UNITED STATES v. WALLACE
17-0472
United States Court of Appeals, Second Circuit
September 3, 2019
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
August Term, 2018
(Argued: October 18, 2018 Decided: September 3, 2019)
Docket No. 17-0472
_____________________________________
UNITED STATES OF AMERICA,
Appellee,
v.
TIMMY WALLACE,
Defendant-Appellant.
_____________________________________
Before:
WINTER, POOLER, Circuit Judges, and ABRAMS, District Judge.*
Defendant-Appellant Timmy Wallace appeals from a judgment of conviction entered on February 13, 2017 in the United States District Court for the Southern District of New York (Katherine B. Forrest, J.). Wallace was convicted after a two-day jury trial of one count of possessing a firearm and ammunition after having been convicted of three serious drug offenses, in violation of 18 U.S.C. §§ 922(g)(1), 924(e)(1), and 2. His principal argument on appeal is that the District Court erred in denying his motion to suppress the firearm, because it was discovered as the result of an unconstitutionally prolonged traffic stop. Wallace also challenges several of the District Court’s factual findings and argues that he was improperly sentenced pursuant to the enhanced sentencing provisions of the Armed Career Criminal Act (“ACCA”). We affirm both the District Court’s denial of the motion to suppress and Wallace’s sentence under ACCA.
Judge Pooler dissents in a separate opinion.
AFFIRMED.
SAGAR K. RAVI (HAGAN SCOTTEN, on the brief) for Geoffrey S. Berman, UNITED STATES ATTORNEY FOR THE SOUTHERN DISTRICT OF NEW YORK, New York, N.Y.
JONATHAN I. EDELSTEIN, EDELSTEIN & GROSSMAN, New York, N.Y., for Timmy Wallace.
Defendant-Appellant Timmy Wallace appeals from a judgment of conviction entered on February 13, 2017, in the United States District Court for the Southern District of New York (Katherine B. Forrest, J.). Wallace was convicted after a two-day jury trial of one count of possessing a firearm and ammunition after having been convicted of three serious drug offenses, in violation of 18 U.S.C. §§ 922(g)(1), 924(e)(1), and 2. The District Court determined that Wallace was subject to the enhanced sentencing provisions of the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e)(1), and sentenced him principally to 15 years of imprisonment to be
BACKGROUND
I. Factual Background1
On the evening of May 25, 2015, Officers Harris Haskovic, Michael Monahan, and Sergeant David Alston were traveling in a patrol car near the corner of Webster Avenue and East 173rd Street in New York City. At approximately 7:20 p.m., they observed a defective brake light on the vehicle in front of them and pulled the vehicle over.
Haskovic and Monahan approached the vehicle, while Alston remained in the patrol car. As they approached, the officers observed scratches and dents all around the car and broken glass on the windshield. They noticed a pizza delivery sign on the top of the vehicle and two passengers in the backseat. When the officers asked the driver, Wallace, for his driver’s license and registration, Wallace provided his license, but stated that he did not have a copy of his registration.
While standing next to the vehicle, the officers observed scratch marks and chipped paint on the top right corner of the driver’s side door. The damage indicated to both officers that someone had pried open the door in order to forcibly enter the vehicle. The officers further observed that the registration sticker and inspection
certificate on the windshield were damaged and faded. Both stickers appeared to have been peeled off and taped back onto the windshield.
The officers asked Wallace about the condition of the stickers. Wallace stated that the damage had been caused by a defogging spray—an explanation that Haskovic testified was inconsistent with his personal experience with defogging agents. Haskovic and Monahan also asked Wallace about the scratch marks on the top right corner of the driver’s side door. Wallace responded that the damage was caused on a prior occasion when he forcibly entered his vehicle after locking himself out of it.
Because of the damage to the registration sticker, the Vehicle Identification Number (“VIN”) printed on the registration sticker was only partially visible. The VIN is a 17-digit number that uniquely identifies each vehicle and is required by law to be printed on each vehicle in multiple locations.
sticker was only partially legible, the officers were able to view the full Public VIN—which was displayed on the dashboard—from the outside of the car.
On a lawfully owned and registered vehicle, the VIN printed on one location will be identical to the VIN printed on every other location throughout the vehicle. The
Given their knowledge of VIN swaps and the various suspicious circumstances at the scene—the signs of forced entry, Wallace’s missing registration, and the damaged and taped-on condition of the registration and inspection stickers—Haskovic and Monahan suspected that Wallace’s vehicle may have been stolen. The officers thus decided to check if the VIN that was printed on the dashboard matched
up with another VIN printed elsewhere on the vehicle. Because the VIN printed on the registration sticker was only partially legible, they decided to check the VIN that is required to be printed on the Federal Label affixed to the doorjamb. Haskovic, accordingly, asked Wallace if he could open the driver’s side door. Wallace consented and, upon opening the car door, the officers observed that the Federal Label was missing. After questioning Wallace about the missing Federal Label, the officers arrested Wallace for violating section 170.70 of the New York Penal Law (“NYPL”), which prohibits “knowingly possess[ing] . . . a vehicle or vehicle part from which a vehicle identification number label, sticker, or plate has been removed[.]” The arrest occurred at approximately 7:29 p.m.
Seven minutes earlier, at approximately 7:22 p.m., one of the officers at the scene searched Wallace’s name through law enforcement databases using a portable electronic device called a Rugby. The Rugby device returned a report that displayed, among other information, Wallace’s driver’s license, license plate, and VIN. The information in the report matched the VIN on the dashboard, Wallace’s driver’s license, and the license plate that the officers observed at the scene.
