Second Circuit Panel Gets Into Scrum Over 4th Amendment Implications of Rugby Report
On September 3, 2019, a divided panel issued a decision in United States v. Wallace (Winter, Pooler, Abrams, by designation) affirming the district court’s denial of Wallace’s suppression motion as well as Wallace’s 15-year mandatory minimum sentence under the Armed Career Criminal Act (“ACCA”). Judge Pooler wrote an 18-page dissent explaining why she believed Wallace’s suppression motion should have been granted. The primary issue addressed in the competing opinions was whether the prolonging of a traffic stop was supported by reasonable suspicion.
In May 2015, three police officers pulled over a vehicle being driven by Wallace after observing a defective brake light on the vehicle. When the officers approached the car, they observed scratches and dents on the car along with broken glass on the windshield. The officers asked Wallace for his license and registration. Wallace provided his license but said that he did not have a copy of the car’s registration.
The officers observed scratch marks and chipped paint on the driver’s side door, which suggested to them that someone had pried open the door. The officers also observed the registration sticker and inspection certificate on the windshield, which appeared to be damaged and faded. The officers asked Wallace about the stickers and the door scratches. He told the officers that the stickers had been damaged by a defogging spray. Wallace also explained that the door scratches were the result of a prior occasion when he had to forcibly enter his car after locking himself out.
As a result of the damage to the registration sticker, the Vehicle Identification Number (“VIN”) printed on the registration sticker was only partially visible. Pursuant to federal law, the VIN number—which uniquely identifies each vehicle—must be printed in multiple locations on every vehicle. It must be printed on a federal label affixed to the doorjamb next to the driver’s seat and a “Public VIN” must also be printed somewhere inside the passenger compartment in a location visible to someone located outside the vehicle.
On a lawfully owned and registered vehicle, the VIN printed in one location should match the VIN printed on all other locations in the vehicle. If the VINs do not match, it may suggest that the vehicle is stolen. In particular, the officers who detained Wallace testified that they were aware of a technique referred to as a “VIN swap” in which a VIN from one vehicle is removed and placed on a stolen vehicle of similar make and model. The replacement VIN is typically placed somewhere publicly visible, such as where the vehicle’s registration sticker or Public VIN are located. A successful VIN swap will often disguise auto theft if the police rely exclusively on the publicly visible VIN when running a vehicle report, rather than cross-checking the VIN with an additional VIN such as the one affixed to a vehicle’s doorjamb.
Approximately two minutes after stopping Wallace, one of the officers at the scene searched for Wallace’s name in a law enforcement database using a portable electronic device known as a Rugby. The information obtained in the Rugby report matched the Public VIN on the dashboard, Wallace’s driver’s license, and the license plate that officers observed at the scene.
Despite the Rugby report, the officers nevertheless suspected that Wallace’s vehicle may have been stolen based on the signs of forced entry, Wallace’s missing registration, the damaged condition of the registration and inspection stickers, and their general knowledge of VIN swaps. At some point during the stop, two of the officers decided to check to see whether the Public VIN matched the VIN printed elsewhere on the vehicle. Because the VIN on the registration sticker was only partially visible, the officers asked Wallace to open the driver’s side door. He consented and the officers observed that the federal label that was supposed to be affixed to the doorjamb was missing. After questioning Wallace about the missing sticker, the officers arrested him for knowingly possessing a vehicle from which a VIN label has been removed, which was a violation of New York law. The arrest occurred approximately nine minutes after Wallace had been pulled over and seven minutes after the Rugby report had been run.
After Wallace was arrested, his car was brought back to the local precinct and one of the arresting officers performed an inventory search. While checking under the hood of the car, the officer found a handgun in a bag hanging behind the passenger side headlight.
Wallace was subsequently charged with one count of possessing a firearm and ammunition as a convicted felon. The operative indictment further alleged that his three prior drug convictions rendered him subject to the enhanced sentencing provisions of the ACCA. Before trial, Wallace moved to suppress the firearm, his DNA found on the firearm, and certain statements he made after the arrest. The district court made various factual findings after a suppression hearing, including findings that the arresting officers had provided credible testimony and that Wallace had not. Wallace was convicted after a two-day trial and he was subsequently sentenced to a term of 15 years imprisonment after the district court determined that he had been convicted of at least three prior offenses that constituted “serious drug offenses” within the meaning of the ACCA.
