UNITED STATES OF AMERICA, Appellant, --v.-- LAVERNE SINGLETARY, Defendant-Appellee
Argued June 17, 2015
On interlocutory appeal from a suppression order entered in the Western District of New York (Geraci, J.; Feldman, M.J.), the United States contends that contraband seized incident to arrest was not the fruit of an unlawful initial stop. We conclude that the challenged stop was lawful under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889(1968), in that it was supported by reasonable suspicion of an open-container violation, evidenced by such articulable, objective facts as defendant's observed (1) carrying of a beer-can-sized object (2) concealed by a brown paper bag and (3) held in such a manner as to avoid spillage.
JOSEPH J. KARASZEWSKI, Assistant United States Attorney, for William J. Hochul, Jr., United States Attorney for the Western District of New York, Buffalo, New York, for Appellant.
JON P. GETZ, Muldoon, Getz & Reston, Rochester, New York, for Defendant-Appellee.
Before: LEVAL, STRAUB, and RAGGI, Circuit Judges.
Reena Raggi, Circuit Judge :
The United States appeals from an order of the United States District Court for the Western District of New York (Frank P. Geraci, Jr., Judge ; Jonathan W. Feldman, Magistrate Judge ), suppressing drugs and a firearm seized incident to the arrest of defendant Laverne Singletary. See United States v. Singletary, 37 F.Supp.3d 601 (W.D.N.Y. 2014). The district court concluded that the seized contraband was the fruit of an initial unlawful investigatory stop made without the reasonable suspicion of criminal activity required by Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). In urging reversal, the government maintains that reasonable suspicion to investigate defendant for possible violation of a local open-container ordinance was supported by articulable, objective facts, including defendant's observed (1) carrying of a beer-can-sized object (2) concealed in a brown paper bag and (3) held in such a manner as to avoid spillage. We agree and reverse the challenged suppression order.
A. The Challenged Stop and Ensuing Arrest and Seizures
The stop at issue occurred at approximately 10:45 p.m. on October 6, 2012, in the vicinity of Roth and Flower Streets in Rochester, New York. Rochester Police Officer Amy Pfeffer was on car patrol with Monroe County Probation Officer Robert Masucci, when she saw a man, subsequently identified as defendant Laverne Singletary, walking on the sidewalk. Pfeffer proceeded to shine her vehicle's spotlight on the man because the area had a high incidence of violence. Pfeffer saw that the man was holding an object wrapped in a brown paper bag. Although she could not tell for certain what the object was, she saw that it was the size of a standard beer can. Based on seven years' police experience, Pfeffer knew that persons frequently concealed open containers of alcohol in brown paper bags because such possession in public was prohibited by local law. See Rochester Mun. Code § 44-9(C) (" No person shall possess an open container of any alcoholic beverage in a public place with the intent to consume the beverage in a public place." ). Pfeffer further saw that the man was holding the bag-wrapped container
very steadily, as if to avoid spilling its contents. From the totality of these circumstances, Pfeffer concluded that it was possible that the man was violating the open-container ordinance and that further investigation was warranted.
Bringing the police car she was driving to a halt, Pfeffer told Officer Masucci to " stop that guy, he's got an open container." Oct. 10, 2013 Suppression Hr'g Tr. (" Hr'g Tr." ) 67. Both officers exited their vehicle, first Masucci and then Pfeffer, whereupon the latter ordered Singletary to stop. Singletary replied, " Who me?" and quickly walked away. Id. at 14. This prompted Masucci, who was positioned in front of Singletary, to put his hand on Singletary's right shoulder to deter further movement. Instantly, Singletary tossed the bagged can he was carrying behind him, pushed Masucci's hand away, and proceeded to run ...