USA v. Luna-Irizarry

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
UNITED STATES OF AMERICA,
Plaintiff,
v.
YAREH E. LUNA-IRIZARRY,
Defendant.
CRIMINAL NO. 26-023 (FAB)(HRV)
REPORT AND RECOMMENDATION
Pending before the Court is the motion to suppress evidence filed by defendant
Yareh Luna-Irizarry (hereinafter “Mr. Luna” or “Defendant”). (Docket No. 28). The
United States opposes the motion. (Docket Nos. 42). This matter has been referred to me
by the presiding District Judge for report and recommendation pursuant to 28 U.S.C. §
636(b)(1). (Docket Nos. 30 and 33). I held an evidentiary hearing on September 3, 2026.
(Docket No. 53). For the reasons set forth below, I recommend that the motion to
suppress be denied.
I. 	PROCEDURAL B ACKGROUND
On January 22, 2026, the Grand Jury returned an Indictment charging Mr. Luna
in one count with possession of a machinegun in violation of 18 U.S.C. § 922(o). (Docket
No. 17). The charge stems from a Puerto Rico Police Bureau (“PRPB”) traffic intervention
with the vehicle driven by Mr. Luna on January 7, 2026. It is alleged that upon
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conducting a traffic stop for dark tinted windows, a PRPB agent observed in plain view
the tip of a firearm barrel in the rear part of the vehicle’s floor under the driver’s seat.
PRPB agents seized, among other things, a Glock pistol .40 caliber modified to shoot
automatically, firearm magazines, and ammunition.
On May 20, 2026, the Defendant filed his motion to suppress claiming in general
that suppression is warranted because the Government’s plain view theory “cannot
survive scrutiny on any level.” (Docket No. 28 at 2). According to Mr. Luna, the
photographs provided by the Government in discovery undermine any claim that the
firearm was visible from any vantage point to an officer standing outside of the vehicle,
even with the doors open and the use of a flashlight to conduct the window tint
measurement procedure. To bolster his argument, Defendant underscores that body-
worn camera videos did not capture the full intervention because agents began to record
“only after the search had concluded, the vehicle had already been opened, and Luna-
Irizarry was already under police control” in violation of the PRPB body-camera policy.
(Id. at 3). The Defendant further argues that PRPB agents conducted a warrantless
search of his vehicle in violation of the Fourth Amendment; that compliance with police
instructions did not constitute voluntary consent to create a lawful vantage point; and
that the traffic stop was unlawfully extended.
The Government filed its response in opposition on June 15, 2026. (Docket No.
42). The United States requested that the motion to suppress be denied without a hearing,
contending, first, that Defendant did not meet his threshold burden to show a legitimate
expectation of privacy in the vehicle. Second, the Government maintains that, regardless,
the PRPB agents conducted a lawful traffic stop for illegal window tints and that they
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observed the firearm in plain view from a lawful vantage point as they carried out a
proper tint-enforcement procedure. Lastly, the United States argues that failure to
activate body-worn cameras does not warrant suppression because the PRPB agent’s
failure to follow policy did not constitute the type of deliberate, reckless or systemic
conduct that triggers the exclusionary rule.
On that same date, June 15, 2026, I ordered the Defendant to respond to the
Government’s argument regarding lack of standing, warning him that failure to properly
substantiate his legitimate expectation of privacy would cause the scope of the hearing
to be limited to the lawfulness of the traffic stop. (Docket No. 43). The Defendant
complied. (Docket No. 47).
On September 3, 2026, I held an evidentiary hearing. The Defendant testified as
to the issue of standing. (Docket No. 53). The Government presented the testimony of
PRPB agent Javier Santiago-María (“Agent Santiago”). (Id.). Several exhibits were
admitted into evidence. (Id.; see also Docket No. 56). The undersigned also heard closing
arguments from counsel.
II. 	FINDINGS OF FACT
With the benefit of the parties’ written submissions and the documentary and
testimonial evidence received at the suppression hearing, I now make the following
findings of fact.
A. 	Testimony of Mr. Luna
Mr. Luna testified that he is 24 years old and works with a music artist. On
January 7, 2026, there was an intervention that gave rise to the present case. That night,
he was driving a Honda Pilot. Prior to the PRPB stopping him that night, he had the
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Honda Pilot for approximately 8 months. Mr. Luna obtained possession of the Honda
Pilot by exchanging it with a friend for another vehicle he had. He needed extra
loading/cargo to be able to pull his four-tracks and jet skis. Mr. Luna exchanged a Jeep
Cherokee for the Honda Pilot. The exchange of vehicles occurred at his friend’s house.
Mr. Luna further testified that from the time he acquired possession of the Honda
Pilot until the January 7, 2026, intervention, he was the only person who maintained
control of the vehicle. He used it regularly, had the keys, controlled who could use it, and
kept personal property in it. Nobody else had keys to the vehicle, and he kept it at his
mother’s house when he was not using it. During the time that Mr. Luna had the vehicle,
the person from whom he acquired it from never demanded it be returned. No one ever
told Mr. Luna that the possession of the Honda Pilot was unauthorized. He understood
that the person who gave the Honda Pilot to him was authorized to transfer it to him. All
documents related to the car, like the license plate and registration sticker (marbete)
were in order.
On cross-examination, Mr. Luna admitted that he does not know the license plate
number, nor the name of the person that exchanged the Honda Pilot with him. In his
testimony at the suppression hearing, Mr. Luna identified the person as a friend.
