United States v. Oriach , 222 F. App'x 312 ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-5051
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
RIDER ORIACH,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Claude M. Hilton, Senior
District Judge. (CR-99-451-CMH)
Argued: December 1, 2006 Decided: March 14, 2007
Before MOTZ and TRAXLER, Circuit Judges, and David A. FABER, Chief
United States District Judge for the Southern District of West
Virginia, sitting by designation.
Affirmed by unpublished per curiam opinion.
ARGUED: Matthew Alan Wartel, Alexandria, Virginia, for Appellant.
John Anthony Nowacki, Special Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for
Appellee. ON BRIEF: Chuck Rosenberg, United States Attorney,
Lawrence J. Leiser, Assistant United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Defendant Rider Oriach was convicted by a jury of conspiracy
to distribute 500 grams or more but less than five kilograms of
cocaine, in violation of 21 U.S.C.A. § 846 (West 1999). The
district court sentenced Oriach to 63 months imprisonment. Oriach
now appeals, contending that the district court erred in admitting
three photographs taken by police officers during the course of
their investigation and in denying his motion to suppress a large
amount of cash seized from him during a traffic stop. For the
following reasons, we affirm.
I.
In February 1996, United States Park Police Detective Eddie
Ramos, Jr., working in an undercover capacity as a member of a Drug
Enforcement Agency (“DEA”) task force, initiated an investigation
of a suspected cocaine and crack distribution operation headed by
Franklin Tejada. In connection with the investigation, the task
force applied for and received authorization for a wiretap on
Tejada’s home telephone in Fairfax, Virginia, and began
surveillance of Tejada’s apartment.
During the course of the investigation, Oriach and Jose
Fuertes traveled from New York to Virginia on at least four
occasions to sell powder cocaine to Tejada. Tejada, in turn, sold
the drugs to various customers including, on at least one occasion,
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Detective Ramos in an undercover buy. According to Tejada, who
testified at Oriach’s trial, Fuertes and Oriach traveled to his
apartment and sold him 1.5 or 2 kilograms of cocaine on February
27, 1996, 1 or 1.7 kilograms of cocaine on March 1, 1996, 1 or 2
kilograms of cocaine on March 8, 1996, and 1 or 2 kilograms of
cocaine on March 17, 1996. Ronnie Campbell and Richard Hollifield,
who were also customers of Tejada and purchased cocaine directly
from Fuertes and Oriach on at least one occasion, also confirmed
Oriach’s involvement in the cocaine distribution network.
In addition to the testimony of Oriach’s customers, the
government introduced wiretap conversations documenting Tejada’s
arrangements to purchase and sell cocaine, three surveillance
photographs depicting Fuertes, Oriach, and their vehicle in the
vicinity of Tejada’s residence taken by police officers on March 1,
1996, and evidence of a large sum of cash seized from Fuertes and
Oriach during a traffic stop on March 17, 1996.
II.
We begin with Oriach’s challenge to the district court’s
admission of three photographs depicting Fuertes, Oriach and the
vehicle they were traveling in on March 1, 1996. Oriach argues
that the photographs should not have been admitted because they
were not properly authenticated under Rule 901(a) of the Federal
Rules of Evidence.
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We review the district court’s decision to admit evidence at
trial for abuse of discretion. See United States v. Jones, 356
F.3d 529, 535 (4th Cir. 2004). Such rulings are also “subject to
harmless error review.” United States v. Brooks, 111 F.3d 365, 371
(4th Cir. 1997). “In order to find a district court’s error
harmless, we need only be able to say with fair assurance, after
pondering all that happened without stripping the erroneous action
from the whole, that the judgment was not substantially swayed by
the error.” Id. (internal quotation marks and alteration omitted).
Rule 901(a) provides that “[t]he requirement of authentication
or identification as a condition precedent to admissibility is
satisfied by evidence sufficient to support a finding that the
matter in question is what its proponent claims.” Fed. R. Evid.
901(a). By way of example, authentication can be satisfied by
“[t]estimony of a witness with knowledge . . . that a matter is
what it is claimed to be,” Fed. R. Evid. 901(b)(1), or by
“[e]vidence describing a process or system used to produce a result
and showing that the process or system produces an accurate
result,” Fed. R. Evid. 901(b)(9). The requirement that evidence be
authenticated “represents a special aspect of relevancy, in that
evidence cannot have a tendency to make the existence of a disputed
fact more or less likely if the evidence is not that which its
proponent claims.” United States v. Branch, 970 F.2d 1368, 1370
(4th Cir. 1992) (internal citation, quotation marks, and alteration
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omitted). “Questions of authentication take many forms.” United
States v. Patterson, 277 F.3d 709, 713 (4th Cir. 2002). However,
“[t]he necessary foundation for the introduction of a photograph is
most commonly established through eyewitness testimony that the
picture accurately depicts the scene in question or expert
testimony that the picture was generated by a reliable imaging
process.” Id.At trial, Tejada testified that he purchased 1 or 2 kilograms
of cocaine from Fuertes and Oriach on March 1, 1996. Aware of the
impending deal, the DEA task force placed a surveillance team in
the vicinity of Tejada’s apartment to videotape the suspected drug
dealers when they arrived. The challenged evidence consists of
three still photographs that were lifted from the videotape,
depicting Oriach, Fuertes, and a black Toyota Supra in which they
were traveling, at Tejada’s apartment. The photographs were
admitted into evidence through the testimony of Detective Ramos,
over Oriach’s objection. Detective Ramos testified that, although
he was not present at the scene when the surveillance team shot the
video, he reviewed the evidence immediately after it was returned
to the station and was aware that it had been taken at Tejada’s
residence on that date at approximately 3:00 p.m. Detective Ramos
also testified that the date-stamp on the videotape, which
specified the video recorder’s default date of January 1, 1990, was
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inaccurate because the task force agent videotaping the scene
either did not realize he had to set it or accidentally reset it.