Although it is clear that the report was run at 7:22 p.m., and that the traffic stop concluded at 7:29 p.m., it is not clear when the Rugby report was run in relation to the other events that occurred during the traffic stop. It is also not clear which of the officers ran the Rugby report. At the suppression hearing, Haskovic and Monahan
both testified that they did not recall a Rugby report having been run at the scene. Alston testified that he knew a Rugby report was run, but that he could not recall who ran it and never saw the results. Alejandro Azcona, an officer who had pulled over to assist during the traffic stop, testified that when he arrived at the scene, he gave his Rugby device to Haskovic, because none of the officers present had one. He further testified, however, that he could not recall whether any of the officers had used the device to run a report on Wallace.
After arresting Wallace, Haskovic drove Wallace’s car back to the precinct, vouchered it as arrest evidence, and he and Monahan performed an inventory search of the vehicle. Pursuant to the standard procedures for inventory searches, Haskovic searched under the hood of the car. While doing so, Haskovic had the added
II. District Court Proceedings
On November 12, 2015, Wallace was charged by Information with one count of possessing a firearm and ammunition after having been convicted of a felony, in violation of 18 U.S.C. §§ 922(g)(1) and 2. On March 29, 2016, the Superseding Indictment was filed, charging Wallace with the same offense, but further alleging that his three prior drug convictions rendered him subject to the enhanced sentencing provisions of the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e)(1).
Wallace moved to suppress the firearm, his DNA found on the firearm, and the statements he made after the arrest. On July 12 and August 1, 2016, the District Court held a suppression hearing. Haskovic, Monahan, Alston, Azcona, and Wallace all testified, as did an investigator who conducted a brake light test on Wallace’s vehicle, as well as a sergeant who determined that the Rugby report had been run at the scene of the traffic stop at 7:22 p.m.
After the hearing, the District Court denied Wallace’s motion to suppress in a written opinion. The District Court found that the officers’ testimony was “generally credible” and that Wallace’s testimony was “generally not credible.” The Court explained that, at the suppression hearing, Wallace “had a flat affect,” “showed little to no emotion,” and had a general demeanor that was “unsupportive of someone who was being completely forthcoming.” The Court specifically discredited several portions of Wallace’s testimony, including his explanation for the damaged condition
of his registration and inspection stickers. By contrast, the Court specifically credited portions of the officers’ testimony, including Haskovic’s testimony about his training on VIN swaps and the officers’ testimony that Wallace had consented to the opening of his car door.
The District Court made several specific factual findings, including that Wallace had been driving with a defective brake light, that he had consented to the opening of his car door, that he knew his vehicle was missing a Federal Label, and that Haskovic was both conducting an inventory search and looking for an additional VIN when he found the firearm under the hood of Wallace’s car. The Court held that the traffic stop was lawful at its inception and that, at the time of the arrest, the officers had probable cause to believe that Wallace had violated NYPL § 170.70. The Court further held that the firearm was discovered during a lawful inventory search, and that Wallace’s additional investigatory purpose of searching for the VIN did not affect the legality of that search. Accordingly, the District Court denied Wallace’s motion to suppress.
After a two-day trial in September of 2016, the jury returned a guilty verdict. On February 10, 2017, the District Court held a sentencing hearing. The District Court determined that Wallace had been convicted of at least three prior offenses which constituted “serious drug offenses” within the meaning of ACCA. First, Wallace had been convicted in 1998 of two separate counts of attempted criminal sale of a
controlled substance in the third degree. He was sentenced for both of these convictions
DISCUSSION
Wallace’s principal argument on appeal is that the District Court erred in denying his motion to suppress, because the traffic stop that led to the discovery of the firearm was unconstitutionally prolonged under the standards articulated by the Supreme Court in Rodriguez v. United States, 135 S. Ct. 1609 (2015).2 Wallace also argues that the District Court’s denial of his motion to suppress was based on
erroneous factual findings, and that he was improperly sentenced under ACCA because he had not previously been convicted of three “serious drug offense[s]” within the meaning of that statute.
“On appeal from a denial of a suppression motion, we review a district court’s findings of fact for clear error, and its resolution of questions of law and mixed questions of law and fact de novo.” United States v. Gomez, 877 F.3d 76, 85 (2d Cir. 2017). We “pay special deference to the district court’s factual determinations going to witness credibility.” United States v. Jiau, 734 F.3d 147, 151 (2d Cir. 2013).
I. Motion to Suppress
Wallace argues that the District Court improperly denied his motion to suppress the firearm principally on the ground that it was discovered as the result of an unconstitutionally prolonged traffic stop. In a supplemental brief filed on his own behalf, Wallace (who is counseled) also argues that the District Court improperly denied his motion based on erroneous factual findings. We reject both arguments.
