UNITED STATES COURT OF APPEALS 1

For the Second Circuit 2

August Term 2003 3

(Argued: April 5, 2004 Decided: May 21, 2004) 4

Docket No. 03-1519 5

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UNITED STATES OF AMERICA, 7

Appellee, 8

v. 9

ANGEL VARGAS, 10

Defendant-Appellant. 11

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Before: WALKER, Chief Judge, VAN GRAAFEILAND and STRAUB, Circuit 13

Judges. 14

Thomas V. Daily, Esq. 15

Assistant U.S. Attorney 16

U.S. Attorney’s Office 17

450 Main Street 18

Hartford, CT 06103 19

Robert G. Golger, Esq. 21

Quatrella & Rizio 22

One Post Road 23

P.O. Box 320019 24

Fairfield, CT 06430 25

27

Angel Vargas appeals the District Court's (Hall, J.) order 29

denying Vargas's Motion to Suppress Evidence based on the alleged 30

illegal search and seizure of him by the Police Department of 31

Hartford Connecticut. The District Court determined that the 32

2

police had reasonable suspicion to stop and frisk him, and denied 1

his motion. 2

During November and December of 2002, a confidential 3

informant advised Detective Ramon Baez of the Hartford Police 4

Department that an individual with the street name of "Ching" was 5

robbing drug dealers with a firearm in the Putnam Heights area of 6

Hartford (a high crime area). The confidential informant 7

previously had provided the police with timely and accurate 8

information relating to drug deals in this area. 9

On December 4, 2002, Detective Baez was contacted by the 10

confidential informant, who told him that the Hispanic male he 11

knew by the name of "Ching" (who would be identified later as the 12

defendant Vargas) was in front of 13 Putnam Heights and was 13

carrying a gun in his waistband. The informant described "Ching" 14

as being of medium complexion, approximately five feet, seven 15

inches in height, wearing a black shirt, black jeans, black knit 16

cap, and black boots. 17

After receiving this information, Detectives Baez and Curtis 18

Lollar, Jr., assisted by members of the Hartford and Connecticut 19

State Police Departments, went to the area of Putnam Heights. 20

Detectives Baez and Lollar walked through rear yards across the 21

street from 13 Putnam Heights, and observed an individual 22

matching the description given by the informant, standing on the 23

front porch of 13 Putnam Heights with several other males. That 24

individual was identified later as Vargas. 25

3

Detective Baez contacted other members of the Hartford 1

Narcotics Unit by radio, informing them of Vargas's location. 2

Detectives Baez and Lollar then saw Vargas and two other Hispanic 3

males walk off the porch and proceed East on Putnam Heights. 4

Detective Ezequiel Laureano was in an unmarked police car with 5

Connecticut State Trooper David Diaz and observed Vargas walking 6

down the street. Detective Laureano exited the unmarked police 7

car and identified himself by saying, "Hartford Police. Can I 8

talk to you?" Vargas did not respond, but immediately turned and 9

fled. 10

Laureano and Diaz pursued him. Vargas ultimately ran up an 11

alleyway directly into the path of Baez and Lollar, who attempted 12

to detain Vargas. After a brief struggle, he was placed on the 13

ground, handcuffed, and patted down. The officers found a loaded 14

Smith & Wesson .22 caliber revolver on Vargas. 15

Vargas was indicted on one count of possession of a firearm 16

by a convicted felon, in violation of 18 U.S.C. § 922(g)(1). On 17

April 22, 2003, the District Court denied Vargas's Motion to 18

Suppress Evidence based on an alleged illegal search and seizure. 19

On May 7, 2003, Vargas entered a conditional plea of guilty to 20

the indictment. On July 29, 2003, the District Court sentenced 21

Vargas to a term of 180 months of imprisonment. This appeal 22

followed. For the reasons that follow, we affirm. 23

Vargas's appeal rests primarily on the argument that the 24

encounter at issue was not an investigatory stop, but rather an 25

4

arrest requiring probable cause. Vargas claims that he was under 1

arrest "from the very moment the police approached him." 2

carved out an exception to the general rule requiring probable 4

cause for a search, permitting an investigating officer to 5

briefly detain an individual for questioning. An officer may, 6

consistent with the Fourth Amendment, briefly detain an 7

