NOT PRECEDENTIAL
       UNITED STATES COURT OF APPEALS
            FOR THE THIRD CIRCUIT
                 _____________

                     No. 10-4362
                    _____________

           UNITED STATES OF AMERICA

                           v.

                     CARLOS DIAZ
              a/k/a Carlos Alberto Martine,
                                        Appellant
                    _______________

     On Appeal from the United States District Court
        for the Eastern District of Pennsylvania
                   (D.C. No. 09-cr-531)
        District Judge: Hon. Timothy J. Savage
                    _______________

       Submitted Under Third Circuit LAR 34.1(a)
                  September 16, 2011

Before: RENDELL, JORDAN and BARRY, Circuit Judges.

              (Filed: September 19, 2011)
                   _______________

              OPINION OF THE COURT
                  _______________
JORDAN, Circuit Judge.

       Carlos Diaz was tried and convicted in the United States District Court for the

Eastern District of Pennsylvania on charges of conspiracy to interfere with interstate

commerce by robbery and interference with interstate commerce by robbery, as well as

carrying and using a firearm during a crime of violence. On appeal, he challenges the

District Court‟s rulings on his pre-trial motion to suppress evidence. We will affirm.

I.     Background

       The District Court found the following facts after an evidentiary hearing on the

suppression motion. At about 9:30 p.m. on October 16, 2008, Keith Prout, an assistant

manager of the PJP Marketplace in Philadelphia, closed the store and went outside to

discover that his sport utility vehicle had a flat tire. He had begun changing it when two

men approached. One jabbed Prout in the ribs with a gun and demanded that he go inside

and open the store‟s safe. When Prout refused, the men pushed him against the back of

the vehicle and verbally threatened him. Just then, Philadelphia Police Officer Brian

Spearman arrived, and Prout‟s assailants fled. Officer Spearman chased one of them and

saw him throw a gun behind the store. The officer quickly apprehended him, and Prout

identified the man as one of the robbers. Prout then got into a police car and was driven

around in search of the other man.

       Meanwhile, Philadelphia Police Sergeant Jonah Conway responded to a radio call

of the disturbance at the PJP Marketplace, which stated that while one suspect was in

custody, another, a Hispanic male in blue jeans and a camouflage vest, was at large.

Sergeant Conway drove behind the store where the first suspect had thrown the gun, and

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he saw a Ford Explorer bearing Washington State tags parked illegally on railroad tracks.

Sergeant Conway looked in a window of the Explorer and saw duct tape and rubber

gloves inside. He then opened the unlocked passenger door, looked in the glove

compartment, found no vehicle registration or insurance card, but found traffic citations

issued to someone named “Martinez.” Sergeant Conway felt the hood of the Explorer

and discovered that it was warm. Suspecting that the Explorer was connected to the

attempted robbery, he disabled it by puncturing one of its tires.

       Sergeant Conway then watched the Explorer from a short distance away, and

within a few minutes, a man emerged from the weeds along the railroad tracks, got into

the vehicle, and attempted to drive away. Sergeant Conway stopped the Explorer and

asked the driver, later identified as Diaz, for his license and registration. Diaz was unable

to produce either. Sergeant Conway then asked Diaz what he was doing in the area, and

Diaz stated that he had been driving when he noticed that one of the tires was low, so he

pulled over and walked to a nearby gas station to call his father. The police officer

noticed that during the questioning, Diaz was sweating, out of breath, and very nervous.

At that point, the police car in which Prout was riding pulled up, and Prout immediately

recognized Diaz, who was still sitting in the driver‟s seat of the Explorer, as one of the

men who had assaulted him. Diaz was taken out of the Explorer and placed in handcuffs,

Prout positively identified Diaz in response to a police question, and Diaz was arrested.

