United States Court of Appeals
For the First Circuit
No. 01-2227
DAVID BOLTON, JR.,
Plaintiff, Appellee,
v.
STEPHEN TAYLOR, Individually and as Police Officer
of the City of New Bedford, Massachusetts,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Douglas P. Woodlock, U.S. District Judge]
Before
Boudin, Chief Judge,
Campbell, Senior Circuit Judge,
and Lynch, Circuit Judge.
Joseph L. Tehan, Jr. with whom Jonathan M. Silverstein and
Kopelman and Paige, P.C. were on brief for appellant.
David J. Bolton, Jr. pro se.
May 4, 2004
BOUDIN, Chief Judge. On October 25, 1999, at about 10
a.m., David Bolton--later the plaintiff in this civil rights case--
pulled up to a gas station at the corner of Sawyer and Purchase
Streets in New Bedford, Massachusetts. A woman named Sandra Swain
got out of Bolton's car. These events took place in sight of
police officer Stephen Taylor--the prime defendant in this case--
who was rolling up to the intersection in his police car and said
that he knew Swain to be a prostitute who plied her trade on the
corner and that she was also a drug addict.
According to Taylor's later testimony, Swain gave Taylor
a "mischievous smile"--"maybe 'you caught me' or something to that
effect." Then, according to Taylor, Bolton gave him a quick
glance, looked away, appeared "nervous," and left the parking lot
with squealing tires and at a "high rate of speed." Taylor
followed and eventually pulled Bolton over. These supposed details
were not contested by Bolton at trial, except for Taylor's claim of
squealing tires.
After Bolton was stopped, an altercation followed between
Bolton, Taylor and several policemen who appeared in another police
car. Bolton and Taylor gave different versions as to how it began,
each blaming the other, but there is no doubt that Bolton was
thrown down, struck and suffered severe injuries. Taylor sought
prosecution of Bolton on five state charges, and Bolton was
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convicted by a jury on two of them: assault and battery on a police
officer and disturbing the peace.
In due course Bolton brought the present action under
section 1983 against Taylor, two other officers, the police chief
and the City of New Bedford. 42 U.S.C. § 1983 (2000). Eventually
the case went to trial on just two claims. One was a false arrest
claim against Taylor and another officer, transmuted along the way
into a claim that Taylor had engaged in an unlawful Terry stop.
Terry v. Ohio, 392 U.S. 1 (1968). The other was a claim against
the same two officers for use of excessive force.
The jury returned a verdict against Taylor on the
unlawful stop claim, awarding Bolton $175,000. The jury found for
the defendants in all other respects, specifically rejecting the
charge of excessive force. The district court required a reduction
of the award to $17,500 by remittitur, which Bolton accepted to
avoid a new trial. Taylor now appeals, claiming inter alia that
the evidence was insufficient to support liability. Only this
first ground of the appeal need be addressed.
Claims of insufficient evidence must ordinarily be
preserved by a timely motion at trial for judgment as a matter of
law. Fed. R. Civ. P. 50; Davignon v. Clemmey, 322 F.3d 1, 13 (1st
Cir. 2003). In one of Taylor's post-trial motions, he represents
that he made a motion at trial both at the close of the plaintiff’s
case and at the close of all evidence. Although at trial his
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counsel did not spell out the contents of the motions, it is
reasonably clear that counsel and the district court judge
understood the oral motions as directed to the sufficiency of the
evidence.
This brings us to the merits. The background legal rules
are straightforward. At the time of the stop, Taylor lacked
“probable cause” to believe that Bolton had committed an offense,
but under the Terry doctrine, Taylor could pull Bolton over for a
comparatively brief “investigative stop” on less than probable
cause. See Flowers v. Fiore, 359 F.3d 24, 29 (1st Cir. 2004).
What Terry requires to satisfy the Fourth Amendment’s reasonable
seizure standard is an “articulable suspicion”–-meaning a rational
reason (as opposed to a hunch) to suspect criminal activity.
Illinois v. Wardlow, 528 U.S. 119, 123-24 (2000).
Whether a reasonable suspicion exists is treated as an
objective inquiry: the actual motive or thought process of the
officer is not plumbed. Whren v. United States, 517 U.S. 806, 813
(1996). So the only pertinent “facts” are the information
available to the officer. If this is disputed, the jury’s findings
control unless clearly erroneous, see Ornelas v. United States, 517
U.S. 690, 696-97 (1996); United States v. Tibolt, 72 F.3d 965, 969
(1st Cir. 1995), cert. denied, 518 U.S. 1020 (1996), but in this
case what Taylor saw and knew is not contested, apart from the
question whether Bolton’s tires squealed.
