United States v. Veloz-Lopez , 595 F. App'x 81 ( 2015 )

13-3101-cr
United States v. Veloz-Lopez
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, at 40 Foley Square, in the City of New York, on
the 2nd day of March, two thousand fifteen.
Present: ROBERT A. KATZMANN,
Chief Judge,
ROBERT D. SACK,
GERARD E. LYNCH,
Circuit Judges.
________________________________________________
UNITED STATES OF AMERICA,
Appellee,
v. No. 13-3101-cr
ALEXANDER VELOZ-LOPEZ,
Defendant-Appellant.
________________________________________________
For Appellee: PAUL D. SILVER (Edward P. Grogan, on the brief), Assistant
United States Attorneys, for Richard S. Hartunian, United
States Attorney for the Northern District of New York, Albany,
NY.
For Defendant-Appellant: MARK A. KAPLAN, Kaplan and Kaplan, Burlington, VT.
Appeal from the United States District Court for the Northern District of New York (McAvoy,
J.).
ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
and DECREED that the case is AFFIRMED.
Defendant-Appellant Alexander Veloz-Lopez appeals from a judgment entered on
August 13, 2013, by the United States District Court for the Northern District of New York
(McAvoy, J.), sentencing him primarily to 48 months’ imprisonment on one count of illegal
reentry in violation of 8 U.S.C. §§ 1326(a), (b)(2). On appeal, Veloz-Lopez asserts that the
district court erred in denying his motion to suppress statements made after he was allegedly
stopped by border patrol agent Aaron Carlson. We assume the parties’ familiarity with the
underlying facts, procedural history, and issues on appeal.
Pursuant to the procedures set forth in United States v. Jacobson, 15 F.3d 19, 21-22 (2d
Cir. 1994), we previously remanded the case to the district court “to determine the point at which
Veloz-Lopez was ‘seized’ within the meaning of the Fourth Amendment—that is, the moment at
which a reasonable person in Veloz-Lopez’s position would not have felt free to leave.” United
States v. Veloz-Lopez, 574 F. App’x 43, 44 (2d Cir. 2014). On remand, the district court
concluded that the defendant was not seized within the meaning of the Fourth Amendment until
he “showed Carlson a valid Florida driver’s license and Carlson began asking questions that
were clearly intended to ferret out whether Veloz-Lopez was legally in the United States.”
Decision and Order, Dec. 10, 2014, ECF No. 43, at 7, United States v. Veloz-Lopez, 12-cr-582
(N.D.N.Y) . In light of these findings of fact and conclusions of law, we now affirm.
As we explained in our prior summary order, we review the denial of a suppression
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motion for clear error as to the district court’s factual findings and de novo as to its legal
conclusions. See United States v. Getto, 729 F.3d 221, 227 (2d Cir. 2013). “Under the long-
established rule of Terry v. Ohio, police may only stop someone when they have ‘reasonable
suspicion supported by articulable facts that criminal activity may be afoot.’” United States v.
Freeman, 735 F.3d 92, 95-96 (2d Cir. 2013) (citation omitted) (quoting United States v.
Sokolow, 490 U.S. 1, 7 (1989)). In evaluating whether an officer had reasonable suspicion, we
look only to the facts that the officer knew at the time of the stop. “Any events that occur after a
stop is effectuated cannot contribute to the analysis of whether there was reasonable suspicion to
warrant the stop in the first instance.” Id. at 96.
A person has been stopped by a police officer if, “in view of all of the circumstances
surrounding the incident, a reasonable person [in the same situation] would have believed that he
was not free to leave.” United States v. Mendenhall, 446 U.S. 544, 554 (1980); see also United
States v. Simmons, 560 F.3d 98, 105-06 (2d Cir. 2009). It is well established that a police officer
who merely asks a person questions in a public place has not thereby conducted a stop, since
such questioning is “clearly the sort of consensual encounter that implicates no Fourth
Amendment interest.” Florida v. Rodriguez, 469 U.S. 1, 5-6 (1984) (per curiam); see also United
States v. Drayton, 536 U.S. 194, 200 (2002). However, police questions may constitute a stop if
the surrounding circumstances “convey a message that compliance with [the officers’] requests
is required.” Florida v. Bostick, 501 U.S. 429, 435 (1991). Factors that might indicate a stop
include “the threatening presence of several officers, the display of a weapon by an officer, some
physical touching of the person of the citizen, or the use of language or tone of voice indicating
that compliance with the officer’s request might be compelled.” Mendenhall, 446 U.S. at 554.
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Under this legal standard and in light of the district court’s decision on remand, we now
affirm the district court’s denial of Veloz-Lopez’s suppression motion. By the time Agent
Carlson stopped Veloz-Lopez, he was already aware of the following information:
(1) the area, within ten miles of the Canadian border and near a major interstate
highway, sees a number of illegal border crossings;
(2) a citizen caller had recently reported seeing a man with dark hair and a red and
black jacket walking along Route 11, the highway that runs south of the border,
which has no sidewalks and normally no pedestrian traffic;
(3) Veloz-Lopez was found at LaBarre’s store, on Route 11, and was a man with dark
hair, though he was not then wearing a red and black jacket;
(4) according to Agent Carlson, Veloz-Lopez “seemed out of place,” “seemed like he
was waiting for something,” and “his clothes were dirty, like he had been out in the
weather for a while”; and,
(5) according to Agent Carlson, Veloz-Lopez spoke with an accent, said that he worked
for a nearby church but could not name his supervisor, had a red and black jacket
balled up on his backpack, and had Canadian currency in his wallet.
While there are plenty of innocent explanations for each of these facts, individual facts
“susceptible of innocent explanation” may combine “to form a particularized and objective
basis” for reasonable suspicion. United States v. Arvizu, 534 U.S. 266, 277 (2002). From
these facts, we conclude that Agent Carlson was not acting on a mere hunch—he had facts
that together reasonably indicated the possibility of criminal activity. See United States v.
Bailey, 743 F.3d 322, 332 (2d Cir. 2014); see also United States v. Padilla, 548 F.3d 179,
187 (2d Cir. 2008) (noting that reasonable suspicion requires even “less than a fair
probability of wrongdoing” (internal quotation marks omitted)). Because we decide the case
on these grounds, we need not address the government’s contention in its supplemental brief
that Veloz-Lopez was not stopped for Fourth Amendment purposes until his arrest.
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We have considered the defendant’s remaining arguments and find that they lack
merit. For the reasons given, we AFFIRM the judgment of the district court.
FOR THE COURT:
CATHERINE O’HAGAN WOLFE, CLERK
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