The Suppression Motion
The Court focused most of its decision on Wallace’s principal argument on appeal, which was that the district court had erred in denying his motion to suppress because the traffic stop leading to the discovery of the firearm was unconstitutionally prolonged under the standards articulated in Rodriguez v. United States, 135 S. Ct. 1609 (2015). Under Rodriguez, a police stop is unconstitutionally prolonged when it exceeds the time needed to handle the matter for which the stop was made. In the context of a traffic stop, this includes the time needed to address (1) the traffic violation that warranted the stop, (2) related safety concerns, and (3) ordinary inquiries incident to the stop such as checking the driver’s license, determining whether there are outstanding warrants against the driver, and inspecting the vehicle’s registration and proof of insurance. Nevertheless, a traffic stop may be extended beyond this point if an officer develops a reasonable suspicion of criminal activity.
Wallace argued that the traffic stop was unconstitutionally prolonged because the officers had all of the information needed to complete the purpose of the stop within two minutes, when the Rugby report was obtained. He further argued that the Rugby report, which showed that the Public VIN on the vehicle was associated with his records, dispelled any reasonable suspicion that the vehicle was stolen.
The Court affirmed and rejected Wallace’s argument, finding that the Rugby report did not conclusively dispel any reasonable suspicion that the vehicle was stolen. The panel observed it was “quite clear” that the extension of the traffic stop, absent the Rugby report, was supported by reasonable suspicion. The panel concluded that the officers were justified in extending the traffic stop for the limited purpose of confirming the vehicle’s VIN in “one non-public, minimally intrusive location.” It based this conclusion on testimony from one of the arresting officers, who testified that a Rugby report indicating that a visible VIN is the same VIN that is registered to the driver does not necessarily provide conclusive proof that the vehicle at issue is not stolen. In the case of a VIN swap, a Rugby report could fail to identify a stolen vehicle because it may be providing information about a vehicle other than the vehicle that had been pulled over. As a result, the Court found that the Rugby report did not necessarily dispel the officers’ otherwise reasonable suspicion. Although the Court acknowledged that only the registration sticker appeared to be damaged—as opposed to the Public VIN that was used to run the Rugby report—the Court nevertheless held that noticeable damage to the Public VIN was not 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.
Wallace also challenged the district court’s finding that he qualified for a 15-year mandatory minimum sentence under the ACCA, contending that two of his prior drug convictions did not constitute “serious drug offenses” within the meaning of the law. The Court quickly dispatched with these arguments.
First, Wallace argued that his 1991 conviction for attempted criminal sale of a controlled substance in the third degree was not a qualifying conviction; however, the Court found otherwise based on precedent rejecting the notion that attempts to commit serious drug offenses were not themselves meant to be considered serious drug offenses within the meaning of the ACCA.
Second, Wallace argued that his 2001 conviction for criminal sale of a controlled substance in the third degree was no longer a serious drug offense because the maximum penalty for the crime had purportedly been reduced to nine years imprisonment, even though it had been 25 years at the time of conviction. The Court rejected this argument because the 2001 conviction was his second felony drug conviction, meaning that under current New York law the maximum term of imprisonment was twelve years rather than nine. As a result, this conviction qualified as a serious drug offense under the ACCA since the maximum term of imprisonment was ten years or more.
Judge Pooler’s Dissent
Judge Pooler dissented from the majority’s decision, finding that it “reason[ed] in a circular fashion that the Rugby report did not dispel the officers’ reasonable suspicion because of the officers’ reasonable suspicion.” Instead, Judge Pooler concluded that the Rugby report dispelled any reasonable suspicion that Wallace’s vehicle was stolen within two minutes after Wallace was pulled over.
