlawful arrest,

and its order entered May 3, 2011, admitting at trial physical

evidence that had been altered.    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 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


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below, we construe the facts in the government's favor.    United

States v. Singh, 415 F.3d 288, 293 (2d Cir. 2005) (citation

omitted).

            Probable cause exists "if the law enforcement official,

on the basis of the totality of the circumstances, has sufficient

knowledge or reasonably trustworthy information to justify a

person of reasonable caution in believing that an offense has

been or is being committed by the person to be arrested."     United

States v. Patrick, 899 F.2d 169, 171 (2d Cir. 1990) (citations

omitted).    The totality of circumstances must be "considered from

the perspective of a reasonable police officer in light of his

training and experience."    United States v. Delossantos, 536 F.3d
155, 159 (2d Cir. 2008) (citation omitted).

            Even assuming Polanco was placed under arrest when he

was stopped by Officer Bakraqi on May 22, 2010, we conclude that

the arrest was supported by probable cause.   Hence, the district

court did not err in denying his motion to suppress.   We reject

Polanco's argument that Bakraqi lacked a particularized and

objective basis to suspect him of being engaged in criminal

activity, and we reach this conclusion without reliance on the

collective knowledge doctrine.

            Bakraqi arrived at the apartment at 1135 Pelham Parkway

North with information that narcotics were being transported from

that location.   He had been given a physical description of the

individual involved in the transaction.   At the scene, he saw a

"black taxi" double-parked outside the location, with a man --

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Polanco -- standing next to the vehicle.   Bakraqi then observed

Navarro -- who matched the description of the individual involved

in transporting the narcotics -- come out of the location

carrying two apparently heavy suitcases to Polanco's livery cab,

speak to Polanco, place the suitcases into the trunk with

Polanco's help, and walk away without paying any money to

Polanco.   Bakraqi then saw Polanco drive away by himself with the

suitcases.   On these facts, it was reasonable for Bakraqi to

believe that Polanco was assisting Navarro in transporting drugs.

Indeed, it is unlikely that Navarro would have turned over a

suitcase containing 470 grams of heroin and drug paraphernalia to

an unwitting stranger.    Moreover, if Polanco had been an innocent

livery cab driver who had been hired merely to deliver two

suitcases, Navarro would have paid him a fare, but Bakraqi saw no

money change hands.   "[D]rug dealing is an enterprise to which a

dealer would be unlikely to admit an innocent person with the

potential to furnish evidence against him."   Delossantos, 536

F.3d at 159 (quoting Maryland v. Pringle, 540 U.S. 366, 373

(2003) (internal quotation marks omitted)).

           Even assuming some or all of these facts were innocuous

on their face, "some patterns of behavior which may seem

innocuous enough to the untrained eye may not appear so innocent

to the trained police officer who has witnessed similar scenarios

numerous times before."   Id. at 161 (citations and internal

quotation marks omitted).   We affirm the district court's denial

of Polanco's motion to suppress.

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B.   The Evidentiary Ruling

          We review a district court's evidentiary ruling

pursuant to Rule 403 of the Federal Rules of Evidence for abuse

of discretion.   United States v. O'Connor, 650 F.3d 839, 853 (2d

Cir. 2011) (citation omitted).

          Under Rule 403, a district court may exclude evidence

if its probative value is substantially outweighed by the danger

of, inter alia, unfair prejudice, confusion, or undue delay.

Fed. R. Evid. 403.   Where an object sought to be admitted into

evidence has changed in appearance from its appearance at the

time of the seizure, the court may admit the object into
evidence, subject to the Rule 403 balancing, so long as changes

to its conditions have not destroyed its evidentiary value.     See

United States v. Berry, 599 F.2d 267, 269 (8th Cir. 1979); United

States v. Skelley, 501 F.2d 447, 451 (7th Cir. 1974).

          We conclude that the district court did not abuse its

discretion in admitting into evidence the heroin that fell from

Polanco's person, even though it had changed in appearance from a

block of compressed powder (heroin wrapped in clear plastic) to

chunks of brick along with powder (the package had been opened

for testing).    The district court found that the heroin was

highly probative and that there was minimal risk of confusion or

unfair prejudice because multiple witnesses testified as to the

original appearance of the heroin at the time of the seizure.

This conclusion was reasonable.



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          We have considered Polanco's remaining arguments and

conclude they are without merit.   Accordingly, we hereby AFFIRM

the judgment of the district court.

                                      FOR THE COURT:
                                      Catherine O'Hagan Wolfe, Clerk




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