United States v. Jose Pacheco

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 16a0265p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

UNITED STATES OF AMERICA, ┐

Plaintiff-Appellee, │

│

│

v. > No. 16-3376

│

│

JOSE A. PACHECO, │

Defendant-Appellant. │

┘

Appeal from the United States District Court

for the Southern District of Ohio at Columbus.

No. 2:14-cr-00258—James L. Graham, District Judge.

Decided and Filed: October 28, 2016

Before: DAUGHTREY, GIBBONS, and COOK, Circuit Judges.

_________________

COUNSEL

ON BRIEF: Frederick D. Benton, Jr., FREDERICK D. BENTON, JR., LPA, Columbus, Ohio,

for Appellant. Peter K. Glenn-Applegate, UNITED STATES ATTORNEY’S OFFICE,

Columbus, Ohio, for Appellee.

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OPINION

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JULIA SMITH GIBBONS, Circuit Judge. Defendant-appellant Jose Pacheco appeals the

district court’s denial of his motion to suppress evidence discovered during a Terry stop and

subsequent pat-down search. During this precautionary pat down for weapons, an officer

discovered that Pacheco had over $3,000 in currency and a half-kilogram of brick cocaine in his

cargo shorts. The district court found that, based on the totality of the circumstances, the officer

1

No. 16-3376 United States v. Pacheco Page 2

had reasonable suspicion to justify the pat down of Pacheco for weapons, and that the cocaine

and currency were properly seized pursuant to the plain-view and plain-feel doctrines.

Because the Terry stop, the removal of Pacheco from the vehicle, the pat down, and the

seizure of contraband and currency were all within the bounds of the Fourth Amendment, we

affirm the district court’s decision.

I.

On the evening of December 10, 2010, Detective William Best received a call from

Sergeant Jeff Lipp, informing him that a confidential source had information about “subjects

moving medium to large quantity narcotics in and around the Kimberly Parkway area” of

Columbus, Ohio. Best was intimately familiar with this part of town. He testified that “[l]ike

most neighborhoods, you have 5 percent of people that cause problems,” but noted that the area

was prone to “a lot of gang activity.” (DE 69, Tr. of Mot. to Supp. Hearing, Page ID 238.)

The source feared retaliation for sharing information but agreed to meet Best in-person.

The two met in a parking lot at the corner of Kimberly Parkway and South Hamilton Road.

There, the source informed Best that two Hispanic men in a silver Lincoln Aviator were moving

narcotics from the Chatham Village apartment complex in the Kimberly Parkway area.

After receiving this information, Best set up surveillance in an unmarked car. In order to

gain a strategic view of the Chatham Village apartments, which are on the north side of

Kimberly Parkway, Best stationed himself in a parking lot on the south side of the parkway. The

source told Best only that the subjects would be moving the narcotics “in the evening,” and he

was unsure of precisely when to expect them. (Id. at 233.) Best had never met this source and

did not know his accuracy, reliability, or credibility. However, within forty-five minutes, Best

saw a silver SUV exit Chatham Village.

Best was unsure if this was his target vehicle but decided to attempt to verify that it was.

The silver SUV was traveling eastbound on Kimberly Parkway, and Best pulled out and

positioned himself behind it. Best could now see that this vehicle was a silver Lincoln Aviator

that precisely matched the description given by the informant, but he still needed to verify

No. 16-3376 United States v. Pacheco Page 3

whether the occupants of the vehicle potentially matched the source’s description. Best and the

Aviator stopped at the well-lit corner of Kimberly Parkway and South Hamilton Road. The

target vehicle was in the far left of two left-turn lanes. Best pulled up along the passenger-side

of the Aviator and observed what he believed were two Hispanic males in the vehicle.

Now that “everything started adding up,” just as the source had stated it would, Best

called Officer Jeremy Phalen, a patrol officer he knew worked in the area. (Id. at 235, 237.)

As the Aviator was turning, Best had witnessed the driver fail to properly signal a turn, and he

relayed this information, and information about his narcotics tip, to Phalen and his partner,

Officer Kenneth Trivette.