However, in his unworn statement under the penalty of perjury submitted to the Court
(Docket No. 47-1), Mr. Luna did not say the person was a friend. He stated that the
vehicle was transferred to him “through a series of informal exchanges between private
individuals.” As to the registration documents, Mr. Luna knows the name of his friend
but does not know the person the Honda Pilot is registered to. He also does not know if
his friend had legitimate possession of the car before it was transferred to him. Mr. Luna
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only knows that his friend gave him the keys and only knows the nickname of his friend:
“Omi.”
Further, when asked if he knew the address of his friend where the exchange
occurred, Mr. Luna changed the version and said that the exchange did not take place at
the friend’s home. Instead, he testified that they met through social media and did the
exchange. Mr. Luna had to admit that what he said just minutes before that the exchange
took place at the home of his friend was not true. He does not know where Omi lives. Mr.
Luna had spent time together with Omi “in the water”, a reference to riding jet skis. Omi
offered the vehicle to him because he saw that Mr. Luna had a need for a vehicle to
transport his jet ski to the beach. Mr. Luna does not know how Omi obtained the Honda
Pilot. He has never seen the title, nor a signature of the registered owner transferring
title to him. Mr. Luna is unaware what happened to the Jeep Cherokee that he exchanged
for the Honda Pilot.
Mr. Luna testified on redirect examination that he did not steal the Honda Pilot
or take it without the knowledge of the person that possessed it. Again, he received it as
part of an exchange. The Honda Pilot was his personal vehicle and no one told him he
was not entitled to possess it. On re-cross, Mr. Luna was asked if he was the registered
owner of the vehicle. He is not.
B. 	Testimony of Agent Santiago
Agent Santiago has been a PRPB agent for approximately four (4) years. On
January 7, 2026, he was assigned to the Hato Rey zone preventive unit, a unit tasked
with crime prevention through patrolling and investigating complaints referred by
central command. At the time, Agent Santiago had been in that unit for approximately
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one month. Before that, he was assigned to the Hato Rey East precinct also in the
preventive unit. Agent Santiago has worked as a preventive unit agent for approximately
three (3) years.
On January 7, 2026, at around 9:45 p.m., Agent Santiago was on preventive round
on Santiago Iglesia Street in Puerto Nuevo. He observed a grey Honda Pilot with dark
windows in violation to Law 22, P.R. Laws Ann. tit. 9 § 5001 et seq. Agent Santiago could
not see the driver or any other occupant of the vehicle. Based on his training and
experience, the agent was able to determine that the window tints were in violation of
article 10.05 of Law 22.1 Upon observing this, Agent Santiago activated the blue lights
and siren of his marked police unit. The driver did not immediately stop, but pulled over
further ahead, on Santiago Iglesia Street in front of house 1380. Through the speaker,
Agent Santiago ordered the driver to lower the windows of the vehicle and to place the
vehicle in parking. He ordered the windows to be lowered for safety reasons because they
were dark and the agents could not see inside. Agent Rodney López (“Agent López”) was
patrolling with him that day.
Agent Santiago immediately exited the patrol car and approached the driver’s side
of the Honda Pilot. Once there, the agent told the driver the reason for the stop, a
violation of article 10.05, and asked for license and registration. The driver only
produced the vehicle registration but verbally provided his driver’s license number.
1 Article 10.05 of the Puerto Rico Traffic Law (Act 22 of January 7, 2000) prohibits the use of one-
way glass for the windshield and glass windows of vehicles or motor vehicles, as well as the altering thereof
by applying tints and any other material or product used as a solar filter on the windshield and windows
of motor vehicles to produce a percentage of transmission of visible light of less than thirty-five percent
(35%). P.R. Laws Ann. tit. 9 § 5285.
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During this initial exchange, the driver was still seated in the driver’s seat inside the
vehicle. Only the driver’s window was down. Agent Santiago then ordered the driver to
roll down the rest of the windows and proceeded to explain to the driver the window tint
test procedure. As the agent was conducting the test, the driver was asked to step out the
vehicle to observe the procedure as required by General Order 643. See Government’s
Exhibits 7 and 7-A.
The window tint test involves using a device called photometer that, after being
calibrated to make sure it is working, is placed in the middle of a car window from the
inside. On the driver’s side window of the Honda Pilot, the test resulted in a 20% visibility,
well below what article 10.05 allows. After testing the driver’s window, agent Santiago
went to the driver’s side rear door window. Agent Santiago ordered the driver to open
the door, and the driver complied. The agent placed the photometer on the window and
told the driver to observe the result of the test. As Agent Santiago was standing next to
the vehicle with the door open, and using his flashlight, he was able to observe in plain
view what he identified as the barrel of a firearm. The firearm was located underneath
the driver’s seat. The driver was standing to the front left of the agent when the
observation was made.2
Government’s Exhibit 2 is a photograph of the firearm underneath the seat as was
allegedly observed by agent Santiago on January 7, 2026. Agent Santiago was asked to
2 A drawing of a car in which the agent marked with an X where he was standing, and with a
triangle where the driver stood when the observation was made, was admitted into evidence as
Government’s Exhibit 8.
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draw a circle where the firearm barrel can be seen. A printout of the image was admitted
as Government’s Exhibit 2-A. Government’s Exhibit 3 is a zoomed in version of the
photograph. The photographs are inserted below:
Gov’t Exh. 2.
