United States of America v. Hector Gabriel Cardona-Vicente

United States Court of Appeals
For the First Circuit
No. 15-1188
UNITED STATES OF AMERICA,
Appellee,
v.
HECTOR GABRIEL CARDONA-VICENTE,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jay A. García-Gregory, U.S. District Judge]
Before
Howard, Chief Judge,
Torruella and Lynch, Circuit Judges.
Andrew McCutcheon, Research and Writing Specialist, with whom
Eric A. Vos, Federal Public Defender, Vivianne M. Marrero-Torres,
Assistant Federal Public Defender, Supervisor, Appeals Section,
and Patricia A. Garrity, Research and Writing Specialist, were on
brief, for appellant.
Susan Z. Jorgensen, Assistant United States Attorney, with
whom Rosa Emilia Rodríguez-Vélez, United States Attorney, and
Nelson Pérez-Sosa, Assistant United States Attorney, Chief,
Appellate Division, were on brief, for appellee.
March 29, 2016

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LYNCH, Circuit Judge. A jury convicted Hector Cardona-
Vicente ("Cardona") of two counts of possession of a controlled
substance with intent to distribute and one count of possession of
a firearm in furtherance of a drug trafficking crime. On appeal,
Cardona argues that the district court erred in denying his motion
to suppress evidence obtained from him after a police officer,
during the course of a traffic stop, conducted a pat-frisk of a
fanny pack that Cardona was wearing, which contained a Glock
pistol, ammunition, drugs, and cash. Upholding the district
court's finding that the facts were sufficient to give rise to a
reasonable suspicion that Cardona was armed and dangerous at the
time of the pat-frisk, we affirm.
I.
"In reviewing the denial of a motion to suppress, '[w]e
recount the relevant facts as the trial court found them,
consistent with record support,'" United States v. Romain, 393
F.3d 63, 66 (1st Cir. 2004) (alteration in original) (quoting
United States v. Lee, 317 F.3d 26, 30 (1st Cir. 2003)), and "[w]e
view the facts in the light most favorable to the district court's
ruling," United States v. Soares, 521 F.3d 117, 118 (1st Cir. 2008)
(quoting United States v. Kimball, 25 F.3d 1, 3 (1st Cir. 1994)).
On May 17, 2013, Officer Melvin Martínez, a fifteen-year
veteran of the Puerto Rico Police Department, was on motorcycle
patrol in Caguas, Puerto Rico. While meeting up with another

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police officer in front of the Plaza del Carmen shopping center,
Martínez saw that the driver of a nearby black Jeep Cherokee was
not wearing a seatbelt, a violation of Puerto Rico law. Martínez
and his fellow officer followed the Jeep and initiated a traffic
stop. Inside were the driver, Cardona in the front passenger seat,
and a minor in the back seat.
Martínez obtained the vehicle's registration from the
driver, who told Martínez that he did not have his driver's
license. Martínez then went around the back of the Jeep to check
its registration sticker, known as a "marbete" and located at the
front of the vehicle, which he did "in a tactical manner so that
the occupants of [the] vehicle would not have a good visibility
regarding as to where [he] was."
As he rounded the Jeep, Martínez saw Cardona in the
passenger seat grabbing a fanny pack wrapped around Cardona's waist
in such a way that, based on Martínez's experience, led him to
believe that there was a gun in the fanny pack. Cardona appeared
to him to be nervous. Martínez then asked Cardona if he had a
license to carry a firearm. According to Martínez, Cardona
"gestured to [him] that he did not." This testimony was supported
by the driver of the Jeep. According to Special Agent Gabriel
Ortiz of Homeland Security Investigations -- who later interviewed
both Cardona and the driver, and testified during the suppression
hearing -- the driver told him that Cardona "remained silent and

