author: EDWARD C. PRADO, Circuit Judge: JONES, Circuit Judge,

text:
    IN RE: In the Matter of the COMPLAINT OF C.F. BEAN L.L.C., as Owner Pro Hac Vice and Operator, and Bean Meridian L.L.C., as the Record Owner, of the Barge Bean 20, Oficial No. 627225, Praying for Exoneration from or Limitation of Liability, C.F. Bean L.L.C., as Owner Pro Hac Vice and Operator of the Barge Bean 20, Official No. 627225; Bean Meridian L.L.C., as the Record Owner, of the Barge Bean 20, Official No. 627225; Archer Western Contractors, L.L.C., Plaintiffs-Appellants, v. Suzuki Motor Corporation, Defendant-Appellee. Jerrie P. Barhanovich, etc., Plaintiff, v. C.F. Bean, L.L.C.; Bean Meridian, L.L.C.; Archer Western Contractors, L.L.C., Defendants-Third-Party Plaintiffs-Appellants, v. Suzuki Motor Corporation, Third-Party Defendant-Appellee.
    No. 16-60008
    United States Court of Appeals, Fifth Circuit.
    Filed November 4, 2016

      André J. Mouledoux, Esq., Mark Emerson Hanna, Esq., Mouledoux, Bland, Le-grand & Brackett, L.L.C., Andrew C. Wilson, Simon, Sara L. Ochs, Peragine, Smith & Redfearn, L.L.P., New Orleans, LA, for Plaintiffs-Appellants C.F. Bean, L.L.C. and Bean Meridian, L.L.C.
    Frank John Dantone, Jr., Esq., Edward D. Lamar, Esq., Henderson Dantone, P.A., Greenville, MS, for Plaintiff-Appellant Archer Western Contractors, L.L.C.
    Colvin G. Norwood, Jr., Esq., McGlin-chey Stafford, P.L.L.C., New Orleans, LA, John Thomas Rouse, McGlinchey Stafford, P.L.L.C., Jackson, MS, for Defendant-Ap-pellee.
    Before JONES, DENNIS, and PRADO, Circuit Judges.
   EDWARD C. PRADO, Circuit Judge:

This appeal involves a third-party complaint alleging maritime products liability. In 2012, Mark Barhanovich was killed in coastal waters south of Biloxi, Mississippi, when the Suzuki outboard engine on his fishing boat struck an underwater dredge pipe, flipped into his boat, and struck him. Barhanovich’s estate filed claims in federal district court against C.F. Bean, LLC, Bean Meridian, LLC, and Archer Western Contractors, LLC (collectively, “Bean”), which were responsible for dredging operations in the area. Bean ultimately settled Barhanovich’s claims, and C.F. Bean, LLC pled guilty to one count of misconduct or neglect of ship officers in a criminal proceeding related to the same accident.

While Barhanovich’s claims were pending, Bean filed a third-party complaint against Suzuki Motor Corporation (“SMC”), among others. After Barhano-vich’s claims were settled, the district court excluded expert testimony put forth by Bean, and granted SMC’s motion for summary judgment against Bean. On appeal, Bean argues that the district court erred in: (1) excluding Bean’s original expert report; (2) excluding Bean’s second expert report; (3) relying upon Bean’s criminal proceeding to decide civil liability issues; (4) denying Bean’s motion to conduct certain testing on the motor involved in the accident; (5) failing to apply the superseding cause doctrine; and (6) holding that Bean cannot meet its summary judgment burden without expert testimony. We AFFIRM in part, REVERSE in part, and REMAND for further proceedings.

I. FACTUAL AND PROCEDURAL BACKGROUND

On September 16, 2012, Barhanovich was operating a recreational fishing boat in the waters south of Biloxi, Mississippi, when his boat’s SMC-made outboard motor struck a submerged dredge pipe. This dredge pipe was owned by Bean Meridian, LLC and operated by C.F. Bean, LLC pursuant to a subcontract with Archer Western Contractors, LLC. The swivel bracket on the motor broke as a result of this collision, causing the motor to rotate up into the boat, where it struck and fatally injured Barhanovich. In 2013, Bean filed a maritime limitation action under 46 U.S.C. § 30611, seeking to limit its liability for Barhanovich’s death. Shortly thereafter, Barhanovich’s estate sued Bean for wrongful death. These cases were subsequently consolidated.

In May 2014, Bean filed a third-party complaint against SMC and other third-party defendants, including Suzuki Motor America Inc. (“SMAI”). Bean’s claims against the Suzuki entities sought indemnity or contribution based on products liability, sounding in both negligence and strict liability theories. Bean subsequently amended this complaint, most recently in October 2014. SMC was properly served in December 2014, and filed its answer in January 2015. The district court dismissed Bean’s claims against the other third-party defendants, leaving SMC the only remaining third-party defendant in this case..

The district court issued a series of case management orders setting out discovery deadlines. The final deadline for Bean’s initial designation of experts was October 20, 2014. SMC then had until November 21, 2014, to designate its experts, and Bean had until December 5, 2014, to designate rebuttal experts. Bean timely designated Edward Fritsch as its mechanical engineering expert in October 2014, but did not designate a rebuttal expert. SMC itself never formally designated an expert; instead, it adopted SMAI’s timely expert designation when it served its initial disclosures in January 2015.

Third-party discovery continued until August 1, 2015. On July 9, 2015, SMC moved for summary judgment, and moved to strike Fritsch’s expert report and exclude his -testimony. In its response to SMC’s motion to strike, Bean included a “supplemental” report by Fritsch dated July 15, 2015. In its reply, SMC asked that the court also exclude this second report as untimely. In September 2015, Bean settled with Barhanovich’s estate. That same month, C.F. Bean, LLC pled guilty to one count of misconduct or neglect of ship officers under 18 U.S.C. § 1115 in a criminal proceeding related to the Barhanovich accident. United States v. C.F. Bean, LLC, No. 1:15-cr-71 (S.D. Miss. Nov. 3, 2015). On November 5, 2015, Bean filed a “motion in limine” seeking to conduct additional testing on the SMC motor- involved in the accident. The district court understood Bean’s motion as a request to reopen discovery.

On November 16,2015, the district court granted SMC’s motion to strike both of Fritsch’s expert reports and exclude his testimony at trial. The court also denied Bean’s motion for additional testing. Bean moved for reconsideration of these decisions, but the district court denied that motion. The court then granted summary judgment against Bean, concluding that Bean could not establish a genuine issue of material fact regarding its claims against SMC without expert testimony. This appeal followed.

II. STANDARD OF REVIEW

This case arose in admiralty. Therefore, the district court had jurisdiction under 28 U.S.C. § 1333. We have jurisdiction to review the district court’s final judgment under 28 U.S.C. § 1291. This final judgment incorporated the district court’s exclusion of Bean’s expert reports and testimony, denial of Bean’s motion for additional testing of the motor, and grant of summary judgment against Bean.

We review a district court’s exclusion of expert testimony for abuse of discretion. Sierra Club, Lone Star Chapter v. Cedar Point Oil Co., 73 F.3d 546, 569 (5th Cir. 1996). We give the district court “wide latitude in determining the admissibility of expert testimony” under Federal Rule of Evidence 702, and its “decision will not be disturbed on appeal unless ‘manifestly erroneous.’” Watkins v. Telsmith, Inc., 121 F.3d 984, 988 (5th Cir. 1997) (quoting Eiland v. Westinghoúse Elec. Corp., 58 F.3d 176, 180 (5th Cir. 1995)). Additionally, we consider four factors to determine whether a district court abused its discretion by excluding expert testimony as untimely: “(1) the explanation for the failure to identify the witness; (2) the importance of the testimony; (3) potential prejudice in allowing the testimony; and (4) the availability of a continuance to cure such prejudice.” Geiserman v. MacDonald, 893 F.2d 787, 791 (5th Cir. 1990).

We review de novo a district court’s grant of summary judgment. Juino v. Livingston Parish Fire Dist. No. 5, 717 F.3d 431, 433 (5th Cir. 2013). Just as the district court must, we view “all facts and evidence in the light most favorable to the non-moving party.” Id. Summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A genuine dispute of material fact exists when the “evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Royal v. CCC & R Tres Arboles, L.L.C., 736 F.3d 396, 400 (5th Cir. 2013) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)).

Finally, we review a district court’s decision not to reopen discovery for abuse of discretion] Marathon Fin. Ins., RRG v. Ford Motor Co., 591 F.3d 458, 469 (5th Cir. 2009). Our standard of review in these cases “poses a high bar; a district court’s discretion in discovery matters will not be disturbed ordinarily unless there are unusual circumstances showing a clear abuse.” Id. (quoting Seiferth v. Helicopteros Atuneros, Inc., 472 F.3d 266, 276 (5th Cir. 2006)).

III. DISCUSSION

We affirm the district court’s exclusion of Fritsch’s first expert report. However, we reverse the district court’s exclusion of Fritsch’s second expert report, notwithstanding its untimeliness. Because the district court ruled that Bean could not defeat summary judgment without expert testimony, -the district court’s grant of summary judgment is also reversed. Finally, we affirm the district court’s denial of Bean’s motion to conduct additional testing on the motor. On remand, however, we encourage the district court to consider whether to reopen discovery to allow (1) SMC to adequately respond to Fritsch’s second expert report and (2) Bean to test the motor. The district court should also consider lesser sanctions for Bean’s untimeliness, such as costs and attorneys’ fees for SMC’s additional discovery.

