United States Court of Appeals
For the First Circuit
No. 09-1637
United States,
Appellee,
v.
Omar Mohamed,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Patti B. Saris, U.S. District Judge]
Before
Lynch, Chief Judge,
Howard, Circuit Judge,
and DiClerico,* District Judge.
Elizabeth Prevett for appellant.
Mark T. Quinlivan, Assistant United States Attorney, with whom
Carmen M. Ortiz, United States Attorney, was on brief, for
appellee.
December 9, 2010
*
Of the District of New Hampshire, sitting by designation.
DICLERICO, District Judge. Omar Mohamed entered a
conditional guilty plea to a charge of being a felon in possession
of a firearm and ammunition, reserving his right to appeal the
denial of his motion to suppress. On appeal, Mohamed contends that
the manner in which he was detained constituted a de facto arrest
without probable cause. As a result, Mohamed argues, the gun
discovered when he was pat-frisked was fruit of an illegal search.
We conclude that the gun was found during a valid investigatory
stop and affirm the district court’s decision denying Mohamed’s
motion to suppress.
I.1
In October of 2007, Patrolman Peter Messina and Sergeant
Lucas Taxter were members of the Boston Police Department’s Codman
Square Safe Street Team. At the time, Codman Square was a high
crime area in Dorchester, with drug dealing and multiple shootings
occurring there. While Messina was on duty on October 18, he heard
gunshots and later learned that an individual had been shot several
times inside a pizza shop located on Washington Street near the
intersection with Melville Avenue.
On October 19, 2007, at twilight, around 5:45 p.m.,
Messina and Taxter were on duty, standing on Washington Street at
the corner of Lyndhurst Street, in front of the Codman Square Post
1
“We relate the facts as the trial court found them,
consistent with record support.” United States v. Am, 564 F.3d 25,
27 (1st Cir. 2009) (internal quotation marks omitted).
-2-
Office. They heard five gunshots coming from the area where
Washington Street and Melville Avenue intersect. They ran down
Washington Street toward Melville Avenue in the direction of the
gunshots.
When Messina arrived at the intersection of Washington
Street and Melville Avenue, he saw a car stopped in the middle of
Dunlap Street, across Washington Street from Melville Avenue, and
asked the driver, “Where did he go?” The driver pointed down
Dunlap Street. Messina saw someone running and turned down Dunlap
Street, in pursuit of the runner. Messina thought the suspect was
wearing dark clothing, a tee shirt and shorts, and was a light-
skinned black male with a tall, thin build. At a curve in Dunlap
Street, Messina lost sight of the suspect. Messina slowed down and
turned onto Whitfield Street.
Taxter, meanwhile, used his radio to notify headquarters
about the gunshots. He saw a person leaving the pizza shop on
Washington Street who pointed down Dunlap Street. Taxter then saw
a security guard crouched in a doorway with his gun drawn. The
security guard indicated that no one had been hurt in the shooting,
and he pointed down Dunlap Street. Taxter saw that Messina was
running down Dunlap Street ahead of him and that a man, wearing a
black top with a hood, was running in front of Messina. After
Messina and the suspect turned onto Whitfield Street, Taxter
shouted to Messina to stop because he had lost sight of the suspect
-3-
and was concerned that they could be ambushed if the suspect were
armed.
A woman on the second floor porch of a house on Whitfield
Street pointed down the driveway of another house on Whitfield
Street. A man on the porch also motioned toward the driveway of
the same house. Messina and Taxter waited at the driveway for
backup to arrive.
After Detectives Paul Schroeder and Steven Beath arrived,
the officers proceeded down the driveway in tactical formation with
their guns drawn. Schroeder saw someone crouched down under a back
deck, looking through the slats and holding a cell phone.2
Schroeder yelled, “Boston Police” and “Get on the ground.” The
suspect, who turned out to be Omar Mohamed, immediately dropped the
cell phone and laid down on the ground with his hands out.
Schroeder kept his gun pointed at Mohamed while Messina
approached him. Messina noted that Mohamed was wearing a dark
hooded top and jeans and that he was sweating profusely and
panting, and he appeared to be very nervous. Messina handcuffed
and then pat-frisked Mohamed. When Messina found a gun on Mohamed,
he yelled either “He’s got a gun” or “Gun.” At that point, Mohamed
began flailing, and the other officers helped Messina subdue
2
Mohamed suggests that Messina and Schroeder disagreed about
Mohamed’s location when he was discovered. A careful reading of
the hearing transcript, however, shows that Messina could not see
Mohamed when Schroeder discovered him. Therefore, no discrepancy
exists between their descriptions of Mohamed’s location.
-4-
Mohamed and roll him onto his side. Taxter then took the gun from
Mohamed’s pants pocket. The gun was a .38 caliber revolver and
smelled as if it had been fired recently. The chamber showed that
all five bullets had been fired.