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looked down and acknowledged non-verbally that he did not [have a
license to carry a firearm]."
Martínez, who was fearful for his life at this point,
told Cardona to get out of the vehicle. Martínez opened the Jeep's
door "in a tactical manner" to prevent Cardona from fleeing. After
Cardona stepped out of the vehicle, Martínez touched the fanny
pack and felt a gun.
Martínez said to Cardona, "you have a weapon there," to
which Cardona responded, "yes." Martínez then "verified" that
there was a firearm in the fanny pack; the driver told Ortiz that
Cardona unzipped the fanny pack to reveal the weapon. At that
point, Martínez read Cardona his rights and placed him under
arrest.
The fanny pack contained a .40 caliber Glock pistol with
one round of ammunition in the chamber, eleven additional rounds
in the magazine, $597 in cash, and fourteen baggies of cocaine.
After Martínez confirmed that there was a gun in the fanny pack,
he asked Cardona if there was anything else illegal in the car.
Cardona told him there were more items under the rear seat of the
vehicle. Martínez's fellow officer looked under the seat and found
a cigar box with marijuana cigars and twenty-two baggies of
marijuana.
Cardona was then taken to the Caguas police precinct.
Martínez read Cardona his rights, in Spanish, and also gave them

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to him in writing. Cardona signed the statement of rights and
indicated on the form that he understood his rights and that he
wished to give a statement. He then gave a written statement in
which he said, in Spanish, "what they took, well, is mine." Later,
another officer again read Cardona his rights and provided them to
him in Spanish. After acknowledging that he understood his rights,
Cardona signed a waiver of rights. Cardona was then interviewed
by Ortiz.
II.
On May 29, 2013, Cardona was indicted on two counts of
possession of a controlled substance (cocaine and marijuana) with
intent to distribute, 21 U.S.C. § 841(a)(1), and one count of
possession of a firearm in furtherance of a drug trafficking crime,
18 U.S.C. § 924(c). The indictment also included a firearms and
ammunition forfeiture allegation. 18 U.S.C. § 924(d)(1); 28 U.S.C.
§ 2461(c).
On September 16, 2013, Cardona filed a motion to suppress
all materials seized from him by the police as well as statements
he made to the police "as fruit of the traffic stop, illegal
search, and seizure." Cardona argued that "[b]ased on the totality
of the circumstances known to [the Puerto Rico Police Department]
at [the time of the traffic stop] they had no basis to suspect an
ongoing criminal activity," that Martínez was operating on a mere
"hunch," and that Cardona's detention consequently did "not fall

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within the reasonable investigatory stop of Terry v. Ohio, 392
U.S. 1 (1968)."
A suppression hearing was held before a magistrate judge
on November 14, 2013. Both Martínez and Ortiz testified at the
hearing, and the government submitted seven documents into
evidence without objection. Cardona did not take the stand or
submit any evidence in support of his motion. In a Report and
Recommendation issued on November 18, 2013, the magistrate judge
recommended denial of Cardona's motion, concluding that "under the
totality of the circumstances, there was reasonable suspicion to
stop the vehicle in which defendant Cardona was an occupant," that
Cardona's warrantless arrest was based on probable cause, that the
subsequent search of the car was legal, and that Cardona's
statements were admissible.
Cardona filed an objection to the magistrate judge's
Report and Recommendation on December 23, 2013, arguing, inter
alia, that an officer's "speculation resulting from the way a
person holds a fanny pack is insufficient" to justify a search.
The government opposed Cardona's objection.
On February 26, 2014, the district court adopted the
magistrate judge's Report and Recommendation and denied Cardona's
motion to suppress. United States v. Cardona-Vicente, No. 13-cr-
308, 2014 WL 794591 (D.P.R. Feb. 26, 2014). Though the magistrate
judge had not done so, the district court engaged in an independent