A. Bean’s First Expert Report

The district court excluded Bean’s first expert report because it found the report insufficient to support Bean’s products liability claims against SMC. Specifically, the district court found that Fritsch’s opinions in his initial report “ma[d]e no substantive reference to the design or warnings associated with the Suzuki motor.” See Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 591, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993) (explaining that Federal Rule of Evidence 702 requires expert reports to be relevant to facts at issue). Bean argues that the first report did address the defective nature of SCM’s motor, and points to where the original report stated: “But for a structural failure of the swivel bracket of the Suzuki outboard motor on Mr. Barhanovich’s boat, the motor and its spinning propeller would not have moved into the boat’s occupant space and would not have injured or killed Barhano-vich.” This opinion merely stated the obvious: that the swivel bracket broke and Barhanovich died as a result. Moreover, the first report—the purpose of which was “to estimate the boat impact speed that would have been required to produce the type of motor damage which occurred in the mishap”—did not relate the motor’s defective nature to the data discussed therein. At best, Bean’s defect claim was “connected to existing data only by the ipse dixit of the expert.” Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997). A district court does not abuse its discretion by excluding this kind of conclusory opinion. See, e.g., Boyd v. State Farm Ins., 158 F.3d 326, 331 (5th Cir. 1998) (excluding an expert’s opinion that “offers nothing more than [an] unsupported conclusion”). Therefore, we affirm the district court’s exclusion of Bean’s first expert report.

B. Bean’s Second Expert Report

The district court excluded Bean’s second expert report as untimely. This second report, also prepared by Fritsch, is dated July' 15, 2015. It was attached as an exhibit to Bean’s opposition to SMC’s motion to strike the first expert report. At the earliest, Bean submitted this report over seven months after the deadline for designating rebuttal experts, and just two weeks before the close of discovery for third-party claims. Bean raises two arguments for admitting this second report. First, Bean argues that the report was merely supplementary, and therefore timely under Federal Rule of Civil Procedure 26(e). Second, Bean argues that even if the report was not supplementary, the district court abused its discretion by excluding it. We address both arguments in turn.

The district court correctly held that Bean’s second expert report- did not merely supplement the first. Federal Rule of Civil Procedure 26(e) requires parties to supplement previous disclosures if they learn that such disclosures are incorrect or incomplete. This duty extends to information included in expert reports and given during expert depositions. Fed. R. Civ. P. 26(e)(2). Parties must make these supplemental expert disclosures by the time Rule 26(a)(3) pretrial disclosures are due. Id. However, supplemental “disclosures are not intended to provide an extension of the deadline by which a party must deliver the lion’s share of its expert information.” Sierra Club, 73 F.3d at 571. Initial expert disclosures must be “full and complete.” S.D. Miss. Civ. R. 26(a)(2).

' Bean argues that Fritsch’s opinions in the second report “merely expanded on” his earlier opinion that the motor spun up into the boat due to a structural failure of the swivel bracket. If so, the first report was far from “full and complete”: it did not even mention whether the motor suffered from any kind of defect. The second report, by contrast,, clearly stated that SCM “knew or should have known” of the motor’s “potential hazard” and “fail[ed] to provide adequate warnings”; that the motor was “an unreasonably dangerous product”; and that “a design change was both technologically and economically feasible.” These opinions clearly relate to Bean’s negligence, failure to warn, and design defect theories.

Fritsch based the conclusions in his second report primarily on documents and deposition testimony provided by SMC. These materials described “driftwood tests” conducted by SMC in 2003. In these tests, an SMC motor would hit a stationary object (driftwood) at various speeds up to fifty kilometers per hour (thirty-one miles per hour). At Tower speeds, a shock-absorbing mechanism blunted the force of impact, This mechanism (involving rods, cylinders, and a piston) allowed the motor to safely rotate backwards to a certain degree, without breaking the swivel bracket. Under some conditions, however, the swivel bracket did break or crack at higher speeds. These tests, as well as other technical reports produced by SMC, suggested that the swivel bracket could break at speeds above thirty-one miles per hour. Beyond this point, the shock-absorbing mechanism could be exhausted, meaning that the motor had rotated backwards to its maximum safe extent. SMC’s deposition also revealed another accident in which a Suzuki motor hit a stationary object, rotated up into the boat, and killed an occupant. Fritsch stated that there was an economically feasible alternative that would lessen this hazard: to thicken the swivel bracket, which SMC did for later models that featured greater horsepower. Fritsch also revised his estimate of how fast Barhano-vich’s boat had to be travelling in order to produce the catastrophic break, from twénty-eight miles per hour (determined experimentally as described in the first report) to thirty-five miles per hour (determined using SMC’s data as well as his own experimental results). Apart from this revision to the boat’s speed, the analysis and opinions in the second report were largely new rather than supplementary. For this reason, the district court did not err in finding that the second report was not supplementary under Federal Rule of Civil Procedure 26(e). Thus, Bean’s second expert report was in fact untimely.

The district court’s choice of sanction, however, constituted an abuse of discretion. When a party fails to disclose information required by Federal Rule of Civil Procedure 26(a), “the party is not allowed to use that information ... to supply evidence on a motion ... or at a trial, unless the failure was substantially justified or is harmless.” Fed. R. Civ. P. 37(c)(1). The district court may order alternative sanctions as well, such as awarding costs and attorneys’ fees to the other parties. Fed. R. Civ. P. 37(c)(l)(A)-(C). We consider four factors to determine whether a district court abused its discretion by excluding testimony as a sanction for violation of a discovery order: “(1) the explanation for the failure to identify the witness; (2) the importance of the testimony; (3) potential prejudice in allowing the testimony; and (4) the availability of a continuance to cure such prejudice.” Geiserman, 893 F.2d at 791. Under the particular circumstances of this ease, these factors suggest that the district court abused its discretion by excluding Bean’s second expert report for untimeliness.

Under the first factor, Bean provides a reasonable explanation for failing to disclose Fritsch’s opinions by the expert disclosure deadline. The district court, and SMC on appeal, focused on why Bean failed to request an extension of the expert disclosure deadline. Bean presents no answer to this question. Instead, Bean focuses on why it could not have submitted the second report by the expert disclosure deadline. Bean explains that it could not obtain discovery from SMC until SMC answered the third-party complaint in January 2015, well beyond the deadline for expert disclosures. The driftwood tests, technical reports, and deposition testimony—on which Fritsch based his second report—were all unavailable in October 2014, when Bean’s initial expert disclosures were due.

Bean’s explanation for its delay in disclosing Fritsch’s defect opinions is reasonable. Parties are not generally expected to disclose expert opinions before discovery commences. Indeed, Fritsch based his second report in part on information—particularly the driftwood tests—that was not available to him before discovery. So we cannot say that Fritsch acted unreasonably by waiting to form opinions about the defective nature of SMC’s motor until receiving discovery from SMC. In addition, the district court made no finding of bad faith on Bean’s part. Cf. Verzwyvelt v. St. Paul Fire & Marine Ins., 204 F.R.D. 309, 311 (W.D. La. 2001) (holding that exclusion was inappropriate in part because defendants showed “a lack of organization” but “no bad faith” in failure to timely disclose expert report). Neither has Bean repeatedly caused delay in this litigation. Cf. Barrett v. Atl. Richfield Co., 95 F.3d 375, 380-81 (5th Cir. 1996) (dilatory tactics weighed against relief on appeal for proponent of excluded evidence).

To be sure, Bean’s failure to request an extension of the expert disclosure deadline does injure its argument. See, e.g., Metro Ford Truck Sales, Inc. v. Ford Motor Co., 145 F.3d 320, 324 (5th Cir. 1998) (failure to request an extension of expert disclosure deadline in trial court weighed against proponent of excluded evidence on appeal); Barrett, 95 F.3d at 381 (same). In Bean’s defense, however, it did timely designate Fritsch as an expert; the first report was simply incomplete. Cf. Geiserman, 893 F.2d at 789 (appellant did not designate any expert witness until after deadline). On balance, Bean’s explanation weighs in favor of reversing the district court.

Under the second factor, Bean’s second expert report and Fritsch’s testimony were important to Bean’s case. In fact, from the district court’s perspective, expert testimony in this case was critical: the court granted summary judgment because Bean lacked admissible expert testimony. We have reversed the district court in several other cases where the excluded testimony is similarly essential. See, e.g., Betzel v. State Farm Lloyds, 480 F.3d 704, 707-08 (5th Cir. 2007); EEOC v. Gen. Dynamics Corp., 999 F.2d 113, 116 (5th Cir. 1993); Murphy v. Magnolia Elec. Power Ass’n, 639 F.2d 232, 235 (5th Cir. 1981). But see Geiserman, 893 F.2d at 791 (noting that the significance of the excluded testimony was “so much the more reason to be sure its introduction was properly grounded”).

This case differs from others where we upheld exclusion of a party’s expert in part because that party could call other experts to testify on a particular issue. For example, in Metro Ford Truck Sales, we noted that only one of the appellant’s expert witnesses was excluded, and the appellant in that case did not even claim that exclusion “impacted its summary judgment positions.” 145 F.3d at 324 n.6. Likewise, in 1488, Inc. v. Philsec Investment Corp., 939 F.2d 1281 (5th Cir. 1991), we observed that “[e]nforcement of the district court’s [scheduling] order did not leave the defendants. without an expert witness on the issue of valuation.” Id. at 1288. Here, by contrast, Fritsch was Bean’s only expert who could testify about a defect, and his testimony was crucial to Bean’s case. The importance of Fritsch’s report and testimony weigh in favor of reversing the district court.

Under the third factor, admitting Bean’s second expert report and allowing Fritsch to testify would prejudice SMC. Bean submitted this report near the end of the discovery period, leaving SMC little opportunity to examine and rebut Fritsch’s new opinions. To properly rebut and re-depose Fritsch would cost substantial time and expense to SMC. On the other hand, Bean submitted its second expert report before the discovery deadline, and several months before trial was scheduled. This was not a case of one party ambushing the other with undisclosed expert opinions at trial. Cf. Miksis v. Howard, 106 F.3d 754, 760 (7th Cir. 1997) (striking expert disclosures submitted three days before trial). Nevertheless, the prejudice to SMC weighs against reversing the district court.