Gov’t Exh. 2-A
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Gov’t Exh. 3
After Agent Santiago made the critical observation, he went to the passenger side
of the vehicle where Agent López was standing. The driver followed him. At that moment,
and for safety reasons, Agent Santiago decided not to tell the driver what he had observed
but did make the sign of a firearm trigger with his hand, a signal that his fellow officer
immediately understood. After this, Agent López remained close to Agent Santiago and
the driver. Agent Santiago then performed the window tint test on the passenger’s side
of the vehicle in the presence of the driver. The PRPB general order requires that all
windows be tested. (Government’s Exhibits 7 and 7-A).
Thereafter, Agent López remained with the driver, and Agent Santiago went to the
patrol car to corroborate information and to turn his body camera on. Agent Santiago
testified that he did not activate the body camera at the beginning of the intervention
because he got out of his patrol car quickly and due to involuntary forgetfulness. From
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that point forward, the rest of the intervention was captured in video and recorded. Agent
Santiago identified Mr. Luna in open court as the driver he intervened with that night.
Government’s Exhibits 1 and 1-A (the certified English translation of the audio)
are the relevant and stipulated clips of the video footage from Agent Santiago’s body
camera. Clip 1 of Government’s Exhibit 1 begins with Agent Santiago reading Miranda
warnings to the Defendant, asking if he has a firearms license3, and informing him of the
presence of the firearm inside the vehicle. Mr. Luna exercised his right not to answer
questions without the presence of an attorney. Clip 2 depicts Agent Santiago showing Mr.
Luna where the firearm was located underneath the driver’s seat in plain view. Clip 3
shows in pertinent part Mr. Luna alleging that the firearm cannot be seen in plain view
and claiming that the agents had no right to order him out of the vehicle. Clip 4 depicts
personnel from technical services taking photographs at the scene. At second 55, Agent
Santiago testified that such was approximately the angle from where he initially saw the
barrel of the firearm in plain view. The agent also testified that the light that appears
shining in that portion of the video comes from his flashlight.
The body camera of Agent Santiago was located toward the lower part of his chest,
in the thorax area. As the video continues, the person from technical services is taking
photographs, including the area where the barrel of the firearm can be seen, and Agent
Santiago is informing Mr. Luna that the inventory of the vehicle will be conducted at the
3 Agent Santiago already knew, based on an inquiry into the police database, that Mr. Luna did not
have a firearms permit.
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precinct. In this clip, Agent Santiago can be heard indicating to the technical services
person that he did not have to squat or bend over to be able to see the firearm.
Clip 5 of Exhibit 1 documents the window tint testing procedure revealing the
results of the test, in percentages that are below what is allowed by law. It also shows the
closing of the windows and doors as well as Agent Santiago’s seizing, clearing and
bagging the firearm, which was loaded. The agent is heard mentioning in the video the
presence of a fanny pack, which according to him, will be verified during the inventory
process at the precinct. The firearm is black, and the interior of the vehicle “looked” gray.
Agent Santiago testified that he was able to see the firearm using his flashlight and
because his vision is “100 percent.” He identified it as such based on his experience.
During cross-examination, Agent Santiago stated that the area he was patrolling
on January 7, 2026, in Puerto Nuevo, is a residential neighborhood. Prior to the traffic
stop, the agent did not have any report that the Honda Pilot contained firearms or drugs.
The agent followed the vehicle only seconds before ordering it to stop. Based on his
experience, the agent knew that the tints were in violation of article 10.05. Agent
Santiago once again stated that he asked Mr. Luna to get out of the vehicle to conduct
the photometer test. Upon testing the first window, on the driver’s side, the test showed
that it was unlawful. In fact, all windows were unlawfully tinted. However, the agent
issued a single ticket for the whole vehicle. When asked on cross why he tested all
windows if he already knew he was going to issue a ticket, Agent Santiago reiterated that
General Order 643 requires that all windows be tested.
Recognizing that it is important to follow the PRPB general orders, Agent Santiago
was confronted with the fact that he did not follow the general order governing the use
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of body worn cameras which requires that they be activated from the inception of a traffic
stop. The body cameras have a 30-second buffer, that is, once activated, the previous 30
seconds are recorded. Agent Santiago acknowledged that he did not activate the body
cameras during the initial approach to the vehicle, nor when he began talking to Mr.
Luna. The cameras were off when Mr. Luna was ordered out of the vehicle to observe the
photometer testing as well as when Agent Santiago allegedly observed the gun in plain
view. Agent Santiago admitted that, while he followed the window testing protocol, he
did not follow the body-camera regulations. Agent Santiago explained, however, that the
camera does not replace what he can perceive or observe personally as the regulation
itself establishes.4
Defense 	counsel 	confronted 	Agent 	Santiago 	with 	the 	fact 	that 	on 	direct
examination, he did not mention that he had observed a fanny pack on the floorboard of
the driver’s seat. The agent responded that he did not mention it, but he had in fact seen
it upon testing the first window. The fanny pack was not underneath the seat. Agent
Santiago was shown Defendant’s Exhibit A, a photograph taken by technical services
personnel, but he could not initially tell if the photograph was taken at the scene or at
the precinct. Defense counsel then showed Agent Santiago a photograph later admitted
into evidence as Defendant’s Exhibit C. He was able to recognize the photograph as
having been taken at the scene, but when asked where the fanny pack was, he said it
4 The PRPB regulations governing the use of body-worn cameras provides in relevant part that:
“The NPPR recognizes that cameras do not capture exactly what an MNPPR observed or heard, or what
the MNPPR felt or experienced during an intervention.” Defendant’s Exhibit B; see also Docket No. 28-2
at 5.
