                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-15-2009

USA v. Rosario
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-4814




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                                                               NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                      No. 07-4814


                           UNITED STATES OF AMERICA

                                           v.

                                 CARLOS ROSARIO,

                                                      Appellant


                   On Appeal from the United States District Court
                             for the District of New Jersey
                                   (D.C. No. 05-437)
                   District Court Judge: Honorable Robert B. Kugler


                   Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                                   January 6, 2009

           Before: FUENTES and FISHER, Circuit Judges, and PADOVA,*
                                 District Judge

                               (Filed: January 15, 2009)




                              OPINION OF THE COURT




____________
*The Honorable John R. Padova, Senior District Judge for the Eastern District of
Pennsylvania, sitting by designation.
PADOVA, Senior District Judge.

       Carlos Rosario appeals from his conviction on one count of possession of a firearm

by a convicted felon, in violation of 18 U.S.C. § 922(g)(1). Following the denial of his pre-

trial motion to suppress the firearm, Rosario entered a conditional guilty plea preserving the

suppression issue. He is currently serving a sentence of 33 months imprisonment. We have

jurisdiction over his appeal pursuant to 28 U.S.C. § 1291. We affirm the conviction.

                                              I.

       In Spring 2005, the Drug Enforcement Administration Mobile Enforcement Team

(“DEA”) was deployed to Camden, New Jersey to focus law enforcement efforts on mid-

level narcotics dealers in the area. Information led DEA agents to investigate Carlos Rosario.

During the course of the investigation, the DEA learned of an outstanding arrest warrant for

Rosario issued by the Camden municipal court. The warrant was in the name of “Carlos

Santana,” one of Rosario’s confirmed aliases.* The DEA, in conjunction with the New

Jersey State Police (“NJSP”), arranged for two NJSP Troopers, Reitz and Crain, to perform

a motor vehicle stop on Rosario’s car in order to plant a tracking device in the car as an

investigative tool.

       Prior to arranging the directed stop, the DEA knew that the “Santana” warrant

contained the unique State Bureau of Investigation (“SBI”) number assigned to Rosario;

Rosario’s criminal history records indicated that he used the alias “Carlos Santana;” the date


       *
        The “Santana” warrant was issued in 1996. Rosario had been arrested in Camden
County in 2000, and was not connected to the Santana warrant prior to the DEA
investigation.
of birth listed for Santana in the Santana criminal history record was only one digit different

than that listed for Rosario; and the address listed for Santana in his criminal history record

was the same address listed for Rosario in his criminal history record.**

       The directed stop occurred on the night of April 8, 2005. Rosario, who was under

continuous DEA surveillance, was seen by agents as he left a bar in Philadelphia. The

agents radioed a description of Rosario’s vehicle to the NJSP Troopers, who spotted the

black BMW 7 series sedan exiting the Ben Franklin Bridge. The Troopers initiated the

vehicle stop based upon their knowledge of the active warrant.*** Reitz first became aware

of the existence of the warrant from the information he received from a NJSP detective

working with the DEA. That information indicated that the warrant was in the name of

Carlos Santana and that Rosario used that name as an alias. In addition, Reitz saw the actual

warrant prior to the stop. The warrant, however, did not in any way refer to the name Carlos

Rosario, nor did it contain a description of the race, gender, eye color, hair color, weight or

height of the individual named in the warrant. Reitz testified in response to questions from

the District Court that he was additionally acting on good faith reliance that the information

he received about Rosario/Santana from the NJSP detective and the DEA agents was good

information.

       **
            While the actual warrant contained a different address, the vehicle documents Rosario
produced on the night of his arrest listed the same address contained in the Rosario and Santana
criminal history records.
       ***
         Trooper Reitz testified that he had an additional reason for stopping the vehicle,
namely that he observed the driver speeding. According to Reitz, he used radar to determine
Rosario’s speed, but could not remember how fast he had clocked the vehicle and his written
report does not record that a radar device was employed.
       Because the purpose of the directed stop was to plant the tracking device, Trooper

Reitz testified that the authorities did not wish to disclose the existence of the outstanding

warrant. Reitz admitted that, prior to initiating the stop, it was his intention to place Rosario

under physical arrest for “something,” in order to take him out of the car and plant the

tracking device. However, he knew that a mere speeding violation was insufficient cause

to remove Rosario from the vehicle. Because Rosario passed a field sobriety test, the only

probable cause Reitz had to effectuate the arrest was the outstanding warrant, and he arrested

Rosario on that ground. A subsequent search of Rosario led to the discovery of a firearm

in his waistband.

