     14-531
     United States v. Long

                          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 5th day of December, two thousand fourteen.
 5
 6       PRESENT: AMALYA L. KEARSE,
 7                DENNIS JACOBS,
 8                REENA RAGGI,
 9                              Circuit Judges.
10
11       - - - - - - - - - - - - - - - - - - - -X
12       UNITED STATES OF AMERICA,
13                Appellee,
14
15                    -v.-                                               14-531
16
17       MARCUS LONG,
18                Defendant-Appellant.
19       - - - - - - - - - - - - - - - - - - - -X
20
21       FOR APPELLANT:                        DARRELL B. FIELDS, Federal
22                                             Defenders of New York, New York,
23                                             New York.
24
25       FOR APPELLEE:                         JUSTIN ANDERSON (Michael Gerber,
26                                             on the brief), for Preet
27                                             Bharara, United States Attorney


                                                  1
 1                              for the Southern District of New
 2                              York, New York, New York.
 3
 4        Appeal from a judgment of the United States District
 5   Court for the Southern District of New York (Seibel, J.).
 6
 7        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
 8   AND DECREED that the judgment of the district court be
 9   AFFIRMED.
10
11        Appellant Marcus Long appeals from the judgment of the
12   United States District Court for the Southern District of
13   New York (Seibel, J.), convicting him of possessing a
14   firearm following a prior felony conviction. Long argues
15   that he was stopped unlawfully and that the district court
16   erred in denying his motion to suppress evidence obtained
17   following the unlawful stop. We assume the parties’
18   familiarity with the underlying facts, the procedural
19   history, and the issues presented for review.
20
21        On appeal of a district court’s ruling on a motion to
22   suppress, we review factual findings for clear error and
23   legal conclusions de novo. United States v. Murphy, 703
24   F.3d 182, 188 (2d Cir. 2012). A district court’s factual
25   finding is clearly erroneous only if “on the entire evidence
26   [the reviewing court] is left with the definite and firm
27   conviction that a mistake has been committed”; there is no
28   clear error if “there are two permissible views of the
29   evidence.” Id. at 188-89 (citation and internal quotation
30   marks omitted). In other words, the record must be viewed
31   in the light most favorable to the prevailing party below.
32   Id. at 189.
33
34        The record below, viewed in the light most favorable to
35   the government, establishes the following. While on
36   undercover patrol in April 2012, Police Officer William
37   Pataky saw Long get out of a stopped car, lean into the
38   car’s backseat, and make repeated circular motions with his
39   arms. Officer Pataky could not see who, if anyone, was in
40   the backseat. Long got back into the front passenger seat a
41   couple minutes later, and the car drove off. At that point,
42   Officer Pataky, having called for back-up, stopped and
43   approached the car. He questioned the driver, Janel
44   Johnson, about what Long had been doing and was told that
45   Long had been tying down the car’s trunk through the
46   backseat. Officer Pataky checked the backseat to see
47   whether anyone appeared injured; the backseat occupant,

                                  2
 1   Stephen Washington, appeared uninjured. While Officer
 2   Pataky was speaking with Johnson, Officers William Quirk and
 3   Albert Hughes arrived and went to the passenger side of the
 4   car. Officer Quirk observed a bullet in between Long’s
 5   thighs and communicated this observation to the other
 6   officers. The officers then ordered all three occupants--
 7   Long, Johnson, and Washington--out of the car. A pat-down
 8   of Long revealed a gun in his back pocket. Long was
 9   arrested and, following the arrest, made a number of
10   statements to police officers.
11
12        “[P]olice may briefly detain an individual for
13   questioning if they have a reasonable suspicion that
14   criminal activity is afoot, and may frisk him if they
15   reasonably believe he is armed and dangerous.” United
16   States v. Elmore, 482 F.3d 172, 178 (2d Cir. 2007) (citing
17   Terry v. Ohio, 392 U.S. 1 (1968)). Reasonable suspicion
18   must be supported by “specific and articulable facts which,
19   taken together with rational inferences from those facts,
20   reasonably warrant the intrusion on a citizen’s liberty
21   interest.” Elmore, 482 F.3d at 178-79 (citation, brackets,
22   and internal quotation marks omitted). “Reasonable
23   suspicion is an objective standard.” United States v.
24   Bayless, 201 F.3d 116, 133 (2d Cir. 2000).
25
26        The district court did not err, much less clearly err,
27   in ruling that Officer Pataky’s stop of the car was
28   supported by reasonable suspicion. A reasonable officer
29   observing what Officer Pataky undisputedly saw--Long’s
30   circular arm motions, consistent with punching into the
31   backseat--could reasonably suspect that Long had assaulted a
32   passenger. That Long’s conduct was in fact innocent is not
33   determinative. United States v. Arvizu, 534 U.S. 266, 277
34   (2002) (“A determination that reasonable suspicion exists,
35   however, need not rule out the possibility of innocent
36   conduct.”).
37
38        Long’s argument that Officer Pataky did not act as
39   though he believed an assault had taken place provides no
40   basis for reversal. See Bayless, 201 F.3d at 133 (“[T]he
41   subjective intentions or motives of the officer making the
42   stop are irrelevant.”). The district court did not clearly
43   err in crediting Officer Pataky’s testimony that his delay
44   in stopping the car was motivated by concern over his safety
45   as an undercover officer. See Murphy, 703 F.3d at 189
46   (“When . . . credibility determinations are at issue, we


                                  3
 1   give particularly strong deference to a district court
 2   finding.” (citation and internal quotation marks omitted)).
 3
 4        Long argues that, even if the initial stop was
 5   supported by reasonable suspicion, the justification for the
 6   stop dissipated as soon as Officer Pataky saw that no one
 7   was injured in the backseat. However, this argument was not
 8   raised below, and has therefore been waived. United States
 9   v. Klump, 536 F.3d 113, 120 (2d Cir. 2008). Such an
10   “oversight will be excused only ‘[f]or good cause,’” id.
11   (quoting Fed. R. Crim. P. 12(e)), and no showing of good
12   cause has been made here. In any event, the argument would
13   not assist Long. A stop based on reasonable suspicion must
14   be “‘reasonably related in scope to the circumstances which
15   justified the interference in the first place’” and must not
16   continue once the basis for the stop has been dispelled.
17   United States v. Babwah, 972 F.2d 30, 33 (2d Cir. 1992)
18   (quoting Terry, 392 U.S. at 20). The record establishes
19   that: (1) Officers Quirk and Hughes arrived within one
20   minute of the initial stop, while Officer Pataky was still
21   questioning Johnson about what Long had been doing, and (2)
22   upon arrival, Officer Quirk directed his flashlight at the
23   passenger seat and saw the bullet. Thus, at the point when
24   Officer Quirk observed the bullet, Officer Pataky still had
25   not ruled out the basis for the initial stop. There was
26   nothing unreasonable about the duration of the stop
27   preceding Officer Quirk’s observation. Cf. Babwah, 972 F.2d
28   at 33 (finding forty-minute detention unreasonable when
29   initial search dispelled basis for stop).
30
31        For the foregoing reasons, and finding no merit in
32   Long’s other arguments, we hereby AFFIRM the judgment of the
33   district court.
34
35                              FOR THE COURT:
36                              CATHERINE O’HAGAN WOLFE, CLERK
37
38




                                  4