A. Duration of the Traffic Stop
“Temporary detention of individuals during the stop of an automobile by the police, even if only for a brief period and for a limited purpose, constitutes a ‘seizure’ of ‘persons’ within the meaning of [the Fourth Amendment].” Whren v. United States, 517 U.S. 806, 809–10 (1996). “Therefore, traffic stops must satisfy the Fourth Amendment’s reasonableness limitation, which requires that an officer making a
traffic stop have probable cause or reasonable suspicion that the person stopped has committed a traffic violation or is otherwise engaged in or about to be engaged in criminal activity.” Gomez, 877 F.3d at 86 (internal quotation marks omitted). Even if lawful at its inception, a traffic stop “can violate the Fourth Amendment if its manner
Consistent with these principles, the Supreme Court in Rodriguez v. United States held that “a police stop exceeding the time needed to handle the matter for which the stop was made violates the Constitution’s shield against unreasonable seizures.” 135 S. Ct. at 1612. Because a traffic stop’s “mission” is to “address the traffic violation that warranted the stop and attend to related safety concerns . . . [a]uthority for the seizure [] ends when tasks tied to the traffic infraction are—or reasonably should have been—completed.” Id. at 1614 (internal citations omitted). These tasks include both “determining whether to issue a traffic ticket” and conducting “ordinary inquiries incident to the traffic stop,” such as “checking the driver’s license, determining whether there are outstanding warrants against the driver, and inspecting the automobile’s registration and proof of insurance.” Id. at 1615. Unlike such “ordinary inquiries,” however, unrelated investigations into criminal wrongdoing may be conducted, absent reasonable suspicion, only if they “[do] not lengthen the roadside detention.” Id. at 1614. Thus, while an officer
completing a lawful traffic stop may conduct “certain unrelated checks . . . he may not do so in a way that prolongs the stop, absent the reasonable suspicion ordinarily demanded to justify detaining an individual.” Id. at 1615 (internal citations omitted).
As Rodriguez confirms, however, a traffic stop may be extended beyond the point of completing its mission “if an officer develops a reasonable suspicion of criminal activity[.]” United States v. Foreste, 780 F.3d 518, 523 (2d Cir. 2015); see also Rodriguez, 135 S. Ct. at 1616–17 (remanding for further consideration as to whether the prolongation of the traffic stop was justified by reasonable suspicion). Reasonable suspicion “demands specific and articulable facts which, taken together with rational inferences from those facts, provide detaining officers with a particularized and objective basis for suspecting legal wrongdoing.” United States v. Singletary, 798 F.3d 55, 59 (2d Cir. 2015) (internal citations and quotation marks omitted). In assessing reasonable suspicion, courts look at “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.” Id. at 60. Courts do not, however, “merely defer to police officers’ judgment.” Id.
Wallace argues that, under Rodriguez, the traffic stop that led to his arrest was unconstitutionally prolonged. He contends that by 7:22 p.m., when the Rugby report revealed that a vehicle with the same license plate number and a VIN matching the VIN on the dashboard of the vehicle at the scene was registered to Wallace, the officers
had “all of the information needed,” Gomez, 877 F.3d at 90, to complete the mission of the stop. Moreover, Wallace argues, the results of the Rugby report necessarily dispelled any reasonable suspicion that the vehicle may have been stolen. Thus, according to Wallace, the remaining seven minutes of the stop were an unconstitutional detention, rendering the evidence derived from it inadmissible.
Wallace’s argument assumes that the results of the Rugby report (1) necessarily resolved any “ordinary inquiries incident to the traffic stop,” 135 S. Ct. at 1615 (brackets omitted), and (2) conclusively dispelled any reasonable suspicion that the car was stolen. While we express no view on the former proposition, we reject the
Initially, we observe that—absent the results of the Rugby report—it would be quite clear that the officers’ limited extension of the traffic stop in this case was supported by reasonable suspicion. The officers testified that they observed a host of unusual circumstances at the scene, which collectively caused them to suspect that the vehicle may have been stolen. First, they saw scratch marks on the upper-right portion of the driver’s side door, which indicated to both officers that someone had
forcibly entered the vehicle. Wallace, in fact, admitted that the scratch marks had been caused by a forced entry (though he claimed that he had broken into his own car after locking himself out). Second, Wallace was unable to produce the registration for his vehicle. Third, the vehicle’s registration and inspection stickers were damaged (affecting the visibility of the VIN on the registration sticker) and appeared to have been tampered with and re-taped onto the windshield. Finally, when questioned about the condition of these stickers, Wallace stated that they had been damaged by a defogging spray, an explanation the officers found not to be credible. The officers’ testimony about these unusual circumstances was credited by the District Court and, in some cases, corroborated by Wallace’s own testimony and by photographic evidence. These “specific and articulable facts” provided the officers with a “particularized and objective basis for suspecting legal wrongdoing,” which—at least absent the results of the Rugby report—amply sufficed to establish reasonable suspicion. Singletary, 798 F.3d at 59; cf. Foreste, 780 F.3d at 526 (holding that, where the driver provided an expired rental agreement and appeared to have an uneasy demeanor, an officer had reasonable suspicion that the car was stolen); United States v. Lewis, 712 F. App’x 83, 84 (2d Cir. 2018) (summary order) (holding that the officers had reasonable suspicion to prolong a traffic stop where a rental car lacked the usual barcode, the officers observed six air fresheners in the car, and the driver and
passenger gave inconsistent information about the nature of their relationship and their trip).