' Under the fourth factor, a continuance would have sufficed to cure prejudice to SMC. This Court has repeatedly stated that “a continuance is the ‘preferred means of dealing with a party’s attempt to designate a witness out of time.’ ” Campbell v. Keystone Aerial Surveys, Inc., 138 F.3d 996, 1001 (5th Cir. 1998) (quoting Bradley v. United States, 866 F.2d 120, 127 n.11 (5th Cir. 1989)). SMC itself requested a continuance as an alternative to excluding Bean’s second expert report. A continuance would allow SMC to produce a rebuttal report and re-depose Fritsch. The suitability of a continuance to cure prejudice to SMC weighs in favor of reversing the district court.

Notwithstanding the wide latitude we give district courts in deciding discovery matters, excluding Fritsch’s second report and his testimony was not the appropriate sanction in this case. Bean’s explanation for not submitting a complete expert report by the disclosure deadline is reasonable. Although Bean cannot explain why it did not move to extend the deadline, there is no indication of bad faith on Bean’s part. The expert report and testimony were essential to Bean’s case. And a continuance would cure much of the prejudice to SMC from Bean’s late disclosure. On these facts, excluding critical expert testimony was disproportionately harsh for what amounts to failure to request an extension of the expert disclosure deadline. More appropriate sanctions include allowing SMC to re-depose and rebut Fritsch, and awarding SMC costs and attorneys’ fees for this additional discovery.

C. Summary Judgment

The district court granted summary judgment against Bean after excluding Fritsch’s expert reports and testimony. In fact, Bean’s lack of admissible expert testimony was the ground on which the court granted summary judgment. Specifically, the court found that “the nature of Bean’s claim against Suzuki ... implicates scientific, technical, or other specialized knowledge, and that no reasonable trier of fact could find for Bean and Archer Western on their products liability claim against Suzuki in the absence of such expert testimony.” Because we reverse the district court’s exclusion of Fritsch’s second expert report and testimony, we must also reverse the court’s summary judgment against Bean. We need not address Bean’s other arguments for reversal of summary judgment.

D. Bean’s Motion for Additional Testing of the Motor

Finally, the district court denied Bean’s “motion in limine” for additional testing of Barhanovich’s motor. The district court understood Bean’s request as a motion to reopen discovery. Bean filed this motion on November 5, 2015, at which time the motor was in the custody of the U.S. Coast Guard. The Coast Guard had taken control of Barhanovich’s boat shortly after the accident. Bean argues that it repeatedly requested access to test the motor, which the Coast Guard repeatedly denied due to the parallel criminal investigation. That investigation ended on November 3, 2015, when judgment was entered following C.F. Bean, LLC’s guilty plea. Judgment in a Criminal Case, C.F. Bean, LLC (No. l:15-cr-71). Bean seeks to test the strength of the subject swivel bracket to help determine whether.it suffered from a design or manufacturing defect.

Bean did not make this .request until several months after the close of discovery, and only a few weeks before the trial was scheduled to begin. Although it may have been futile for Bean to make this request while the criminal investigation was ongoing, Bean could have requested a stay of its civil case instead. Under these circumstances, the district court did not abuse its discretion by denying Bean’s eleventh-hour motion. See, e.g., Pustejovsky v. Pliva, Inc., 623 F.3d 271, 278 (5th Cir. 2010) (affirming district court’s denial of request to re-depose a witness where the request was made after the court granted summary judgment). On remand, however, the district court should consider whether to reopen discovery for the limited purpose of allowing (1) SMC to rebut and re-depose Fritsch - and (2) Bean to test the motor. The district court should also consider awarding costs and attorneys’ fees to SMC for its additional discovery.

IY. CONCLUSION

For the foregoing reasons, we AFFIRM in part, REVERSE in part, and REMAND for further proceedings.

JONES, Circuit Judge,

dissenting:

I respectfully dissent from the panel majority’s holding (and only this holding) that the district court abused its discretion by excluding Bean’s untimely second expert report. The panel majority states the correct legal standards but, in my opinion, misapplies them to the case at hand. The upshot of the majority’s reasoning is to revise and extend the district court’s already generous pretrial discovery order.

Placing the court’s exclusion order in the litigation timeline is critical. On September 16, 2012, Mark Barhanovich died after his boat struck a dredge pipe operated by Bean and the boat’s Suzuki motor catapulted into the boat and hit'him. Six months later, Bean filed a limitation-of-liability action, and Barhanovich’s estate sued Bean. After consolidating the cases, the district court granted Bean leave on April 23, 2014, to file a third-party complaint against Suzuki Motor Corporation (SMC). Later in 2014, Bean filed an amended third-party complaint against SMC. Bean’s complaint demanded indemnification from SMC based on a theory of products liability. On January 2, 2015, SMC filed its answer.

The case was initially set for trial in August 2015, but the district court granted the parties’ requests for extension of discovery-related deadlines six different times, which delayed both the general discovery deadline and the trial date. The court entered its initial case management order on October 16, 2013, scheduling the case for trial on August 3, 2015. On the parties’ requests, it then amended the order on July 17, 2014; August 25, 2014; December 11, 2014; February 4, 2015; March 18, 2015; and July 10, 2015—each time extending discovery-related deadlines. As a result, the overall discovery deadline was August 1, 2015, and the trial was set to occur during a three-week term of court beginning November 30, 2015. Bean did not settle with the Barhanovich family until September 2015.

In the meantime, Bean needed experts to prove up its products-liability claims against SMC. After the district court granted the parties’ requests for extensions of the expert-designation deadlines, Bean’s initial expert-designation deadline was October 20, 2014, and its rebuttal expert-designation deadline was December 5, 2014. Bean timely designated Edward Fritsch as its expert; his report largely took to task Barhanovich for piloting his boat at an excessive speed. As the panel majority note, Fritsch’s initial report “was far from ‘full and complete’ ” and “did not even mention whether the motor suffered from any kind of defect”—the core of a products-liability case. Despite the inadequacy of Fritsch’s initial report, and despite the district court’s demonstrated willingness to extend - expert-designation deadlines, Bean sought no extension of the October and December deadlines.

Then, between July 15 and 30, 2015— two and a half years after Bean initiated this suit, nine months after Bean’s expert-designation deadlines passed, and mere days before the August 1 discovery deadline—Bean made its move. On July 30, Bean filed a second report by Fritsch dated July 15 in opposition to SMC’s motion for summary judgment. As the panel majority agree, Fritsch’s second report contained “largely new” opinions that “clearly relate to Bean’s negligence, failure to warn, and design defect theories.” The distinct court struck this report because it was not filed by Bean’s expert-designation deadlines, “and despite seeking and receiving numerous extensions of other deadlines in this case, Bean has never requested an extension of the deadline for submission of rebuttal experts.” The district court emphasized that “Bean was well aware of the nature of its claims against Suzuki long before these deadlines expired,” and yet, “Bean has proffered no good explanation for why it failed to timely request that its expert disclosure deadline be continued, or that the deadline for submitting rebuttal experts be extended.” In light of Bean’s failure to explain its errors, the district court declined to permit Bean’s “ambush” of SMC and struck the report.

The question presented here is whether the district court’s exclusion of Fritsch’s untimely second report was “a clear abuse of discretion.” Geiserman v. MacDonald, 893 F.2d 787, 790 (5th Cir. 1990). The answer to this question turns in large part on Bean’s explanation for its failure timely to disclose Fritsch’s second report. See id. at 791. In my view, neither Bean’s proffered explanation nor the record can support the holding that the district court clearly abused its discretion.

Bean’s sole excuse for its untimely submission is a red herring. Bean asserts that it did not obtain the discovery documents that undergird Fritsch’s second report until several months after the expert-designation deadlines passed, and without those documents, it was impossible to offer an expert report concerning the Suzuki motor. That conclusion does not follow from Bean’s premise. At most, its premise shows only that at the time of its initial deadlines, Bean could not offer Fritsch’s second report. The documents’ initial unavailability, however, says nothing about Bean’s subsequent delay in disclosing a report based on later-acquired documents or Bean’s failure to request deadline extensions. Bean thus ignores the central issue in this case, which is whether the district court abused its discretion by excluding Fritsch’s second report, not at the time of Bean’s initial expert-designation deadlines but instead after a subsequent nine-month delay.

On this question, three reasons can be elicited from the record in support of the district court’s discretionary decision to exclude the second report. To begin, even viewed in its most favorable light, Bean’s argument concerning the unavailability of SMC’s documents seems disingenuous. Bean had obtained the SMC documents on which Fritsch’s second report was based nearly four months before it produced the report to SMC and the court. Bean’s opening brief admits that “Suzuki ... provide[d] full responses [to Bean’s discovery requests] ... [on] April 6, 2015.” Bean did not file Fritsch’s second report until July 30, 2015. The four-month time gap speaks for itself.

Moreover, the relationship between the documents disclosed on April 6 and the report filed on July 30 is unmistakable. Fritsch’s report emphasizes that “[t]he principal purpose of this report is .to comment on the Suzuki documents that have been produced in the discovery process since October 2014.” He compared his current analysis to his analysis “[p]rior to Suzuki’s production of its design and test documents.” Fritsch highlighted at least six documents that he found particularly important to his analysis:

• Limited Warranty for 2001 and Later Four Stroke Models, which “specifically lists striking submerged objects as one of the situations not covered by the warranty.”
• Test Standard for Running on Driftwood, which “describes a test protocol by which a Suzuki motor, mounted on a test boat, is subjected to an impact with a moored, floating wooden log of a specified standard length and diameter.”
• Test report SES T 8561, which “describes a series of driftwood tests conducted on the DF225/250 outboard motor during the period from July 1 to August 1, 2003.”
• A “technical reporting memo,” which “indicates that the shock blow setting was 515.4 kgf/cm2 (7,330 psi).”
• Engineering Change Notice 93J-069, which Fritsch described as “[a] document of significant utility.”
• Engineering Change Notice 93J-0668, which Fritsch described as “[ajnother document of interest” and “notable.”