Best dropped back and allowed Phalen and Trivette to move in behind the Aviator in

their patrol car. Phalen was also very familiar with the Kimberly Parkway area and stated that it

was a “hotbed for gang activity.” (Id. at 256.) With this in mind, he and Trivette followed the

Aviator until they saw it unexpectedly swerve across the double-yellow lines. Phalen turned on

his emergency lights and the Aviator pulled to the side of the road, ultimately coming to a stop in

a gas-station parking lot.

Phalen and Trivette exited their patrol car and approached the Aviator. Phalen

approached the driver’s side of the vehicle, while Trivette took the passenger’s side. Phalen

spoke with the driver, later identified as Mario Calderon, and discovered that he had no valid

driver’s license. He also observed Calderon visibly shaking while he spoke with him and

decided to remove him from the Aviator. He proceeded to pat down Calderon and place him in

the back of the police cruiser so that he could aid Trivette.

As Phalen had approached the driver’s side of the vehicle, Trivette had done the same on

the passenger’s side, where Pacheco was sitting. Trivette noted that Pacheco was not wearing

his seatbelt. Trivette asked Pacheco for identification, but Pacheco did not respond. Instead,

Pacheco began rummaging through the glove compartment, ruffling papers but removing

nothing. Trivette testified that Pacheco was extremely nervous, and was glancing around the

vehicle. Pacheco again opened the glove compartment and looked down at the floorboard and

over at his left leg, near the center console. All of this concerned Trivette, who testified that the

No. 16-3376 United States v. Pacheco Page 4

glove box, the floorboard, and the area between the seat and center console are all often used to

conceal weapons. Trivette was also disturbed by Pacheco’s “fidgeting around,” lack of eye

contact, and his failure to acknowledge any of Trivette’s questions. (Id. at 271.) Considering all

of these factors, Trivette testified that “something wasn’t right.” (Id.) Trivette then asked

Pacheco to exit the vehicle. Pacheco did not respond or comply with this order. Trivette asked

Pacheco to exit again, this time opening the door for him.

Pacheco exited the vehicle, and Trivette initiated a pat down of his person. On Pacheco’s

right side, Trivette felt “a large chunk of money on his right cargo pocket.” (Id. at 275.) Trivette

then switched his focus to Pacheco’s left leg, and immediately noticed the top of a brick-like

object, wrapped in brown paper and tape, protruding approximately one inch out of the top of

Pacheco’s left cargo pocket. As Trivette patted this area down, he could feel that the object in

that cargo pocket was “like a solid brick,” and was approximately six-to-eight inches long. (Id.

at 275, 288.) Based on these observations, and his experience working with narcotics, Trivette

recognized, “within seconds,” that the object was very likely brick cocaine. (Id. at 277, 288.)

Trivette seized the contraband and currency, and Pacheco was detained and placed in the rear of

the cruiser with Calderon.

II.

Pacheco was charged with violating 21 U.S.C. §§ 841(a), 846 by possessing with intent

to distribute, and conspiring with others with intent to distribute, 494 grams of cocaine. Pacheco

filed a motion to suppress the cocaine and currency discovered on his person, claiming that

Trivette’s pat down violated his Fourth Amendment rights prohibiting unreasonable searches and

seizures. Specifically, Pacheco claimed Trivette lacked the requisite “reasonable suspicion” to

justify the pat-down search, and accordingly, discovery of the cocaine and currency should be

suppressed. The district court held a hearing at which Best, Phalen, and Trivette testified. After

the hearing, the district court issued a memorandum opinion and order, denying Pacheco’s

motion to suppress. In its order, the district court found that, considering the totality of the

circumstances, Trivette had reasonable suspicion that Pacheco was armed and dangerous,

justifying the pat-down search, and that the seizure of contraband and currency was reasonable.