Messina believed the person he had been chasing was
wearing shorts and a tee shirt, and for that reason, Messina put
out a message on the police radio that there might be another
suspect wearing shorts and a tee shirt. When Messina saw Mohamed
stand up, he realized that Mohamed had the same body type, hair,
and complexion as the person he had been chasing and decided he had
been chasing Mohamed. Messina then cancelled his message that
there might be another suspect. Mohamed was arrested, taken to the
station, and booked.
A grand jury returned an indictment against Mohamed on a
charge of being a felon in possession of a firearm and ammunition.
Mohamed filed a motion to suppress the evidence found when he was
apprehended and to suppress a statement he made while in custody.
Following a hearing at which Messina, Taxter, and Schroeder
testified, the district court denied the motion, concluding in a
written memorandum and order that the officers’ detention of
Mohamed was a valid investigatory stop and that their actions were
reasonable to determine whether Mohamed was armed and to protect
against any physical harm. Mohamed entered a guilty plea on
January 20, 2009, reserving his right to appeal the denial of his
-5-
motion to suppress. He was sentenced to sixty months imprisonment
and three years of supervised release.
II.
On appeal, Mohamed contends that the district court erred
in denying his motion to suppress the gun found in his pants when
he was pat-frisked. He argues that the officers escalated his
detention into an arrest without probable cause, and therefore the
gun was the fruit of an illegal search. The government contends
that the officers’ actions did not transform the investigatory stop
into a de facto arrest and that the gun was discovered legally as
a part of the stop.
In considering a challenge to the district court’s denial
of a motion to suppress, we review the court’s factual findings
under the clearly erroneous standard and the legal conclusions
under the de novo standard. United States v. Sanchez, 612 F.3d 1,
4 (1st Cir. 2010). We will affirm the district court’s decision
denying a motion to suppress “so long as any reasonable view of the
evidence supports it.” United States v. Bater, 594 F.3d 51, 55
(1st Cir. 2010) (internal quotation marks omitted).
Officers are permitted, under the Fourth Amendment, to
stop an individual, briefly, based on a reasonable suspicion that
the individual may be involved in criminal activity. Foley v.
Kiely, 602 F.3d 28, 31 (1st Cir. 2010). An evaluation of the
constitutionality of an investigatory stop involves two steps: (1)
-6-
whether the initial stop was justified and (2) “‘whether it was
reasonably related in scope to the circumstances which justified
the interference in the first place.’” Schubert v. City of
Springfield, 589 F.3d 495, 501 (1st Cir. 2009) (quoting Terry v.
Ohio, 392 U.S. 1, 20 (1968)). Reasonable suspicion sufficient to
support a stop must “be grounded in specific and articulable
facts.” United States v. Brown, 621 F.3d 48, 55 (1st Cir. 2010)
(internal quotation marks omitted).
Mohamed argues that the discrepancy between Messina’s
description of the fleeing suspect and his own appearance at the
time he was stopped precludes a reasonable suspicion that he was
the fleeing suspect. When he was discovered, Mohamed was wearing
a large hooded sweatshirt and jeans. Messina thought the person he
was chasing was wearing shorts and a tee shirt. Because of the
clothing discrepancy, Messina initially thought Mohamed was not the
individual he saw running away from the area of the shooting and
put out the message that there might be another suspect.
The clothing discrepancy does not undermine the officers’
suspicions about Mohamed. Although Messina thought the fleeing
suspect was wearing shorts and a tee shirt, Taxter saw that the
suspect was wearing a hooded top. Messina later decided that
Mohamed was the suspect he chased, based on Mohamed’s build and
complexion.
-7-
In addition, other factors implicated Mohamed. Onlookers
pointed the officers toward Mohamed’s hiding place. When
discovered, Mohamed was peeking out from under a deck behind a
house, and he was panting and sweaty, which is consistent with
someone who had just run away from the officers, as the suspect had
done.3 Therefore, the circumstances as a whole provided reasonable
suspicion that Mohamed was the fleeing suspect or, at least, could
have been involved in the shooting, even if he were not the suspect
the officers had chased. As long as reasonable suspicion exists,
the circumstances need not irrefutably establish that Mohamed was
the shooter. See Brown, 621 F.3d at 57.
Mohamed primarily challenges the second step of the
analysis of an investigatory stop, arguing that the officers’
actions during the stop amounted to a de facto arrest. Because the
circumstances that officers face in the course of confronting an
individual suspected of criminal activity vary widely, no precise
template exists to evaluate the actions taken during a stop. See
Klaucke v. Daly, 595 F.3d 20, 25 (1st Cir. 2010). Instead, “the
touchstone is the reasonableness of the measures undertaken to
3
Mohamed argues that sweating and breathing heavily is also
consistent with nervousness, which would be a likely explanation
because he was facing officers with guns drawn. While that may be
true, “the test is whether the circumstances give rise to a
reasonable suspicion of criminal activity, not whether the
defendant’s actions are subject to no reasonable innocent
explanation.” United States v. Stanley, 915 F.2d 54, 57 (1st Cir.