Finally, after surveying the documents, the report transitions to a heading entitled “Calculations Using Information from Suzuki’s Documents.” That section emphasizes the importance of these documents:

The documents produced by Suzuki provide a wealth of dimensional information on the DF225 motor' as well as data on the performance of that motor in the driftwood impact tests conducted by Suzuki in 2003. That dimensional information and test data have provided me with inputs for. a variety of calculations that are relevant to quantify general performance characteristics of the middle unit of the DF225 motor and the probable behavior of that unit in the subject accident. On the pages to follow, a series of seven figures (Figures 6 through 12) are presented to summarize the results of those calculations.

In short, Fritsch’s second report was based on documents that Bean acquired nearly four months before it filed Fritsch’s report with the district court.

It is thus hard to take seriously Bean’s argument that it could not disclose a report without the necessary supporting documents, when even after receiving the crucial documents, Bean waited nearly four months, up to the eve of the close of discovery, to file the report with the court.

Second, Bean never sought to extend its expert-designation deadlines and, as the panel majority concede, Bean “presents no answer to [the] question” why it failed to do so. Bean’s failure to request deadline extensions is curious; Bean clearly knew before the expiration of the deadlines that Fritsch’s initial expert report did not tackle defects in the Suzuki motor or mounting. If for no other reason, Bean knew this because about á month before Bean’s deadline for identifying a rebuttal expert, SMC’s expert’s report stated: “I find no engineering opinions in Fritsch’s report which are critical of the design or construction of the Suzuki outboard motor.” In light of Bean’s obvious failure initially to produce expert evidence against SMC, the district court explained that “Bean has proffered no good explanation for why it failed to timely request that its expert disclosure deadline be continued, or that the deadline for submitting rebuttal experts be extended.” Even in its briefing to this court, Bean provides no such explanation. Its failure to do so surely does not weigh- in favor of finding that the district court clearly abused its discretion.

'And third, that the district court had accommodated the parties and granted numerous extensions of discovery deadlines makes an abuse-of-discretion finding all the more unsupportable. This court treats as paramount “a trial court’s need to control its docket.” Hamburger v. State Farm Mut. Auto. Ins., 361 F.3d 875, 884 (5th Cir. 2004). Indeed, “[a]dherence to ... scheduling orders [is] critical in maintaining the integrity of judicial proceedings,” and “we are loath to interfere with the court’s enforcement of that order” where the court has not abused its discretion. 1488, Inc. v. Philsec Inv. Corp., 939 F.2d 1281, 1289 (5th Cir. 1991). This case should be no exception. As the district court recounted, it had granted at least six prior motions to extend various deadlines, and it had been “liberal in granting the parties’ prior requests for extensions of deadlines.” Under these circumstances, we should hardly fault the district .court for putting its foot down “less than one month before trial” and “declining] to again amend the Case Management Order and reopen expert testimony.” .The district court made a quintessential discretionary decision to control its docket to which this court must defer.

In light of Bean’s flimsy excuse and a holistic review of the record, I cannot agree that “Bean’s explanation weighs in favor of reversing the district court.” Bean’s proffered explanation goes only to the state of affairs at the time its disclosure deadlines passed, but it does not explain Bean’s failure to seek deadline extensions and otherwise timely disclose Fritsch’s second report. A district court that has accommodated litigants at every turn and declines to do so at the eleventh hour when a litigant has not sought a similar accommodation or disclosed an expert report within a reasonable period of time cannot be said to have clearly abused its discretion. I respectfully dissent.

      . This is not to suggest that Fritsch could have provided a defect opinion in the first report. At the time, he knew little more than the mere fact of the accident, and his experiment failed to replicate the kind of catastrophic break that occurred in Barhanovich’s swivel bracket. Fritsch had not been able to test the subject motor and did not yet have access to SCM’s "driftwood tests” (discussed below). Under these evidentiary constraints, it would have been difficult for Fritsch to establish either negligence or an unreasonably dangerous defect—of design, manufacturing, or failure to warn. See generally Restatement (Second) of Torts § 402A (Am. Law Inst. 1975).


source: Caselaw Access Project

author: GREGG COSTA, Circuit Judge:

license: Public Domain

text:
    Amarsaikhan TSOLMON, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.
    No. 15-20609
    United States Court of Appeals, Fifth Circuit.
    Filed November 7, 2016

      Gregory Romanovsky, Romanovsky Law Offices, Boston, MA, for Plaintiff-Appellant.
    Steve I. Frank, U.S. Department of Justice, Civil Division, Appellate Section, Washington, DC, Fred Turner Hinrichs, U.S. Attorney’s Office, Houston, TX, for Defendant-Appellee.
    Before KING, SMITH, and COSTA, Circuit Judges.
   GREGG COSTA, Circuit Judge:

The Federal Tort Claims Act (FTCA) waives sovereign immunity for many torts committed by federal employees. The statute’s “discretionary function” exception preserves the federal government’s immunity, however, when an employee’s acts involve the exercise of judgment or choice. United States v. Gaubert, 499 U.S. 315, 322, 111 S.Ct. 1267, 113 L.Ed.2d 335 (1991). We must decide whether an investigation into someone’s immigration status is considered discretionary when that investigation culminates in a detainment mandated by agency policy-

I.

Late one Friday evening, Amarsaikhan Tsolmon was riding on a Greyhound bus to visit his mother in northern Louisiana. The bus was stopped in Lake Charles, Louisiana by Customs and Border Protection (CBP) agents Robert Wilson and Michael Lewandowski, who boarded the bus to perform a routine check of the passengers’ immigration status.

When Wilson reached Tsolmon’s seat, Tsolmon stated that he was a “Temporary Visitor.” This was correct, as Tsolmon is a Mongolian citizen lawfully in the United States on an H-1B temporary worker visa. But Tsolmon did not have a physical copy of his immigration papers, despite a law requiring registered aliens eighteen or over to cany identifying documents. 8 U.S.C. § 1304(e). Instead, he could only produce a Texas identification card.

After being unable to verify Tsolmon’s status through CBP’s New Orleans dispatch, Wilson escorted him off the bus to continue the investigation. While Wilson contacted CBP to run additional searches, Tsolmon called his roommate in Houston to try to get more identifying information on his immigration status. The roommate provided Wilson information over the phone and emailed Tsolmon a photo of his 1-94 form and Mongolian passport. But for reasons disputed by the parties Wilson was still unable to verify Tsolmon’s status. The records check from other CBP offices incorrectly indicated that Tsolmon was an F-2 visa overstay, with no mention of his H-1B temporary worker visa.

With no information validating Tsol-mon’s legal status, Wilson arrested Tsol-mon, took him to the Lake Charles CBP station, and conducted further computer searches to find a record of Tsolmon’s visa. Wilson also contacted his Supervisory Patrol Agent Daniel Stanley, who recommended continuing the computer searches and contacting Tsolmon’s relatives to see if anyone had identifying numbers or documents on Tsolmon’s status. Tsolmon and Wilson spoke on the phone with Tsolmon’s mother, but Wilson was still''unable to locate records verifying Tsolmon’s claimed status. After several hours of searching, Wilson decided to process Tsolmon as a nonimmigrant overstay and issued him a Notice to Appear on the charge that Tsol-mon was in violation of his F-2 visa—the only documentation Wilson uncovered through his record search at the time.

Tsolmon was taken to the Southwest Louisiana Correctional Center early Saturday morning, pursuant to CBP policy requiring the detainment of anyone who is issued a Notice to Appear. Tsolmon asserts that at the Correctional Center he was subjected to a medical exam and tuberculosis test, confined in an overcrowded cell without access to clean drinking water, not given access to a phone, and not given paperwork documenting his detainment.

On Sunday, Stanley arrived at the CBP station and conducted a more extensive search for all persons with the last name Tsolmon in a database that Wilson had previously searched. After a few hours, Stanley at last found a record verifying that Tsolmon held a valid H-1B visa. Later that evening, Tsolmon was taken to the Lake Charles CBP station to be released. Soon after, his brother arrived from Houston and drove him home.

Tsolmon filed an administrative claim with CBP alleging that the incident violated his Fourth Amendment rights and constituted false arrest, false imprisonment, intentional infliction of emotional distress, and negligent infliction of emotional distress. After CBP denied his claim, Tsol-mon filed-the present suit. He originally asserted FTCA claims against the government and Bivens claims against the individuals involved in his detention.

His amended complaint asserts only two causes of action against the United States under the FTCA. The first alleges false arrest and false imprisonment under Louisiana tort law based on his “forty-eight hour arrest, detention and imprisonment ... [that] was unlawful because it was done without a warrant and without probable cause” in violation of the Fourth Amendment and 8 U.S.C. § 1347(b). The second alleges negligence under Louisiana law, -based on allegations that both Wilson and Stanley were “negligent in not verifying Plaintiffs immigration status for almost two days despite having the necessary information to do so.” The government moved to dismiss under Rule 12(b)(1) for lack of subject matter jurisdiction.

The district court granted the government’s motion, concluding that (1) the alleged conduct falls within the discretionary function exception to the FTCA’s waiver of sovereign immunity, 28 U.S.C. § 2680(a), and (2) that the law enforcement proviso, 28 U.S.C. § 2680(h), does not apply. Tsol-mon appeals only the district court’s decision that the discretionary function exception applies.

II.