       Reitz wrote a report of the arrest. He admitted that he purposefully included incorrect

information in the report and omitted other information in order to hide the fact that the

arrest was made in order to plant the tracking device. Specifically, the report does not

mention that Reitz was aware of the warrant prior to stopping Rosario. Reitz wrote in the

report that he conducted a computer check on Rosario from his vehicle, discovered the

outstanding warrant, and arrested Rosario on that basis, when Reitz in fact knew of the

warrant before initiating the stop. Reitz admitted that he intentionally wrote the report in

this manner after discussing the matter with the DEA agents because they did not want

Rosario or his attorney to know that the authorities were targeting Rosario, in order to

protect the confidentiality of the ongoing investigation. Reitz testified that he believed it

was permissible to misrepresent facts in a police report for this purpose.

       In deciding Rosario’s motion to suppress the firearm, the District Court held that
Rosario’s arrest was lawful because the DEA agents had probable cause to arrest Rosario

and the arresting Troopers acted on the basis of the request made of them by the detective

that was working with the DEA. The District Court noted that Rosario had not contested

the validity of the “Santana” arrest warrant; rather he contended in his suppression motion

that the warrant only authorized the arrest of “Santana” and law enforcement improperly

connected him with the Santana alias by relying on statements made by the NJSP detective

that were not grounded in probable cause. The District Court rejected this argument, finding

as fact that the Government had,

       successfully established that Rosario and Santana are the same person. The
       DEA examined Rosario’s official criminal history and revealed that his only
       recorded alias was “Carlos Santana.” Further the DEA coordinated with a
       State Police detective and matched the SBI numbers listed on the 1996
       Santana warrant with the State Police’s SBI number for Carlos Rosario.
              Based on the record, the DEA possessed the requisite probable cause
       to authorize the execution of the 1996 warrant. The detective working with
       the DEA communicated with the troopers and informed them that criminal
       history checks linked the Rosario and Santana names for purposes of the
       warrant. Further, the officers contacted the State Police barracks from the
       police vehicle and confirmed the existence of the warrant before executing it.
       Finally, after making the arrest and seizing the handgun, the troopers
       confirmed that Rosario was in fact the person identified on the warrant by
       matching Rosario’s State Police SBI number and the SBI number listed on the
       warrant. Based on these facts, the arrest of Rosario and the subsequent search
       and seizure of the handgun were not unconstitutional.

                                            II.

       In reviewing a suppression order, “we exercise plenary review over the District

Court’s legal conclusions, and we review the underlying factual findings for clear error.”

United States v. Laville, 480 F.3d 187, 190-91 (3d Cir. 2007) (citing United States v.

Delfin-Colina, 464 F.3d 392, 395-96 (3d Cir. 2006), and United States v. Veal, 453 F.3d
164, 167 (3d Cir. 2006)). We may affirm on any ground supported by the record. Id. (citing

United States v. Agnew, 407 F.3d 193, 196 (3d Cir. 2005)).

                                             III.

       Rosario argues that the District Court erred in denying the suppression motion

because the Trooper had no probable cause to: 1) stop Rosario’s vehicle for the ruse traffic

infraction; and 2) connect Rosario to the Santana warrant. We disagree. Based upon the

facts found by the District Court, the Government established probable cause to stop the

vehicle to execute the Santana arrest warrant. Thus, any alleged defect in the traffic stop and

efforts by law enforcement to keep the drug investigation confidential is immaterial.

       To determine whether the police have probable cause to believe a particular suspect

is the person named in a warrant, “we apply a common sense approach and consider the facts

and circumstances within the knowledge of the law enforcement agents, when viewed in the

totality.” Veal, 453 F.3d at 167-68 (internal quotations omitted) (addressing issue of

whether police had probable cause to enter residence/believe suspect was in the residence);

see also United States v. Glover, 725 F.2d 120, 122 (D.C. Cir. 1984) (holding that “the arrest

of a person who is mistakenly thought to be someone else is valid if the arresting officer (a)

has probable cause to arrest the person sought, and (b) reasonably believed the person

arrested was the person sought” (citing Hill v. California, 401 U.S. 797, 802 (1971))).

       The Government established that, at the time of the directed stop, Reitz had probable

cause to believe that a valid arrest warrant existed for Santana, Rosario and Santana were

the same person, and Rosario was the person in the vehicle. This alone was sufficient to
establish probable cause to support the directed stop of Rosario’s vehicle. As the stop of the

vehicle and subsequent arrest were supported by probable cause, the weapon found during

the search of Rosario’s person incident to the lawful arrest was correctly deemed admissible.

Because the “Santana” warrant gave Trooper Reitz probable cause to stop the vehicle, even

if no traffic offense had occurred, Rosario’s argument that the ruse traffic stop of his vehicle

was unsupported by probable cause, and his reliance on the falsities in the police report, are

meritless.

                                              IV.

       For the foregoing reasons, we will affirm the District Court’s Order of Judgment and

Conviction.