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What deference, then, is to be given to the jury’s
further judgment as to the ultimate question: whether on known or
resolved facts a reasonable suspicion of the defendant was not
warranted? Strictly speaking, the application of an abstract
standard to known facts is a legal issue even though it is
sometimes called a mixed question or question of law application,
e.g., City of Monterey v. Del Monte Dunes at Monterey, Ltd., 526
U.S. 687, 721 (1999); but usually some measure of deference is
given to the factfinder, because the jury or trial judge is closer
to the situation and unique facts diminish precedential value.1
However, there are exceptions and the Supreme Court has
provided that no deference should be given to the fact-finder as to
probable cause or reasonable suspicion where the raw facts are
undisputed or settled and the only issue is one of law application.
see Ornelas, 517 U.S. at 696-97; United States v. Maguire, 359 F.3d
71, 76 (1st Cir. 2004). Although the Ornelas case involved a judge
as fact-finder, it would make no sense to defer on law application
to the jury but not to the trial judge. See Johnson v. Campbell,
1
Coady Corp. v. Toyota Motor Distributors, Inc., 361 F.3d 50,
57 & n.4 (1st Cir. 2004). Sometimes the standard of review is
described as one of reasonableness, e.g., United States v.
Padilla-Galarza, 351 F.3d 594, 597 n.3 (1st Cir. 2003), but in
truth the degree of deference tends to vary with the circumstances,
In re Extradition of Howard, 996 F.2d 1320, 1328 (1st Cir. 1993).
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332 F.3d 199, 204-09 (3d Cir. 2003); Bell v. Irwin, 321 F.3d 637,
640 (7th Cir.), cert. denied, 124 S. Ct. 84 (2003).2
In this case, we come reluctantly to the view that a
policeman in Taylor’s position was entitled to have a reasonable
suspicion that Bolton had engaged in criminal activity. It is
doubtful whether Taylor was motivated by any such belief, and his
conduct may well have been deplorable; we shall return to these
issues in due course. But under Fourth Amendment precedents, the
decisive question is whether an objective observer could have had
a reasonable suspicion, and to this question our answer is yes.
At trial and in his appellate brief, Taylor said or
implied that Bolton might reasonably have been suspected of four
different crimes: buying drugs from or selling them to Swain;
driving under the influence of drugs; speeding or reckless driving;
or soliciting prostitution. Taylor never says that any one of
these possibilities was in his mind at the time or that any or all
of them motivated his decision. Typical of his testimony is the
following passage:
Again, it was the totality of the whole
circumstance. Sandra Swain being in the
vehicle, a high crime area, he's squealing the
tires out of the parking lot, he's not looking
2
Another circuit has said that in light of Ornelas, it is
pointless to submit the reasonable suspicion or probable cause
questions to the jury at all unless the facts are disputed. See
Bell, 321 F.3d at 640. Because in this case there were at least
some details actually or potentially disputed, we need not pursue
this issue.
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at me, seems kind of nervous, you know,
doesn't want to make eye contact with me. As
soon as he rips out of there, I don't know . .
. what he's holding, if he wants to throw
something out of the car. There's a whole
myriad of things that could be happening.
The supposed drug related crimes can readily be
disregarded. Taylor apparently knew Swain was a drug user but
there is no evidence, and no basis for suspicion, that Swain was a
supplier to anyone or that Bolton (in fact a lobsterman with his
own boat) was supplying Swain with drugs. The notion that Bolton
had drugs (“I don’t know what he’s holding”) or was driving under
their influence (elsewhere implied by Taylor) is equally without
any basis even for suspicion.
The suggestion that Bolton was speeding or driving
unsafely is also unsupported. Taylor testified that Bolton’s tires
squealed as he left the lot and that he was traveling fast, but
Taylor never states that Bolton was exceeding the speed limit, and
Taylor never charged Bolton with speeding. Moreover, Bolton denied
that he was speeding, a fact we must assume that the jury decided
in Bolton's favor. Seahorse Marine Supplies, Inc. v. P.R. Sun Oil
Co., 295 F.3d 68, 84 (1st Cir. 2002).
This leaves as the only remaining crime the possibility
that Bolton had solicited Swain’s services as a prostitute–-a crime
to be sure, Commonwealth v. King, 372 N.E.2d 196, 203 (Mass. 1977),
although one often ignored. Here, the evidence available to Taylor
was thin but not non-existent: Swain was known to be a prostitute;
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Bolton was letting her out of his car at her known haunt; the
demeanor of both Bolton and Swain (according to Taylor’s un-
rebutted testimony quoted above) was faintly suspicious; and Bolton
left very quickly on seeing Taylor, even if not unlawfully
speeding.