We review de novo a dismissal for lack of subject matter jurisdiction. Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001). In deciding such a motion, courts can consider: “(1) the complaint alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the court’s resolution of disputed facts.” Id. The district court considered the well-pleaded fact from the amended complaint, undisputed facts in the record, and disputed facts viewed in the light most favorable to Tsol-mon; it did not resolve disputed facts.

III.

The FTCA is a limited waiver of sovereign immunity .that allows plaintiffs to bring state law tort actions against the federal government. 28 U.S.C. § 2674. Courts consider whether the FTCA applies via a Rule 12(b)(1) motion, because whether the government has waived its sovereign immunity goes to the court’s subject matter jurisdiction. Willoughby v. United States ex rel. U.S. Dep’t of the Army, 730 F.3d 476, 479 (5th Cir. 2013); see also 28 U.S.C. § 1346(b)(1). Waiver of sovereign immunity is strictly construed, meaning uncertainty is decided in favor of the government. Willoughby, 730 F.3d at 480.

The discretionary function exception is one of several limitations on the FTCA’s waiver. The exception preserves the government’s sovereign immunity when the plaintiffs claim is based on an act by a government employee that falls within that employee’s discretionary authority. 28 U.S.C. § 2680(a). Whether an official’s actions fall within the exception involves two inquiries: (1) “the conduct must be a ‘matter of choice for the acting employee,”’ Spoils v. United States, 613 F.3d 559, 567 (5th Cir, 2010) (quoting Berkovitz ex rel. Berkovitz v. United States, 486 U.S. 531, 536, 108 S.Ct. 1954, 100 L.Ed.2d 531 (1988)); and (2) “the judgment [must be] of the kind that the discretionary function exception was designed to shield,’ ” id. at 568 (quoting United States v. Gaubert, 499 U.S. 315, 322-23, 111 S.Ct. 1267, 113 L.Ed.2d 335 (1991)), The plaintiff has the burden of establishing that the discretionary function exception does not apply. Spotts, 613 F.3d at 569.

Tsolmon appeals only the district court’s determination that the challenged conduct involved judgment or choice. He invokes case law recognizing that if “a federal statute, regulation, or policy specifically prescribes a course of action for an employee to follow,” then the government employee does not truly have a choice (or at least a choice that the law will recognize as falling within , the discretionary function exception). Berkovitz, 486 U.S. at 536, 108 S.Ct. 1954. One example a court has recognized is when a government agent lies or mis-characterizes evidence in a criminal complaint, as the Federal Rules of Criminal Procedure require allegations in a criminal complaint to be sworn as true. Camacho v. Cannella, 2012 WL 3719749, at *10 (W.D. Tex, Aug. 27, 2012) (citing Fed. R. Crim. P. 3). Tsolmon argues that his case also involves a mándate that eliminated the officer’s discretion, citing the CBP policy requiring officers to detain all aliens issued a Notice to Appear. Although the allegedly negligent actions of the officers led to the issuance of the Notice to Appear, Tsolmon argues that the decision to detain him after that Notice was-issued was nondis-cretionary because CBP policy required it.

But the district court determined that the conduct at issue is; “the conclusions the CBP agents drew from their investigation of Tsolmon’s immigration status and the basis and timing of Agent Wilson’s decision to issue [a Notice to Appear] charging Tsolmon with being an alien illegally present in the United States, which [ ] resulted in Tsolmon’s-arrest and [] incarceration.” The court based that conclusion largely on the amended complaint, which focuses on the steps- the officers took to try to verify Tsolmon’s immigration status.

The district court’s framing of the relevant conduct is more consistent with Tsol-mon’s allegations. The amended complaint speaks at length about Wilson’s investigation into Tsolmon’s immigration status, but never mentions the CBP policy he now asserts is at issue. Nor did Tsolmon raise the CBP policy , in his administrative complaint. See 28 U.S.C. § 2675 (requiring administrative. exhaustion for FTCA claims). Tsolmon’s false arrest claim also demonstrates the difficulty of his attempt to separate the policy from the investigative steps. The policy standing alone did not mandate Tsolmon’s detention; the preliminary determination' to issue a Notice to Appear was a crucial step in the chain of events. We thus evaluate the application of the discretionary function exception with respect to the conduct challenged in Tsol-mon’s amended complaint, not in the eon-text of a challenge to the CBP policy on which he now focuses.

Having identified the relevant allegations as Wilson’s investigation into Tsol-mon’s immigration status and decision to issue the Notice to Appear, the remaining analysis is straightforward. “[Decisions on when, where, and how to investigate and whether to prosecute” have long been found to be core examples of discretionary conduct for which the United States maintains its immunity. Sutton v. United States, 819 F.2d 1289, 1294-95 (5th Cir. 1987). We have applied that not just to officials enforcing the criminal laws, but also to officials enforcing the immigration laws. Nguyen v. United States, 2003 WL 1922969, at *1-2 (5th Cir. Mar. 31, 2003). The investigation into Tsolmon’s status demonstrates the numerous choices involved in conducting such an inquiry. Wilson had to decide: whether to further investigate Tsolmon after discovering he did not have his immigration papers; which searches to run in the CBP database; with whom to communicate to try to verify Tsolmon’s status; and whether to ultimately issue a Notice to Appear when he was unable to verify Tsolmon’s status.

Tsolmon relies on a statute to avoid a holding that the agents’ conduct falls within the discretionary function exception. This time making an argument that is contained in his pleadings, he contends that the officers exceeded their authority under 8 U.S.C. § 1357(a)(2) when they detained him. That statute provides that to make an arrest without a warrant, an officer must: (1) have “reason to believe” that a person is in the United States in violation of immigration law or regulation and (2) think that the person “is likely to escape before a warrant can be obtained for his arrest.” Id. Tsolmon argues that Wilson did not have reason to believe that he was in violation of immigration law or likely to escape before a warrant could be issued.

Tsolmon is correct that the discretionary function exception does not protect officers who break the law or exceed their authority. Sutton, 819 F.2d at 1293. As the district court correctly noted, however, the exception fails to protect officers only when the statute governing the action “giv[es] specific direction as to any of these functions in a way that would make [the acts] nondiscretionary.” Guile v. United States, 422 F.3d 221, 231 (5th Cir. 2005). In other words, officers are unprotected only when they use their discretion to act in violation of a statute or policy that specifically directs them to act otherwise. See, e.g., Collins v. United States, 783 F.2d 1225, 1230-31 (5th Cir. 1986) (noting that a regulation at issue provided “no room for policy judgment or decision” once certain conditions were met). Section 1357(a)(2), with its judgment-laden “reasonable belief’ standard, is not such a statute.

* * *

The judgment of the district court is AFFIRMED.

      . Given that this case was dismissed at the pleading stage, the recitation of facts is based on Tsolmon's allegations, which must be taken as trae at this stage. The recitation is also supplemented with undisputed facts from the government’s motion to dismiss.

      . The law enforcement proviso extends the FTCA’s waiver of sovereign immunity to claims against law enforcement officers "arising ... out of assault, battery, false imprisonment, false arrest, abuse of process, or malicious prosecution.” 28 U.S.C. § 2680(h).

      . We thus do not decide whether detainment under the policy itself is an act of discretion. To frame that question, however, is to identify the unusual posture of this argument. Indeed, Tsolmon’s argument is different from what is typically seen when an FTCA plaintiff invokes a regulation- or statute in trying to avoid the discretionary function exception. Those cases involve the allegation that a government employee is violating the statute, not that she is following it. The difference seems to matter at least at the liability stage. Acting in contravention of a statute not only takes conduct outside the permissible scope of discretion, it also often establishes negligence per se. In contrast, acting pursuant to a statute is not likely to be negligent.

      . Tsolmon's allegations also do not establish that the agents violated section 1357(a)(2). Wilson was unable to confirm Tsolmon's legal status after multiple attempts to verify it. Tsol-mon was arrested at a bus station while trav-elling between states, which could plausibly give rise to the fear that Tsolmon would not remain in the jurisdiction before a warrant could be obtained.


author: JULIA SMITH GIBBONS, Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Jose A. PACHECO, Defendant-Appellant.
    No. 16-3376
    United States Court of Appeals, Sixth Circuit.
    Decided and Filed: October 28, 2016

      ON BRIEF: Frederick D. Benton, Jr., FREDERICK D. BENTON, JR., LPA, Columbus, Ohio, for Appellant. Peter K. Glenn-Applegate, UNITED STATES ATTORNEY’S OFFICE, Columbus, Ohio, for Appellee.
    Before: DAUGHTREY, GIBBONS, and COOK, Circuit Judges.
   OPINION

JULIA SMITH GIBBONS, Circuit Judge.

Defendant-appellant Jose Pacheco appeals the district court’s denial of his motion to suppress evidence discovered during a Terry stop and subsequent pát-down search. During this precautionary pat down for weapons, an officer discovered that Pacheco had over $8,000 in currency and a half-kilogram of brick cocaine in his cargo shorts. The district court found that, based on the totality of the circumstances, the officer had reasonable suspicion to justify the pat down of Pacheco for weapons, and that the cocaine and currency were properly seized pursuant to the plain-view and plain-feel doctrines.

Because the Terry stop, the removal of Pacheco from the vehicle, the pat down, and the seizure of contraband and currency were all within the bounds of the Fourth Amendment, we affirm the district court’s decision.

I.

On the evening of December 10, 2010, Detective William Best received a call from Sergeant Jeff Lipp, informing him that a confidential source had information about “subjects moving medium to large quantity narcotics in and around the Kimberly Parkway area” of Columbus, Ohio. Best was intimately familiar with this part of- town. He testified that “[l]ike most neighborhoods, you have 5 percent of people that cause problems,” but noted that the area was prone to “a lot of gang activity.” (DE 69, Tr. of Mot. to Supp. Hearing, Page ID 238.)