The only question remaining, then, is whether the results of the Rugby report necessarily dispelled that reasonable suspicion. Under the circumstances of this case, we conclude that it did not. Assuming for the purposes of this opinion that all of the officers at the scene knew about the results of the report4—though,
Court credited Haskovic’s testimony about his training on VIN swaps, and we see no clear error in that credibility determination.5
Given Haskovic’s testimony that, in the event of a VIN swap, a Rugby report might fail to detect that a vehicle is stolen, it is not true, as Wallace urges, that the results of the Rugby report necessarily dispelled the officers’ otherwise-reasonable suspicion that the car was stolen. Here, there were numerous other factors suggesting that Wallace’s vehicle not only may have been stolen, but more specifically, that it may have been subjected to a VIN swap—the very circumstance under which, according to Haskovic’s training, a stolen vehicle might successfully evade detection by a Rugby report. These factors included that the vehicle had indisputably been broken into, the damaged and taped-on condition of the registration sticker, Wallace’s inability to produce his registration, and his suspicious explanations for the condition of his vehicle. The officers were thus presented not only with a specific and articulable basis for suspecting that the vehicle was stolen, but also with a specific and articulable
basis for doubting the conclusiveness of the Rugby report. The officers were not required to ignore both their training and the unusual circumstances at the scene and to defer, instead, to a Rugby report, whose effectiveness at detecting auto theft they had reason to question under the circumstances.
It may be true that, under most circumstances, a Rugby report run during a traffic stop would confirm ownership of a vehicle and dispel any reasonable suspicion of auto theft. But we cannot agree with Wallace that such a report necessarily dispels reasonable suspicion of a stolen vehicle, regardless of the other circumstances
The dissent does not disagree that “under certain circumstances . . . a Rugby report may not dispel suspicion” of a stolen vehicle. It argues, instead, that the confluence of suspicious circumstances presented at this traffic stop was not enough, primarily because in this case there was no visible damage to the Public VIN on the dashboard. We respectfully disagree. Although it is true that the officers here did not observe any damage to the Public VIN, they did observe considerable damage to
the VIN on the registration sticker, which looked like it had been peeled off and taped back onto the windshield. As explained above, this factor—along with the undisputed signs of forced entry, the missing registration, and the driver’s suspicious explanations for the condition of his car—gave rise to a reasonable suspicion that the car was stolen and that the theft was accomplished using a method specifically designed to evade detection by a Rugby, or similar, report. Unlike the dissent, we do not think that noticeable damage to the Public VIN is essential to establish reasonable suspicion of auto theft if a Rugby report indicates that a vehicle has not been stolen or otherwise does not yield suspicious results.
The officers’ extension of the traffic stop in this case, moreover, was limited and narrowly tailored to their reasonably-formed suspicions. The officers briefly questioned Wallace about the scratch marks on his door and the condition of his registration sticker, and then quickly sought to confirm the VIN by cross-checking it in one additional location. The location they checked (the doorjamb) was minimally intrusive, and before proceeding to inspect it, they obtained Wallace’s consent. A total of nine minutes elapsed between when the officers pulled over Wallace’s vehicle at 7:20 p.m. and when they arrested him at 7:29. Given all these circumstances, we conclude that the officers “diligently pursued a means of investigation that was likely to confirm or dispel their suspicions quickly,” Foreste, 780 F.3d at 526, and that the
duration of the traffic stop was reasonable and consistent with the requirements of the Fourth Amendment.
B. The District Court’s Factual Findings
Wallace next argues that the District Court erred in concluding that (1) his brake light was defective, (2) he consented to the opening of his car door, (3) Wallace knew that the Federal Label was missing, and (4) Haskovic found the firearm while conducting an inventory search of the vehicle, during which he had the added purpose of searching for an additional VIN.
We review the factual findings of the District Court for clear error. United States v. Murphy, 703 F.3d 182, 188 (2d Cir. 2012). “A finding is clearly erroneous when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” Id. “When, as here, credibility determinations are at issue, we give particularly strong deference to a district court finding.” Id. at 189.
determinations of the District Court, we cannot say that we are left with the “definite and firm conviction that a mistake has been committed.” Id. at 573. Accordingly, we conclude that the District Court did not clearly err in reaching the factual findings challenged by Wallace.
II. Eligibility under ACCA
Lastly, Wallace argues that the District Court erred in sentencing him pursuant
to the enhanced penalty provisions of ACCA. Under ACCA, a person who violates
A. The 1999 Conviction
Wallace first argues that his 1999 conviction for attempted criminal sale of a controlled substance in the third degree does not qualify as a “serious drug offense.”
He points out that because the statute under which he was convicted, NYPL § 220.39,
prohibits “knowingly and unlawfully sell[ing] a narcotic drug,” and “to sell” for the
purposes of the law is defined as “to sell, exchange, give or dispose of to another, or
to offer or agree to do the same,” NYPL § 220.00(01) (emphasis added), a conviction, like
his, for attempted criminal sale of a controlled substance requires only an attempt to
“offer or agree” to sell a narcotic drug. Wallace argues that an attempt to “offer or
agree” to sell a narcotic drug does not fall within ACCA’s definition of a “serious drug
offense,” because it does not “involv[e] manufacturing, distributing, or possessing
with intent to manufacture or distribute, a controlled substance[.]”