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Fourth Amendment analysis of the pat-frisk of the fanny pack. Id.
at *1–2. The court recognized that a pat-frisk must be supported
by "reasonable suspicion that the person subjected to the frisk is
armed and dangerous," id. at *1 (quoting Arizona v. Johnson, 555
U.S. 323, 327 (2009)), and it explained that "there [were] at least
three factors here alerting Agent Martinez: (1) Cardona's
nervousness, (2) the type of fanny pack around Cardona's waist,
(3) the manner in which Cardona grabbed the fanny pack," id. at
*2. The court concluded that these factors "were sufficient to
give Agent Martinez reasonable suspicion that Cardona was armed
and dangerous," and that once the pat-frisk was conducted, "the
arrest was justified." Id.
After plea bargaining broke down, a two-day jury trial
was held on July 15 and 16, 2014. Cardona was convicted on all
three counts and sentenced to a total of sixty months of
imprisonment. This appeal followed.
III.
On appeal, Cardona argues that "[a]lthough [he] does not
challenge the validity of the original Terry stop, it is [his]
contention that the district court erred in finding that factors
utilized as justification for the subsequent frisk . . . [gave]
rise to the sort of particularized suspicion necessary to support

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a pat-frisk under Terry." 1 He argues that the items seized from
him, as well as statements he later gave to the police, should be
suppressed as fruits of the unconstitutional pat-frisk. See United
States v. Camacho, 661 F.3d 718, 728–29 (1st Cir. 2011) (explaining
fruit of the poisonous tree doctrine).
When reviewing the denial of a motion to suppress, we
review the district court's legal determinations de novo and its
factual findings for clear error. United States v. Collins, 811
F.3d 63, 65 (1st Cir. 2016).
"[I]n determining whether a pat-down search is an
appropriate step following a valid Terry stop, the key is whether,
under the circumstances, 'the officer is justified in believing
that the person is armed and dangerous to the officer or others.'"
Romain, 393 F.3d at 71 (quoting United States v. Schiavo, 29 F.3d
6, 8 (1st Cir. 1994)). "It is insufficient that the stop itself
is valid; there must be a separate analysis of whether the standard
for pat-frisks has been met. To assess the legality of a
protective frisk, a court looks at the totality of the
circumstances to see whether the officer had a particularized,
1 It is not clear from the record whether there was a pat-
frisk of his person. As best we can tell, there was never a frisk
of the defendant's person, just a touching by Martínez of the fanny
pack after Cardona got out of the car. Assuming that the touching
of the fanny pack was nonetheless a search, Cardona's claim fails,
as we explain below.

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objective basis for his or her suspicion." United States v. McKoy,
428 F.3d 38, 39 (1st Cir. 2005).
The "touchstone" of this inquiry is the reasonableness
of the officer's actions, which, in turn, "depends on what the
officer knows (or has reason to believe) and how events unfold."
Romain, 393 F.3d at 71. "Evaluating whether an officer's
suspicions are (or are not) reasonable is a fact-sensitive task,
bound up in the warp and woof of the surrounding circumstances."
United States v. Chhien, 266 F.3d 1, 8 (1st Cir. 2001).
Accordingly, "[d]eference is due to the experienced perceptions of
the officers, . . . but not blind deference; these perceptions
must be reasonable under an objective standard." United States v.
Woodrum, 202 F.3d 1, 7 (1st Cir. 2000) (citing Ornelas v. United
States, 517 U.S. 690, 699–700 (1996)); see Terry, 392 U.S. at 27
("And in determining whether the officer acted reasonably in such
circumstances, due weight must be given, not to his inchoate and
unparticularized suspicion or 'hunch,' but to the specific
reasonable inferences which he is entitled to draw from the facts
in light of his experience." (emphasis added)). Indeed, the Fourth
Amendment analysis "makes due allowance for the need for police
officers to draw upon their experience and arrive at inferences
and deductions that 'might well elude an untrained person.'"
United States v. Arnott, 758 F.3d 40, 44 (1st Cir. 2014) (quoting
United States v. Arvizu, 534 U.S. 266, 273 (2002)).