The source feared retaliation for sharing information but agreed to meet Best in-person. The two met in a parking lot at the corner of Kimberly Parkway and South Hamilton Road. There, the source informed Best that two Hispanic men in a silver Lincoln Aviator were moving narcotics from the Chatham Village apartment complex in the Kimberly Parkway area.

■After receiving this information, Best set up surveillance in an unmarked car. In order to gain a strategic view of the Chat-ham Village apartments, which-are on the north side of Kimberly Parkway, Best stationed himself in a parking lot on the south side of the parkway. The source told Best only that the subjects would be moving the narcotics “in the evening,” and he was unsure of precisely when to expect them. (Id. at 233.) Best had never met this source and did not know his accuracy, reliability, or credibility. However, within forty-five minutes, Best saw a silver SUV exit Chatham Village.

Best was unsure if this was his- target vehicle but decided to attempt to verify that it was. ■ The silver SUV was traveling eastbound on Kimberly Parkway, and Best pulled out and positioned himself behind it. Best could now see that this vehicle was a silver Lincoln Aviator that precisely matched the description given by the informant, but he still needed to verify whether the occupants of the vehicle. potentially matched the source’s description. Best and the Aviator stopped at the well-lit comer of Kimberly Parkway and South Hamilton Road. The target vehicle was in the far left of two left-turn lanes. Best pulled up along the passenger-side of the Aviator and observed what he believed were two Hispanic males in the vehicle.

Now that “everything started adding up,” just as the source had stated it would, Best called Officer Jeremy Phalen, a patrol officer he knew worked in the area. (Id. at 235,237.) As the Aviator was turning, Best had witnessed the driver fail to properly signal a turn, and he relayed this information, and information about his narcotics tip, to Phalen and his partner, Officer Kenneth Trivette.

Best dropped back and allowed Phalen and Trivette to move in behind the Aviator in their patrol car. Phalen was also very familiar with the Kimberly Parkway area and stated that it was a “hotbed for gang activity.” (Id. at 256.) With this in mind, he and Trivette followed the Aviator until they saw it unexpectedly swerve across the double-yellow lines. Phalen turned on his emergency lights and the Aviator pulled to the side of the road, ultimately coming to a stop in a gas-station parking lot.

Phalen and Trivette exited their patrol car and approached the Aviator. Phalen approached the driver’s side of the vehicle, while Trivette took the passenger’s side. Phalen spoke with the driver, later identified as Mario Calderon, and discovered that he had no valid driver’s license. He also observed Calderon visibly shaking while he spoke with him and decided to remove him from the Aviator. He proceeded to pat down Calderon and place him in the back of the police cruiser so that he could aid Trivette.

As Phalen had approached the driver’s side of the vehicle, Trivette had done the same on the passenger’s side, where Pacheco was sitting. Trivette noted that Pacheco was not wearing his seatbelt. Trivette asked Pacheco for identification, but Pacheco did not respond. Instead, Pacheco began rummaging through the glove compartment, ruffling papers but removing nothing. Trivette testified that Pacheco was extremely nervous, and was glancing around the vehicle. Pacheco again opened the glove compartment and looked down at the floorboard and over at his left leg, near the center console. All of this concerned Trivette, who testified that the glove box, the floorboard, and the area between the seat and center console are all often used to conceal weapons. Trivette was also disturbed by Pacheco’s “fidgeting around,” lack of eye contact, and his failure to acknowledge any of Trivette’s questions. (Id. at 271.) Considering all of these factors, Trivette testified that “something wasn’t right.” (Id.) Trivette then asked Pacheco to exit the vehicle. Pacheco did not respond or comply with this order. Trivette asked Pacheco to exit again, this time opening the door for him.

Pacheco exited the vehicle, and Trivette initiated a pat down of his person. On Pacheco’s right side, Trivette felt “a large chunk of money on his right cargo pocket.” (Id. at 275.) Trivette then switched his focus to Pacheco’s left leg, and immediately noticed the top of a brick-like object, wrapped in brown paper and tape, protruding approximately one inch out of the top of Pacheco’s left cargo pocket. As Trivette patted this area down, he could feel that the object in that cargo pocket was “like a solid brick,” and was approximately six-to-eight inches long. (Id. at 275, 288.) Based on these observations, and his experience working with narcotics, Trivette recognized, “within seconds,” that the object was very likely brick cocaine. (Id. at 277, 288.) Trivette seized the contraband and currency, and Pacheco was detained and placed in the rear of the cruiser with Calderon.

II.

Pacheco was charged with violating 21 U.S.C. §§ 841(a), 846 by possessing with intent to distribute, and conspiring with others with intent to distribute, 494 grams of cocaine. Pacheco filed a motion to suppress the cocaine and currency discovered on his person, claiming that Trivette’s pat down violated his Fourth Amendment rights prohibiting unreasonable searches and seizures. Specifically, Pacheco claimed Trivette lacked the requisite “reasonable suspicion” to justify the pat-down search, and accordingly, discovery of the cocaine and currency should be suppressed. The district court held a hearing at which Best, Phalen, and Trivette testified. After the hearing, the district court issued a memorandum opinion and order, denying Pacheco’s motion to suppress. In its order, the district court found that, considering the totality of the circumstances, Trivette had reasonable suspicion that Pacheco was armed and dangerous, justifying the pat-down search, and that the seizure of contraband and currency was reasonable.

In support of its finding, the district court listed ten factors that it found supported a finding of reasonable suspicion:

(1) Detective Best relayed information about a tip that two Hispanic males driving a Lincoln Aviator were involved in cocaine distribution; (2) Mr. Pacheco appeared nervous in the car; (3) Mr. Pacheco looked back and forth to avoid eye contact with Officer Trivette; (4) Mr. Pacheco avoided conversation with Officer Trivette; (5) Mr. Pacheco disregarded Officer Trivette’s commands to exit his vehicle; (6) Mr. Pacheco shuffled through the glove box, making furtive gestures; (7) Mr. Pacheco looked down to the floorboard under his seat; (8) Officer Trivette could not identify Mr. Pacheco; (9) the stop occurred at night when it was dark; and (10) the stop occurred in a high crime area.

(DE 40, Op. & Order, Page ID 143-145.) The district court then proceeded to find that the seizure of contraband and currency was not overly intrusive, relying on the plain-view and plain-feel doctrines as applicable to contraband seized during pat-down searches.

After his motion to suppress was denied, Pacheco entered into a conditional plea agreement in which he reserved his right to appeal the district court’s denial of his motion to suppress. Pacheco then filed this timely appeal.

III.

When reviewing a denial of a motion to suppress, the district court’s factual determinations are reviewed for clear error and its legal conclusions are reviewed de novo. United States v. Herndon, 501 F.3d 683, 687 (6th Cir. 2007) (citing United States v. Ostrander, 411 F.3d 684, 694 (6th Cir. 2005)). “Whether an officer had reasonable suspicion under the circumstances to frisk a suspect is a mixed question of law and fact that we review de novo.” United States v. Noble, 762 F.3d 509, 519 (6th Cir. 2014) (quoting United States v. Stepp, 680 F.3d 651, 660 (6th Cir. 2012)). Likewise, any probable-cause determination is reviewed de novo. United States v. Martin, 526 F.3d 926, 936 (6th Cir. 2008). However, the evidence must be viewed in a light most likely to support the district court’s decision. Id. (citing United States v. Frazier, 423 F.3d 526, 531 (6th Cir. 2005)).

The Fourth Amendment guarantees “[t]he right of the people to be secure in their persons ... against unreasonable searches and seizures.” U.S. Const, amend. IV. When a motorist is stopped by the police, he, and all of his passengers, are “seized” within the meaning of the Fourth Amendment. Brendlin v. California, 551 U.S. 249, 256-59, 127 S.Ct. 2400, 168 L.Ed.2d 132 (2007). A police officer may stop a motorist when- he possesses probable cause of a civil infraction or has reasonable suspicion of criminal activity. United States v. Lyons, 687 F.3d 754, 763 (6th Cir. 2012); see also Noble, 762 F.3d at 518 (citing Lyons for the same). Here, Phalen and Trivette not only received information about Calderon failing to signal his turn, but also witnessed the vehicle swerve over the double-yellow line. Although Pacheco does not outright challenge the traffic stop, he suggests throughout his briefing that the officers’ true motive for stopping the vehicle was “to pursue a narcotics investigation.” (R. 12, Appellant Br. at 8.) However, “[subjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis.” Whren v. United States, 517 U.S. 806, 813, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996). Thus, the two traffic infractions justified Phalen and Trivette in stopping the Aviator.

It also is well-established that, during a traffic stop, an officer may order passengers out of the vehicle pending the completion of the stop. Maryland v. Wilson, 519 U.S. 408, 414-15, 117 S.Ct. 882, 137 L.Ed.2d 41 (1997). The officers do not need independent justification to remove the driver or passengers from the vehicle. Id. at 413 & n.1, 117 S.Ct. 882. This is so, in large part, because traffic stops are “fraught with danger” for police officers. Michigan v. Long, 463 U.S. 1032, 1047, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983). Thus, after permissibly stopping the Aviator for prior traffic violations, Phalen and Trivette were permitted to remove Calderon and Pacheco from the SUV.

This leaves two actions to review: the pat-down search of Pacheco and the seizure of the cocaine and currency found on his person pursuant to that search.

A.

When an officer makes a Terry stop, he may also perform a precautionary search—known as a “frisk” or “pat down”—whenever he has “reasonable suspicion” that the person searched may be armed and dangerous. Knowles v. Iowa, 525 U.S. 113, 118, 119 S.Ct. 484, 142 L.Ed.2d 492 (1998). “Reasonable suspicion is based on the totality of the circumstances.” Joshua v. DeWitt, 341 F.3d 430, 443 (6th Cir. 2003). Ultimately, the test is whether “a reasonably prudent [person] in the circumstances would be warranted in the belief that his [or her] safety or that of others was in danger.” Noble, 762 F.3d at 521-22 (alteration in original) (quoting Terry v. Ohio, 392 U.S. 1, 27, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)).