       A grand jury in the Eastern District of Pennsylvania returned a three-count

indictment charging Diaz with conspiracy to interfere with interstate commerce by

robbery, in violation of 18 U.S.C. § 1951(a); attempted interference with interstate

                                              3
commerce by robbery, in violation of 18 U.S.C. §§ 1951(a) and 2; and carrying and using

a firearm during a crime of violence, in violation of 18 U.S.C. §§ 924(c)(1) and 2. Diaz

moved to suppress Prout‟s on-scene identification, arguing that it was unnecessarily

suggestive. In the same motion, he sought to suppress his statement to Sergeant Conway

regarding why he was in the area, arguing that he was effectively in custody when he

gave it, though he had not received Miranda warnings, and that it was the fruit of an

illegal seizure. After a hearing, the District Court denied the motion. A jury convicted

Diaz on all three counts. Diaz now appeals.

II.    Discussion1

       A.     The Show-Up

       Diaz contends that Prout‟s on-scene identification should have been suppressed

because the procedure violated his due process rights. He also argues that Prout‟s

subsequent in-court identification during the trial should have been ruled inadmissible,

because the in-court identification was tainted by the on-scene identification.

       “The standard for admitting evidence of a pretrial identification is the same as the

standard for permitting an in-court identification in the wake of a pretrial identification.”

United States v. Clausen, 

, 713 (3d Cir. 2003). “In both cases, the

eyewitness testimony will be permitted unless … admitting the identification testimony

       1
          The District Court had jurisdiction pursuant to 18 U.S.C. § 3231, which grants to
district courts “original jurisdiction, exclusive of the courts of the States, of all offenses
against the laws of the United States.” We have jurisdiction under 28 U.S.C. § 1291.
        We review a denial of a motion to suppress for clear error as to the underlying
facts and conduct plenary review of the District Court‟s application of the law to those
facts. United States v. Perez, 

, 336 (3d Cir. 2002).

                                              4
would be a denial of due process.” 

States v. Mathis, 

, 330

(3d Cir. 2001)). “An identification procedure that is both (1) unnecessarily suggestive

and (2) creates a substantial risk of misidentification violates due process.” United States

v. Brownlee, 

, 137 (3d Cir. 2006) (citing Manson v. Brathwaite, 

, 107 (1977)). “Unnecessary suggestiveness contains two component parts: that

concerning the suggestiveness of the identification, and that concerning whether there

was some good reason for the failure to resort to less suggestive procedures.” 

marks omitted). An unnecessarily suggestive identification

procedure does not create a substantial risk of misidentification if it “possesses sufficient

aspects of reliability” given the “totality of the circumstances.” 

Factors we

consider in that analysis include: “(1) the opportunity of the witness to view the criminal

at the time of the crime; (2) the witness‟[s] degree of attention; (3) the accuracy of the

witness‟[s] prior description of the criminal; (4) the level of certainty demonstrated by the

witness at the confrontation; and (5) the length of time between the crime and

confrontation.” 

v. Biggers, 

, 199 (1972)). The burden to

show that the suggestiveness of an identification procedure violates due process is borne

by the defendant. See United States v. Lawrence, 

, 115 (3d Cir. 2003).

       Although a show-up procedure, like the one here, is “inherently suggestive,”

, Diaz has not shown that the identification provided by Prout

was the product of an unnecessarily suggestive procedure or that it created a substantial

risk of misidentification. Diaz contends that the identification procedure was unduly

suggestive because “[d]uring the identification procedure, [he], while in handcuffs, was

                                              5
brought out of a marked police vehicle under the escort of several police officers who

stood next to him during the procedure.” Appellant‟s Br. at 5. While that may be true,2

Prout was able to identify Diaz before he was arrested and handcuffed. As the District

Court specifically found, “Prout immediately recognized the man in the driver‟s seat of

the Explorer as the heavier one who had assaulted him,” and “[a]fter Prout recognized

him, [Diaz] was taken out of the Explorer and placed in handcuffs.” (App. at 10

(emphasis added).) We cannot say that these factual findings by the District Court were

clearly erroneous, given Prout‟s testimony at the suppression hearing.

         Even if these findings were clearly erroneous, however, the fact that Diaz was in

handcuffs and surrounded by police alone does not make the identification procedure

“unnecessarily suggestive.” First, if a suspect is handcuffed and surrounded by police

officers during an on-scene show-up, the show-up is not automatically unduly suggestive.