Oriach contends that the district court abused its discretion
in allowing Detective Ramos to authenticate the photographs because
Detective Ramos was not an eyewitness to the taping, had no first
hand knowledge of the date or time of the photographs, and could
not testify that the photographs were generated by a reliable
imaging process. The government argues that Ramos’s involvement in
the investigation as a member of the DEA/Park Police task force,
coupled with the testimony that he immediately reviewed the
videotape when it was returned to the office that day, was a
sufficient basis from which the jury could reasonably find that the
challenged evidence was authentic.
We agree that Detective Ramos’s knowledge, by virtue of his
involvement in the investigation, was sufficient to authenticate
the photographs insofar as they could be said to depict the
location under surveillance, as well as the persons and vehicle
under surveillance by the team. Detective Ramos could also verify
that, as a result of the wiretap activities, the task force was
aware of an impending deal and dispatched members to videotape the
exterior of the residence on that date. Detective Ramos was
unable, however, to testify from personal knowledge that the
photographs were actually taken at the specified date and time.
Detective Ramos admitted that he was not present on the scene at
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the time the videotaping occurred, and the videotape itself
contained an inaccurate date stamp. Thus, Detective Ramos had no
first-hand knowledge of the date and time of the photographs, only
the hearsay statements of the surveillance team members upon their
return to the station, and no other reliable, circumstantial
evidence that the video was taken at that time and on that date.
However, while we agree that the district court erred in
admitting the photographic exhibits as having been taken on the
specified date and time without proper authentication, the error
was harmless. Detective Ramos’s testimony identifying the alleged
date of the photographs was cumulative to Tejada’s testimony that
he purchased cocaine from Oriach and Fuertes at his residence on
March 1, 1996, and the specific time of the purchase was not
material to the charge. It is also clear, based upon the jury’s
verdict, that the jury credited Tejada’s testimony regarding this
transaction with Fuertes and Oriach, as well as the additional
three transactions discussed above. In sum, given the substantial
evidence supporting Oriach’s conviction and the cumulative nature
of the photographic evidence, we are satisfied that the admission
of the photographs was harmless error.
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III.
Oriach next contends that the district court erred in denying
his motion to suppress evidence of the large sum of cash seized by
Officer Matias from Oriach during a March 17, 1996 traffic stop.
In addition to the prior three transactions mentioned above,
Tejada testified that Fuertes and Oriach delivered 1 or 2 kilograms
of cocaine to him at his residence on March 17, 1996, and that he
paid the men $14,000 for this particular delivery. At
approximately 10:30 p.m., Detective Ramos notified U.S. Park Police
Officer Raul Matias to be on the lookout for two Hispanic males in
a black Toyota Supra with Virginia license plates. Detective Ramos
advised Officer Matias that the men had been involved in a
narcotics transaction and would likely be traveling through his
patrol area. As anticipated, Officer Matias spotted the vehicle
shortly thereafter and followed it for approximately a mile. After
clocking the vehicle’s speed at 48 mph in a 35 mph zone, Officer
Matias activated his emergency lights and siren. The vehicle
pulled to the right-hand side of the road.
Immediately after stopping the vehicle, Fuertes, who was
driving the vehicle, extended his hands out of the driver’s side
window and displayed his keys in one hand. Officer Matias, who had
never seen this behavior before, thought it “extremely unusual” and
“very suspicious.” J.A. 155. After calling for backup assistance,
Officer Matias approached the vehicle and asked the driver for his
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license and registration and explained the reason for the stop.
Fuertes provided Officer Matias with the requested documentation,
although it was in the false name of Henry Alberto Perez.
At that point, Fuertes began to gratuitously “explain[] to
[Officer Matias] that his brother was a police officer in New York
and that a police officer had been shot in the previous two days,
and that’s why he pulled his hands out of the car.” J.A. 156.
After a brief exchange about where the men were coming from and
going, Officer Matias returned to his patrol car. While waiting
for backup units, Officer Matias wrote a warning ticket for
speeding in Perez’s name. He then returned to the vehicle to give
Fuertes the ticket and advised Fuertes that he was free to leave.