“Reasonable suspicion” is recognized for being an abstract concept, but this is a product of design, not accident or error, and the Supreme Court has “deliberately avoided reducing it to ‘a neat set of legal rules.’ ” United States v. Arvizu, 534 U.S. 266, 274, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002) (quoting Ornelas v. United States, 517 U.S. 690, 695-96, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996)); see also Illinois v. Gates, 462 U.S. 213, 232,103 S.Ct. 2317, 76 L.Ed.2d 527 (1983) (noting that “probable cause is a fluid concept—turning on the assessment of probabilities in particular factual contexts—-not readily, or even usefully; reduced to a neat set of legal rules”). With this abstract, context-specific framework in mind, the Supreme Court has also cautioned reviewing courts not to consider factors in the reasonable-suspicion analysis in isolation from one other. Arvizu, 534 U.S. at 274, 122 S.Ct. 744. A “divide-and-conquer” analysis—where each factor is singled out and the court engages in a post-hoc search for an innocent explanation—is not permitted. Id. And, while the Supreme Court has wrestled with the precedential difficulties created by this fact-specific approach, it has suggested that “[e]ven if in many instances the factual ‘mosaic’ analyzed for a reasonable-suspicion determination would preclude one case from squarely controlling another, ‘two decisions when viewed together may usefully add to the body of law on the subject.’ ” Id. at 275, 122 S.Ct. 744 (quoting Ornelas, 517 U.S., at 697-98, 116 S.Ct. 1657).

This case and Noble are two such decisions. In Noble, we reversed a district court’s denial of a-motion to suppress, finding that the officer did not have reasonable suspicion to perform a pat-down search of the defendant. 762 F.3d at 525-26. A review of the facts of that case demonstrates why affirming • the district court’s denial of Pacheco’s motion to suppress is appropriate here.

In fall of 2012, law-enforcement officials were investigating a methamphetamine-distribution network in Eastern Kentucky. Id. at 514. Officers received a tip that two individuals—Brooks and Adkins—were picking up contraband in Louisville and routing it through Lexington and into various counties in Eastern Kentucky. Id. Initially, the informant told the officers to be on the lookout for a white Jeep Cherokee, but, after failing to find that vehicle, the informant stated that the target vehicle might be a “dark-colored Chevrolet Tahoe” instead. Id. Officers eventually spotted a vehicle matching that description, and, after witnessing the Tahoe cross from the center lane into the right lane without using a signal, and noticing that its windows were most likely-illegally tinted, they pulled it over. Id. at 514-15. An officer approached the vehicle from the passenger side, and upon confronting the passenger there, noted that the passenger, later identified as Noble, was extremely nervous. Id. at 515. After talking with Noble, the officer returned to the cruiser, tested the window tint of the Tahoe, and assisted his partner in administering a field-sobriety test on the driver. Id. at 515-16. The officer eventually ordered Noble out of the Tahoe and performed a pat-down search of his person for weapons. Id. at 516. The grounds for this pat down were Noble’s nervousness and that Noble was in a car suspected of being involved with narcotics trafficking. Id. Additionally, the officer knew from his training and experience that those who deal in narcotics often carry weapons to protect themselves. Id. During the pat down, the officer discovered contraband and a handgun on Noble’s person. Id.

We found that the three grounds mentioned above were insufficient to create a reasonable suspicion that Noble was armed and dangerous. Id. at 525. Specifically, we were critical of nervousness as an indicator of dangerousness, noting that, because many law-abiding citizens are nervous during traffic stops, it is unreliable. Id. at 522-23. We found that Noble’s nervousness should be discounted because, after witnessing his alleged nervousness, the officer returned to his cruiser, inspected the window tint, and performed a field-sobriety test on the driver, and then performed the pat down on Noble. Id. at 523. These actions, we concluded, reflected a lack of suspicion as to a suspect’s dangerousness, which an officer needs in order to justify a pat down for weapons. We also noted that mere presence in a vehicle suspected of trafficking in narcotics is not “an automatic green light” for frisking that person. Id. at 523. Instead, the officer must be. able to give specific, articulable reasons for believing that a particular person is dangerous before he or she may frisk the suspect. Id. (citing United States v. Cortez, 449 U.S. 411, 417, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981)). And, while the Noble court acknowledged that drug dealers are frequently armed, it also noted that we have always required some corroboration that particular individuals are involved in drug trafficking before allowing a frisk for weapons. Id. at 524 (citing United States v. Branch, 537 F.3d 582, 589 (6th Cir. 2008)). The majority also highlighted several important factors that were missing from Noble. The court noted that there was no testimony that Noble failed to comply with an officer’s commands. Id. Further, Noble did not avoid all eye contact with the officers, fidget with his pockets, or behave as if he was concealing something. Id. Considering all of these absent factors, we found a lack of reasonable suspicion. Id. at 529.

Importantly, both the majority and the dissent in Noble acknowledged that the circumstances there presented a close case. Id. at 522, 529. Many of the factors missing from Noble are present here, and taken together, they nudge this case across the boundary into constitutionally permissible conduct.

The tip in this case was more detailed and further corroborated than that in Noble. This made it more likely that the two men inside the Aviator were engaged in narcotics trafficking, and thus—given the strong association between drug dealing and firearms—more likely that they were potentially armed. See Branch, 537 F.3d at 589 (holding that officers can rely on their training and experience that drug dealers frequently carry weapons); see also United States v. Jacob, 377 F.3d 573, 579 (6th Cir. 2004) (holding the same). In Noble, the tipster originally claimed that the target car would be a white Jeep Cherokee. 762 F.3d at 514. When officers failed to locate such a car, the tip changed, and the source claimed that it might be a dark-colored Tahoe instead. Id. In addition to changing the make, model, and color of the vehicle, the tip also failed to give law enforcement any indication of how many occupants to expect or how to identify them. Id. Here, by contrast, the confidential source gave authorities not only the make, model, and color of the vehicle—which turned out to be accurate the first time—but also provided them with the number of occupants to expect, along with their ethnicity. And, the source provided the location and time of day to expect the vehicle. This is a more detailed tip than the one provided in Noble, which identified only a vehicle connected with narcotics trafficking. Noble, 762 F.3d at 514-15. Additionally, Officer Best testified that he had never before heard of a Lincoln Aviator, likely because the Aviator was produced only for model years 2003-2005, making it a relatively unusual vehicle. See Lincoln Aviator, Edmunds (2016), www.edmunds.com/hncoln/aviator/. Thus, the tip was further substantiated when Best was able to pull up behind the target vehicle and confirm that it was, in fact, a Lincoln Aviator. The tip was also corroborated, at least in part, when the Aviator contained two occupants, both males - that Best believed were Hispanic.

The Supreme Court has declined to hold that reasonable suspicion can never be created by an anonymous tip, and has further held that where “an informant is .shown to be right about some things, he is probably right about other facts that he has alleged, including the claim that the object of the tip. is engaged in criminal activity.” Alabama v. White, 496 U.S. 325, 331-382, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990) (citing Gates, 462 U.S. at 244, 103 S.Ct. 2317). As the night’s events unfolded, the source’s predictions continued to come true. Though not dispositive of reasonable suspicion that Pacheco was armed, the informant’s corroborated tip adds support to Trivette’s decision to perform a pat-down search.

Next, while we have cautioned against relying too heavily on nervousness as indicia of dangerousness, Pacheco’s nervousness is another factor in the totality-of-the-circumstances analysis that supports a reasonable-suspicion finding. Noble, 762 F.3d at 522 (citing United States v. Wilson, 506 F.3d 488, 495-96 (6th Cir. 2007)). While “[n]ervous behavior, standing alone, is not enough to justify a Terry search,” Wilson, 506 F.3d at 495-96, nervousness is still relevant to the reasonable-suspicion calculus. Illinois v. Wardlow, 528 U.S. 119, 124, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000) (finding that nervous, elusive behavior is a pertinent factor in determining reasonable suspicion). And we have found reasonable suspicion in other cases based, in part, on the suspect’s extraordinary nervousness that increased as the traffic stop progressed. Branch, 537 F.3d at 589. In Noble, there was no testimony that the suspect became increasingly nervous. 762 F.3d at 522-23. Here, in contrast, Trivette testified that Pacheco was “extremely nervous,” and that as the stop progressed, Pacheco began glancing around the vehicle and rummaging through the glove box. (DE 69, Tr. of Mot. to Supp. Hearing, Page ID 270-273.)

Additionally, Noble did not avoid all eye contact with the officers, fidget with his pockets, or otherwise act as if he was concealing something. Noble, 762 F.3d at 523-24 (citing United States v. Oliver, 550 F.3d 734, 738-39 (8th Cir. 2008); 4 Wayne R. LaFave et al., Search and Seizure: A Treatise on the Fourth Amendment § 9.6(a) (5th ed. 2013) (text accompanying notes 80-95, collecting behaviors sufficient for a frisk)). In contrast, Trivette testified that Pacheco “wouldn’t even make eye contact with [him]” and that “he was fidgeting around” as he opened up the glove box and shuffled papers back and forth, removing nothing. (DE 69, Tr. of Mot. to Supp. Hearing, Page ID 271.) Further, Trivette testified that Pacheco was looking down at the floorboard and over at the area between the console and his seat. Trivette claimed that, in his experience, this is an area where firearms are often concealed. He went on to say that Pacheco disregarded his presence and that.“it was like he was looking for like an avenue of escape almost.” {Id. at 273.) The absence of these factors weighed against reasonable suspicion in Noble; their presence weighs in favor here.

