Opinion

United States v. Pedro Moreno, Carlos Libreros

  • 897 F.2d 26
  • 1990 U.S. App. LEXIS 2174
Court
Court of Appeals for the Second Circuit
Filed
Feb 12, 1990
Status
Published
Author
Pierce
On the bench
Meskill, Pierce, Mahoney
Cited by
80 cases
Authority
More cited than 25.6%

Abrogated on other grounds by Horton v. California, 496 U.S. 128 (1990)

holding that the test for determining whether an encounter with police constitutes a seizure is whether, “in view of all of the circumstances surrounding the incident, a reasonable person would have believed he was not free to leave.”

How later courts described this case

  • holding that the test for determining whether an encounter with police constitutes a seizure is whether, “in view of all of the circumstances surrounding the incident, a reasonable person would have believed he was not free to leave.”
  • upholding district court’s finding that defendant had consented to search of apartment where defendant consented to the search in vestibule building after a brief period of detention, he was not physically abused or verbally threatened, and no weapons were displayed
  • upholding district court's finding that two officers requesting two men to "come over here for a second," and each officer accompanying one of the two men from street into vestibule of building was consensual encounter
  • affirming finding of voluntariness while defendant was in custody, where consent made in public, not in interrogation room or at station house, where no physical or verbal abuse and no display of weapons, and consent did not come after prolonged detention, even where defendants’ English was limited

Written by the judges who cited it.

Later courts went against this

  • Abrogated on other grounds by Horton v. California, 496 U.S. 128 (1990)

    897 F.2d 26, 31 (2d Cir. 1990), abrogated on other grounds by Horton v. California, 496 U.S. 128
    Supreme Court of the United StatesJun 4, 19903 citing opinionsother groundsRead it
  • Abrogated on other grounds by Ruggiero v. Krzeminski, 928 F.2d 558 (1991)

    897 F.2d 26, 31 (2d Cir.1990) (“[M]ore than physical companionship and/or a working relationship is required to establish probable cause with respect to a companion of a suspect.”) (quotation marks and citation omitted), abrogated on other grounds by Ruggiero v. Krzeminski, 928 F.2d 558, 561 (2d Cir.1991).
    Court of Appeals for the Second CircuitMar 18, 1991other groundsmedium confidenceRead it

The opinion

PIERCE, Circuit Judge,

dissenting in part:

I agree with the majority that the conviction of appellant Moreno should be affirmed. However, as far as the affirmance of appellant Libreros’s conviction is concerned, “I dissent from the conclusion that the confluence of earlier events and the substantial experience of the federal agent warranted [the agent’s] ‘plain view’ seizure of the [brick-shaped] package in appellant’s open ... bag.” United States v. Barrios-Moriera, 872 F.2d 12, 18 (1989) (Pierce, J., dissenting).

Initially, I note that in both Texas v. Brown, 460 U.S. 730 , 103 S.Ct. 1535 , 75 L.Ed.2d 502 (1983) (plurality opinion), and Barrios-Moriera , upon which today’s majority relies, there existed a particularized basis for suspecting that the defendant was involved with drugs and that his possession of a particular item was not innocent. In Brown , “the police officer ... saw [, in addition to the uninflated, tied-off balloon eventually seized by him,] ‘several small plastic vials [and] quantities of loose white powder.’ ” Barrios-Moriera, 872 F.2d at 18 (Pierce, J., dissenting) (quoting Brown, 460 U.S. at 734 , 103 S.Ct. at 1539 ) (emphasis added in Barrios-Moriera). Similarly, in Barrios-Moriera , the majority emphasized that the defendant had evinced a prior “interest in [an] Audi automobile [law enforcement officers] were surveilling in connection with a drug -related homicide.” Id. (emphasis in original). Here, however, there is an absence of any circumstance — other than the viewing of the package itself — that specifically links the defendant with drugs.

I do not suggest a particularized basis should always be required. In my view, however, the absence of such a basis requires a greater confluence of general factors than are present here. In this regard, I note that although the majority asserts that Libreros’s statement that the bag contained food was “evidently false,” I am unaware of any finding made by the district court concerning this point. The finding of probable cause is further undercut by the fact that Libreros stopped when he was asked, and voluntarily opened his bag. If we are to view, as we have, a failure to stop when requested by a law enforcement official as supporting “a rising tide of suspicion” of drug involvement, id., we might view Libreros’s cooperation as supporting the contrary inference.

In sum, this case brings us uncomfortably close to holding that the mere viewing of a package of the type present here, by itself, constitutes probable cause. See id. at 17 (rejecting suggestion that “the mere viewing and evaluation of the package alone constituted probable cause.”). I feel constrained to reverse as to Libreros.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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