Judge Pooler observed that a VIN swap requires transferring a VIN plate from one vehicle to another and, citing numerous cases, she asserted that this movement bears physical signs. Judge Pooler suggested this was significant because the Public VIN on Wallace’s vehicle that was used to generate the Rugby report showed no physical signs of tampering. According to Judge Pooler, “where an untampered-with dashboard VIN plate [i.e., Public VIN] checked out against a comprehensive records check, it was virtually impossible for the vehicle nonetheless to have been stolen or VIN-swapped.” Judge Pooler accused the panel decision of insufficiently addressing the implications of the Rugby report on the reasonable suspicion analysis and instead focusing on other considerations that may have otherwise suggested the presence of reasonable suspicion in the absence of the Rugby report.
Judge Pooler also called into question the officers’ decision to further investigate the suspected VIN swap by seeking to look for the doorjamb VIN that was not otherwise visible. She observed that under certain circumstances a doorjamb VIN may not match other VINs on a vehicle even absent a VIN swap. She asserted that this may occur when a vehicle that has been involved in an accident undergoes a repair. As a result, Judge Pooler suggested that the officers’ subsequent investigation was no more reliable than the Rugby report in determining whether a VIN swap had occurred.
Judge Pooler concluded her discussion of the reasonable suspicion issue by contending that the Court should have held as a categorical matter that traffic stops may not reasonably be prolonged to further examine an internal VIN number where (1) a Public VIN is readable from the outside of a vehicle, (2) the VIN is confirmed through a records check, and (3) there is no indication that the Public VIN has been tampered with. Judge Pooler asserted that Wallace’s 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.” According to Judge Pooler, “this burgeoning means that a defective brake light has cost [Wallace] fifteen years of his life.”
Finally, Judge Pooler took issue with some of the justifications put forward by the district court when it made its credibility findings. In particular, Judge Pooler suggested that “Wallace’s diligence in his pro se briefing was used to penalize him and to ascribe retroactive knowledge to him” on certain factual questions, which Judge Pooler found “deeply troubling.”
Analysis and Implications
The Court’s decision in Wallace is thoughtful, thorough, and amply supported by the law. The case illustrates the challenge that defendants in criminal cases face when appealing highly fact-bound issues. Here, the district court made numerous factual findings after the suppression hearing that were adverse to Wallace and the Court did not find clear error, a tough standard for appellants to meet. Although Judge Pooler also found no clear error, she appeared to take a more critical eye toward the district court’s findings and questioned whether one of those findings was well-reasoned. Given the standard of review, it is not easy to win reversal on these types of issues and the panel majority’s decision is not surprising.
Judge Pooler’s scrutiny was similarly focused on the reasonable suspicion issue, and she poses good questions about the underlying facts. If the arresting officers were concerned that a VIN swap had been performed to disguise an auto theft, then one might reasonably wonder whether their reasonable suspicion had been dispelled when the Rugby report indicated that the undamaged Public VIN matched Wallace’s records.
Courts are understandably wary to second-guess experienced officers in the field who are investigating criminal activity. Here, we know that this particular defendant had multiple prior convictions and also had a firearm hidden under the hood of his car. Because of the officers’ investigation, a dangerous situation may have been averted. At the same time, the case raises some systemic concerns: the stop was based on the driver’s broken brake light and one might reasonably question whether the inspection of the doorjamb VIN was warranted under the circumstances. The resulting arrest was enabled by the rules that empower police officers to arrest individuals for offenses that in most contexts will lead only to a summons. The dissent is right to ask, as a matter of policy, whether we should have a system in which the police have such broad discretion. None of this is meant as criticism of the panel majority, which applied well-established governing law and deferred to the district court’s factual findings. Rather, it is food for thought in the discussion of whether and how to reform aspects of our criminal justice system.
 Wallace also challenged several of the district court’s factual and credibility findings from the suppression hearing; however, the Court found no clear error.
 Because of this conclusion, the Court did not reach the government’s argument that the officers’ efforts to inspect the VIN on the doorjamb constituted “ordinary inquiries incident to a traffic stop” thereby falling within the scope of the traffic stop’s lawful “mission.”