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could not be seen from the angle of the photograph. The agent later acknowledged, using
Exhibit C as reference, that Defendant’s Exhibit A (inserted below) was also taken at the
scene. He insisted, however, that the fanny pack can’t be seen in the photograph because
of the angle. Agent Santiago denied that he had to “look for it” to see the fanny pack.
Def’t. Exh. A.
Counsel for the Defendant also confronted Agent Santiago with his incident report,
particularly section K, titled “Search and Seizure.” That section was left blank, including
the box for “plain view.” Over the Government’s objection, I admitted the police report
as Exhibit D and gave the Defendant 10 days to provide a certified English translation.5
5 The Defendant failed to submit the English translation within the deadline provided. Accordingly,
Exhibit D is stricken from the record and shall not be considered by the undersigned. United States v.
Roman-Huertas, 848 F.3d 72, 75-76 (1st Cir. 2017) (quoting 48 U.S.C. § 864) (“The Jones Act requires
that ‘[a]ll pleadings and proceedings in the United States District Court for the District of Puerto Rico . . .
be conducted in the English language.’”).
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Still on cross, Agent Santiago related that when he moved to the rear door of the
driver’s side, Mr. Luna was already out of the vehicle. Agent Santiago asked Mr. Luna to
open the rear driver’s side door. The agent denied that Mr. Luna objected to stepping out
of the vehicle and added that he was compliant with instructions, “in the beginning.” Mr.
Luna did not object to opening the back door either. Agent Santiago testified that his
patrol car was parked behind the Honda Pilot with its headlights on. Agent Santiago
denied that he used his flashlight to illuminate inside the vehicle; he used it only to
illuminate the window testing. He also denied that a yellow towel partially blocked the
view or that he had to bend forward, crouch, or lower his head to see the firearm. The
flashlight was trained at the photometer when he saw the gun for the first time.
Further, when asked about why he did not conduct a full search of the car at the
scene after the firearm was observed, Agent Santiago cited safety reasons. He had already
seen the fanny pack but did not know what it contained. The agent denied that he opened
the fanny pack at the scene. The ticket for the window tint violation was given to Mr.
Luna at the precinct. When asked if he could have issued the ticket after testing the first
window given that it was non-complaint, Agent Santiago answered in the negative
because protocol requires that all windows be tested.
On redirect examination, counsel for the Government addressed the matter of the
fanny pack not being visible in Defendant’s Exhibit A. Agent Santiago reiterated that it
could not be seen due to the angle. Counsel for the Government then played Clip 5 of
Exhibit 1. At minute 4:55, and from that angle, the fanny pack can be seen. On Re-cross,
Agent Santiago was shown Clip 5, where he is seeing retrieving the firearm. Agent
Santiago denied that he pulled anything from under the seat other than the firearm.
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III. 	A PPLICABLE L AW AND DISCUSSION
At the conclusion of the suppression hearing, the parties were in agreement that,
distilled to its essence, the question before the Court is whether the testimony of agent
Santiago—that he observed the tip of the barrel of a firearm in plain view underneath the
driver’s seat of the Honda Pilot—deserves credibility. Defendant does not dispute that
the traffic stop was lawful at inception. He argues, however, that the traffic stop was
unlawfully extended and that the court should not believe the unrecorded version of
Agent Santiago that he was able to see in plain view the barrel of a black firearm, at night,
in a dark vehicle with dark upholstery. As per Mr. Luna, the only way that the agent could
have seen the firearm is by conducting a warrantless “search” without probable cause. At
the hearing, Mr. Luna continued to highlight the issue of failure to activate the body
cameras as a corollary to his claim that the testimony of Agent Santiago should be looked
at with suspicion.
The Government responds by claiming, first, that Mr. Luna did not meet his
burden to establish that he has standing to challenge any search of the vehicle. With
respect to the plain view observation, the United States maintains that the agent could
see the firearm from the lawful vantage point of the window tint testing, with minimal
effort. Recognizing that the agent’s forgetting to activate the body camera at the
beginning of the traffic stop is problematic, the Government nevertheless contends that
there is no claim made by the defense that the firearm was moved or manipulated to
make it visible. Therefore, the only way to know that it was there was to see it in plain
view. According to the Government, human vision is not static, and the body camera,
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even if it had been activated at the outset, would not have captured everything that was
observed and perceived by Agent Santiago.
A. 	Standard of Review – Warrantless Searches and Seizures
The Fourth Amendment protects against “unreasonable searches and seizures.”
U.S. Const. amend IV. A criminal defendant seeking to suppress evidence bears a
threshold burden of showing that a Fourth Amendment violation occurred, which in turn
encompasses the burden of establishing that he or she was subjected to a warrantless
search or seizure. See United States v. Young, 835 F.3d 13, 19 (1st Cir. 2016); see also
United States v. Fields, 823 F.3d 20, 25 (1st Cir. 2016). Once the defendant establishes
that a warrantless search or seizure occurred, the burden shifts to the government to
prove by a preponderance of the evidence that said search or seizure was lawful. United
States v. Matlock, 415 U.S. 164, 177 n.14 (1974); United States v. Delgado-Perez, 867
F.3d 244, 250 (1st Cir. 2017).
