19‐528‐cr
United States v. Brent Sobers


                                  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 COURTʹS 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
ʺSUMMARY ORDERʺ). 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 Thurgood Marshall United States Courthouse, 40 Foley Square, in
the City of New York, on the 12th day of February, two thousand twenty.

PRESENT:            DENNIS JACOBS,
                    GUIDO CALABRESI,
                    DENNY CHIN,
                                         Circuit Judges.
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UNITED STATES OF AMERICA,
                    Appellee,

                                        ‐v‐                                             19‐528‐cr

BRENT SOBERS,
                                        Defendant‐Appellant.

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FOR APPELLEE:                                                ERIN REID, Assistant United States Attorney
                                                             (Amy Busa, Assistant United States Attorney,
                                                             on the brief), for Richard P. Donoghue, United
                                                             States Attorney for the Eastern District of New
                                                             York, Brooklyn, NY.
FOR DEFENDANT‐APPELLANT:                  ALLEGRA GLASHAUSSER, Assistant Federal
                                          Defender, Federal Defenders of New York,
                                          New York, NY.

              Appeal from the United States District Court for the Eastern District of

New York (Glasser, J.).

              UPON DUE CONSIDERATION, IT IS ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED.

              Defendant‐appellant Brent Sobers appeals from a judgment of conviction

entered February 25, 2019 by the district court, following a one‐day bench trial,

convicting him of possession of a firearm by a felon in violation of 18 U.S.C. § 922(g)(1).

On November 13, 2017, he was stopped by New York Police Department (ʺNYPDʺ)

officers upon entering the subway and arrested for theft of services. Thereafter, officers

discovered a gun in his backpack. Following an evidentiary hearing, the district court

issued a written opinion denying Sobersʹs motion to suppress evidence of the firearm.

United States v. Sobers, No. 17‐CR‐0681 (ILG), 2018 WL 1936123 (E.D.N.Y. April 24, 2018).

Sobers was eventually sentenced to 24 monthsʹ imprisonment and two yearsʹ

supervised release.

              On appeal, Sobers argues principally that: (1) the arresting officers did not

have reasonable suspicion to stop him; and (2) the arresting officersʹ warrantless search

of his backpack was unconstitutional. Accordingly, Sobers seeks to have his conviction



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overturned and the evidence suppressed. We assume the partiesʹ familiarity with the

underlying facts, the procedural history of the case, and the issues on appeal.

                                         DISCUSSION

              ʺWhen reviewing a district courtʹs decision on a suppression motion, we

review the district courtʹs factual findings for clear error and its legal conclusions de

novo.ʺ United States v. Williams, 930 F.3d 44, 53 (2d Cir. 2019).

   I.      Reasonable Suspicion

              A police officer may conduct an investigatory stop without a warrant or

probable cause for an arrest if he has reasonable suspicion to believe that ʺcriminal

activity may be afoot.ʺ Terry v. Ohio, 392 U.S. 1, 30 (1968); see also United States v.

Singletary, 798 F.3d 55, 59 (2d Cir. 2015). An officerʹs reasonable suspicion must be

based on ʺrational inferencesʺ drawn from ʺspecific and articulable facts.ʺ Singletary,

798 F.3d at 59. ʺAlthough an officerʹs reliance on a mere ʹhunchʹ is insufficient to justify

a stop, the likelihood of criminal activity need not rise to the level required for probable

cause, and it falls considerably short of satisfying a preponderance of the evidence

standard.ʺ United States v. Arvizu, 534 U.S. 266, 274 (2002) (citation omitted).

              Here, the NYPD officers had reasonable suspicion to believe Sobers had

committed a crime. They observed Sobers look around before swiping a MetroCard to

gain entry to the subway station. They could see an amber light illuminate on the

turnstile, indicating that Sobers used a student MetroCard. They could also see that he


                                              ‐3‐
looked older than a typical person who would use a student MetroCard. Because it is

unlawful for a non‐student to use a student MetroCard, the officers witnessed ʺspecific

and articulable factsʺ that led them to the ʺrational inference,ʺ Singletary, 798 F.3d at 62,

that ʺcriminal activity was afoot,ʺ Terry, 392 U.S. at 30. Accordingly, the district court

did not err in holding that the officers had reasonable suspicion and that the Terry stop

was constitutional.

   II.    Warrantless Search

              Under the Fourth Amendment of the Constitution, it is unlawful to

conduct a warrantless search. U.S. Const. amend. IV. There are, however, exceptions to

this general rule. If, for example, ʺevidence [is] obtained during the course of an

unreasonable search and seizure[, it] should not be excluded if the government can

prove that the evidence would have been obtained inevitably without the constitutional

violation.ʺ United States v. Heath, 455 F.3d 52, 55 (2d Cir. 2006) (internal quotation marks

omitted). Inventory searches ‐‐ searches conducted by police at the precinct to remove

and inventory an arresteeʹs property ‐‐ fall within this exception. Illinois v. Lafayette, 462

U.S. 640, 646 (1983). For an inventory search to be valid, the Government must prove:

              (1) that the police had legitimate custody of the . . . property
              being searched, so that an inventory search would have been
              justified; (2) that when the police in the police agency in
              question conducted inventory searches, they did so pursuant
              to ʺestablishedʺ or ʺstandardizedʺ procedures; and (3) that
              those inventory procedures would have ʺinevitablyʺ led to
              the ʺdiscoveryʺ of the challenged evidence.


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United States v. Mendez, 315 F.3d 132, 138 (2d Cir. 2002) (citations omitted).

              Assuming, without deciding, that the officers committed an

unconstitutional warrantless search of Sobersʹs backpack, we agree with the district

court that Sobersʹs gun would have been inevitably discovered. First, the police had

legitimate custody of Sobersʹs backpack. The officers took possession of Sobersʹs

backpack after he was lawfully placed under arrest because he illegally used a student

MetroCard and a computer search showed that he was a transit recidivist. Second, the

police followed NYPD procedure when Sobersʹs belongings, including his backpack,

were vouchered as arrest evidence at the precinct. Notably, Sobers did not challenge

the NYPD inventory procedures at the suppression hearing, and the district court found

ʺthat the officers conducted the inventory search pursuant to established and

standardized procedures.ʺ D. Ct. Dkt. No. 21. Third, the district court found that the

inventory procedures would have led the police to discover Sobersʹs gun. There was

support in the record for these findings. Accordingly, the district court did not err

when it determined that Sobersʹs gun would have been inevitably discovered.

                                            ***

              We have considered Sobersʹs remaining arguments and conclude they are

without merit. For the foregoing reasons, we AFFIRM the judgment of the district

court.

                                          FOR THE COURT:
                                          Catherine OʹHagan Wolfe, Clerk
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