See, e.g., United States v. King, 

, 970 (8th Cir. 1998) (“Necessary incidents

of on-the-scene identifications, such as the suspects being handcuffed and in police

custody, do not render the identification procedure impermissibly suggestive.”); United

States v. Bautista, 

, 730 (2d Cir. 1994) cert. denied, 

(1994)

(“The fact that the suspects were handcuffed, in the custody of law enforcement officers,

and illuminated by flashlights also did not render the pre-trial identification procedure

unnecessarily suggestive. In this case, handcuffs, custody, and flashlights were all

necessary incidents of an on-the-scene identification … .”); cf. 

         2
             Sergeant Conway testified to this effect at the suppression hearing. See App. at
86-88.
                                                 6
(holding that a show-up was unnecessarily suggestive when not only the suspect was

“handcuffed, surrounded by police officers, and either seated inside or standing beside a

police cruiser” but also multiple witnesses identified the suspect “while exposed to the

suggestive influence of other[] [witnesses, bystanders, and police],” the suspect was

brought to the scene of the crime for identification, and there was no reason why the

witnesses could not identify the suspect in a less suggestive line-up or photo array).

       Second, whether an identification procedure is “unnecessarily suggestive” rests

not only on its effect, its “suggestiveness,” but also on its cause, whether there was “some

good reason [(or motivation)] for the failure to resort to [a] less suggestive procedure[].”

. Here, Prout‟s prompt identification of Diaz was done when

Prout‟s memory was still fresh and would have enabled the police to quickly release Diaz

if he were not identified as the culprit and to continue their search for the actual criminal.

Given the level of suggestiveness of the identification procedure, those motivations were

reasonably sufficient to justify the failure to resort to a less suggestive procedure. See

United States v. Sleet, 

, 309 (7th Cir. 1995) (holding that immediate show-ups

can serve important interests, such as “allow[ing] identification … while the witness‟[s]

memory is fresh[] and permit[ting] the quick release of innocent persons” (internal

quotation marks omitted)); United States ex rel. Cummings v. Zelker, 

, 716

(2d Cir. 1972) (“[P]rompt confrontation [is] desirable because it serve[s] to insure „the

immediate release of an innocent suspect and at the same time … enable[s] the police to

resume the search for the fleeing culprit while the trail is fresh.‟” (quoting Bates v. United

States, 

, 1106 (D.C. Cir. 1968), cert. denied, 

(1972)).

                                              7
       Moreover, even if we were to assume that the identification procedure here was

unnecessarily suggestive, it was nevertheless sufficiently reliable to not have violated

Diaz‟s due process rights. Prout had ample opportunity to view Diaz at the time of the

crime, and he positively identified him shortly after the crime was committed. Thus,

given the totality of the circumstances, the identification procedure here did not create a

substantial risk of misidentification since it “possess[ed] sufficient aspects of reliability.”

See 

(listing factors which establish “sufficient aspects of

reliability” and holding that “the totality of the circumstances establish[ed] that the

identifications were reliable”).

       Therefore, because the identification procedure used by the police here did not

violate Diaz‟s due process rights, the District Court did not err in refusing to suppress the

on-scene identification of Diaz made by Prout and the identification could not have

tainted the in-court identification.

        B.    The Terry Stop

       Diaz argues that the District Court should have suppressed Prout‟s identification

and Diaz‟s statements to Sergeant Conway as fruits of an illegal seizure, because

Sergeant Conway lacked reasonable suspicion to stop the Explorer.

       Under Terry v. Ohio, 

(1968), and its progeny, “an officer may,

consistent with the Fourth Amendment, conduct a brief, investigatory stop when the

officer has a reasonable, articulable suspicion that criminal activity is afoot.” United

States v. Valentine, 

, 353 (3d Cir. 2000). Reasonable suspicion is “a less

demanding standard than probable cause,” Illinois v. Wardlow, 

, 123 (2000),

                                               8
and “can be established with information that is different in quantity or content than that

required to establish probable cause.” Alabama v. White, 

, 330 (1990). In

deciding whether reasonable suspicion supported a stop, “we must consider „the totality

of the circumstances – the whole picture.‟” United States v. Sokolow, 

, 8

(1989) (quoting United States v. Cortez, 

, 417 (1981)).