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Though the seatbelt violation that justified the initial
stop of the Jeep would have been clearly insufficient to justify
a pat-frisk, several factors became apparent as the traffic stop
progressed which were sufficient to give rise to a reasonable
suspicion that there was a gun in Cardona's fanny pack. See
Soares, 521 F.3d at 120. The driver of the car could not produce
a driver's license, suggesting the Jeep may have been stolen.
Cardona, the passenger, appeared nervous during the stop. As
Martínez was walking around the Jeep to check the registration
sticker, he saw that Cardona was clutching a fanny pack in a manner
that, based on his experience, was consistent with there being a
gun inside. See United States v. Sanchez, No. 15-1107, 2016 WL
1127764, at *4 (1st Cir. Mar. 23, 2016) (affirming the denial of
a motion to suppress and crediting an officer's belief, "based on
his experience," that the manner in which a suspect reached for
his waistband "suggest[ed] that [the suspect] had a gun"); see
also United States v. Young, 105 F.3d 1, 7 (1st Cir. 1997) (noting
that "[c]onduct innocent in the eyes of the untrained may carry
entirely different 'messages' to the experienced or trained
observer" (alteration in original) (quoting United States v.
Stanley, 915 F.2d 54, 56 (1st Cir. 1990))). Indeed, Martínez
testified that "of course" he feared for his life when he saw the
manner in which Cardona held the fanny pack. See Soares, 521 F.3d
at 120 ("The facts demonstrate that the officers believed that

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their safety was at risk."). With his suspicions already aroused,
Martínez asked Cardona if he had a license to carry a firearm;
Cardona heightened Martínez's concerns when he evasively responded
by looking down and then non-verbally, gesturing with his head,
admitting that he did not have a license. This sequence of events
was sufficient to give rise to a reasonable suspicion that Cardona
was armed and dangerous, and Martínez was justified in asking him
to get out of the car and in touching the fanny pack.
Cardona attempts to liken his case to the facts of McKoy,
a case, unlike this one, in which we affirmed a district court's
grant of a motion to suppress filed by a defendant who was pat-
frisked after his car was stopped for a parking violation. 428
F.3d at 39. There, the government appealed and in the district
court had only "relie[d] on two factors as rationales for the
officers' concern for their safety: (1) the dangerousness of the
neighborhood and (2) McKoy's nervous appearance and movements
inside the car." Id. at 40. The court gave little weight to the
dangerousness of the neighborhood, 2 noting that "[w]hile police
2 The government here makes much of the fact that Martínez
described Caguas as a high-crime area. See United States v.
Rabbia, 699 F.3d 85, 90 (1st Cir. 2012) ("[O]fficers are not
required to ignore the relevant characteristics of a location in
determining whether the circumstances are sufficiently suspicious
to warrant further investigation." (quoting Illinois v. Wardlow,
528 U.S. 119, 124 (2000))). Neither the magistrate judge nor the
district court made any findings as to the dangerousness of the
area in which the pat-frisk occurred. We decline to draw our own
conclusion "because this is a factual issue best left to the

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are permitted to take the character of a neighborhood into account
when assessing whether a stop is appropriate," the evidence
presented "len[t] only weak support to the officers' perception
that McKoy was armed and dangerous." Id. And we agree with McKoy
that "[n]ervousness is a common and entirely natural reaction to
police presence." Id. In McKoy, we concluded, as did the trial
court, that "[i]t is simply not reasonable to infer that a driver
is armed and dangerous because the officers believe that he appears
nervous and reaches toward the car's console when approached by
police, even in a high-crime neighborhood." Id. at 41.
Cardona's reliance on McKoy is misplaced. Unlike in
McKoy, Martínez's suspicion that Cardona was armed and dangerous
was based on more particularized indicia of danger than mere
nervousness. See Camacho, 661 F.3d at 726 (noting "the suspicion
must be both objectively reasonable and 'grounded in specific and
articulable facts'" (quoting United States v. Hensley, 469 U.S.
221, 229 (1985))).
We appreciate the concern expressed by the Federal
Public Defender in his claim that the Puerto Rico Police Department
routinely conducts unconstitutional searches absent reasonable
suspicion or probable cause. If true, that would be cause for
district court and, in the end, not necessary to our conclusion."
United States v. Hart, 674 F.3d 33, 39 n.1 (1st Cir. 2012).

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concern. But this case is not characterized by such facts. There
was reasonable suspicion here.
Because the pat-frisk was legal, Cardona's fruit of the
poisonous tree argument fails as well.
IV.
The district court's denial of Cardona's motion to
suppress is affirmed.

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