No. 16-3376 United States v. Pacheco Page 5

In support of its finding, the district court listed ten factors that it found supported a

finding of reasonable suspicion:

(1) Detective Best relayed information about a tip that two Hispanic males driving

a Lincoln Aviator were involved in cocaine distribution; (2) Mr. Pacheco

appeared nervous in the car; (3) Mr. Pacheco looked back and forth to avoid eye

contact with Officer Trivette; (4) Mr. Pacheco avoided conversation with Officer

Trivette; (5) Mr. Pacheco disregarded Officer Trivette’s commands to exit his

vehicle; (6) Mr. Pacheco shuffled through the glove box, making furtive gestures;

(7) Mr. Pacheco looked down to the floorboard under his seat; (8) Officer Trivette

could not identify Mr. Pacheco; (9) the stop occurred at night when it was dark;

and (10) the stop occurred in a high crime area.

(DE 40, Op. & Order, Page ID 143–145.) The district court then proceeded to find that the

seizure of contraband and currency was not overly intrusive, relying on the plain-view and plain-

feel doctrines as applicable to contraband seized during pat-down searches.

After his motion to suppress was denied, Pacheco entered into a conditional plea

agreement in which he reserved his right to appeal the district court’s denial of his motion to

suppress. Pacheco then filed this timely appeal.

III.

When reviewing a denial of a motion to suppress, the district court’s factual

determinations are reviewed for clear error and its legal conclusions are reviewed de novo.

United States v. Herndon, 501 F.3d 683, 687 (6th Cir. 2007) (citing United States v. Ostrander,

411 F.3d 684, 694 (6th Cir. 2005)). “Whether an officer had reasonable suspicion under the

circumstances to frisk a suspect is a mixed question of law and fact that we review de novo.”

United States v. Noble, 762 F.3d 509, 519 (6th Cir. 2014) (quoting United States v. Stepp,

680 F.3d 651, 660 (6th Cir. 2012)). Likewise, any probable-cause determination is reviewed de

novo. United States v. Martin, 526 F.3d 926, 936 (6th Cir. 2008). However, the evidence must

be viewed in a light most likely to support the district court’s decision. Id. (citing United States

v. Frazier, 423 F.3d 526, 531 (6th Cir. 2005)).

The Fourth Amendment guarantees “[t]he right of the people to be secure in their persons

. . . against unreasonable searches and seizures.” U.S. Const. amend. IV. When a motorist is

No. 16-3376 United States v. Pacheco Page 6

stopped by the police, he, and all of his passengers, are “seized” within the meaning of the

Fourth Amendment.1 Brendlin v. California, 551 U.S. 249, 256–59 (2007). A police officer

may stop a motorist when he possesses probable cause of a civil infraction or has reasonable

suspicion of criminal activity. United States v. Lyons, 687 F.3d 754, 763 (6th Cir. 2012); see

also Noble, 762 F.3d at 518 (citing Lyons for the same). Here, Phalen and Trivette not only

received information about Calderon failing to signal his turn, but also witnessed the vehicle

swerve over the double-yellow line. Although Pacheco does not outright challenge the traffic

stop, he suggests throughout his briefing that the officers’ true motive for stopping the vehicle

was “to pursue a narcotics investigation.” (R. 12, Appellant Br. at 8.) However, “[s]ubjective

intentions play no role in ordinary, probable-cause Fourth Amendment analysis.” Whren v.

United States, 517 U.S. 806, 813 (1996). Thus, the two traffic infractions justified Phalen and

Trivette in stopping the Aviator.

It also is well-established that, during a traffic stop, an officer may order passengers out

of the vehicle pending the completion of the stop. Maryland v. Wilson, 519 U.S. 408, 414–15

(1997). The officers do not need independent justification to remove the driver or passengers

from the vehicle. Id. at 413 & n.1. This is so, in large part, because traffic stops are “fraught

with danger” for police officers. Michigan v. Long, 463 U.S. 1032, 1047 (1983). Thus, after

permissibly stopping the Aviator for prior traffic violations, Phalen and Trivette were permitted

to remove Calderon and Pacheco from the SUV.

This leaves two actions to review: the pat-down search of Pacheco and the seizure of the

cocaine and currency found on his person pursuant to that search.

A.

When an officer makes a Terry stop, he may also perform a precautionary search—

known as a “frisk” or “pat down”—whenever he has “reasonable suspicion” that the person

searched may be armed and dangerous. Knowles v. Iowa, 525 U.S. 113, 118 (1998).

