19-1081
United States v. Whitaker



                            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, 40 Foley Square, in the
City of New York, on the 14th day of September, two thousand twenty.

PRESENT: PIERRE N. LEVAL,
           PETER W. HALL,
           GERARD E. LYNCH,
                      Circuit Judges.
_____________________________________

United States of America,

                            Appellee,

                            v.                            19-1081

Barry Whitaker,
                 Defendant-Appellant.
_____________________________________


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For Appellant:                        JAY S. OVSIOVITCH, Federal Public
                                      Defender’s Office, Western District of New
                                      York, Rochester, New York.



For Appellee:                         TIFFANY H. LEE for James P. Kennedy, Jr.,
                                      United States Attorney for the Western
                                      District of New York, Rochester, New York.




      Appeal from a judgment of the United States District Court for the Western

District of New York (Wolford, J.).

      UPON       DUE    CONSIDERATION,         IT   IS   HEREBY     ORDERED,

ADJUDGED, AND DECREED that the judgment of the district court is

AFFIRMED.

      Barry Whitaker appeals from a judgment of the United States District Court

for the Western District of New York (Wolford, J.) entered on April 15, 2019. We

assume the parties’ familiarity with the underlying facts, the record of prior

proceedings, and arguments on appeal, which we reference only as necessary to

explain our decision to affirm.




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                                          I.

      Whitaker was arrested following a traffic stop and was charged with various

drug and firearm offenses. He initially moved to suppress physical evidence

seized at the traffic stop, arguing it was an unlawful stop, and statements he made

that he asserts were obtained in violation of his Fifth Amendment rights. The

district court denied Whitaker’s suppression motion, and Whitaker entered into a

plea agreement with the government pleading guilty to possession of heroin with

intent to distribute in violation of 21 U.S.C. § 841(a)(1) and possession of a firearm

in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A)(i).

Under his plea agreement, Whitaker retained the right to appeal the district court’s

denial of his suppression motion. The district court sentenced Whitaker to 106

months’ imprisonment, to be followed by a term of supervised release, during

which Whitaker would be subject to the standard conditions of supervised release

adopted by the District Court for the Western District of New York.

                                          II.

      Whitaker was stopped for a violation of § 1163(b) of New York Vehicle and

Traffic Law, which requires that “[a] signal of intention to turn right or left when

required shall be given continuously during not less than the last one hundred feet



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traveled by the vehicle before turning.” On appeal, Whitaker argues that his traffic

stop, which occurred after he signaled his turn while stopped at a stop sign instead

of one hundred feet before, was illegal because § 1163(b) does not apply to turns

made at a stop sign. Whitaker contends that § 1163(d), which applies to vehicles

moving “from a parked position,” and which does not require a car to signal its

turn one hundred feet before making it, is the provision governing vehicles like

his that are stopped at a stop sign and then turning. Whitaker argued before the

district court that his traffic stop was illegal, but he only challenged the police’s

ability to see when he initiated the signal; he did not contend below that his

signaling while stopped at a stop sign complied with the traffic code. We therefore

review for plain error Whitaker’s challenge to the legality of his traffic stop—a

finding of illegality being necessary to render seized evidence tainted and

therefore subject to being suppressed. See United States v. Gore, 

, 41 (2d

Cir. 1998) (“[I]ssues not intentionally relinquished or abandoned but nevertheless

not raised—that is, forfeited issues—may be reviewed for plain error.”).

      To demonstrate plain error, Whitaker must show that “(1) there is an error;

(2) the error is clear or obvious, rather than subject to reasonable dispute; (3) the

error affected the appellant’s substantial rights, which in the ordinary case means



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it affected the outcome of the district court proceedings; and (4) the error seriously

affects the fairness, integrity or public reputation of judicial proceedings.” United

States v. Marcus, 

, 262 (2010) (internal quotation marks and alterations

omitted). Even if it would be error to hold that Whitaker’s traffic stop was legal

because he violated § 1163(b) of the traffic code, that error would not be “clear or

obvious, rather than subject to reasonable dispute.” 