B. 	Standing
When 	moving 	to 	suppress 	evidence, 	a 	defendant 	“carries 	the 	burden 	of
establishing that he had a reasonable expectation of privacy with respect to the area
searched or . . . the items seized.” United States v. Lipscomb, 539 F.3d 32, 35-36 (1st Cir.
2008) (citing United States v. Salvucci, 448 U.S. 83, 91-92 (1980)). This threshold
standing requirement is something that a defendant must establish before the court
engages in any substantive Fourth Amendment analysis. United States v. Lewis, 40 F.3d
1325, 1333 (1st Cir. 1994). To carry this burden,
a 	defendant 	must 	demonstrate 	that 	he 	personally 	has
an expectation of privacy in the place searched, and that his
expectation is reasonable; i.e., one that has a source outside of
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the Fourth Amendment, either by reference to concepts of real
or personal property law or to understandings that are
recognized and permitted by society.
United States v. Samboy, 433 F.3d 154, 161 (1st Cir. 2005) (quoting Minnesota v. Carter,
525 U.S. 83, 88 (1998)).
Put differently, the court must determine “whether or not the individual thought
of the place (or the article) as a private one, and treated it as such” and “whether the
individual’s expectation of confidentiality was justifiable under the circumstances.”
United States v. Aguirre, 839 F.3d 854, 857 (1st Cir. 1988). The following factors are
relevant to the inquiry: “ownership, possession, and/or control; historical use of the
property searched or the thing seized; ability to regulate access; [and] the totality of the
surrounding circumstances.” Id. at 856-57; see also United States v. Almeida, 748 F.3d
41, 47 (1st Cir. 2014) (“In the context of a vehicle search, a defendant must show ‘a
property [or] possessory interest in the automobile’ in order to establish a reasonable
expectation of privacy.”).
Here, the testimony of Mr. Luna regarding how he obtained possession of the
Honda Pilot was vague at best, unbelievable at worst. He allegedly obtained the Honda
Pilot via exchange with a friend he only knows as Omi. He met Omi “in the water.”
Defendant does not know how Omi obtained possession of the car. He also does not know
the person that appears as the registered owner of the vehicle. Mr. Luna’s claim that he
has shown a legitimate expectation of privacy is solely based on his self-serving
testimony that he had possession the vehicle (he had the keys), used it regularly, had the
right to exclude others, kept personal property in it, and no one demanded that he give
the vehicle back. This is insufficient, in the undersigned’s view, to show standing on a
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theory of lawful possession and control of the vehicle. See United States v. Morales-
Torres, No. 14-cr-215 (GAG), 2017 U.S. Dist. LEXIS 57131, 2017 WL 1373329 (D.P.R.
Mar. 14, 2017) (finding defendant failed to meet his burden to show standing by
presenting his own self-serving testimony that he owned the car for four (4) or five (5)
months after he bought the car’s account for $4,000 from “a lady” he met at the parking
lot of a shopping mall); see also United States v. Hernández-Marin, No. 19-cr-133 (DRD),
2020 U.S. Dist. LEXIS 81803, at *16-17, 2020 WL 2297146 (D.P.R. May 7, 2020) (finding
that testimony that defendant was owner of a car because he bought it on the internet
from an unknown person and had the keys insufficient to meet the burden to show
standing). What’s more, a person that cannot show he or she is in lawful possession of a
vehicle, fails to establish standing the same way a car thief would not have a legitimate
expectation of privacy in a stolen car “[n]o matter the degree of possession and control.”
Byrd v. United States, 584 U.S. 395, 409 (2018).
In any case, even assuming arguendo that Mr. Luna met his burden to show
standing, the outcome is the same. In the context of automobiles, establishing a
legitimate expectation of privacy is a threshold requirement to challenge a search of the
vehicle. In this case, I find that the Government has proven that the firearm at issue was
observed in plain view. The agent did not conduct a search of the vehicle to detect the
firearm. See United States v. Vicente-Lucas, 826 F. Supp. 2d 422, 428 (D.P.R. 2011) (“It
is well settled that a police officer’s observation of an item in plain view does not
constitute a search so long as the officer makes his observation from a lawful vantage
point.”). Thus, even if Mr. Luna had a legitimate expectation of privacy in the Honda
Pilot, his Fourth Amendment rights were not violated as further discussed below. See
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United States v. Santiago-Ramos, 991 F. Supp. 2d 318, 323 (D.P.R. 2014) (holding that
defendant failed to show standing but that suppression would be denied even if he had
because the Court found credible the law enforcement version that, upon a traffic stop
for a window tint violation, contraband was observed in plain view).
Lastly, and to be sure, it is uncontested that Mr. Luna has standing to challenge
the lawfulness of the traffic stop conducted by the PRPB officers. For instance, in United
States v. Stark, 769 F.3d 83 (1st Cir. 2014), the First Circuit reversed the denial of a
motion to suppress on standing grounds. The district court had ruled that Stark lacked
standing to challenge the traffic stop and the search of the vehicle that ensued after he
was detained, because he was unlicensed, the car was a rental, and he was not authorized
to drive it. Id. at 89. The First Circuit disagreed, reasoning that, pursuant to Brendlin v.
