United States v. Maguire

United States Court of Appeals
For the First Circuit

No. 02-2698

UNITED STATES OF AMERICA,

Appellant,

v.

LAWRENCE F. MAGUIRE,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Reginald C. Lindsay, U.S. District Judge]

Before

Torruella and Lipez, Circuit Judges,
and Schwarzer,* Senior District Judge.

Cynthia A. Young, Assistant United States Attorney, with whom
Michael J. Sullivan, United States Attorney, were on brief, for
appellant.
Albert F. Cullen, Jr., for appellee.

March 3, 2004

*
Of the Northern District of California, sitting by designation.
 TORRUELLA, Circuit Judge. Defendant Lawrence T. Maguire

("Maguire") was arrested by the Medford Police Department ("MPD")

on September 7, 2001. He was indicted on one count of bank

robbery, in violation of 18 U.S.C. § 2113(a). He filed a motion to

suppress arguing that his arrest was unlawful. He further argued

that, as a result of the unlawful arrest, statements made to the

police and physical evidence obtained by them should be suppressed.

The district court held an evidentiary hearing on Maguire's motion,

which was subsequently granted in part. United States v. Burhoe,

Crim. No. 01-10464-RCL (D. Mass. Nov. 27, 2002).1 The government

filed an interlocutory appeal, pursuant to 18 U.S.C. § 3731,

arguing that the officers engaged in a valid investigatory stop.

We conclude that the district court's decision was in error, and

thus, we reverse.

I.

On September 7, 2001, at approximately 10:19 a.m., the

MPD radio dispatcher broadcast to all police units information

regarding an armed robbery that had occurred at the Citizen's Bank

inside the Shaw's Supermarket on Locust Street in Medford,

Massachusetts around 10:00 a.m. The dispatcher stated that the

robbery had been committed using a knife and that the two male

robbers had used a black getaway vehicle with Massachusetts

registration number 9936RT. The vehicle had turned left out of a

1
Burhoe, Maguire's co-defendant, is not a party to this appeal.

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parking lot located on Locust Street and was, according to the

police radio report, headed towards Riverside Avenue.

After the initial dispatches were reported over radio

broadcast, MPD Officer Sheila Quinn ("Quinn") reported that she was

in pursuit of a black car on Riverside Avenue. By this time, the

police knew that the car had been stolen. Quinn said over the

radio that there were two white males inside the car. The car was

reported to have crossed the Fellsway and Middlesex Avenue, gone

down Fifth Street and turned left. The vehicle was abandoned in

the vicinity of the Osgood School on Fourth Street, and the

occupants fled on foot.

Lieutenant Michael Goulding ("Goulding") was on duty at

the time of the initial broadcast regarding the armed robbery. He

left the station in an unmarked police car accompanied by Detective

Robert Scully ("Scully"). They drove towards the reported location

of the getaway car. When they arrived at Fourth Street and

Middlesex Avenue, they heard over the radio that the suspects had

abandoned the car in front of the Osgood School. The suspects were

reported to be on foot, and according to the radio broadcast, one

suspect was heading towards the Fellsway.

Goulding and Scully, in plain clothes, parked their

unmarked car near 112 Second Street. The officers wanted to

position themselves along the likely escape route of the suspects.

Second Street was empty at the time, as most of the police cruisers

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were already parked on Fourth Street near the Osgood School.

Shortly after parking on Second Street, Goulding saw a white man,

later identified as defendant Maguire, emerge from a backyard on

Second Street, apparently coming out of a private residential

property. Maguire appeared disheveled, unkempt and confused, and

he had scratches on his face and hands. He also appeared to be

wearing several layers of clothing on what was described as a very

warm and sunny day.

The accounts diverge at this point. According to

Goulding's account, after stepping out of the vehicle, Goulding and

Scully approached Maguire, who continued to walk at a steady pace.2

The officers began speaking with Maguire, and Goulding asked

Maguire if he was from the area. According to Goulding, Maguire

was not responsive and appeared dazed. When asked how he was

doing, defendant responded "Huh?" Eventually, Maguire informed the

officers that he was from Malden, not Medford, which is

approximately half a mile away.3 Goulding testified that, up to

this point, neither he nor Scully had restrained Maguire in any

way.

2
Scully's badge was displayed.
3
A report prepared by MPD Detective Michael Fahey, who arrested
Maguire's co-defendant, said that Maguire did not acknowledge the
officers and continued to walk past them. Goulding testified that
although Maguire continued walking during the encounter, he did
acknowledge the officers' presence and answered their questions.