Fuertes, however, chose not to leave, opting instead to again
engage Officer Matias in a conversation about the recent murder of
a New York police officer. Officer Matias then asked Fuertes if
there were any weapons in his vehicle. Fuertes responded that
there were not and told Officer Matias that he was “welcome to
check the whole car if [he] want[ed].” J.A. 157. Officer Matias
“took him up on the offer,” asked both men to step out of the
vehicle, and conducted a patdown search of their clothing. Id.
During the patdown of Oriach, Officer Matias felt a bulge in
Oriach’s pocket and pulled out $5369 in cash in small bills. An
additional $8,615 was found on Fuertes. Suspecting that the money
was the fruit of the suspected illegal narcotics activity, Officer
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Matias called for a canine unit to search the vehicle for drugs and
separated the men to interview them.
Although no drugs were found in the vehicle, the men gave
inconsistent answers as to how they knew one another and for how
long, and they continued to act in a nervous and suspicious manner.
Fuertes told Officer Matias that he had known Oriach for
approximately one year, and that they were car dealers who had
traveled from New York to Virginia to purchase a car. Oriach
initially avoided Officer Matias’s questions and acted confused and
evasive, and Fuertes attempted to tell Oriach, in Spanish, to tell
Officer Matias that they had known one another for one year.
Officer Matias, however, understood Spanish. Eventually, Oriach
told Officer Matias that he had known Fuertes for five years, since
high school. Oriach then changed his story and told Officer Matias
that he knew Fuertes through his uncle “Juan,” but was then unable
or unwilling to provide Juan’s last name or any other identifying
information.
After his indictment for conspiracy, Oriach filed a motion to
suppress the $5369 in cash seized from him on March 17, 1996.
Oriach alleged that his Fourth Amendment right to be free from
unreasonable searches and seizures was violated when Officer Matias
patted him down prior to searching the vehicle. We disagree.
Because “every traffic stop poses a meaningful level of risk
to the safety of police officers,” United States v. Sakyi, 160 F.3d
10164, 168 (4th Cir. 1998), police officers making a lawful traffic
stop may order the driver and passengers to step out of the vehicle
as a matter of course, see Maryland v. Wilson, 519 U.S. 408, 410
(1997). Police officers may also patdown or frisk the occupants of
the vehicle “without a warrant if, under the totality of the
circumstances, the officer has an articulable, reasonable suspicion
that a person is involved in criminal activity and that he is
armed.” United States v. Raymond, 152 F.3d 309, 312 (4th Cir.
1998). “The reasonableness of the search is measured objectively.
If a reasonably prudent person would believe that his safety, or
the safety of others, is endangered, he may conduct a limited
search of outer clothing to discover any weapons.” Id.Here, it is undisputed that Officer Matias’s initial stop of
the Toyota Supra for speeding was lawful and that Fuertes, after he
was told he was free to leave, instead consented to and in fact
invited Officer Matias to search the vehicle in which he and Oriach
were traveling. The issue on appeal is whether, under the totality
of the circumstances, Officers Matias’s decision to frisk or
patdown Oriach prior to conducting the vehicle search ran afoul of
Oriach’s Fourth Amendment rights. We conclude that it did not.
At the time of the traffic stop and subsequent patdown, the
Park Police and the DEA were conducting a joint task force
investigation of suspected drug dealer Tejada, which included a
court-authorized wiretap of Tejada’s telephone as well as on-site
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surveillance of Tejada’s residence. Officer Matias was
specifically advised by Detective Ramos that two Hispanic men
traveling in a Toyota Supra with a Virginia license plate were
suspected of having been involved in a narcotics transaction and
was told to be on the lookout for a vehicle meeting that
description. Upon stopping the vehicle, Officer Matias observed
specific, articulable behavior on the part of Fuertes, including
Fuertes’s act of sticking his hands out of the window without being
prompted to do so and gratuitously bringing up a police officer
shooting within the last two days, which Officer Matias
understandably viewed as suspicious. When Officer Matias advised
the men that they were free to leave, Fuertes chose not to do so
and again engaged in suspicious and nervous behavior by bringing up
the police officer shooting and inviting Officer Matias to enter
the vehicle and search it.
Given the totality of the circumstances, including the
unfortunate reality that “guns often accompany drugs,” Sakyi, 160
F.3d at 169, we think Officer Matias’s decision to conduct a
patdown search of the vehicle occupants for weapons prior to
placing himself in the vulnerable positions inherent in searching
the vehicle of suspected drug dealers during nighttime hours was an
imminently reasonable one. Because Officer Matias “had an
objectively reasonable suspicion” that illegal drugs were in the
vehicle and “a legitimate concern about his own safety,” we hold
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that “he acted lawfully under the Fourth Amendment in ‘patting
down’ the passenger.” id. at 165. Accordingly, Oriach is not
entitled to relief on his Fourth Amendment claim.
IV.
For the foregoing reasons, we affirm Oriach’s conviction and
sentence.
AFFIRMED
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