Wallace’s argument fails because we have previously “reject[ed] [the] contention that attempts to commit a serious drug offense [are] not themselves meant to be considered serious drug offenses.” United States v. King, 325 F.3d 110, 113 (2d Cir. 2003). In King, we explained that, in light of the “expansive connotations” of the word “involving,” ACCA’s definition of a serious drug offense “must be construed as extending the focus of § 924(e) beyond the precise offenses of distributing, manufacturing, or possessing, and as encompassing as well offenses that are related to or connected with such conduct.” Id. Thus, in King, we held that a conviction for attempted possession of cocaine in the third degree, which was punishable by a term of imprisonment of up to 15 years, “was a conviction for a serious drug offense”
within the meaning of ACCA. Id. at 114–15. Similarly, in Rivera v. United States, 716
F.3d 685, 690 (2d Cir. 2013)—
The same is true in this case. If an attempt to possess a controlled substance “involv[es] . . . possessing . . . a controlled substance,” King, 325 F.3d at 114, so too does an attempt to sell—or to offer or agree to sell—a controlled substance “involv[e] . . . distributing . . . a controlled substance.” Wallace’s 1999 conviction, which at the time was punishable by up to 15 years of imprisonment, thus qualifies as a “serious drug offense” under Rivera and King.
B. The 2001 Conviction
Wallace next argues (on his own behalf) that his 2001 conviction for criminal
sale of a controlled substance in the third degree no longer constitutes a “serious drug
offense,” because the maximum penalty for that crime—which was 25 years at the
time of his conviction—has since been reduced to nine years. See
purposes, Wallace points out that McNeill does not squarely foreclose his argument because McNeill, unlike this case, “[did] not concern a situation in which a State subsequently lowers the maximum penalty applicable to an offense and makes that reduction available to defendants previously convicted and sentenced for that offense.” Id. at 825 n.1. Wallace argues that because New York’s Drug Law Reform Act of 2009 both reduced the maximum penalty applicable to his offense and, under some circumstances, permitted the resentencing of previously‐convicted defendants, the current nine‐year maximum penalty should apply, making his 2001 conviction no longer a “serious drug offense” under ACCA.
Wallace’s argument fails because, as the District Court held, even if Wallace were correct that the current maximum penalty applied, his 2001 offense would still qualify as a “serious drug offense,” because the maximum penalty for his offense under current law is twelve years, not nine. This is because Wallace’s 2001 conviction was his second felony drug conviction and, under current New York law, “second felony drug offenders” are sentenced more harshly than first‐time offenders. Specifically, for a first‐time felony drug offender convicted of a Class B felony, “the term [of imprisonment] shall be at least one year and shall not exceed nine years,” NYPL § 70.70(2)(a)(i), whereas for a “second felony drug offender” convicted of the same, “the term [of imprisonment] shall be at least two years and shall not exceed twelve years,” NYPL § 70.70(3)(b)(i). Thus, contrary to Wallace’s argument, the
maximum penalty applicable to his 2001 conviction was, even under current law, “ten
years or more,”
Accordingly, both Wallace’s 1999 conviction and his 2001 conviction were “serious drug offenses” under ACCA, and the District Court properly imposed sentence pursuant to ACCA’s enhanced sentencing requirements.
CONCLUSION
For the foregoing reasons, the judgment of conviction is affirmed.
POOLER, Circuit Judge, dissenting:
The lawful traffic stop in this case ended at 7:22 p.m. At that point, (1) the officers viewed the full public VIN on the dashboard of Timmy Wallace’s vehicle; (2) they observed no signs of tampering with the dashboard plate; and (3) the results of a Rugby report—a comprehensive records check through every NYPD database—matched the dashboard VIN plate and confirmed that the vehicle belonged to Wallace. Wallace should have been issued a citation for his defective brake light and been on his way, delivering pizzas in the Bronx.
Instead, despite the Rugby results that confirmed the vehicle belonged to Wallace, the officers kept going. What should have been a two‐minute traffic stop snowballed into Wallace’s arrest for a missing doorjamb VIN sticker, an inventory search of his car, which revealed a firearm, and his ultimate sentence of 15 years’ imprisonment under ACCA. Because the traffic stop that led to Wallace’s arrest was unconstitutionally prolonged, I would reverse the denial of Wallace’s suppression motion, vacate his conviction, and remand.1
This case presents a simple question: did the Rugby report dispel the officers’ reasonable suspicion that the vehicle was stolen? The majority responds
that it did not. It relies solely upon its view of Officer Haskovic’s testimony— “that, in the event of a VIN swap, a Rugby report might fail to detect that a vehicle is stolen”—to reason in a circular fashion that the Rugby report did not dispel the officers’ reasonable suspicion because of the officers’ reasonable suspicion. See Maj. Op. at 17‐18. I cannot agree. The 7:22 p.m. results of the Rugby report dispelled any reasonable suspicion that Wallace’s vehicle was stolen. Accordingly, I must respectfully dissent.
A. The Results of the Rugby Report Dispelled Any Reasonable Suspicion that the Vehicle Was Stolen.
“A traffic stop may be extended for investigatory purposes if an officer develops a reasonable suspicion of criminal activity supported by specific and articulable facts.” United States v. Foreste, 780 F.3d 518, 523 (2d Cir. 2015); see also Rodriguez v. United States, 135 S. Ct. 1609, 1615 (2015) (explaining that an officer “may not . . . prolong[] the stop, absent the reasonable suspicion ordinarily demanded to justify detaining an individual”). Here, the officers did not have reasonable suspicion supported by specific and articulable facts to detain Wallace and continue investigating after 7:22 p.m.
At 7:20 p.m., Wallace was stopped for a defective brake light. He produced a valid driver’s license but not his registration card. The officers observed that
the registration and inspection stickers were in bad
At 7:22 p.m., a Rugby report was generated, and the immediate results included Wallace’s license plate, registration, VIN number, make of vehicle, date of birth, and address, and whether the car was reported stolen. The VIN in the report matched the full VIN on the dashboard plate, and the results confirmed that the vehicle was registered to Wallace. Accordingly, the officers had sufficient information in their possession by 7:22 p.m. that they never should have proceeded to the next step of examining the internal doorjamb VIN.