California, 551 U.S. 249, 251 (2007), Stark was seized within the meaning of the Fourth
Amendment when the police conducted a traffic stop and thus had standing to challenge
the constitutionality of said stop. Id.; see also United States v. Nava-Ramirez, 210 F.3d
1128, 1131 (10th Cir. 2000) (explaining that a defendant lacking the requisite possessory
or ownership interest in a vehicle to directly challenge a search of that vehicle, may
nonetheless contest the lawfulness of his own detention and seek to suppress evidence
found in the vehicle as the fruit of the illegal detention.). Therefore, the undersigned
briefly analyzes the lawfulness of Mr. Luna’s seizure through the traffic stop.
C. 	The Traffic Stop
There is no question that a seizure occurs “when a police officer ‘has in some way
restrained the liberty of a citizen’ through ‘physical force or show of authority.’” United
States v. Camacho, 661 F.3d 718, 725 (1st Cir. 2011) (quoting Terry v. Ohio, 392 U.S. 1,
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19 n.16 (1968)). And, for several decades now, the Supreme Court has held that the stop
of a motor vehicle due to a traffic violation constitutes a Fourth Amendment seizure.
Delaware v. Prouse, 440 U.S. 648, 653 (1979). As such, said seizure must be supported
by reasonable suspicion that a traffic violation was committed. United States v. Chaney,
584 F.3d 20, 24 (1st Cir. 2009) (citing Brendlin v. California, 551 U.S. at 255). “When
an unconstitutional seizure occurs, courts enforce the Fourth Amendment’s proscription
by excluding evidence obtained during said seizure.” United States v. Howard, 66 F.4th
33, 41 (1st Cir. 2023) (citing Camacho, 661 F.3d at 724).
Moreover, once a police officer stops a vehicle, “the tolerable duration of police
inquiries . . . is determined by the seizure’s mission--to address the traffic violation that
warranted the stop and attend to related safety concerns.” Rodríguez v. United States,
575 U.S. 348, 353 (2015) (cleaned up). In carrying out the mission of the stop, an officer
is permitted to undertake those “ordinary inquiries incident to [the traffic] stop.” Id. at
355 (quoting Illinois v. Caballes, 543 U.S. 405, 408 (2005)). Valid inquiries include
“checking the driver’s license, determining whether there are outstanding warrants
against the driver, and inspecting the automobile’s registration and proof of insurance.”
Id. (citing Delaware v. Prouse, 440 U.S. at 658-660). “Authority for the seizure thus
ends when the tasks tied to the traffic infraction are—or reasonably should have been—
completed.” Id. at 354 (citing United States v. Sharpe, 470 U.S. 675, 685 (1985)). Put
differently, “[t]he seizure remains lawful only ‘so long as [unrelated] inquiries do not
measurably extend the duration of the stop.’” Id. at 355 (quoting Arizona v. Johnson,
555 U.S. 323, 333 (2009)).
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Indeed, the actions undertaken by an officer pursuant to a traffic stop “must be
reasonably related in scope to the stop itself ‘unless the police have a basis for expanding
their investigation.’” United States v. Ruidiaz, 529 F.3d 25, 29 (1st Cir. 2008) (quoting
United States v. Henderson, 463 F.3d 27, 45 (1st Cir. 2006)). In other words, “while an
officer’s actions must bear some relation to the purpose of the original stop, [officers may
shift their] focus and increase the scope of [the] investigation by degrees if [their]
suspicions mount during the course of the detention.” United States v. Chhien, 266 F.3d
1, 6 (1st Cir. 2001).
In this case, the defendant does not contest the legality of the traffic stop. The
evidence presented during the suppression hearing established that the PRPB officers
had a well-founded suspicion that the Honda Pilot’s windows were tinted in violation of
Puerto Rico law. The suspicion was corroborated when Agent Santiago conducted the
photometer analysis which revealed that all windows tested in percentages of visible
transmission of light below the limits allowed by article 10.05 of Act 22, P.R. Laws Ann.
tit. 9 § 5285. On this score, the First Circuit has held that a traffic stop initiated by a
police officer based on his or her training and experience that the vehicle has unlawful
tinted windows is supported by reasonable suspicion. See United States v. Maldonado-
Peña, 4 F.4th 1, 23 (1st Cir. 2021). And following the traffic stop, the officer can order
those inside the vehicle to get out. Id.
To the extent that Defendant continues to press the argument that the traffic stop
was unlawfully extended, I find any such argument to be without merit. The officers’
actions, first on conducting the window tint protocol, and in asking Mr. Luna to step out
of the vehicle to observe the same, were reasonable under the circumstances. In fact, said
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procedure 	followed PRPB window 	tint 	measurement 	regulations. 	What 	occurred
afterwards, following the plain view observation of a firearm, was responsive to the
events as they unfolded. See Chhien, 266 F.3d at 6 (explaining that in the traffic stop
context, the reasonable suspicion analysis includes a determination of whether the
officer’s actions “were fairly responsive to the emerging tableau.”).
During closing argument at the evidentiary hearing, and answering questions
posed by the undersigned, counsel for the Defendant suggested that the agent could have
issued a ticket and sent Mr. Luna on his way after he tested the first window. Counsel
candidly recognized, however, that the regulations do require that all windows be tested.
