REENA RAGGI, Circuit Judge:
The United States appeals from an order of the United States District Court for the Western District of New York (Frank P. Geraci, Jr., Judge; Jonathan W. Feldman, Magistrate Judge), suppressing drugs and a firearm seized incident to the arrest of defendant Laverne Singletary. See United States v. Singletary, 37 F.Supp.3d 601 (W.D.N.Y.2014). The district court concluded that the seized contraband was the fruit of an initial unlawful investigatory stop made without the reasonable suspicion of criminal activity required by Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). In urging reversal, the government maintains that reasonable suspicion to investigate defendant for possible violation of a local open-container ordinance was supported by articulable, objective facts, including defendant's observed (1) carrying of a beer-can-sized object (2) concealed in a brown paper bag and (3) held in such a manner as to avoid spillage. We agree and reverse the challenged suppression order.
The stop at issue occurred at approximately 10:45 p.m. on October 6, 2012, in the vicinity of Roth and Flower Streets in Rochester, New York. Rochester Police Officer Amy Pfeffer was on car patrol with Monroe County Probation Officer Robert Masucci, when she saw a man, subsequently identified as defendant Laverne Singletary, walking on the sidewalk.
Bringing the police car she was driving to a halt, Pfeffer told Officer Masucci to "stop that guy, he's got an open container." Oct. 10, 2013 Suppression Hr'g Tr. ("Hr'g Tr.") 67. Both officers exited their vehicle, first Masucci and then Pfeffer, whereupon the latter ordered Singletary to stop. Singletary replied, "Who me?" and quickly walked away. Id. at 14. This prompted Masucci, who was positioned in front of Singletary, to put his hand on Singletary's right shoulder to deter further movement. Instantly, Singletary tossed the bagged can he was carrying behind him, pushed Masucci's hand away, and proceeded to run from the officers. As Singletary did so, some of the can's contents spilled on Pfeffer, who could smell that it was, in fact, beer.
The officers gave chase, but as they were about to tackle Singletary, he stumbled, such that all three persons fell to the ground. A struggle ensued before the officers were able to handcuff Singletary and place him under arrest. As they lifted him off the ground, the officers observed a handgun at the site of the struggle, which they proceeded to seize. A search of Singletary's person resulted in the further seizure of thirteen bags of marijuana found inside the front pocket of his sweatshirt.
On April 30, 2013, a federal grand jury in the Western District of New York indicted Singletary for possession of marijuana with intent to distribute, possession of a firearm in furtherance of a drug trafficking crime, and possession of a firearm by a convicted felon.
After an evidentiary hearing at which only Officer Pfeffer testified as to the circumstances of the stop and ensuing arrest and seizures,
The government filed objections to the report, which the district court rejected in its August 8, 2014 memorandum adopting the report and recommendation in its entirety and ordering suppression of the
The government timely filed this interlocutory appeal. See 18 U.S.C. § 3731.
On review of a challenged suppression order, we examine the district court's findings of fact for clear error, while applying de novo review to its resolution of questions of law and mixed questions of law and fact, such as the existence of reasonable suspicion to stop and probable cause to arrest. See Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996); United States v. Lucky, 569 F.3d 101, 105-06 (2d Cir.2009). These standards inform our consideration of the two arguments advanced by the government in urging reversal of the suppression order in this case. First, the government defends the initial stop, maintaining that it was supported by reasonable suspicion to think Singletary might be violating Rochester's open-container ordinance. Second, and in any event, it contends that Singletary's ensuing actions in discarding the bagged can and fleeing the scene sufficiently attenuated any initial illegality and provided independent probable cause for his arrest and the seizures incident thereto. We agree with the first argument and, thus, need not reach the second.
The Fourth Amendment states that "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated." U.S. Const. amend. IV. As this language indicates, the Amendment's "ultimate touchstone... is `reasonableness,'" Riley v. California, ___ U.S. ___, 134 S.Ct. 2473, 2482, 189 L.Ed.2d 430 (2014) (internal quotation marks omitted), "a matter generally determined by balancing the particular need to search or seize against the privacy interests invaded by such action," United States v. Bailey, 743 F.3d 322, 331 (2d Cir.2014) (collecting cases). Such balancing usually demands that searches be conducted pursuant to judicial warrants supported by probable cause, but "neither a warrant nor probable cause ... is an indispensable component of reasonableness in every circumstance." National Treasury Emps. Union v. Von Raab, 489 U.S. 656, 665, 109 S.Ct. 1384, 103 L.Ed.2d 685 (1989).
In Terry v. Ohio, the Supreme Court "expressly recognized that government interests in `effective crime prevention and detection,' as well as in officer and public safety while pursuing criminal investigations, could make it constitutionally reasonable `in appropriate circumstances and in an appropriate manner' temporarily to detain a person" to investigate possible criminality even in the absence of a warrant or probable cause for arrest. United States v. Bailey, 743 F.3d at 331-32 (quoting Terry, 392 U.S. at 22-25, 88 S.Ct. 1868). To justify a Terry stop, there must be "a reasonable basis to think that the person to be detained `is committing or has committed a criminal offense.'" Id. (quoting Arizona v. Johnson, 555 U.S. 323, 326-27, 129 S.Ct. 781, 172 L.Ed.2d 694 (2009)).