individual "if the officer has a reasonable suspicion that 8

F.3d 130, 134 (2d Cir. 2001)(internal quotation marks omitted). 10

During an investigatory stop, "[t]he investigating officer may 11

also frisk an individual for weapons if the officer reasonably 12

In this case, the conclusion that the officers had 14

reasonable suspicion is a straightforward one. In light of both 15

(i) the specific, detailed and contemporaneous tip that the 16

officers received from their reliable confidential informant 17

regarding Vargas's armed presence at 13 Putnam Heights (and the 18

past tips regarding Vargas's criminal conduct), and (ii) Vargas's 19

evasive flight when Detective Laureano and Trooper Diaz 20

approached him (in a "high crime area" known for having "a lot of 21

drugs [and] a lot of guns"), the officers clearly had reasonable 22

146-47 (1972)(holding that tip from known, reliable informant 24

that was "immediately verifiable at the scene" could form basis 25

5

crime area, unprovoked, headlong flight from police can form the 3

In determining whether an investigatory stop is sufficiently 5

considers the "amount of force used by the police, the need for 7

such force, and the extent to which an individual's freedom of 8

movement was restrained, and in particular such factors as the 9

number of agents involved, whether the target of the stop was 10

suspected of being armed, the duration of the stop, and the 11

physical treatment of the suspect, including whether or not 12

(2d Cir. 1993)(internal quotation marks and citations omitted). 14

Vargas's claim that he was arrested when he first came in 15

contact with the police is based largely on the misplaced 16

argument that the officers intended to arrest him at the outset. 17

However, the officers' subjective intent does not calculate into 18

is an objective standard; hence, the subjective intentions or 22

motives of the officer making the stop are irrelevant."). 23

Additionally, the remaining objective factors surrounding 24

6

Vargas's arrest do not support his contention that he was under 1

arrest when police first approached him. 2

When the police first approached Vargas, instead of using 3

force, they merely asked to talk to him. His freedom clearly was 4

not restrained, considering the fact that he fled after the 5

officers asked to speak to him. In addition, Vargas was 6

suspected of being armed based on the information provided by the 7

reliable confidential informant, and he had to be approached with 8

caution. Vargas was not arrested when he was first approached by 9

police. 10

Vargas argues in the alternative that if he was not arrested 11

when the police first came in contact with him, he was arrested 12

by the time the police caught up with him, and placed him in 13

handcuffs. Vargas argues that at that point, the officers did 14

not have probable cause to arrest him. 15

However, although "[u]nder ordinary circumstances, drawing 16

intrusive and aggressive police conduct" is not an arrest "when 18

it is a reasonable response to legitimate safety concerns on the 19

F.3d 1009, 1012 (9th Cir. 2001)(citations omitted). In this 21

case, the officers had reliable information that Vargas was 22

carrying a weapon. Vargas had demonstrated his unwillingness to 23

cooperate with the officers' investigation by fleeing from them 24

when originally approached and continuing to struggle with 25

7

Officer Lollar following the stop. Immediately upon intercepting 1

Vargas, Detective Lollar placed him on the ground and handcuffed 2

him. Detective Lollar then conducted a pat down search for 3

weapons and discovered Vargas's firearm. The detention of 4

Vargas, prior to the discovery of the firearm, was very brief. 5

It was only upon discovering the firearm that Vargas was placed 6

under arrest. 7

We agree with the District Court that the officers used a 8

However, the force was reasonable under the circumstances and the 10

stop did not become a full arrest until after the officers 11

discovered Vargas was carrying a firearm. Indeed, it is possible 12

that they could have arrested him based on the available 13

information prior to finding the gun, but we need not decide that 14

question because at the pont of finding the gun, the police 15

certainly had probable cause to arrest him. The order denying 16

Vargas's Motion to Suppress is AFFIRMED. 17