. As

Whitaker himself concedes, see Reply Br. at 15, whether § 1163(b) or § 1163(d)

applies to a car stopped at a stop sign is, at best, an open question in New York.

Whitaker is therefore not entitled to suppress the evidence seized at the time of

the traffic stop.

                                         III.

       Whitaker also argues that two statements he made to police should have

been suppressed. First, he asserts that his response of “oh, yeah, you’re about to

find it” to an officer’s question “do you have anything on you?”—made right

before police found and removed a gun from Whitaker’s waistband—was

obtained before he was read Miranda warnings and should therefore be

suppressed. Second, Whitaker contends that statements he made at the police

station indicating the evidence seized from his car was his should also have been



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suppressed because he had not explicitly waived his right to remain silent after he

was initially read his Miranda warnings and because he was not re-read his

Miranda warnings immediately prior to the questioning that elicited this

statement. We are not persuaded by either argument.

      “Under Miranda v. Arizona, 

, 

, 

(1966),

statements made by a suspect in custody in response to police interrogation are

inadmissible, unless certain now famous warnings preceded the statements.”

United States v. Reyes, 

, 152 (2d Cir. 2003). Miranda applies during

custodial interrogations—that is, when law enforcement, with investigative intent,

questions an individual in a custodial setting with “inherently coercive pressures

that tend to undermine the individual’s will to resist and to compel him to speak.”

United States v. Rodriguez, 

, 258 (2d Cir. 2004) (citation omitted).

      We assume without deciding that Whitaker was in custody when he was

asked if he had anything on him, and he would therefore ordinarily be entitled to

a Miranda warning preceding questions designed to elicit testimonial evidence.

However, “Miranda warnings need not precede ‘questions reasonably prompted

by a concern for the public safety’ or for the safety of the arresting officers.” 

(quoting New York v. Quarles, 

, 658-59 (1984)). The



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public safety exception is appropriate in situations where there is an objectively

reasonable need to protect against danger given the totality of the circumstances.

See United States v. Estrada, 

, 612 (2d Cir. 2005). In light of the facts that

Whitaker had reached for his waistband and was suspected of narcotics trafficking

(and thus reasonably could have been expected to be armed, see 

), as well as the fact that he was not fully restrained at the time he was asked if

he had anything on him, “the arresting officers had an objectively reasonable need

to protect themselves from immediate danger.”               

.

Moreover, the question: “do you have anything on you?”—while broad enough to

elicit information outside of safety concerns—plainly encompasses concerns about

officer safety.   In this situation, a Miranda warning was not required, and

Whitaker’s statement regarding the firearm cannot be suppressed on the basis that

he did not receive one.

      Nor is Whitaker entitled to suppression of the statements he made at the

police station regarding his ownership of the evidence that was seized. Where, as

here, an individual in police custody has been given his Miranda warnings, has

indicated that he understands he has a right to remain silent, and has not

unambiguously invoked such a right, the individual waives his right to remain



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silent by knowingly and voluntarily making a statement to police. See Berghuis v.

Thompkins, 

, 385-86 (2010).

                                          IV.

      Finally, Whitaker challenges the “notification of risk” condition of his

supervised release as an impermissible delegation of the court’s authority to his

probation officer. Even assuming arguendo that this condition runs afoul of our

precedent in United States v. Boles, 

, 111 (2d Cir. 2019), Whitaker’s

challenge to this condition is not yet ripe. See United States v. Traficante, 

, 106 (2d Cir. 2020) (“[W]hile it could be argued that the standing order

contemplates vesting the probation officer with a degree of discretion that is

inconsistent with our holding in Boles, such a challenge would likewise be unripe,

since the ostensibly improper delegation may never occur.”). We therefore decline

to reach Whitaker’s challenge to this condition of supervised release, and we

express no view on the merits of any challenge he may bring in the future should

the district court determine Whitaker poses a risk to an individual and allows the

probation officer to decide whether that individual must be notified.




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                               *     *     *

       We have considered Whitaker’s remaining arguments and conclude they

are without merit. For the foregoing reasons, we AFFIRM the judgment of the

district court.




                                   FOR THE COURT:
                                   Catherine O’Hagan Wolfe, Clerk of Court




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