       Here, when Sergeant Conway responded to the radio call, he drove behind the PJP

Marketplace where the gun had been thrown, found a vehicle with out-of-state plates

parked illegally on railroad tracks with its hood still warm, noticed that the majority of

the businesses in the area were closed, and saw by looking through the Explorer‟s

window that duct tape and rubber gloves were inside. Given the totality of these

circumstances, Sergeant Conway had reasonable suspicion that the Explorer was

involved in the assault and attempted robbery that had just happened nearby, and he was

thus justified in stopping the vehicle after Diaz emerged from the weeds along the

railroad tracks and started driving away.

       Diaz argues that Sergeant Conway‟s warrantless entry into the Explorer was

illegal and “therefore tainted the subsequent stop of the vehicle,” Appellant‟s Br. at 11,

because the stop was based in part on information obtained during the search of the glove

compartment. However, assuming that the warrantless entry into the Explorer was

illegal, cf. United States v. Burton, 

, 100 (3d Cir. 2002) (noting that the

“automobile exception . . . permits law enforcement to . . . search an automobile without

a warrant [only] if probable cause exists to believe it contains contraband”) (internal

quotation marks omitted), Sergeant Conway already had, for the reasons already noted,

                                              9
reasonable suspicion to stop the vehicle before he opened the door of the Explorer and

conducted the search. Put another way, the traffic citations found in the glove

compartment were effectively immaterial to the reasonable suspicion calculus.

       Given that Sergeant Conway had reasonable suspicion to conduct an investigatory

stop of the Explorer, the District Court properly refused to suppress the identification and

statements that resulted from the stop.

       C.     Diaz’s Statements

       Finally, Diaz contends that the District Court should have suppressed his

statements to Sergeant Conway because those statements were the fruit of a custodial

interrogation conducted without Diaz having been given a Miranda warning.

       Under Miranda v. Arizona, 

(1966), “statements obtained during a

custodial interrogation are inadmissible under the Fifth Amendment of our Constitution if

the defendant was not informed both of the right to counsel and the right to remain

silent.” United States v. Shabazz, 

, 286 (3d Cir. 2009). “For a person to be

in custody when he has not been arrested, „something must be said or done by the

authorities, either in their manner of approach or in the tone or extent of their

questioning, which indicates that they would not have heeded a request to depart or to

allow the suspect to do so.‟” United States v. Willaman, 

, 359 (3d Cir.

2006) (quoting Steigler v. Anderson, 

, 799 (3d Cir. 1974)).

       Diaz contends that he was in custody, and thus was entitled to a Miranda warning,

because Sergeant Conway‟s “disabling [of the Explorer] by puncturing the tires . . . [was]

the functional equivalent of an arrest.” Appellant‟s Br. at 15. That argument fails. As

                                             10
discussed above, the stop of the Explorer and questioning of Diaz was a Terry

investigatory stop based on reasonable suspicion. Had Diaz been able to produce a

driver‟s license and registration, had he been able to give a plausible explanation for his

whereabouts, had he not matched the description of the suspect from the radio call, had

he not appeared out of breath and nervous, and had he not been identified as one of the

assailants by Prout, then he would have been free to leave, despite the flattened tire. 3

Diaz was placed in custody only after this additional information gave the police

probable cause to arrest him. While the flattened tire may have prevented Diaz from

fleeing, he was not in custody because of it.

       In short, Sergeant Conway‟s stop of the Explorer driven by Diaz was a Terry

investigatory stop, and the prior disabling of the vehicle did not – under these

circumstances – convert the encounter into a custodial interrogation. Thus, no Miranda

warning was required.

III.   Conclusion

       For the foregoing reasons, we will affirm the judgment of conviction entered by

the District Court.




       3
        When and how he may have chosen to deal with the flat tire is not a matter about
which we choose to speculate. Likewise, because it is irrelevant to the issues before us,
we make no comment whatsoever on the lawfulness or wisdom of the police officer‟s
decision to puncture the tire.
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