“Reasonable suspicion is based on the totality of the circumstances.” Joshua v. DeWitt, 341 F.3d

1

Due to their usually brief nature, traffic stops are more akin to the so-called “Terry” stop than a full-blown

arrest. See United States v. Noble, 762 F.3d 509, 519 (6th Cir. 2014) (citing Berkemer v. McCarty, 468 U.S. 420,

439 (1984)). Accordingly, the traffic stop in this case will also be referred to as a Terry stop.

No. 16-3376 United States v. Pacheco Page 7

430, 443 (6th Cir. 2003). Ultimately, the test is whether “a reasonably prudent [person] in the

circumstances would be warranted in the belief that his [or her] safety or that of others was in

danger.” Noble, 762 F.3d at 521–22 (alteration in original) (quoting Terry v. Ohio, 392 U.S. 1, 27

(1968)).

“Reasonable suspicion” is recognized for being an abstract concept, but this is a product

of design, not accident or error, and the Supreme Court has “deliberately avoided reducing it to

‘a neat set of legal rules.’” United States v. Arvizu, 534 U.S. 266, 274 (2002) (quoting Ornelas v.

United States, 517 U.S. 690, 695–96 (1996)); see also Illinois v. Gates, 462 U.S. 213, 232 (1983)

(noting that “probable cause is a fluid concept—turning on the assessment of probabilities in

particular factual contexts—not readily, or even usefully, reduced to a neat set of legal rules”).

With this abstract, context-specific framework in mind, the Supreme Court has also cautioned

reviewing courts not to consider factors in the reasonable-suspicion analysis in isolation from

one other. Arvizu, 534 U.S. at 274. A “divide-and-conquer” analysis—where each factor is

singled out and the court engages in a post-hoc search for an innocent explanation—is not

permitted. Id. And, while the Supreme Court has wrestled with the precedential difficulties

created by this fact-specific approach, it has suggested that “[e]ven if in many instances the

factual ‘mosaic’ analyzed for a reasonable-suspicion determination would preclude one case

from squarely controlling another, ‘two decisions when viewed together may usefully add to the

body of law on the subject.’” Id. at 275 (quoting Ornelas, 517 U.S. at 697–98).

This case and Noble are two such decisions. In Noble, we reversed a district court’s

denial of a motion to suppress, finding that the officer did not have reasonable suspicion to

perform a pat-down search of the defendant. 762 F.3d at 525–26. A review of the facts of that

case demonstrates why affirming the district court’s denial of Pacheco’s motion to suppress is

appropriate here.

In fall of 2012, law-enforcement officials were investigating a methamphetamine-

distribution network in Eastern Kentucky. Id. at 514. Officers received a tip that two

individuals—Brooks and Adkins—were picking up contraband in Louisville and routing it

through Lexington and into various counties in Eastern Kentucky. Id. Initially, the informant

told the officers to be on the lookout for a white Jeep Cherokee, but, after failing to find that

No. 16-3376 United States v. Pacheco Page 8

vehicle, the informant stated that the target vehicle might be a “dark-colored Chevrolet Tahoe”

instead. Id. Officers eventually spotted a vehicle matching that description, and, after

witnessing the Tahoe cross from the center lane into the right lane without using a signal, and

noticing that its windows were most likely illegally tinted, they pulled it over. Id. at 514–15. An

officer approached the vehicle from the passenger side, and upon confronting the passenger

there, noted that the passenger, later identified as Noble, was extremely nervous. Id. at 515.

After talking with Noble, the officer returned to the cruiser, tested the window tint of the Tahoe,

and assisted his partner in administering a field-sobriety test on the driver. Id. at 515–16. The

officer eventually ordered Noble out of the Tahoe and performed a pat-down search of his person

for weapons. Id. at 516. The grounds for this pat down were Noble’s nervousness and that

Noble was in a car suspected of being involved with narcotics trafficking. Id. Additionally, the

officer knew from his training and experience that those who deal in narcotics often carry

weapons to protect themselves. Id. During the pat down, the officer discovered contraband and

a handgun on Noble’s person. Id.