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 Goulding asserts that while speaking to Maguire, someone

suddenly yelled "Get your hands up!" MPD Officer Richard Dorrance

("Dorrance") was standing on the other side of Maguire with his gun

drawn, yelling at him. Goulding testified that Maguire raised his

hands, which revealed a knife protruding from his waistband at the

small of his back. Goulding testified that he turned his attention

from Dorrance to Maguire after assuring himself that Dorrance was

a fellow officer. Maguire raised his hands, which enabled Goulding

to see a black-handled object protruding from the waistband of

Maguire's pants. Goulding recognized the object as a knife. He

then proceeded to grab Maguire's arm, and with Scully's assistance,

put Maguire on the ground. Goulding and Scully pulled a large

kitchen-style knife out of the back of Maguire's pants and threw it

to the side. To determine if Maguire had any other weapons, they

grabbed anything that was loose on the suspect, which included a

gray shirt, a blue shirt and a towel, which were put to the side.

Goulding also tossed aside a white baseball cap that had fallen off

Maguire's head. He testified that he did not see the knife until

Maguire raised his arms. Goulding did not file a written report of

his activities on September 7, 2001.

Officer Dorrance's account differs from Goulding's in

some respects. Dorrance was on duty in a marked cruiser when the

initial report of the armed robbery came over the police radio.

Dorrance followed Quinn as she pursued the suspects in the black

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car, but he began a separate area search when he heard the suspects

had abandoned their car in front of the Osgood School. Dorrance

then arrived on Second Street, where he heard the officers speaking

to Maguire. According to Dorrance, Maguire was not responsive to

the officers' questions, and kept on walking. Dorrance passed them

in his cruiser, parked ahead of them and got out of the car.

Dorrance testified that, at that moment, Maguire turned

to face the officers and immediately put one hand, and then a

second hand, behind his back, lifted his coat and attempted to get

something out of his waistband. Dorrance drew his weapon and told

Maguire to get on the ground, because he knew from the radio

reports that one of the robbery suspects had been armed with a

knife, and he was concerned that Maguire might have been reaching

for a weapon. Dorrance testified that Maguire ignored his order,

but seconds later Goulding and Scully had each grabbed one of

Maguire's arms and removed the knife. Finally, Dorrance testified

that Maguire was pat-frisked for other weapons.

Scully filed an arrest report, which differs in some

respects from both Goulding's and Dorrance's versions of events.4

Scully wrote that when he and Goulding approached Maguire, "[h]e

appeared to have a black handled item stuffed down the back of his

pants." He further stated that he called for Maguire to stop, and

eventually Goulding and Scully ordered Maguire to the ground and

4
Scully died before he could testify at the evidentiary hearing.

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disarmed him. Dorrance had arrived to assist them, and the suspect

was subsequently handcuffed and read his rights. As the district

court noted, there was no mention of the conversation between

Maguire and Goulding, but Scully mentioned calling for Maguire to

stop.5 Either Goulding or Scully advised Maguire of his rights and

placed him under arrest, and he was taken to the police station by

Dorrance.

Maguire moved to suppress the evidence obtained by the

police as a result of the stop and search. Maguire also moved to

suppress statements made at the time of his arrest and the physical

evidence that resulted from the stop and subsequent arrest.6 The

district court held an evidentiary hearing and heard argument on

the motion to suppress. The district court granted the motion to

suppress Maguire's statements to the police and the physical

evidence found as a result of the stop. It held that Maguire was

de facto arrested at the moment Goulding and Scully held him and

5
The district court also examined a report filed by Medford
Police Officer Michael Fahey. Fahey was the officer who arrested
Maguire's co-defendant. He filed a report which, in the district
court's estimation, contradicted the account of the other officers.
We discuss the reasons why Fahey's testimony is not relevant in
footnote 8.
6
The physical evidence that Maguire sought to be suppressed
included: (1) $392.00 in United States currency; (2) a key; (3) a
fingernail clipper; (4) a white towel; (5) a gray sweatshirt; (6)
a blue shirt; (7) a white baseball cap; (8) a black-handled knife;
and (9) a pair of sneakers.

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put him on the ground and that the government had failed to

establish probable cause for such an arrest.

II.

We review the district court's factual findings for clear

error and its legal conclusions de novo. Ornelas v. United States,

517 U.S. 690, 699 (1996); United States v. Trueber, 238 F.3d 79, 91

(1st Cir. 2001). "Determinations of . . . reasonable suspicion,

relevant to the constitutionality of law enforcement seizures and

arrests under the Fourth Amendment, present mixed questions of law

and fact which we review de novo." United States v. Young, 105

F.3d 1, 5 (1st Cir. 1997)(citing Ornelas, 517 U.S. at 699).

The district court concluded, based on the facts

described above, that Maguire was de facto arrested when Goulding

and Scully took hold of him and put him on the ground. The

government disagrees, arguing that the officers were engaged in a

investigatory stop under Terry v. Ohio, 392 U.S. 1 (1968).