Under these circumstances, it is of no moment that the public VIN was cross‐checked against the Rugby report rather than the registration sticker.2 A VIN swap requires physical movement of the VIN plate from one vehicle to another. See United States v. Thomas, 973 F.2d 1152, 1155 (5th Cir. 1992); see also People v. Joiner, 84 Cal. App. 4th 946, 954 (2000) (explaining that a VIN “switch” or swap occurs where a dashboard “VIN plate is removed from the dash of a junked vehicle and placed on a stolen vehicle”). Despite the majority’s belief, this movement bears signs. See, e.g., Thomas, 973 F.2d at 1156 n.3 (officer suspected VIN swap where dashboard VIN plate “had been burned and repainted”); Lopez v. United States, Nos. cv‐f‐07‐1449, cr‐f‐03‐5204, 2009 WL 1657334, at *2 (E.D. Cal. June 9, 2009) (officers suspected VIN swap where dashboard VIN plate “was spray painted black and was glued on the dash board rather than having factory rivets”); Joiner, 84 Cal. App. 4th at 954‐55 (DMV licensing inspector verifies VINs on vehicles by visually inspecting dashboard VIN plates and “report[ing] any irregularities, including scratches or marks, in the VIN plates to the DMV”); People v. Hernandez, No. B199604, 2008 WL 4716883, at *4 (Cal. Ct. App. Oct. 28, 2008) (officers suspected VIN swap where dashboard VIN plate was framed by
“blue tape around the upper edge of the windshield” and the “VIN on the
dashboard plate did not match the VIN reflected in DMV records”); People v.
Mesa, No. B199706, 2008 WL 525808, at *1 (Cal. Ct. App. Feb. 28, 2008) (officer
suspected VIN swap where dashboard VIN plate had “scratches” and the plate
“had bubbling that usually occurs when there is adhesive being applied, tending
to melt part of the paint”); see also Brocato v. Perez, No. cv 13‐8993, 2017 WL
6033046, at *2 (C.D. Cal. Oct. 4., 2017) (officers suspected VIN swap where
suspicious indicia were present and records check demonstrated VIN was not on
file with DMV); Renteria v. State, 199 S.W.3d 499, 501 (Tex. Crim. App. 2006)
(officers suspected VIN swap where dashboard VIN plate was removed from
abandoned salvage vehicle and records check demonstrated VIN had
Attempting to brush aside this conundrum, the government asserts: “[T]he Officers were not acting on a reasonable suspicion that a VIN swap had occurred[.]” Appellee’s Br. at 27 n.6. Rather, the government explains, “they were acting on a reasonable suspicion that the Vehicle may have been stolen. The
possibility of a VIN swap is relevant only because it helps explain why the 7:22 Inquiry could not have fully dispelled a reasonable suspicion of theft based on many other facts.” Id. But the only way the officers could have suspected the vehicle “may have been stolen” at this point was if a VIN swap had occurred. The only facts marshaled in support of this theory are the missing registration, damaged sticker, and tool marks, the very facts underlying the initial reasonable suspicion that the Rugby search dispelled.
Likewise, the unvarying chorus throughout the majority opinion echoes these suspicious facts viewed “absent the results of the Rugby report,” Maj. Op. at 15, “at least absent the results of the Rugby report,” Maj. Op. at 16, and “despite the Rugby report,” Maj. Op. at 19. The majority does not, however, grapple with the presence of the Rugby report. Nor does it justify its attempts to downplay the report’s significance.
First, the majority reasons that the officers were presented “with a specific and articulable basis for doubting” the report because, “according to Haskovic’s training, a stolen vehicle might successfully evade detection by a Rugby report.” Maj. Op. at 18. Haskovic’s dissatisfaction does not constitute a specific and articulable basis. A “valid dashboard VIN [is not] a legal reason to penetrate
further into the vehicle.” United States v. Caro, 248 F.3d 1240, 1246 (10th Cir. 2001). Under these circumstances, where the dashboard VIN plate was viewed in full, there was no evidence that the plate was tampered with in any way, and the VIN and the vehicle’s status were confirmed by a comprehensive records check (in the sense that the VIN matched the public VIN and the results of the Rugby report did not generate suspicion), there was no specific and articulable basis for doubting the Rugby report.
Indeed, Sergeant Chan was asked, “So based on looking at this [Rugby] report, which was run at 7:22 p.m., the officer would have known that this particular vehicle was registered to Mr. Wallace, correct?” App’x at 378. Chan responded, “That’s correct.” App’x at 378. Likewise, Sergeant Alston was asked, “Is it fair to say [as of] 7:22 p.m. . . . there was no notation that you were aware of that this car was stolen that [Wallace] was operating[?]” App’x at 442‐43. Alston responded, “That’s correct.” App’x at 443.
Glossing over this testimony, the majority throws up its hands, resting entirely upon Haskovic’s undeterred suspicions: “The District Court credited Haskovic’s testimony about his training on VIN swaps, and we see no clear error in that credibility determination.” Maj. Op. at 17. Thus, the majority determines
that what is “true” about reasonable suspicion as it relates to the possibility of a
VIN swap is what Haskovic says. See Maj. Op. at 17 (“Given Haskovic’s
testimony that, in the event of a VIN swap, a Rugby report might fail to detect
that a vehicle is stolen, it is not true, as Wallace urges, that the results of the
Rugby report necessarily dispelled the officers’ otherwise‐reasonable suspicion . .