We found that the three grounds mentioned above were insufficient to create a reasonable

suspicion that Noble was armed and dangerous. Id. at 525. Specifically, we were critical of

nervousness as an indicator of dangerousness, noting that, because many law-abiding citizens are

nervous during traffic stops, it is unreliable. Id. at 522–23. We found that Noble’s nervousness

should be discounted because, after witnessing his alleged nervousness, the officer returned to

his cruiser, inspected the window tint, and performed a field-sobriety test on the driver, and then

performed the pat down on Noble. Id. at 523. These actions, we concluded, reflected a lack of

suspicion as to a suspect’s dangerousness, which an officer needs in order to justify a pat down

for weapons. We also noted that mere presence in a vehicle suspected of trafficking in narcotics

is not “an automatic green light” for frisking that person. Id. at 523. Instead, the officer must be

able to give specific, articulable reasons for believing that a particular person is dangerous before

he or she may frisk the suspect. Id. (citing United States v. Cortez, 449 U.S. 411, 417 (1981)).

And, while the Noble court acknowledged that drug dealers are frequently armed, it also noted

that we have always required some corroboration that particular individuals are involved in drug

trafficking before allowing a frisk for weapons. Id. at 524 (citing United States v. Branch, 537

F.3d 582, 589 (6th Cir. 2008)). The majority also highlighted several important factors that were

No. 16-3376 United States v. Pacheco Page 9

missing from Noble. The court noted that there was no testimony that Noble failed to comply

with an officer’s commands. Id. Further, Noble did not avoid all eye contact with the officers,

fidget with his pockets, or behave as if he was concealing something. Id. Considering all of

these absent factors, we found a lack of reasonable suspicion. Id. at 529.

Importantly, both the majority and the dissent in Noble acknowledged that the

circumstances there presented a close case. Id. at 522, 529. Many of the factors missing from

Noble are present here, and taken together, they nudge this case across the boundary into

constitutionally permissible conduct.

The tip in this case was more detailed and further corroborated than that in Noble. This

made it more likely that the two men inside the Aviator were engaged in narcotics trafficking,

and thus—given the strong association between drug dealing and firearms—more likely that they

were potentially armed. See Branch, 537 F.3d at 589 (holding that officers can rely on their

training and experience that drug dealers frequently carry weapons); see also United States v.

Jacob, 377 F.3d 573, 579 (6th Cir. 2004) (holding the same).2 In Noble, the tipster originally

claimed that the target car would be a white Jeep Cherokee. 762 F.3d at 514. When officers

failed to locate such a car, the tip changed, and the source claimed that it might be a dark-colored

Tahoe instead. Id. In addition to changing the make, model, and color of the vehicle, the tip also

failed to give law enforcement any indication of how many occupants to expect or how to

identify them. Id. Here, by contrast, the confidential source gave authorities not only the make,

model, and color of the vehicle—which turned out to be accurate the first time—but also

provided them with the number of occupants to expect, along with their ethnicity. And, the

source provided the location and time of day to expect the vehicle. This is a more detailed tip

than the one provided in Noble, which identified only a vehicle connected with narcotics

trafficking. Noble, 762 F.3d at 514–15. Additionally, Officer Best testified that he had never

before heard of a Lincoln Aviator, likely because the Aviator was produced only for model years

2003–2005, making it a relatively unusual vehicle. See Lincoln Aviator, Edmunds (2016),

www.edmunds.com/lincoln/aviator/. Thus, the tip was further substantiated when Best was able

2

All three officers involved in this stop testified that, based on their training and experience, they knew that

those who traffic narcotics are frequently armed.

No. 16-3376 United States v. Pacheco Page 10

to pull up behind the target vehicle and confirm that it was, in fact, a Lincoln Aviator. The tip

was also corroborated, at least in part, when the Aviator contained two occupants, both males

that Best believed were Hispanic.

The Supreme Court has declined to hold that reasonable suspicion can never be created

by an anonymous tip, and has further held that where “an informant is shown to be right about

some things, he is probably right about other facts that he has alleged, including the claim that

the object of the tip is engaged in criminal activity.”3 Alabama v. White, 496 U.S. 325, 331–332

(1990) (citing Gates, 462 U.S. at 244). As the night’s events unfolded, the source’s predictions

continued to come true. Though not dispositive of reasonable suspicion that Pacheco was armed,

the informant’s corroborated tip adds support to Trivette’s decision to perform a pat-down

search.