Terry held that "a police officer may in appropriate

circumstances and in an appropriate manner approach a person for

purposes of investigating possibly criminal behavior even though

there is no probable cause to make an arrest." Id. at 22. To

withstand scrutiny, an officer "must be able to articulate

something more than an inchoate and unparticularized suspicion or

'hunch.'" United States v. Sokolow, 490 U.S. 1, 7 (1989)(quoting

Terry, 392 U.S. at 27)(internal quotations omitted). In evaluating

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the validity of a Terry stop, we consider the totality of the

circumstances, mindful that "[t]he concept of reasonable suspicion,

like probable cause, is not readily, or even usefully, reduced to

a neat set of legal rules." Id. at 7-8 (internal citation and

quotations omitted).

In evaluating whether there was reasonable suspicion, "we

first determine whether the officer[s'] actions were justified at

[their] inception, and if so whether the actions undertaken by the

officer[s] following the stop were reasonably responsive to the

circumstances justifying the stop in the first place as augmented

by information gleaned by the officers during the stop." Trueber,

238 F.3d at 92 (alterations in original) (internal citations and

quotations omitted). The first part of the inquiry is satisfied if

the officers can point to specific and articulable facts which,

taken together with rational inferences derived from those facts,

reasonably show that an investigatory stop was warranted. Sokolow,

490 U.S. at 7 (citing United States v. Kimball, 25 F.3d 1, 6 (1st

Cir. 1994)).

The stop of Maguire was appropriate and reasonable at its

inception.7 Examining the circumstances leading up to the stop of

Maguire, we recount the relevant facts Goulding and Scully knew or

7
There is no discussion in the district court's opinion of
whether the initial stop of Maguire was reasonable at its inception
because the district court held that the seizure was a de facto
arrest and did not engage in the Terry inquiry.

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could have reasonably inferred when they initially stopped Maguire.

First, the officers knew that an armed robbery had been committed

in Malden by two white males. In addition, they had a fairly small

area to cover given that the officers knew the stolen black getaway

car was found abandoned and crashed, in the vicinity of the Osgood

School. Maguire, a white male, was encountered two blocks from the

Osgood School. Second, he was seen emerging from a residential

backyard during mid-morning, but acknowledged to the officers that

he was not from the neighborhood. Third, his appearance was

inappropriate for the weather: it was a warm, sunny day and Maguire

wore many layers of clothing. Further, his appearance was

disheveled, and he appeared to have scratches on his body.

Finally, Maguire's responses were less than forthcoming, and he was

walking away from the officers. See United States v. McCarthy, 77

F.3d, 522, 531 (1st Cir. 1996)(finding that providing vague and

evasive responses to officers' questions is relevant in evaluating

the propriety of a Terry stop). Even before the officers observed

the knife, they had a reasonable and articulable suspicion to

warrant stopping Maguire and asking him questions "likely to

confirm or dispel their suspicions quickly." United States v.

Sharpe, 470 U.S. 675, 686 (1985).

The second inquiry is whether the scope of the

investigatory stop was reasonable under the circumstances.

Trueber, 238 F.3d at 92. "There is no scientifically precise

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formula that enables courts to distinguish between investigatory

stops . . . and . . . 'de facto arrests.'" United States v.

Zapata, 18 F.3d 971, 975 (1st Cir. 1994); see also United States v.

Quinn, 815 F.2d 153, 156-62 (1st Cir. 1987).

"An arrest is a wholly different kind of intrusion upon

individual freedom from a limited search for weapons, and the

interests each is designed to serve are likewise quite different."

Terry, 392 U.S. at 26. To be sure, Maguire was seized when he was

physically restrained by the officers. The appropriate legal

determination to be made in this case is whether the seizure

exceeded the scope of a permissible Terry stop. See Trueber, 238

F.3d at 92-93 (stating that the "central issue is whether an

otherwise valid Terry stop escalated into a de facto arrest"). In

cases regarding the scope of a Terry stop, we examine "whether

there was 'a formal arrest or restraint on freedom of movement of

the degree associated with a formal arrest.'" Id. at 93 (quoting

Thompson v. Keohane, 516 U.S. 99 (1995)). To determine whether

this type of restraint existed, a court must examine all the

circumstances attendant to the restraint. United States v.

Ventura, 85 F.3d 708, 711 (1st Cir. 1996). "This test is objective

only: the relevant inquiry is how a reasonable [person] in the

suspect's shoes would have understood [the] situation. The

subjective beliefs held by the interrogating officers or the person

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being interrogated are not germane." Id. (internal quotations and

citations omitted).