. .”). But the district court credited Haskovic’s testimony with respect
Whether reasonable suspicion existed after 7:22 p.m. is a mixed question of law and fact that we review de novo. See United States v. Gomez, 877 F.3d 76, 92 (2d Cir. 2017). Here, the the district court explicitly declined to make findings with respect to “whether the officers had probable cause to believe that [Wallace’s] vehicle was stolen.” Special App’x at 20. We “cannot merely defer to police officers’ judgment in assessing reasonable suspicion.” United States v Singletary, 798 F.3d 55, 60 (2d Cir. 2015). Haskovic attended automobile crime training. Haskovic also “had only been a police officer for about three and half years at the time of the suppression hearing,” Appellee’s Br. at 26 (internal quotation marks and alteration omitted); had never before seen a VIN swap; and
testified quite differently from the other officers regarding reasonable suspicion. Compare App’x at 191 (Question: “Would it have alleviated your concerns if the VIN number that was received as part of the [Rugby] inquiry matched the public VIN on the vehicle?” Haskovic response: “Not necessarily, because of the [possibility of] a VIN swap”), with App’x at 378 (Question: “So based on looking at this [Rugby] report, which was run at 7:22 p.m., the officer would have known that this particular vehicle was registered to Mr. Wallace, correct?” Chan response: “That’s correct.”).
To be sure, under certain circumstances—such as where the public VIN plate is burned, repainted, spray painted, glued on, affixed with non‐standard rivets, taped, scratched, bubbling, or tampered with in any way, or where a records check or Rugby report reveals that a VIN is not on file with the DMV or has recently been re‐registered—the Rugby report may not dispel suspicion. But those circumstances were not present here. See, e.g., App’x at 294 (Monahan testifying: “There wasn’t any damage to the public VIN, if that’s what you’re asking”); App’x at 443 (Question: “Is it fair to say . . . at 7:22 p.m., or before even Mr. Wallace was arrested, there was no notation that you were aware of that this car was stolen that he was operating?” Alston answer: “That’s correct.”).
Next, the majority asserts that the officers were presented “with a specific and articulable basis for doubting the conclusiveness of the Rugby report.” Maj. Op. at 18. But, as noted above, Chan and Alston did not testify to this effect. See also App’x at 166 (Haskovic’s testimony that “I wanted to cross‐reference the public VIN to” the doorjamb VIN “[b]ecause the vehicle was displaying to me, based on my training,” continued suspicious signs (emphasis added)). Monahan testified that there was no indication of tampering with the dashboard VIN plate. Additionally, no officer testified that the results of the Rugby report were suspicious, such that examining one of the vehicle’s non‐public VINs would be appropriate. Cf. Brocato, 2017 WL 6033046, at *2; Renteria, 199 S.W.3d at 501.
The majority goes on to assert that the officers had reason to question the
“effectiveness [of the Rugby report] at detecting auto theft.” Maj. Op. at 18. But it
is difficult to fathom how a comprehensive records check confirming an
undamaged full dashboard VIN plate could be less “effective” than proceeding
inside the vehicle to examine one of a possible 18 non‐public VINs.
Additionally, a non‐public doorjamb VIN may not match the other VINs
on a vehicle, even without a VIN swap having occurred. For instance, a vehicle
that was involved in an accident may well have a doorjamb VIN of a different
vehicle after undergoing a similar like, kind, and quality repair. See
Finally, the majority gestures to “numerous other factors” indicating a VIN swap. Maj. Op. at 18. But what were these factors? The driver’s door tool marks, the registration sticker and lack of card, and Wallace’s explanations that he’d locked himself out and used defogging spray that damaged the sticker, see Maj. Op. at 18—the very factors that gave rise to suspicion that the Rugby search dispelled. There is no evidence—visual, testimonial, or otherwise—that the
dashboard VIN plate was at all suspicious. There is no evidence that the Rugby results were incomplete; that the dashboard VIN did not match the database VIN, was not on file, or was recently re‐registered; that there was a glitch and the Rugby malfunctioned; or that the officers were concerned that Wallace’s database records had somehow been hacked.3 There is no evidence that would invite suspicion, apart from the very concerns addressed by the joint dashboard VIN plate visual inspection and Rugby search. Indeed, Haskovic cited these very concerns—rather than, for example, a suspicious VIN plate—when he explained why he wanted to continue investigating.
The officers “diligently pursued a means of investigation that was likely to confirm or dispel their suspicions quickly”: the Rugby report. Foreste, 780 F.3d at 526 (internal quotation marks omitted). But having their reasonable suspicions dispelled, the officers continued to detain Wallace and his vehicle and investigate anyway. The stop was unconstitutionally prolonged.
B. Examining the Internal VIN Was Not an Ordinary Inquiry Incident to the Traffic Stop.
Absent reasonable suspicion that would justify extending a traffic stop, id. at 523, “the tolerable duration of police inquiries in the traffic‐stop context is determined by the seizure’s mission—to address the traffic violation that warranted the stop and attend to related safety concerns,” Rodriguez, 135 S. Ct. at 1614 (citation omitted) (internal quotation marks omitted). The “critical question” regarding the tolerable duration of a traffic stop is whether the conduct “prolongs—i.e., adds time to—the stop.” Id. at 1616 (internal quotation marks omitted).