Next, while we have cautioned against relying too heavily on nervousness as indicia of

dangerousness, Pacheco’s nervousness is another factor in the totality-of-the-circumstances

analysis that supports a reasonable-suspicion finding. Noble, 762 F.3d at 522 (citing United

States v. Wilson, 506 F.3d 488, 495–96 (6th Cir. 1995)). While “[n]ervous behavior, standing

alone, is not enough to justify a Terry search,” Wilson, 506 F.3d at 495–96, nervousness is still

relevant to the reasonable-suspicion calculus. Illinois v. Wardlow, 528 U.S. 119, 124 (2000)

(finding that nervous, elusive behavior is a pertinent factor in determining reasonable suspicion).

And we have found reasonable suspicion in other cases based, in part, on the suspect’s

extraordinary nervousness that increased as the traffic stop progressed. Branch, 537 F.3d at 589.

In Noble, there was no testimony that the suspect became increasingly nervous. 762 F.3d at

522–23. Here, in contrast, Trivette testified that Pacheco was “extremely nervous,” and that as

the stop progressed, Pacheco began glancing around the vehicle and rummaging through the

glove box. (DE 69, Tr. of Mot. to Supp. Hearing, Page ID 270–273.)

Additionally, Noble did not avoid all eye contact with the officers, fidget with his

pockets, or otherwise act as if he was concealing something. Noble, 762 F.3d at 523–24 (citing

United States v. Oliver, 550 F.3d 734, 738–39 (8th Cir. 2008); 4 Wayne R. LaFave et al., Search

3

And here, rather than being an anonymous tip, the information was obtained from an informant whom

Lipp knew and whom Best met in person, further supporting its reliability.

No. 16-3376 United States v. Pacheco Page 11

and Seizure: A Treatise on the Fourth Amendment § 9.6(a) (5th ed. 2013) (text accompanying

notes 80–95, collecting behaviors sufficient for a frisk)). In contrast, Trivette testified that

Pacheco “wouldn’t even make eye contact with [him]” and that “he was fidgeting around” as he

opened up the glove box and shuffled papers back and forth, removing nothing. (DE 69, Tr. of

Mot. to Supp. Hearing, Page ID 271.) Further, Trivette testified that Pacheco was looking down

at the floorboard and over at the area between the console and his seat. Trivette claimed that, in

his experience, this is an area where firearms are often concealed. He went on to say that

Pacheco disregarded his presence and that “it was like he was looking for like an avenue of

escape almost.” (Id. at 273.) The absence of these factors weighed against reasonable suspicion

in Noble; their presence weighs in favor here.

Further, Pacheco’s failure to acknowledge Trivette’s presence and his failure to obey the

officer’s commands also support a protective pat-down search. Noble’s compliance with all of

the officer’s commands was an important factor that militated against a finding of reasonable

suspicion. Here, Pacheco did not respond or acknowledge Trivette’s command that he exit the

vehicle until the request was repeated and Trivette opened the door. While many of Pacheco’s

behaviors are now explainable due to his lack of English-language skills, this innocent

explanation was unknown to Trivette at the time of the stop. Additionally, even if Trivette had

known that Pacheco did not speak English, the officer testified that, in his experience, non-

English speakers attempted to communicate via hand motions or otherwise tried to convey that

they did not speak English. Pacheco, by contrast, completely ignored Trivette. Reasonable

suspicion requires reviewing courts to apply an objective standard, and to answer whether “the

facts available to the officer at the moment of the seizure or the search warrant a [person] of

reasonable caution in the belief that the action taken was appropriate?” Terry, 392 U.S. at 21–22

(emphasis added). In the moment, Trivette did not know that Pacheco’s failure to comply with

his commands was because Pacheco did not understand English; instead, all he knew was that he

had a suspect who was ignoring his commands and avoiding eye contact, all the while exhibiting

extremely nervous and concerning behavior.