1990); accord Schubert, 589 F.3d at 502.
-8-
quell or confirm the officer[s’] suspicions.” Id. An
investigatory stop becomes a de facto arrest when a reasonable
person in the suspect’s position would have understood, given the
circumstances, that he was essentially under arrest. United States
v. Meadows, 571 F.3d 131, 141 (1st Cir. 2009).
Mohamed contends that the officers’ actions exceeded the
scope of an investigatory stop because they did not have a
reasonable basis to surround him with guns drawn, to order him to
the ground, and to handcuff him. In particular, Mohamed asserts
that because he did not match Messina’s description of the fleeing
suspect, because he was talking on a cell phone when he was
discovered, and because he immediately complied with the officers’
orders to get on the ground, they lacked a reasonable basis to
believe he was dangerous. As a result, he argues, the
investigatory stop became a de facto arrest without probable cause.
The circumstances in this case amply support the measures
the officers used to stabilize the situation. Officers are
permitted to take actions to protect their own safety and the
safety of others in the area. Schubert, 589 F.3d at 503. An
officer also may conduct a pat-frisk search if, under all of the
circumstances, the officer had a particularized and objective basis
to suspect the individual had a weapon. Estrada v. Rhode Island,
594 F.3d 56, 66 (1st Cir. 2010). Although handcuffs are
traditionally associated with an arrest, the use of handcuffs
-9-
during an investigatory stop does not convert the stop into an
arrest as long as the officers involved reasonably believed
handcuffs were necessary to protect themselves or others under the
circumstances that existed. Meadows, 571 F.3d at 141; United
States v. Acosta-Colón, 157 F.3d 9, 18 (1st Cir. 1998).
Messina and Taxter heard five gunshots, and they saw
someone running away. They chased the suspect to Whitfield Street
where onlookers assisted them by pointing out Mohamed’s hiding
place. Because the shooter or someone involved in the shooting was
likely to be armed, the officers reasonably were concerned for
their safety. For that reason, it was reasonable to approach
Mohamed with guns drawn. See United States v. Fornia-Castillo, 408
F.3d 52, 64 (1st Cir. 2005) (drawing a weapon on a suspect, based
on reasonable safety concerns, does not transform an investigatory
stop into a de facto arrest).
Despite Mohamed’s compliance with Schroeder’s commands to
lie on the ground with his hands out, the officers reasonably could
have suspected that he had a gun and remained concerned for their
safety. Messina’s impression that the fleeing suspect was wearing
different clothing does not undermine the other circumstances which
support a reasonable suspicion that Mohamed was either the fleeing
suspect or someone else involved in the shooting. Therefore, a
pat-frisk to search for guns was an “investigative measure[] [that
was] reasonably calculated to uncover evidence of wrongdoing
-10-
related to circumstances giving rise to the officer[s’] initial
suspicions.” Klaucke, 595 F.3d at 25.
The officers’ decision to handcuff Mohamed before
conducting the pat-frisk did not convert the stop into a de facto
arrest under the circumstances the officers faced.4 Although
officers may not use handcuffs routinely during investigatory
stops, officers are permitted to use handcuffs to protect
themselves and others. Meadows, 571 F.3d at 141. When challenged,
the government “‘must be able to point to some specific fact or
circumstance that could have supported a reasonable belief that the
use of such restraints was necessary to carry out the legitimate
purposes of the stop without exposing law enforcement officers, the
public, or the suspect himself to an undue risk of harm.’” Id.
(quoting Acosta-Colón, 157 F.3d 18-19). Therefore, officers may
handcuff a suspect within the scope of a valid investigatory stop
if they reasonably believe the suspect is armed. See Meadows, 571
F.3d at 141-42.
Such was the situation faced by the officers in this
case. As the district court noted, the officers had valid concerns
for their safety during the stop. The officers reasonably
suspected that Mohamed was the shooter or at least was a suspect
involved in the shooting, which means that he very likely would be
4
Although Messina actually applied the handcuffs, Schroeder
and Taxter were also involved in the process of stopping and
investigating Mohamed.
-11-
armed. That fact supports the actions they took to stabilize the
situation and to protect themselves from Mohamed, should he reach
for his gun and attempt to shoot.5 Mohamed was detained only
briefly before the gun was found. Under the particular
circumstances in this case, the district court correctly concluded
that Mohamed was detained in a valid investigatory stop that did
not become a de facto arrest.
III.
For the foregoing reasons, the district court’s denial of
Mohamed’s suppression motion is affirmed.
5
Mohamed challenges the district court’s conclusion that the
officers’ actions were justified, in part, because of a risk of
harm to bystanders and to the public. He argues that there was no
one nearby during the encounter who would have been at risk.
Mohamed was hiding behind a house in a residential area and the
officers had just seen two people on a porch across the street.
Under these circumstances, the district court’s conclusion was not
clearly erroneous.
-12-