As fully discussed below, the firearm was observed in plain view very shortly after the
lawful traffic stop was initiated. At that point, the police had probable cause to arrest the
Defendant for a firearms offense. United States v. Sánchez-Maysonet, No. 18-cr-792
(ADC), 2020 WL 13960183, 2020 U.S. Dist. LEXIS 273307, at *24-25 (D.P.R. Feb. 26,
2020) (“The plain view exception permitted the officers to seize the firearm as [the
officer] had probable cause to believe that a violation of the Puerto Rico Weapons Act
had been committed.”). It is thus easy to conclude that the traffic stop, undisputedly
lawful at its inception, was not unconstitutionally extended.
D. 	Plain View Doctrine
As noted, the critical question is whether the seized firearm was in plain view. Mr.
Luna urges the undersigned to find that it was not from the vantage point of Agent
Santiago; that a search had to be conducted, which entailed crouching, bending over, and
purposefully shining the flashlight inside the vehicle, for the firearm to be observable.
Mr. Luna also contends that Agent Santiago’s narrative that he saw the gun in plain view
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deserves no credibility due to his failure to activate his body worn camera in violation of
PRPB regulations.
Warrantless searches and seizures are per se unreasonable unless they fall within
one of the “few specifically established and well-delineated exceptions” to the Fourth
Amendment warrant requirement. Katz v. United States, 389 U.S. 347, 357 (1967). The
plain view doctrine is one of the recognized exceptions. See Coolidge v. New Hampshire,
403 U.S. 443, 468 (1971). As originally conceived by the Supreme Court, in addition to
requiring that an officer lawfully and properly be in a position where he or she can view
a particular area and that it be “immediately apparent” that the items observed are
evidence of a crime, contraband or otherwise subject to seizure, the plain view doctrine
required that incriminating evidence be discovered “inadvertently.” Texas v. Brown, 460
U.S. 730, 737, 103 (1983) (discussing the elements of the plain view doctrine as set forth
in Coolidge). The Supreme Court subsequently clarified that “even though inadvertence
is a characteristic of most legitimate ‘plain view’ seizures, it is not a necessary condition.”
Horton v. California, 496 U.S. 128, 130 (1990). Thus, inadvertence no longer being a
requirement, the plain view doctrine simply “permits the warrantless seizure of an item
if the officer is lawfully present in a position from which the item is clearly visible, there
is probable cause to seize the item, and the officer has a lawful right of access to the item
itself.” United States v. Gamache, 792 F.3d 194, 199 (1st Cir. 2015).
“The first element of the test is straightforward and easy to apply.” United States
v. Badillo-Hernández, No. 24-cr-148 (ADC), 2025 WL 1906755, 2025 U.S. Dist. LEXIS
132593, at * 14 (July 10, 2015) (López-Soler, M.J.). The initial warrantless intrusion must
be lawful under the Fourth Amendment so that an officer can be said to have lawfully
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arrived at the place from which he or she plainly could view the seized object. United
States v. Jones, 187 F.3d 210, 219 (1st Cir. 1999) (citations omitted). The object, in turn,
must be “easily visible to the naked eye.” United States v. Sánchez, 612 F.3d 1, 5 (1st Cir.
2010).
The second element is satisfied when the incriminating character of the evidence
is immediately apparent to the officer, that is, there is probable cause to believe it is
evidence of criminal activity. United States v. Hammie, 165 F.3d 80, 83 (1st Cir. 1999).
On the other hand, the incriminating character of the item is not immediately apparent
“if the police lack probable cause to believe that an object in plain view is contraband
without conducting some further search of the object.” Minnesota v. Dickerson, 508 U.S.
366, 375 (1993). But the First Circuit has cautioned that “[t]he officer need not be certain
of the incriminating character of an object, but, rather, must have a belief based on a
‘practical nontechnical probability’ that the object is evidence of a crime.” United States
v. Paneto, 661 F.3d 709, 714 (1st Cir. 2011).
As to the third element—lawful right to access the item itself—the court must ask
not whether the officer was lawfully in a position to see the contraband, which is the first
element of the test; rather, whether the officer “could lawfully seize it without committing
a trespass.” United States v. Allen, 573 F.3d 42, 51 n.4 (1st Cir. 2009); see also United
States v. Keleher, 516 F. Supp. 3d 162, 168 (D.P.R. 2021) (Besosa, J.) (seizure of emails
did not constitute a trespass because they were already in the government’s possession.).
As noted above, the uncontested evidence presented at the suppression hearing
established, as to the first element of the plain view exception, that the PRPB agents
lawfully conducted a traffic stop of the Honda Pilot because it had dark tinted windows.
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I find that, in following the tint testing protocol, Agent Santiago arrived and lawfully
positioned himself at a place from where he could plainly see the firearm. His testimony
was that when he shined his flashlight during the tint procedure for the rear driver’s side
window, he saw the firearm barrel in plain view. See United States v. Rivera-Melecio,
No. 16-cr-198 (GAG), 2018 WL 6567955, 2018 U.S. Dist. LEXIS 203566, at*27 (D.P.R.
June 13, 2018) (finding that the police officer was in a position to make the plain view
observation of a firearm inside a vehicle where, similar to this case, the officer “was
performing the windows’ tints test with the photometer and the door of the vehicle had
been opened by Defendant.”). Mr. Luna challenges this assertion, arguing that even from
that lawful vantage point, the firearm was not visible to the naked eye and that the agent
had to search for it. I am unconvinced.