Finally, the time of day and the nature of the neighborhood also support Trivette’s

reasonable-suspicion determination. While “mere presence in a high crime area is insufficient

No. 16-3376 United States v. Pacheco Page 12

‘to support a reasonable, particularized suspicion that the person is committing a crime,’” it is

“‘among the relevant contextual considerations in a Terry analysis.’” Hoover v. Walsh, 682 F.3d

481, 495 (6th Cir. 2012) (quoting Wardlow, 528 U.S. at 124). Likewise, time of day “is relevant

without being independently dispositive.” Id. at 495 (citing United States v. See, 574 F.3d 309,

314 (6th Cir. 2009)). Here, there was testimony that the area was known for its drug trafficking

and gun violence and as a “hotbed” for gang activity. (DE 69, Tr. of Mot. to Supp. Hearing,

Page ID 238, 256.) And the stop occurred at night.

When considering all of the abovementioned factors together, the totality of the

circumstances supports a finding of reasonable suspicion in this case. In applying the totality-of-

the-circumstances test, the Supreme Court has cautioned against separating each factor from the

others and finding an innocent explanation for it. This is so because “sometimes behavior giving

rise to reasonable suspicion is entirely innocent,” and often there may be a “series of acts, each

of them perhaps innocent in itself, but which taken together warrant further investigation.”

Wardlow, 528 U.S. at 130 n.4 (Stevens, J., concurring in part and dissenting in part) (citing

Terry, 392 U.S. at 22–23, 30) (internal citations and quotations omitted). Thus, while many of

the factors here, when considered alone, cannot support a reasonable-suspicion determination,

their collective weight justified Trivette’s pat-down search of Pacheco.

B.

Having found that the pat-down search was supported by reasonable suspicion, we must

next determine whether the seizure of the cocaine and currency was reasonable. During a

protective pat down, an officer does not need to ignore contraband should any be discovered.

Minnesota v. Dickerson, 508 U.S. 366, 374 (1993). But “[i]f the protective search goes beyond

what is necessary to determine if the suspect is armed, it is no longer valid under Terry and its

fruits will be suppressed.” Id. at 373 (citing Sibron v. New York, 392 U.S. 40, 65–66 (1968)).

Employing the plain-view and plain-feel doctrines, the Supreme Court has held that three

elements must be met for contraband to be seized during a Terry pat down: (1) the police must

be in a lawful position from which they view (or feel) the object; (2) the object’s incriminating

nature must be immediately apparent; and (3) the officers must have a lawful right of access to

the object. Id. at 375 (extending the plain-view doctrine to include discoveries of contraband via

No. 16-3376 United States v. Pacheco Page 13

the sense of touch). Because the Terry stop, removal of Pacheco from the car, and the pat-down

search of his person were all constitutionally permissible, Trivette was in a lawful position to

both view the contraband and feel it during the pat-down, and he also had a lawful right of access

to it.4 Thus, all that remains to be determined is whether the brick’s incriminating nature was

immediately apparent.

The requirement that the incriminating nature of seized items be immediately apparent

was “very likely an unhappy choice of words, since it can be taken to imply that an unduly high

degree of certainty as to the incriminatory character of evidence is necessary for an application

of the ‘plain view’ doctrine.” Texas v. Brown, 460 U.S. 730, 741 (1983). That said, that the

incriminating nature of the evidence be immediately apparent “is necessary to prevent officers

from using the plain view doctrine as a means to extend a particularized search authorized by

Fourth Amendment principles into an unlawful exploratory search.” United States v. Garcia,

496 F.3d 495, 510 (6th Cir. 2007) (citing Horton v. California, 496 U.S. 128, 136–37 (1990)). In

assessing whether an object’s incriminatory nature is immediately apparent, the court must “look

to three factors, none of which is necessary but each of which is instructive.” Id. These factors

are:

(1) a nexus between the seized object and the [suspected criminal activity];

(2) whether the intrinsic nature or appearance of the seized object gives probable

cause to believe that it is associated with criminal activity; and (3) whether the

executing officers can at the time of discovery of the object on the facts then

available to them determine probable cause of the object's incriminating nature.