Although the majority declines to address whether the Rugby report
necessarily resolved ordinary inquiries incident to
It is not. In Class, the Supreme Court held that “the police officer’s action does not violate the Fourth Amendment” where, in order to view the dashboard VIN, the officer “reach[es] into the passenger compartment of a vehicle to move papers obscuring the VIN.” 475 U.S. at 107. The Supreme Court emphasized: “[O]ur holding today does not authorize police officers to enter a vehicle to obtain a dashboard‐mounted VIN when the VIN is visible from outside the automobile. If the VIN is in the plain view of someone outside the vehicle, there is no justification for governmental intrusion into the passenger compartment to see it.” Id. at 119. Here, not only was the VIN plate in plain view of someone outside the vehicle, it was also confirmed against the driver’s records. There was no justification for Haskovic’s intrusion into the vehicle.
At the suppression hearing, the government conceded that a “valid stop without any view that there’s an issue that involves a VIN” does not allow a police officer to open the door to look for the VIN because, in the government’s words, “it’s diminished expectation of privacy, it’s not no expectation of privacy whatsoever. So there has to be some basis.” App’x at 540. That “there has to be some basis” undermines the government’s ordinary‐inquiry argument and highlights the key problem here: there was no basis to continue searching. I
would hold that where the dashboard VIN plate is readable from outside the vehicle, that VIN is confirmed (i.e., matches the registration and/or records check), and there is no indication the plate has been tampered with, an officer may not prolong the traffic stop for the purpose of further examining a VIN in the internal portion of the car.
The seven minutes the officers prolonged the stop was unconstitutional. See Rodriguez, 135 S. Ct. at 1614 (emphasizing the “critical question” of whether the conduct “adds time to” the traffic stop). This case embodies “how the authority to stop cars for minor traffic offenses . . . has burgeoned into a full‐ fledged crime‐control strategy involving multiple patrol officers equipped with squad cars, guns, and lights.” Sarah A. Seo, Policing the Open Road: How Cars Transformed American Freedom 273 (2019). For Wallace, this burgeoning means that a defective brake light has cost him fifteen years of his life.
C. A Note on Credibility
I concur in the majority’s discussion of the district court’s factual findings.
However, I write to note my concern with the district court’s finding that
Wallace knew the federal label was missing from the doorjamb, as is required
under
reasons: 1) Wallace’s “deep knowledge of . . . VINS . . . and the law” evidenced in his briefing, and 2) Wallace’s “acknowledge[ment] that he told officer Haskovic that [he] had previously seen car doors with stickers on them but did not know what happened to his.” Wallace, 2016 WL 4367961, at *4.
As to the first reason, Wallace testified that he started learning about
federal VIN stickers when he was incarcerated. See App’x at 463 (The court: “Tell
me how you came to have such information about VINS . . .”; Wallace: “I started
studying them
Wallace is imprisoned—and will be for a total of 15 years—for what arose from missing a federal VIN sticker on his doorjamb. It is eminently reasonable that a defendant in such circumstances would use his time incarcerated to research federal VIN stickers. Cf. Faretta v. California, 422 U.S. 806, 834 (1975) (“The right to defend is personal. The defendant, and not his lawyer or the State, will bear the personal consequences of a conviction.”). Wallace submitted ample
filings below and two well‐researched briefs before this Court. It is disquieting that Wallace’s diligence in his pro se briefing was used to penalize him and to ascribe retroactive knowledge to him.
As to the second reason the district court made its finding, for Wallace to have violated the law by knowingly possessing a vehicle missing the doorjamb VIN sticker, “[k]nowing possession means what it says: the person must know the vehicle is missing the VIN.” Cook v. Sheldon, 41 F.3d 73, 78 (2d Cir. 1994). During oral argument at the sentencing hearing, defense counsel emphasized that a “sticker” is not the same thing as a “federal sticker” or VIN sticker. For example, vehicles have stickers on the doorjamb, as this one did, that include tire information. At the hearing, the district court twice acknowledged that under Section 170.70, it does not suffice for Wallace to know that stickers generally appear on the doorjamb of vehicles; rather, “he needs to know it’s a VIN sticker that’s been placed in a particular place.” App’x at 519; see also App’x at 526.
Nevertheless, the district court concluded that Wallace’s testimony that he did not know the federal VIN sticker was missing was “not credible” because Wallace “also acknowledged that he told officer Haskovic that [he] had previously seen car doors with stickers on them but did not know what happened
to his.” Wallace, 2016 WL 4367961, at *4 (emphasis added) (citation omitted). Wallace’s testimony and his “acknowledgement” are wholly consistent, and they do not support the conclusion that he knew the federal label was missing.
Although we give strong deference to credibility determinations, United States v. Murphy, 703 F.3d 182, 189 (2d Cir. 2012), the reasons underlying the district court’s credibility determination in this instance are deeply troubling.
CONCLUSION
In sum, where Wallace’s dashboard VIN plate was readable from outside the vehicle, there was no indication the plate had been tampered with, and the VIN was confirmed against the Rugby results, the Rugby report dispelled any reasonable suspicion that the vehicle was stolen and fulfilled the recognized purposes of a traffic stop. The majority opinion allows an officer to extend a traffic stop for investigative purposes despite confirmation that the officer’s suspicions are unfounded. I respectfully dissent.