I find credible the testimony of Agent Santiago that he saw the tip of the gun from
the angle where he was standing as he conducted the window tint test. Although the
intervention occurred at night, the agent was using his flashlight6, and the headlights of
the patrol car provided additional illumination. The videos and photographs introduced
into evidence confirm that the observation was not only possible, but likely to be made
by anyone standing in the same position and under the same circumstances. Other than
a claim that the agent’s testimony should be taken with suspicion because he forgot to
activate his body-worn camera, the Defendant has not presented any evidence showing
6 Agent Santiago denied that he shined his flashlight directly inside the vehicle’s passenger
compartment. Nonetheless, there would have been no Fourth Amendment violation if he had done so.
Texas v. Brown, 460 U.S at 739-40 (holding that the action of shining a flashlight to illuminate the interior
of a car “trenched upon no right secured” by the Fourth Amendment.); see also United States v. Bell, 197
Fed. Appx. 11, 14 n.1 (1st Cir. 2006).
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that the agent had any motivation to lie. For example, there is no evidence that the agents
had any information prior to the intervention that the driver of the Honda Pilot was
armed. As such, there is nothing in the record suggesting that the agents specifically
targeted Mr. Luna. After all, these agents were assigned to a preventive unit. Moreover,
as the Government correctly pointed out, there is nothing showing that the firearm at
issue was moved or manipulated in order to somehow stage the plain view observation.
Agent Santiago testified consistently and confidently, admitting when confronted that he
followed the window tint test protocol but not the body cam protocol.
Now, as to the issue of the failure to activate the body-worn camera, it is worth
noting that I do not take lightly the fact that due to his “involuntary forgetfulness”, the
court is placed in the position to have accept Agent Santiago’s word of what transpired,
as opposed to having an evidentiary source that is objective, accurate, and not subject to
a credibility attack. See United States v. Gibson, 366 F. Supp. 3d 14, 26-27 (D.D.C. 2018)
(concluding that failure to activate body-worn cameras in contravention of police
department policy “deprived the Court from reviewing the best evidence available.”).
Some courts have held that failure to activate does not, by itself, support a finding of bad
faith in the context of due process, while others have held that it can be a factor in
assessing credibility, particularly in a close case. See United States v. García, 554 F. Supp.
3d 421, 431 (E.D.N.Y. 2021) (collecting cases). I do not find that Agent Santiago acted in
bad faith or with a nefarious purpose when he failed to activate his body camera. See
United States v. Brown, No. 17-CR-58, 2018 U.S. Dist. LEXIS 6412, 2018 WL 451556, at
*3 (D. Nev. Jan 16, 2018) (“Here, the fact that the officers failed to adequately record the
events using their [body cameras] is more indicative of negligence than of bad faith”).
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Simply, the facts and circumstances of this case “suggest[] no more than mere
inadvertence.” United States v. Croom, No. 24-cr-00199-ACA-SGC, 2024 U.S. Dist.
LEXIS 231419, at *17, 2024 WL 5194839 (N.D. Ala. Dec. 2, 2024) (disagreeing that the
failure to activate his body worn camera called into question the credibility of the
testimony given by an officer who testified he was “not the best at remembering to
activate [his] body camera.”).
Lastly, as to the second and third elements of the plain view analysis, which are
not contested by the Defendant, there is no doubt that the incriminating character of the
firearm was apparent given that Mr. Luna does not have a permit to carry firearms.
Therefore, the agents had probable cause to seize it. Furthermore, Agent Santiago did
not have to commit a trespass to seize the pistol. United States v. Badillo-Hernández,
2025 U.S. Dist. LEXIS 132593, at *18 (“Upon seeing the firearm and protruding
magazine in plain view, having knowledge that Defendant was legally prohibited from
possessing a firearm, and considering Defendant’s admission that he did not have a
weapons permit, [the police officer] had probable cause to believe that Defendant’s car
contained evidence of a crime.”).7 Suppression is not warranted.
IV. 	C ONCLUSION
In view of all the above, I recommend that Mr. Luna’s motions to suppress (Docket
No. 28) be DENIED.
7 Given my findings regarding the lawfulness of the traffic stop and of the seizure of the firearm in
plain view, any evidence discovered during the subsequent inventory search of the vehicle at the precinct
would not be excluded as fruits of the poisonous tree even if Mr. Luna had standing to challenge any such
search.
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This report and recommendation is filed pursuant to 28 U.S.C. § 636(b)(1)(B) and
Rule 72(d) of the Local Rules of this Court. Any objections to the same must be specific
and must be filed with the Clerk of Court within 14 days. Failure to file timely and
specific objections is a waiver of the right to appellate review. See Thomas v. Arn, 474
U.S. 140, 155 (1985); Davet v. Maccorone, 973 F.2d 22, 30–31 (1st Cir. 1992); Paterson-
Leitch Co. v. Mass. Mun. Wholesale Elec. Co., 840 F.2d 985 (1st Cir. 1988); Borden v.
Sec’y of Health & Human Servs., 836 F.2d 4, 6 (1st Cir. 1987).
I T IS SO R ECOMMENDED .
In San Juan, Puerto Rico this 8th day of October, 2026.
S/Héctor L. Ramos-Vega
HÉCTOR L. RAMOS-VEGA
UNITED STATES MAGISTRATE JUDGE
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