APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO. Hon. Jay A. Garcí a-Gregory, U.S. District Judge.
K. Hayne Barnwell, with whom Rebecca A. Jacobstein, Office of Appellate Advocacy, was on brief, for appellant.
John A. Mathews II, Assistant United States Attorney, with whom Rosa Emilia Rodrí guez-Vé lez, United States Attorney, and Nelson Pé rez-Sosa, Assistant United States Attorney, Chief, Appellate Division, were on brief, for appellee.
Before Torruella, Dyk,[*] and Kayatta, Circuit Judges.
TORRUELLA, Circuit Judge.
Defendant-Appellant José Tiru-Plaza (" Tiru" ) appeals from the district court's denial of his motion to suppress the firearm discovered when a police officer pat-frisked him during a traffic stop.
After stopping a car -- in which Tiru was a passenger -- for a traffic infraction, officers from the Puerto Rico Police Department, evidently suspecting that the car might have been stolen, ordered the driver to exit the vehicle and open the hood to permit inspection of the vehicle identification number (the " VIN" ) stamped on the engine block. When the driver complied, the movement revealed a gun tucked into his waistband. The officers then detained
the driver, ordered Tiru to exit the vehicle, and pat-frisked him, revealing a firearm hidden in Tiru's waistband. Subsequently, Tiru was placed into custody and charged with being a felon in possession of a firearm. He sought to suppress the gun as the fruit of an illegal search. The district court denied Tiru's motion, and he now appeals. Concluding that the officers had an objectively reasonable basis to frisk Tiru, we affirm.
A. The Traffic Stop and Frisks
We present the facts as found in the evidentiary hearing and in the matter " most compatible" with the district court's ruling, consistent with record support. See United States v. McGregor, 650 F.3d 813, 816 (1st Cir. 2011) (citing United States v. Dancy, 640 F.3d 455, 457-58, 460-61 (1st Cir. 2011)).
On March 10, 2012, at around 11:00 p.m., Officers José Casiano-García (" Officer Casiano" ) and Edwin Martínez-Vargas (" Officer Martínez" ) spotted a Mitsubishi Lancer driving down a road in Yauco, Puerto Rico. The car's driver, Jenson Morales-Ramos (" Morales" ), was accompanied by Tiru and two young women. The officers -- seeing the metal glint of a disengaged buckle over Morales's shoulder -- concluded that the car's occupants were not wearing seat belts.
When the officers turned on their lights to signal that the car should pull over, Morales failed to stop immediately. After traveling only a short distance, and without speeding up or taking evasive action, however, he obeyed the officers' command. After approaching the vehicle, Officer Casiano asked Morales for his driver's license and registration. Morales could not provide a driver's license, and he handed the officer a photocopy of the car's original registration on which the VIN could not be made out. The illegible registration and failure to provide a license gave rise to some suspicion that the car may have been stolen. On that basis, Officer Casiano asked Morales to exit the vehicle and open the hood for purposes of inspecting the VIN on the car's engine. When Morales obliged, the resulting movement caused his shirt to lift up and revealed a green pistol grip in his waistband.
Seeing the gun, Officer Casiano yelled " arma"  and ordered Morales to place his hands on the hood of the vehicle. Having been alerted to the presence of a firearm by his partner, Officer Martínez ordered Tiru to exit the vehicle and submit to a pat-frisk. When Officer Martínez ran his hands along Tiru's waist he felt a hard object that he believed could be a weapon, inserted two fingers under his waistband,
and extracted a black pistol. Tiru was then taken into police custody. After the arrival of two more police officers, the female passengers were also detained, although they were later released without charges.
B. Denial of Tiru's Motion to Suppress His Firearm
Tiru was indicted for being a felon in possession of a firearm, in violation of 18 U.S.C. § § 922(g)(1) and 924(a)(2). He filed a motion to suppress the firearm evidence, principally arguing that: (1) the officers lacked any reasonable suspicion to stop the vehicle or to order Morales to open the hood, requiring suppression of the gun as fruit of an unlawful search; and (2) even if the initial stop and subsequent frisk of Morales were legal, the officers lacked any reasonable suspicion that Tiru was dangerous or engaged in criminal activity, making his pat-frisk unlawful.
The case was referred to a magistrate judge, who held an evidentiary hearing on October 29, 2012. The magistrate judge's report and recommendation concluded that the initial traffic stop was lawful, and that Tiru lacked standing to challenge the legality of the officer's attempt to search under the vehicle's hood. However, the magistrate judge ultimately found that, under a totality-of-the-circumstances test, there was no ...