United States v. Ricardo Carrion

• Court: Court of Appeals for the Third Circuit
• Decided: March 26, 2024
• Docket: 22-3357
• Status: Unpublished

Opinion

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ____________

No. 22-3357 ___________

UNITED STATES OF AMERICA,

v.

RICARDO CARRION, Appellant ____________

On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. No. 2:19-cr-00377-001) District Judge: Honorable Mark A. Kearney ____________

Submitted Under Third Circuit L.A.R. 34.1(a) February 8, 2024

Before: HARDIMAN, SCIRICA, and RENDELL, Circuit Judges.

(Filed: March 26, 2024)

____________

OPINION* ____________

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. HARDIMAN, Circuit Judge.

A jury convicted Ricardo Carrion of drug crimes. He appeals only the District

Court’s order denying his motion to suppress evidence. We will affirm.

I

In March 2018, a joint task force of the Drug Enforcement Administration and the

Philadelphia Police Department began investigating an “open-air drug market” on the

3100 block of Weymouth Street in Philadelphia’s Kensington neighborhood. App. 69.

Between March and May 2019, police executed search warrants at suspected stash

houses. They recovered cocaine, heroin, and cash from 3126 and 3136 Weymouth.

On May 17, 2019, a confidential informant gave police a description of the block’s

drug supplier, which police then matched to a surveillance photo of Ricardo Carrion. The

informant confirmed Carrion as the supplier and said that he operated out of 3134 or

3126 Weymouth while using a taxi service to transport narcotics to the block.

On June 3 and June 5, 2019, police observed Carrion exit 3136 Weymouth, return

later in a taxicab, and carry a bag into either 3136 or 3126 Weymouth. They also saw

Angel Vazquez—who was arrested the month before for selling drugs and resupplying

dealers on the block—pay for Carrion’s cab and exchange something with him on the

street.

On the night of June 5, police observed Carrion leave 3136 Weymouth, get into a

Toyota Camry with limousine plates, and proceed to the 4900 block of Whitaker Avenue,

where he exited the Camry and walked to the driver side of a nearby Kia Forte. Officers

then saw Carrion return to the Camry carrying a brown paper bag with handles, “which 2 appeared to be weighted down and full.” App. 217. Officers tailed the Camry as it drove

back toward Weymouth Street, waiting for an opportunity to stop the vehicle for a traffic

violation. See United States v. Lewis, 672 F.3d 232, 237 (3d Cir. 2012) (“[P]retextual

traffic stops supported by reasonable suspicion do not run afoul of the Fourth

Amendment.”). When the Camry rolled through a stop sign, officers initiated a traffic

stop. One officer questioned the driver while another approached Carrion at the rear

passenger side. Around the same time, Officer Kathaleen Cerebe opened the rear driver

side door, reached across the passenger cabin, and retrieved the brown paper bag to the

left of Carrion’s feet. Carrion was arrested after a search of the bag revealed 115 bundles

of crack cocaine in flip-top containers. Officers also recovered four cell phones from

either Carrion’s person or the rear passenger seat.

Carrion was indicted for conspiracy to distribute controlled substances in violation

of 21 U.S.C. § 846 and possession with intent to distribute crack cocaine in violation of

21 U.S.C. § 841(a)(1) and (b)(1)(B). Carrion moved to suppress evidence of the drugs

and from the cell phones seized from the Camry as fruits of an illegal search. The District

Court denied Carrion’s motion, and a jury convicted him on all counts. Carrion timely

appealed.

3 II1

Carrion makes two arguments on appeal. He claims police lacked: (1) probable

cause to believe that the vehicle contained evidence of a crime; and (2) reasonable

suspicion that he was armed or had access to a weapon. We address each argument in

turn.

A

Carrion contends that police lacked probable cause to search the Camry because

they relied on a first-time informant and never heard Carrion make incriminating

statements. We are unpersuaded.

First, police “independently corroborate[d]” the information they received from

the informant. United States v. Nasir, 17 F.4th 459, 466 (3d Cir. 2021) (en banc). This

information, coupled with the officers’ own investigation and surveillance, provided

“probable cause . . . to believe” that the Camry and brown paper bag contained drug

“contraband.” United States v. Burton, 288 F.3d 91, 100 (3d Cir. 2002). And under the

automobile exception to the warrant requirement, police could lawfully search the Camry

and any “containers” therein, including the brown paper bag. California v. Acevedo, 500

U.S. 565, 580 (1991).

1 The District Court had jurisdiction under 18 U.S.C. § 3231, and we have jurisdiction under 28 U.S.C. § 1291. We review the District Court’s suppression ruling for “clear error” as to factual findings “and exercise plenary review over [its] application of law to those facts,” United States v. Pierce, 622 F.3d 209, 210 (3d Cir. 2010), viewing the facts in the light most favorable to the Government because the Court denied Carrion’s motion. United States v. Garner, 961 F.3d 264, 269 (3d Cir. 2020).

4 Because police never used this informant in prior investigations, they had a duty

“to independently corroborate at least some of the information . . . provide[d].” Nasir, 17

F.4th at 466 (citing Illinois v. Gates, 462 U.S. 213, 242 (1983)). They discharged that

duty in two ways. First, officers matched the informant’s description to a surveillance

photo of Carrion, which the informant then used to confirm Carrion as the block’s drug

supplier. Second, police observed Carrion coming and going in taxicabs and carrying

plastic bags into houses on Weymouth Street as the informant described. So the

information had sufficient “indicia of reliability,” Gates, 462 U.S. at 233, to support the

officers’ belief that Carrion was using the Camry to transport drugs on June 5. See Nasir,

17 F.4th at 466–67.

Carrion emphasizes that the officers never heard Carrion make incriminating

statements. But probable cause does not require incriminating statements or “an actual

showing of [criminal] activity.” Gates, 462 U.S. at 243 n.13. Instead, it requires only a

“fair probability that contraband or evidence of a crime will be found in a particular

place.” Burton, 288 F.3d at 103 (quoting Gates, 462 U.S. at 238).