Further, Pacheco’s failure to acknowledge Trivette’s presence and his failure to obey the officer’s commands also support a protective pat-down search. Noble’s compliance with all of the officer’s commands was an important factor that militated against a finding of reasonable suspicion. Here, Pacheco did not respond or acknowledge Trivette’s command that he exit the vehicle until the request was repeated and Trivette opened the door. While many of Pacheco’s behaviors are now explainable due to his lack of English-language skills, this innocent explanation was unknown to Trivette at the time of the stop. Additionally, even if Trivette had known that Pacheco did not speak English, the officer testified that, in his experience, non-English speakers attempted to communicate via hand motions or. otherwise tried to convey that they did not speak English. Pacheco, by contrast, completely ignored Trivette. Reasonable suspicion requires reviewing courts to apply an objective standard, and to answer whether “the facts available to the officer at the moment of the seizure or the search warrant a [person] of reasonable caution in the belief that the action taken was appropriate?” Terry, 392 U.S. at 21-22, 88 S.Ct. 1868 (emphasis added). In the moment, Trivette did not know that Pacheco’s failure to comply with his commands was because Pacheco did not understand English; instead, all he knew was that he had a suspect who was ignoring his commands and avoiding .eye contact, all the while exhibiting extremely nervous and concerning behavior.

Finally, the time of day and the nature of the neighborhood also support Trivette’s reasonable-suspicion determination. While “mere presence in a high crime area is insufficient ‘to support a reasonable, particularized suspicion that the person is committing a crime,’ ” it is “ ‘among the relevant contextual considerations in a Terry analysis.’” Hoover v. Walsh, 682 F.3d 481, 495 (6th Cir. 2012) (quoting Wardlow, 528 U.S. at 124, 120 S.Ct. 673). Likewise, time of day “is relevant without being independently dispositive.” Id. at 495 (citing United States v. See, 574 F.3d 309, 314 (6th Cir. 2009)). Here, there was testimony that the area was known for its drug trafficking and gun violence and as a “hotbed” for gang activity. (DE 69, Tr. of Mot. to Supp. Hearing, Page ID 238, 256.) And the stop occurred at night.

When considering all of the abovemen-tioned factors together, the totality of the circumstances supports a- finding of reasonable suspicion in this case. In applying the totality-of-the-circumstances test, the Supreme Court has cautioned against separating each factor from the others and finding an innocent explanation for it. This is so because “sometimes behavior giving rise to reasonable suspicion is entirely innocent,” and often there may be a “series of acts, each of them perhaps innocent in itself, but which taken together warrant further investigation.” Wardlow, 528 U.S. at 130 n.4, 120 S.Ct. 673 (Stevens, J., concurring in part and dissenting in part) (citing Terry, 392 U.S. at 22-23, 30, 88 S.Ct. 1868) (internal citations and quotations omitted). Thus, while many of the factors here, when considered alone, cannot support a reasonable-suspicion determination, their collective weight justified Trivette’s pat-down search of Pacheco.

B.

Having found that the pat-down search was supported by reasonable suspicion, we must next determine whether the seizure of the cocaine and currency was reasonable. During a protective pat down, an officer does not need to ignore contraband should any be discovered. Minnesota v. Dickerson, 508 U.S. 366, 374, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993). But “[i]f the protective search goes beyond what is necessary to determine if the suspect is armed, it is no longer valid under Terry and its fruits will be suppressed.” Id. at 373, 113 S.Ct. 2130 (citing Sibron v. New York, 392 U.S. 40, 65-66, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968)). Employing the plain-view and plain-feel doctrines, the Supreme Court has held that three elements must be met for contraband to be seized during a Terry pat down: (1) the police must be in- a lawful position from which they view (or feel) the object; (2) the object’s incriminating nature must be immediately apparent; and (3) the officers must have a lawful right of access to the object. Id. at 375, 113 S.Ct. 2130 (extending the plain-view doctrine to include discoveries of contraband via the sense of touch). Because the Terry stop, removal of Pacheco from the car, and the pat-down search of his person were all constitutionally permissible, Trivette was in a lawful position to both view the contraband and feel it during the pat-down, and he also had a lawful right of access to it. Thus, all that remains to be determined is whether the brick’s incriminating nature was immediately apparent.

The requirement that the incriminating nature of seized items be immediately apparent- was “very likely an unhappy choice of words, since it can be taken to imply that an unduly high degree of certainty as to the incriminatory character of evidence is necessary for an application of the ‘plain view’ doctrine.” Texas v. Brown, 460 U.S. 730, 741, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983). That said, that the incriminating nature of the evidence be immediately apparent “is necessary to prevent officers from using the plain view doctrine as a means to extend a particularized search authorized by Fourth Amendment principles into an unlawful exploratory search.” United States v. Garcia, 496 F.3d 495, 510 (6th Cir. 2007) (citing Horton v. California, 496 U.S. 128, 136-37, 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990)). In assessing whether an object’s incriminatory, nature is immediately apparent, the court must “look to three factors, none of which is necessary but each of which is instructive.” Id. These factors are:

(1) a nexus between the seized object and the [suspected criminal activity]; (2) whether the intrinsic nature or appearance of the seized object gives probable cause to' believe that it is associated with criminal activity; and (3) whether the executing officers can at the time of discovery of the object on the facts then available to them determine probable cause of the object’s incriminating nature.

Id. (quotations and citations omitted); see also United States v. Chandler, 437 Fed. Appx. 420, 427-28 (6th Cir. 2011).

Here, there' was a strong nexus between the suspected narcotics trafficking and the cocaine and currency seized. Trivette testified that he “felt a large chunk of money” in Pacheco’s right cargo pocket. (DE 69, Tr. of Mot. to Supp. Hearing, Page ID 275.) After removing the currency, Trivette moved to Pacheco’s left side, where he noticed a brick-like object protruding approximately one inch out of that cargo pocket. He observed that it was wrapped in brown paper and bound together with tape. Based on his training and experience, this was consistent with how brick cocaine is packaged. Further, when he patted down the pocket, he discovered that the brick was solid and around six-to-eight inches long. As Trivette began to pat down the pocket, Pacheco muttered that the brick was “tortillas,” a fact that seemed unlikely to Trivette and furthered his suspicion that the object was contraband. {Id. at 276.) Combining his sight and his touch with his training and experience, Trivette concluded “within seconds” that this object was probably brick cocaine. (Id. at 277.) “[A] reviewing court should be duly mindful of the executing officers’ particular, subjective training and experiences.” United States v. Szymkowiak, 727 F.2d 95, 98 (6th Cir. 1984) (citing Brown, 460 U.S. at 745, 103 S.Ct. 1535 (Powell, J., concurring)). Here, the district court credited Trivette’s testimony that, in his training and experience, the packaging of the object, coupled with its size and feel, was consistent with that of brick cocaine. It was not clearly erroneous to do so. See Arvizu, 534 U.S. at 276-77, 122 S.Ct. 744 (noting that “due weight” should have been given to the district court’s factual inferences due to its “superior access to the evidence and the well-recognized inability of reviewing courts to reconstruct what happened in the courtroom”); see also Herndon, 501 F.3d at 687 (holding that factual determinations are reviewed for clear error).

This case is similar to Texas v. Brown, in which the Supreme Court upheld the seizure of an uninflated balloon pursuant to the plain-view doctrine. 460 U.S. at 743-44, 103 S.Ct. 1535. In his concurrence, Justice Powell noted that “[e]ven if it were not generally known that a balloon is a common container for carrying illegal narcotics, we have recognized that a law enforcement officer may rely on his training and experience to draw inferences and make deductions that might well elude an untrained person.” Id. at 745, 103 S.Ct. 1535 (Powell J., concurring) (citing Cortez, 449 U.S. at 418, 101 S.Ct. 690). And the majority in Brown reminded reviewing courts that “probable cause is a flexible, common-sense standard” that merely requires that “the facts available to the officer would warrant a man of reasonable caution in the belief that certain items may be contraband ... or useful as evidence of a crime.” Id. at 742, 103 S.Ct. 1535 (internal quotations and citations omitted). “[I]t does not demand any showing that such a belief be correct or more likely true than false.” Id. Here, a reasonably cautious person, viewing the facts as they were to Trivette, would have been warranted in the belief that the brick-like object in Pacheco’s pocket was contraband. The seizure of the brick cocaine and currency did not offend the Fourth Amendment as it was reasonable and within the bounds of Terry and its progeny.

IV.

For these reasons, we affirm the district court’s denial of the motion to suppress.

      . Due to their usually brief nature, traffic stops are more akin to the so-called “Terry" stop than a full-blown arrest. See United States v. Noble, 762 F.3d 509, 519 (6th Cir. 2014) (citing Berkemer v. McCarty, 468 U.S. 420, 439, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984)). Accordingly, the traffic stop in this case will also be referred to as a Terry stop.

      . All three officers involved in this stop testified that, based on their training and experience, they knew that those who traffic narcotics are frequently armed.

      . And here, rather than being an anonymous tip, the information was obtained from an informant whom Lipp knew and whom Best met in person, further supporting its reliability.

      . We note that Trivette discovered the contraband before his pat-down search of Pacheco was completed, and thus, while he still had a lawful right of access to Pacheco's person. Dickerson, 508 U.S. at 373, 113 S.Ct 2130.

      . Trivette’s testimony that "within seconds” he realized that the packaging was likely brick cocaine, while not literally instantaneous, does not undermine a finding that that the brick's criminal nature was immediately apparent to him. This court has held that an object’s ''incriminating nature is not immediately apparent if it appears suspicious to an officer but further investigation is required to establish probable cause as to its association with criminal activity.” Garcia, 496 F.3d at 510-11 (quoting Shamaeizadeh v. Cunigan, 338 F.3d 535, 555 (6th Cir. 2003)). Here, the packaging and feel of the object, combined with all other facts known to Trivette, was sufficient to create probable cause with no further investigation.