Id. (quotations and citations omitted); see also United States v. Chandler, 437 F. App’x 420,

427–28 (6th Cir. 2011).

Here, there was a strong nexus between the suspected narcotics trafficking and the

cocaine and currency seized. Trivette testified that he “felt a large chunk of money” in

Pacheco’s right cargo pocket. (DE 69, Tr. of Mot. to Supp. Hearing, Page ID 275.) After

removing the currency, Trivette moved to Pacheco’s left side, where he noticed a brick-like

object protruding approximately one inch out of that cargo pocket. He observed that it was

4

We note that Trivette discovered the contraband before his pat-down search of Pacheco was completed,

and thus, while he still had a lawful right of access to Pacheco’s person. Dickerson, 508 U.S. at 373.

No. 16-3376 United States v. Pacheco Page 14

wrapped in brown paper and bound together with tape. Based on his training and experience,

this was consistent with how brick cocaine is packaged. Further, when he patted down the

pocket, he discovered that the brick was solid and around six-to-eight inches long. As Trivette

began to pat down the pocket, Pacheco muttered that the brick was “tortillas,” a fact that seemed

unlikely to Trivette and furthered his suspicion that the object was contraband. (Id. at 276.)

Combining his sight and his touch with his training and experience, Trivette concluded “within

seconds” that this object was probably brick cocaine.5 (Id. at 277.) “[A] reviewing court should

be duly mindful of the executing officers’ particular, subjective training and experiences.”

United States v. Szymkowiak, 727 F.2d 95, 98 (6th Cir. 1984) (citing Brown, 460 U.S. at 745

(Powell, J., concurring)). Here, the district court credited Trivette’s testimony that, in his

training and experience, the packaging of the object, coupled with its size and feel, was

consistent with that of brick cocaine. It was not clearly erroneous to do so. See Arvizu, 534 U.S.

at 276–77 (noting that “due weight” should have been given to the district court’s factual

inferences due to its “superior access to the evidence and the well-recognized inability of

reviewing courts to reconstruct what happened in the courtroom”); see also Herndon, 501 F.3d at

687 (holding that factual determinations are reviewed for clear error).

This case is similar to Texas v. Brown, in which the Supreme Court upheld the seizure of

an uninflated balloon pursuant to the plain-view doctrine. 460 U.S. at 743–44. In his

concurrence, Justice Powell noted that “[e]ven if it were not generally known that a balloon is a

common container for carrying illegal narcotics, we have recognized that a law enforcement

officer may rely on his training and experience to draw inferences and make deductions that

might well elude an untrained person.” Id. at 745 (Powell J., concurring) (citing Cortez, 449

U.S. at 418). And the majority in Brown reminded reviewing courts that “probable cause is a

flexible, common-sense standard” that merely requires that “the facts available to the officer

would warrant a man of reasonable caution in the belief that certain items may be contraband . . .

5

Trivette’s testimony that “within seconds” he realized that the packaging was likely brick cocaine, while

not literally instantaneous, does not undermine a finding that that the brick’s criminal nature was immediately

apparent to him. This court has held that an object’s “incriminating nature is not immediately apparent if it appears

suspicious to an officer but further investigation is required to establish probable cause as to its association with

criminal activity.” Garcia, 496 F.3d at 510–11 (quoting Shamaeizadeh v. Cunigan, 338 F.3d 535, 555 (6th Cir.

2003)). Here, the packaging and feel of the object, combined with all other facts known to Trivette, was sufficient

to create probable cause with no further investigation.

No. 16-3376 United States v. Pacheco Page 15

or useful as evidence of a crime.” Id. at 742 (internal quotations and citations omitted). “[I]t

does not demand any showing that such a belief be correct or more likely true than false.” Id.

Here, a reasonably cautious person, viewing the facts as they were to Trivette, would have been

warranted in the belief that the brick-like object in Pacheco’s pocket was contraband. The

seizure of the brick cocaine and currency did not offend the Fourth Amendment as it was

reasonable and within the bounds of Terry and its progeny.

IV.

For these reasons, we affirm the district court’s denial of the motion to suppress.