Here, police had “facts and circumstances within their knowledge” and

“reasonably trustworthy information . . . to warrant a prudent” officer’s belief that

Carrion had picked up controlled substances and was transporting them back to

Weymouth Street when they stopped the Camry. Id. at 98 (quoting Beck v. Ohio, 379

U.S. 89, 91 (1964)). On June 3 and June 5, officers saw Carrion entering and exiting

3126 and 3136 Weymouth Street, where officers had recovered drugs, money, and other

contraband the prior month. 5 Police also reported a “rampant” uptick in “drug sales” on the block after Carrion

delivered a bag to 3126 Weymouth on June 5. App. 108. That same day, officers saw

Carrion interacting with known drug dealer Jose Marquez, who had sold 119 bundles of

heroin to undercover officers earlier that day. Marquez was seen entering 3136

Weymouth with cash from the sale, followed by Carrion who arrived soon after. Police

witnessed the pair conversing on the street right before Carrion left to meet the Kia on

Whitaker Avenue. And another known drug dealer, Angel Vazquez, was seen paying

Carrion’s cab driver on June 3 and exchanging items with Carrion on the street. Police

also observed “unusual” behavior when the Camry arrived on Whitaker, noting that

Carrion waited “approximately 15 to 20 minutes” before exiting the car and walking over

to the Kia. App. 216.

These facts, coupled with the task force’s “significant experience” investigating

the drug trade, provided ample support for the officers to believe that Carrion had picked

up drugs from the Kia and was transporting them in the Camry. See Burton, 288 F.3d at

99. So police could search the vehicle and any containers within for controlled

substances, including the brown paper bag containing crack cocaine. See United States v.

Harris, 482 F.2d 1115, 1117–18 (3d Cir. 1973) (finding probable cause to arrest the

defendant where an informant identified him as a drug dealer and police observed a

6 “pattern of travel to and from” the same location and associations with “individuals . . .

involved in the sale of narcotics”).2

B

Carrion next argues that police had no basis to suspect that he could be armed at

the time of the search because they never saw him handling weapons, making furtive

movements, or exhibiting nervous behavior. The Government responds that Officer

Cerebe’s warrantless search of the brown paper bag was supported by her “reasonable

belief” that Carrion was “dangerous and . . . [could] gain immediate control of weapons.”

Gov’t Br. 19 (quoting Michigan v. Long, 463 U.S. 1032, 1049 (1983)).

We hold that Officer Cerebe reasonably believed that Carrion could be “armed and

dangerous,” thus permitting her to search the Camry’s passenger compartment for

weapons. See United States v. Bonner, 363 F.3d 213, 216 (3d Cir. 2004) (citing Terry v.

Ohio, 392 U.S. 1, 17 (1968)). At the time of the search, Officer Cerebe knew that:

(1) Weymouth Street gangs had a history of violence and homicides; (2) guns had been

recovered from stash houses Carrion had entered; and (3) vehicle stops generally come

with a heightened risk of danger for police. And because “drug dealers often carry guns,”

we have found reasonable suspicion sufficient to search a vehicle for weapons where

police have evidence that the occupants participate in drug trafficking. United States v.

2 Along with the crack cocaine found in the brown paper bag, police also seized four cell phones from either the rear passenger area or Carrion’s person. While there is some dispute about where exactly police discovered the phones, we hold that they were validly seized under either the automobile exception or a search incident to a lawful arrest. See United States v. Lampkin, 464 F.2d 1093, 1098 (3d Cir. 1972). 7 Davis, 726 F.3d 434, 440 (3d Cir. 2013). Here, police had evidence linking Carrion to the

Weymouth Street drug trade. So Officer Cerebe had good “reason to believe that [she

was] dealing with an armed and dangerous individual.” Leveto v. Lapina, 258 F.3d 156,

164 (3d Cir. 2001) (citing Terry, 392 U.S. at 27).

In response, Carrion emphasizes that he never exhibited the type of suspicious

behavior observed in the pathmarking Terry case. See, e.g., United States v. Valentine,

232 F.3d 350, 357, 359 (3d Cir. 2000) (finding reasonable suspicion from nervousness,

evasive behavior, furtive movements, or refusals to obey lawful orders); United States v.

Moorefield, 111 F.3d 10, 14 (3d Cir. 1997) (finding reasonable suspicion where the

suspect made movements toward his waist area). But we have never held that reasonable

suspicion arises only in those circumstances. See United States v. Whitfield, 634 F.3d 741,

744 (3d Cir. 2010). And police testified that the Kensington neighborhood where the

Camry was stopped is known to be a “very high drug trafficking area,” App. 195, which

is a “pertinent factor[]” in assessing reasonable suspicion. Whitfield, 634 F.3d at 744

(citing Illinois v. Wardlow, 528 U.S. 119, 124 (2000)).

Given the considerable evidence suggesting Carrion’s involvement in drug

trafficking, we hold that Officer Cerebe had good reason to suspect that Carrion was

armed and dangerous. So she could lawfully search the passenger area, including the

paper bag, for weapons—and seize any contraband incidentally discovered during that

search. See Davis, 726 F.3d at 440. (“[Police] cannot be required to ignore the contraband

discovered while conducting a legitimate Terry search of the interior of [an]

automobile.”) (cleaned up) (citing Long, 463 U.S. at 1050). 8 ***

For the reasons stated, we will affirm the District Court’s order denying Carrion’s

motion to suppress evidence.