The district court committed an error of law when it

ruled that Maguire had been de facto arrested by Goulding and

Scully at the time he was wrestled to the ground, partly because it

focused on the discrete moment when Maguire was wrestled to the

ground, without considering the totality of the circumstances, as

we will do.8 We explain, focusing on the two arguably coercive

factors: the drawn weapon and the physical contact.

Dorrance's use of his weapon when he encountered Maguire

was permissible during an investigatory stop. It is well

established that the use or display of a weapon does not alone turn

an investigatory stop into a de facto arrest. See Trueber, 238

F.3d at 94; see also United States v. Trullo, 809 F.2d 108, 113

(1st Cir. 1987). In addition, Officer Dorrance drew his weapon for

a very short time. See United States v. Taylor, 162 F.3d at 21

(holding that a valid Terry stop did not become a de facto arrest

when two officers drew their weapons after they had stopped a

vehicle).

In examining the physical contact element, the district

court relied heavily on Young, 105 F.3d 1, and Zapata, 18 F.3d 971.

8
To the extent that the district court believed that it had to
reconcile the officers' testimonies, we believe this may have been
improvident, especially when the officers all agree that Maguire
was not put on the ground until the knife was observed.

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In those cases, we held that the police officers engaged in valid

Terry stops. In Young, the officers observed three individuals who

appeared to match the description of the armed robbers sought.

When the officers approached the suspects, Young walked away and

was observed with a gun in his waistband. Young, 105 F.3d at 7.

After being pursued by the officers, the officers brushed Young's

hand. We held that this type of physical contact did not convert

the stop into a de facto arrest. Id. at 8. In Zapata, we

similarly held that touching by a police officer did not transform

a Terry stop into a de facto arrest. Zapata, 18 F.3d at 976.

Working from the premise that arrests and investigatory touching

necessarily carry with it some degree of coercion, we held that

slight physical touching cannot, on its own, produce a de facto

arrest. Id. at 976-77 (commenting on California v. Hodari D., 499

U.S. 621 (1991)).

In the instant case, there was more than de minimis

physical contact. However, merely because physical contact exceeds

de minimis contact, it does not necessarily follow that the scope

of the Terry stop was exceeded. Physical touching attendant to a

Terry stop, particularly when officers are attempting to ensure

their own personal safety in a reasonable manner, must be examined

in the factual context of the case. After detaining Maguire, the

officers were entitled to ask him questions and search him for

weapons if they felt their personal safety was threatened. "[A]

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perfectly reasonable apprehension of danger may arise long before

the officer is possessed of adequate information to justify taking

a person into custody. . . ." Terry, 392 U.S. at 26; see also

United States v. Hensley, 469 U.S. 221, 235-36 (holding that the

mere use of force does not convert an investigative stop into an

arrest). When the officers observed the knife, they were

reasonably concerned for their safety. The pat-frisk can be an

integral part of a Terry stop, and this occasion is no exception.

The fact that Maguire was put on the ground does not imply that

there was a de facto arrest. See United States v. Taylor, 162 F.3d

12, 21 (1st Cir. 1998)(holding that officer's action of putting

suspects on the ground and searching for weapons was within scope

of Terry stop); United States v. Jackson, 918 F.2d 236, 238 (1st

Cir. 1990)(holding that the police could, within the scope of a

Terry stop, block the suspect's exit from a vehicle to determine

whether the suspects were armed). We find that officers Goulding

and Scully putting Maguire on the ground to remove the knife did

not exceed the scope of the investigative stop. Given the

reasonable suspicion that led to the Terry stop, and the fact that

the suspicion was heightened during the stop, we cannot say that

this physical contact between Maguire and the officers exceeded the

bounds of Terry.

Moreover, several other factors counsel against finding

that a de facto arrest took place. The stop occurred on a public

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street in the light of day. Trueber, 238 F.3d at 94 (listing the

encounter's public setting as a factor to be considered). Goulding

and Scully were in plain clothes. The encounter between the police

officers and Maguire lasted a very short time. See Sharpe, 470

U.S. at 685 (stating that time is an important factor in

determining whether a seizure is justifiable on reasonable

suspicion). Finally, Maguire was not handcuffed or detained in a

manner consistent with a formal arrest. See United States v.

Acosta-Colón, 157 F.3d 9, 18 (1st Cir. 1998)(stating "that the use

of handcuffs, being one of the most recognizable indicia of

traditional arrest, 'substantially aggravates the intrusiveness' of

a putative Terry stop.") (citation omitted).

Based on the facts recounted above, and taking into

account the totality of the circumstances, a reasonable person in

Maguire's position would not have believed he was under arrest, but

that he was detained only for an investigatory stop.

III.

For the foregoing reasons, we vacate the district court's

order and remand to the district court for further proceedings

consistent with this opinion.

Reversed and Remanded.

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