13-778-cr
United States v. Spencer


                                  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 Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York,
on the 25th day of April, two thousand fourteen.

PRESENT:
                     GUIDO CALABRESI,
                     JOSÉ A. CABRANES,
                     DEBRA ANN LIVINGSTON,
                                  Circuit Judges.

_____________________________________

UNITED STATES OF AMERICA,

                     Appellee,

                             v.                                 No. 13-778-cr

PATRICK K. SPENCER, AKA STAN BAPTISTE,
AKA BORN BAPTISTE,

            Defendant-Appellant.
_____________________________________

FOR APPELLEE:                                            SAMUEL P. NITZE, Assistant United
                                                         States Attorney (Jo Ann M. Navickas,
                                                         Celia A. Cohen, Assistant United
                                                         States Attorneys, on the brief), for
                                                         Loretta E. Lynch, United States
                                                         Attorney for the Eastern District of
                                                         New York, Brooklyn, NY.

                                                    1
FOR DEFENDANT-APPELLANT:                                        EDWARD D. WILFORD, New York,
                                                                NY.


        Appeal from a March 1, 2013 judgment of the United States District Court for the Eastern
District of New York (Sandra L. Townes, Judge).

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

         Defendant Patrick K. Spencer (“Spencer”) appeals a judgment of conviction, after trial by
jury in the District Court, on: (1) one count of possession with intent to distribute five grams or
more of a substance containing cocaine base and heroin, in violation of 21 U.S.C. §§ 841(b)(1)(B)(iii)
and 841(b)(1)(C); (2) one count of possession of a firearm in relation to a drug trafficking crime, in
violation of 18 U.S.C. § 924(c)(1)(A)(i); and (3) one count of possession of a firearm by a previously-
convicted felon, in violation of 18 U.S.C. §§ 922(g) and 924(e). On January 7, 2013, the District
Court sentenced Spencer principally to 300 months’ imprisonment.
         The incident giving rise to the conviction occurred on June 11, 2009, when Spencer was
arrested by officers of the New York City Police Department, after they stopped him and his friend
for allegedly riding bicycles the wrong way down a one-way street and riding on the sidewalk.
According to the testimony of Vincent Tiernan, the arresting officer, Spencer was holding a five-
pound dumbbell, and Tiernan asked Spencer to put it down on the ground. As Spencer did so, an
object in Spencer’s coat pocket fell forward, which he tried to quickly stop with his hand. Fearing
the quick movement, Tiernan placed his own hand over Spencer’s hand, telling Spencer not to make
any sudden movements, and Tiernan then reached into the jacket and ran his other hand along the
object that was now beneath both Spencer’s and Tiernan’s hands. Tiernan immediately felt that the
object was a handgun. Tiernan testified that, after securing the weapon, he thoroughly searched
Spencer for other weapons and found cocaine, marijuana, and heroin.
         Spencer moved to suppress the evidence against him, on the ground that it had been
obtained in violation of his Fourth Amendment rights. The government contended that the
discovery of the handgun was proper following a frisk supported by reasonable cause, pursuant to
Terry v. Ohio, 392 U.S. 1 (1968). On March 8, 2010, the District Court conducted a suppression
hearing regarding the admissibility of that evidence, at which Tiernan and another officer testified, as
did a friend of Spencer who was with him at the time of his arrest. On May 14, 2010, the District
Court denied the motion to suppress, basing its decision on the credibility of Tiernan’s testimony,
which was substantially corroborated by the other officer’s testimony. We assume the parties’
familiarity with the remaining factual and procedural history of this case.
         On appeal, Spencer argues that the evidence found on his person was a direct result of an
unlawful search, and the District Court therefore erred in admitting it. Additionally, he brings two
                                                    2
challenges to his sentence: (1) by only providing “certificates of disposition” as proof of his prior
convictions, the government failed to adequately establish that he had been convicted of three prior
violent felonies or serious drug offenses, such that he could be sentenced as an armed career
criminal; and (2) classification as an armed career criminal cannot be found by a judge; rather, it
requires a jury finding that the three prior convictions were “valid.”
        We review the denial of a motion to suppress de novo, but we review a district court’s factual
findings for clear error, construing the evidence in the light most favorable to the government. See
United States v. Casado, 303 F.3d 440, 443 (2d Cir. 2002). Mixed questions of law and fact, such as
whether there was reasonable suspicion for a Terry stop, are also reviewed de novo. See United States v.
Lucky, 569 F.3d 101, 105-06 (2d Cir. 2009). Furthermore, we give heightened deference to a district
court’s determinations regarding witness credibility, and are generally “not entitled to overturn those
assessments.” United States v. Maldonado-Rivera, 922 F.2d 934, 972 (2d Cir. 1990).
        We conclude, based upon an independent review of the record and relevant case law, that
the District Court properly denied the motion to suppress. According to the officers’ accounts,
which were found to be credible by the District Judge, they stopped Spencer and his friend because
the two were riding their bicycles on the sidewalk, and were riding the wrong way down a one-way
street. We have previously held that if an officer observes a violation of New York City
Administrative Code § 19-176, which prohibits the riding of bicycles on sidewalks, that provides
sufficient grounds for an arrest, see United States v. McFadden, 238 F.3d 198, 203-04 (2d Cir. 2001); it
thus certainly justifies a mere Terry stop.
        Once Spencer was properly stopped, Officer Tiernan noted that Spencer was holding a five-
pound dumbbell in the middle of the night, and when Spencer went to set it down, Tiernan
observed him make a sudden movement with his hand towards an object in his coat pocket. In these
circumstances, it was entirely proper and lawful for Tiernan to frisk Spencer to ascertain whether the
object was a weapon and to ensure that he did not risk being harmed. See, e.g., Terry, 392 U.S. at 30
(“[W]here a police officer observes unusual conduct which leads him reasonably to conclude in light
of his experience that criminal activity may be afoot and that the persons with whom he is dealing
may be armed and presently dangerous . . . he is entitled for the protection of himself and others in
the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to
discover weapons which might be used to assault him.”); United States v. Hamilton, 978 F.2d 783, 785-
86 (2d Cir. 1992) (finding that police appropriately patted down defendant and asked him to empty
his pockets after seeing an “unusual bulge” in his pocket). The District Court thus did not err in
allowing the government to present evidence that was seized as a result of this search.
        We have also considered Spencer’s arguments with regard to sentencing, and find them to be
without merit.




                                                   3
                                       CONCLUSION

       We have considered all of Spencer’s arguments on appeal and find them to be without merit.
Accordingly, we AFFIRM the March 1, 2013 judgment of the District Court.

                                                    FOR THE COURT:
                                                    Catherine O’Hagan Wolfe, Clerk




                                                4