This standard requires more than a "hunch" to justify an investigatory stop. Terry v. Ohio, 392 U.S. at 27, 88 S.Ct. 1868. It demands "specific and articulable facts which, taken together with rational inferences from those facts," id. at 21, 88 S.Ct. 1868, provide detaining officers with a "particularized and objective basis for suspecting legal wrongdoing," United States v. Arvizu, 534 U.S. 266, 273, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002) (internal quotation marks omitted). The reasonable-suspicion
An indication of possible illicit activity is properly informed by "commonsense judgments and inferences about human behavior." Illinois v. Wardlow, 528 U.S. 119, 125, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000). And while a reviewing court cannot merely defer to police officers' judgment in assessing reasonable suspicion, the court must view the totality of the circumstances through the eyes of a reasonable and cautious police officer on the scene, whose insights are necessarily guided by his experience and training. See United States v. Bailey, 743 F.3d at 332; United States v. Bayless, 201 F.3d 116, 133 (2d Cir.2000).
Applying these principles here, we must reject the district court's determination that Singletary's initial stop was unreasonable because it rested only on a "hunch" of criminal activity. See United States v. Singletary, 37 F.Supp.3d at 605, 611. A hunch is an "`inchoate and unparticularized suspicion,'" Illinois v. Wardlow, 528 U.S. at 124, 120 S.Ct. 673 (quoting Terry v. Ohio, 392 U.S. at 27, 88 S.Ct. 1868), i.e., a conclusion derived from intuition in the absence of articulable, objective facts. Here, however, the challenged stop did not depend on intuition or inchoate speculation. It was supported by numerous objective facts that, when considered in their totality, provided the requisite reasonable suspicion to think Singletary was violating Rochester's open-container ordinance, thereby warranting further investigation. See United States v. Arvizu, 534 U.S. at 274-75, 122 S.Ct. 744 (emphasizing that "`totality of the circumstances' principle" governs determination of reasonable suspicion); accord United States v. Bailey, 743 F.3d at 335-36.
First, Officer Pfeffer observed Singletary walking down a public street carrying an object that was the "standard size of a beer" can. Hr'g Tr. at 13. In short, Singletary was plainly carrying not a bag of groceries, his laundry, or the trash, but what appeared to be a container frequently used for alcohol. To be sure, a standard beer can is similar in size to a soft drink can, but the law "does not demand that all possible innocent explanations be eliminated before conduct can be considered as part of the totality of circumstances supporting a reasonable basis to believe that criminal activity may be afoot." United States v. Bailey, 743 F.3d at 333; see Navarette v. California, 134 S.Ct. at 1691.
Second, Pfeffer saw that Singletary was carrying the beer-sized can wrapped in a brown paper bag. See Hr'g Tr. at 17. A
Third, Pfeffer saw that Singletary was carrying the brown-bagged beer-can-sized object in a "very steady" manner, as if he "did not want it to spill." Hr'g Tr. at 17. The "commonsense judgments and inferences about human behavior" to be drawn from such carrying, Illinois v. Wardlow, 528 U.S. at 125, 120 S.Ct. 673, provide reasonable suspicion to think the container was open and contained liquid. In urging otherwise, Singletary emphasizes that the officers did not see him actually drinking from the bag-covered can, nor did they directly observe him engage in activity proscribed by law. Neither argument persuades.
To be sure, the inference that Singletary was carrying an open container would be stronger still — indeed, virtually certain — if the officers had seen him drink from the bag-wrapped can. But reasonable suspicion does not demand certainty, or even probability. It requires only "specific and articulable facts" admitting a "rational inference[]." Terry v. Ohio, 392 U.S. at 21, 88 S.Ct. 1868. The rational inference of openness to be drawn from the cautious manner in which Singletary was carrying
Nor does reasonable suspicion demand actual observation of a person engaged in prohibited conduct. This is evident from precedent recognizing that reasonable suspicion can arise even where a defendant's conduct is as consistent with innocence as with guilt so long as there is "some indication of possible illicit activity." United States v. Padilla, 548 F.3d at 187 (internal quotation marks omitted). Indeed, if officers had observed actual prohibited conduct, they would have had probable cause to arrest. It is precisely because reasonable suspicion is based on something less that it approves only a brief investigatory stop.
Here, we conclude that the trio of "specific and articulable facts" just discussed, when "taken together with rational inferences" drawn therefrom, provided the detaining officers with a sufficient particularized and objective basis to suspect that criminal activity — in the form of an open-container violation — was afoot. See Terry v. Ohio, 392 U.S. at 21, 30, 88 S.Ct. 1868. In such circumstances, it was constitutionally reasonable for the officers briefly to detain Singletary in order "to confirm or dispel their suspicions." United States v. Sharpe, 470 U.S. 675, 686, 105 S.Ct. 1568, 84 L.Ed.2d 605 (1985); see United States v. Bailey, 743 F.3d at 336.
Singletary submits that, even if the stop was supported by reasonable suspicion, Officer Masucci was not authorized by New York law to effect detentions unrelated to his probation or parole duties. We are skeptical. New York law authorizes a probation officer to arrest any individual who commits an offense in the officer's presence, see N.Y.Crim. Proc. Law §§ 2.10(24), 140.25(3)(a), and, thus, might well allow a probation officer to conduct a brief investigatory stop when he has reasonable suspicion to think that an offense is being committed in his presence. In any event, Masucci was not acting on his own in stopping Singletary, but on the orders of and together with a police officer
Accordingly, we identify no Fourth Amendment violation in the challenged stop and, therefore, reverse the order suppressing items seized from Singletary incident to his ensuing arrest.
To summarize, we conclude as a matter of law that the officers' observations of Singletary walking down a public street, carrying a beer-sized can wrapped in a brown paper bag, which object he held in a cautious manner so as to avoid spillage, are articulable, objective facts that together provided reasonable suspicion to support a brief stop to investigate whether Singletary was then violating a local open-container ordinance. Accordingly, Singletary's ensuing arrest and the seizure of contraband incident thereto were not tainted by an unlawful stop warranting suppression of the seized items. We therefore REVERSE the district court's suppression order and REMAND this case for further proceedings consistent with this opinion.