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United States v. Vaccaro

United States Court of Appeals, Seventh Circuit

February 7, 2019

United States of America, Plaintiff-Appellee,
v.
Travis S. Vaccaro, Defendant-Appellant.

          Argued December 11, 2018

          Appeal from the United States District Court for the Eastern District of Wisconsin. No. 17-CR-84-JPS - J.P. Stadtmueller, Judge.

          Before Wood, Chief Judge, and Ripple, and Barrett, Circuit Judges.

          BARRETT, CIRCUIT JUDGE.

         Travis Vaccaro entered a conditional guilty plea to possessing a firearm as a felon, 18 U.S.C. § 922(g), preserving his right to appeal the denial of his motion to suppress the gun. Vaccaro contests both the pat-down search that occurred seconds after police officers pulled over his car and the search of the car that yielded the gun. The pat-down was lawful under Terry v. Ohio, 392 U.S. 1 (1968). The sweep of the car, which the district court upheld under Michigan v. Long, 463 U.S. 1032 (1983), is a closer call, but we conclude that it too was permissible. Accordingly, we affirm.

         Our summary of the facts is taken from an evidentiary hearing on Vaccaro's motion to suppress. Milwaukee police officers Aaron Frantal and Matthew Tracy stopped Vaccaro for running a red light. Officer Frantal testified that Vaccaro stopped his car and made a "very ferocious move" by "bending at the waist." Vaccaro then leaned toward the passenger seat and "made another aggressive move with his entire top torso and both arms into the back seat of the vehicle." Officer Tracy added that he saw Vaccaro "double over bending at the waist" and then reach toward the passenger side of the car. Officer Frantal testified that Vaccaro's movements took under five seconds. Afraid that Vaccaro might be trying to "gain control of something from the back seat," Officer Frantal drew his gun and ordered Vaccaro out of his car. The officers immediately handcuffed Vaccaro, and Officer Frantal patted him down.

         Meanwhile, Officer Tracy asked Vaccaro questions about his movements. Vaccaro expressed frustration to the officers and mentioned that "people are trying to kill me." Vaccaro also said that he merely "took [his] coat off" when he pulled over. After saying that he was going to search the car, Officer Tracy asked Vaccaro seven times whether there was a gun in the car. Vaccaro responded once to reiterate that someone was trying to kill him and another time to say "I don't have anything." Officer Tracy added that Vaccaro appeared to be "extremely nervous" and in a "real amped-up state," which contributed to the officer's belief that Vaccaro was under the influence of drugs.

         As Officer Tracy questioned Vaccaro, Officer Frantal found a GPS monitor on Vaccaro's ankle. Vaccaro confirmed that he was on supervision for "false imprisonment/' which the officers understood to be a felony. Officer Frantal did not discover a weapon during the frisk. But both officers testified that they noticed a rifle case in the backseat. Neither officer said anything, they testified, for fear of their safety; they did not want to alert an "agitated" Vaccaro that they had seen the case.

         The officers then locked Vaccaro, still handcuffed, in the backseat of their squad car. Officer Frantal testified that Vaccaro "did not appear to be fully stable" as he was led to the car. Officer Frantal called in the traffic violation to dispatch, which drew backup officers to the scene.

         Meanwhile, Officer Tracy returned to Vaccaro's car and began searching the front seats. Officer Frantal then approached the vehicle. He soon remarked that he saw a rifle case in the backseat. The officers then removed a coat on top of the rifle case and eventually confirmed that a rifle was inside it.

         The magistrate judge recommended that the district court deny Vaccaro's motion to suppress. She credited the officers' testimony that Vaccaro had made furtive movements because Vaccaro had admitted to taking off his jacket; therefore, she said, the officers had reasonable suspicion to frisk Vaccaro for weapons. But she discredited the officers' testimony that they had seen a rifle case in the back of Vaccaro's car before locking him in the squad car. The legality of the search therefore depended on whether Vaccaro's furtive gestures provided the officers with reasonable suspicion to search the passenger compartment of the car in addition to Vaccaro's person. She concluded that they did.

         Vaccaro objected to the magistrate judge's report and recommendation, arguing that the immediate frisk was not justified by reasonable suspicion and that the search of the car was not a lawful protective search under Long. The government argued that both the frisk and car search were reasonable. Vaccaro's furtive movements justified the patdown search, the government said, and locking Vaccaro in the squad car before the vehicle search enabled the officers to "avert[] a calamitous and explosive event."

         The district judge sided with the government and denied Vaccaro's motion to suppress. The judge accepted the magistrate judge's findings of fact and discredited the officers' testimony that they had observed the rifle case in the backseat before they searched the car. But Vaccaro's furtive movements provided the officers with reasonable suspicion that he had "potentially armed himself or concealed a firearm," which warranted a protective frisk. The district judge also concluded that the vehicle search was reasonable under Long. Although Vaccaro was handcuffed and locked in a squad car during the search, he was not under arrest and could still be "dangerous" or gain "immediate access" to weapons. While the officers' "stated bases for their suspicion of dangerousness ... are few," the judge observed, he was "constrained" to find that the officers had reasonable suspicion that Vaccaro was dangerous based on his "furtive movements," the "relatively late" time of the stop, and the officers' belief that Vaccaro was on drugs. Citing United States v. Arnold, 388 F.3d 237 (7th Cir. 2004), the judge further explained that, had "the traffic stop resulted only in the issuance of a citation for running a red light, Vaccaro would have been permitted to reenter his vehicle."

         Vaccaro then conditionally pleaded guilty to knowingly possessing a firearm as a felon. 18 U.S.C. § 922(g). He expressly reserved the right to ...


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