# United States v. Pedro Moreno, Carlos Libreros

> Court of Appeals for the Second Circuit · February 12, 1990 · 897 F.2d 26

URL: https://www.frixlaw.com/law-library/cases/9480048

## Case

- **Full name:** UNITED STATES of America, Appellee, v. Pedro MORENO, Carlos Libreros, Defendants-Appellants
- **Court:** Court of Appeals for the Second Circuit
- **Decided:** February 12, 1990
- **Citations:** 897 F.2d 26; 1990 U.S. App. LEXIS 2174
- **Precedential status:** Published
- **Opinion:** Dissent by Pierce
- **Judges:** Meskill, Pierce, Mahoney
- **Cited by:** 80 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Abrogated on other grounds by Horton v. California, 496 U.S. 128 (1990).
- Negative treatments: 2
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9480048

## How later opinions describe it (automated extraction)

- 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.”
- 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 defendant…
- holding that by pushing defendant against a wall and telling him not to move, defendant’s detention was transformed into an arrest

## Opinion text

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9480048. Public record. Not legal advice.