     15-262-cr
     United States v. Allen

                          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.

 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 26th day of January, two thousand sixteen.
 5
 6       PRESENT: DENNIS JACOBS,
 7                RICHARD C. WESLEY,
 8                DEBRA ANN LIVINGSTON,
 9                              Circuit Judges.
10
11       - - - - - - - - - - - - - - - - - - - -X
12       UNITED STATES OF AMERICA,
13                Appellee,
14
15                    -v.-                                               15-262-cr
16
17       MAMIE ALLEN,
18                Defendant-Appellant.
19       - - - - - - - - - - - - - - - - - - - -X
20
21       FOR APPELLEE:                         Kevin J. Doyle (Gregory L.
22                                             Waples, on the brief), Assistant
23                                             United States Attorneys, for
24                                             Eric S. Miller, United States
25                                             Attorney for the District of
26                                             Vermont, Burlington, Vermont.
27



                                                  1
 1   FOR DEFENDANT-APPELLANT:   Maryanne E. Kampmann, Stetler,
 2                              Allen & Kampmann, Burlington,
 3                              Vermont.
 4
 5        Appeal from a judgment of the United States District
 6   Court for the District of Vermont (Reiss, C.J.).
 7
 8        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
 9   AND DECREED that the judgment of the district court be
10   AFFIRMED.
11
12        Defendant-appellant Mamie Allen pled guilty in the
13   United States District Court for the District of Vermont
14   (Reiss, C.J.) to possession of heroin with intent to
15   distribute pursuant to a plea agreement that reserved her
16   right to seek review of the May 29, 2014, Opinion and Order
17   denying Allen’s motion to suppress evidence.1 We assume the
18   parties’ familiarity with the underlying facts, the
19   procedural history, and the issues presented for review.
20
21        The district court did not determine whether Allen’s
22   encounter with federal agents was entirely consensual (as
23   the government had argued), because it held that any seizure
24   of Allen had been a lawful Terry stop. See Terry v. Ohio,
25   392 U.S. 1 (1968). Allen challenges that court’s
26   determination that the agents had the reasonable suspicion
27   of criminal activity required for a lawful Terry stop, as
28   well as some of the related factual findings.
29
30        The relevant factual findings were not clearly
31   erroneous, see United States v. Bershchansky, 788 F.3d 102,
32   109-10 (2d Cir. 2015) (factual determinations on motions to
33   suppress are either reviewed for clear error or viewed in
34   the light most favorable to the party that prevailed on the
35   motion), and the legal conclusion was correct. Facts found
36   by the district court include: (1) the agents had
37   intelligence that drug couriers were disembarking at the
38   Castleton train station to avoid surveillance by law
39   enforcement at the Rutland station; (2) the agents observed
40   a single vehicle parked away from all the other vehicles at
41   the Castleton station, in the less-well-lit area to the east


         1
           Allen’s notice of appeal identifies both the denial
     of her motion to suppress and the denial of her subsequent
     motion for reconsideration; however, her appellate brief
     challenges only the denial of the motion to suppress.
                                  2
 1   of the station, a place Special Agent Doud had not
 2   previously seen any vehicle parked;2 (3) both occupants
 3   appeared to the agents to be nervous, and avoided eye
 4   contact; (4) the occupants did not leave the car to greet
 5   the arriving passenger (Allen), unlike the occupants of
 6   other vehicles that evening; (5) the agents were aware
 7   through training and experience that drug traffickers often
 8   wait to see whether a courier is confronted by law
 9   enforcement before making contact; (6) the vehicle’s license
10   plate traced to 76 Traverse Place, and the agents knew that
11   the “70s block” of Traverse Place was associated with
12   allegations of drug trafficking; (7) 76 Traverse Place was
13   within walking distance of the Rutland train station
14   (raising the question of why the passenger had been picked
15   up at the Castleton station, approximately 12 miles away);
16   and (8) the vehicle drove to that address, and parked.3
17
18        Allen argues that each of these facts, in isolation,
19   was consistent with an innocent explanation and therefore is
20   entitled to no weight. That piecemeal approach to
21   reasonable suspicion has been expressly rejected by the


         2
           The district court’s opinion stated that the car was
     parked “in the east parking lot, which is a gravel lot with
     only one street light.” App’x 29. Allen argues that
     neither agent testified that the car was parked in the
     gravel lot. Doud’s testimony, including his identification
     of the car’s location on a photograph exhibit, may support
     the district court’s specific finding. Special Agent
     Destito, however, testified that the car was parked on the
     east side of the station, but in front of the station. In
     any event, all the testimony supports the finding that is
     relevant to the reasonable suspicion inquiry: The car was
     parked east of the station in a less-well-lit area, and all
     the other vehicles were parked in the west parking lot.
         3
           Allen argues that the district court should have
     found that racial profiling motivated the agents. As the
     district court explained in its denial of Allen’s motion for
     reconsideration, Allen “points to no actual evidence of
     racial profiling. If anything, the facts in this case
     undermine any suggestion of racial profiling. Agents Doud
     and Destito specifically did not think Defendant, a woman of
     color, fit the profile of a drug courier, and they were
     suspicious of Ms. Emery’s vehicle even though she was the
     Caucasian operator of it.” App’x 270.
                                  3
 1   Supreme Court. United States v. Arvizu, 534 U.S. 266, 274-
 2   75 (2002). A reviewing court must instead “look at the
 3   ‘totality of the circumstances’ of each case to see whether
 4   the detaining officer has a ‘particularized and objective
 5   basis’ for suspecting legal wrongdoing,” which includes
 6   inferences drawn from the officer’s “own experience and
 7   specialized training.” Id. at 273 (quoting United States v.
 8   Cortez, 449 U.S. 411, 417 (1981)). Based on the totality of
 9   the circumstances, the agents here had a reasonable
10   suspicion, based on specific, articulable facts, that Allen
11   and the other occupants of the vehicle were trafficking
12   illegal drugs. See id. at 273-78; United States v. Sokolow,
13   490 U.S. 1, 7-10 (1989); United States v. Bailey, 743 F.3d
14   322, 332 (2d Cir. 2014).
15
16        For the foregoing reasons, and finding no merit in
17   Allen’s other arguments, we hereby AFFIRM the judgment of
18   the district court.
19
20
21                              FOR THE COURT:
22                              CATHERINE O’HAGAN WOLFE, CLERK
23




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