Is this enough to give an officer a reasonable suspicion
that Bolton had solicited sexual favors from a prostitute? Two
points work in Taylor’s favor. One is that the required level of
suspicion for a Terry stop and brief inquiry is fairly low.
Wardlow, 528 U.S. at 123-25. The other factor is that the law
imputes to a trained policeman a measure of expertise, Ornelas, 517
U.S. at 699-700, and an explainable suspicion can be based on an
assemblage of clues viewed through the lens of the policeman’s
training and experience. United States v. Sokolow, 490 U.S. 1, 9-
10 (1989).
Here, Bolton was seen parting from a known prostitute at
her usual beat, and the natural inference was reinforced by the
pair's alleged suspicious demeanor and Bolton’s rapid departure.
So, on de novo review, we think that Taylor could have had a
reasonable suspicion–-nothing more–-that Bolton had been consorting
with Swain and instituted a Terry stop to ask Bolton what had
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occurred between him and Swain. Case law has allowed Terry stops
on no greater suspicion.3
Why then does this outcome leave a sour taste? It is
primarily because Taylor apparently did not halt Bolton because
Taylor was interested in investigating whether Bolton had committed
the crime of soliciting a prostitute. Taylor himself testified
that arresting customers of prostitutes “does not interest me,”
that "I have never arrested a prostitute in my nine years,” and
that "[w]e are too busy in our city to get involved with that type
of police work. . . . We don't have–-we don't have the time.
That's why narcotics and vice handle that type of situation."
Worse still, at trial Bolton testified that he had merely
offered Swain a ride because she said that she was sick. Taylor’s
counsel in turn called Swain as a witness and she testified that
she had consorted with Bolton on the morning in question and at
other times. In response, over objection from the defense,
Bolton’s counsel then read transcripts of an earlier interview
given by Swain to the police. After the close of plaintiff's
evidence, Bolton's counsel was allowed, over objection, to play a
tape of Swain's interview.
3
Compare United States v. Martin, 289 F.3d 392, 399 (6th Cir.
2002) (prostitute flagging down motorist), and State v. Lipscomb,
779 A.2d 88, 94 (Conn. 2001) (same), with United States v. Gray,
213 F.3d 998, 1000-01 (8th Cir. 2000) (presence in area of
prostitution), and Rivera v. Murphy, 979 F.2d 259, 262-64 (1st Cir.
1992) (presence in area where drug dealer arrested).
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In the interview, Swain had told a police investigator
looking into the Bolton-Taylor incident that Taylor and other
officers made a regular habit of harassing Swain’s clients. She
intimated that the officers did so not to effect arrests but merely
out of humor or malice. Bolton’s counsel invoked this evidence in
her closing. On appeal, Taylor says it was error to admit the
tape, arguing inter alia that its impeachment value was outweighed
by its prejudicial impact, see Fed. R. Evid. 403, and its offer in
evidence was unfairly instigated by the trial judge after Bolton
had rested.
Whether or not the tape was admissible to impeach Swain’s
courtroom testimony, it might well have persuaded the jury of
Taylor’s actual motive for stopping Bolton even though--being
hearsay--it was not admissible for its truth.4 After all, Taylor
had testified that he was not interested in prostitution, and his
other supposed suspicions were even less plausible. If the law
held Taylor responsible for making a Terry stop subjectively
motivated by a wrongful purpose, the verdict against Taylor might
be defended.
4
There is an exception to the hearsay bar, associated with
United States v. De Sisto, 329 F.2d 929, 933-34 (2d Cir.), cert.
denied, 377 U.S. 979 (1964), now codified in Fed. R. Evid.
801(d)(1)(A), but there is no indication that its requirements were
met in this case.
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Unfortunately for Bolton, Whren’s ”objective" standard in
Fourth Amendment cases seemingly makes subjective motive irrelevant
in all such cases, 517 U.S. at 813; not only can the police invoke
a minor traffic violation for an arrest actually prompted by other
law-enforcement aims (e.g., the driver is a known drug dealer whom
the police wish to surveil) but it is even irrelevant--at least
under the Fourth Amendment, equal protection claims may be a
different matter, id.--whether the same traffic violation is
normally invoked against other drivers, so long as it is
technically a violation. See 1 La Fave, Search & Seizure § 1.4 (3d
ed. 1996, Supp. 2004) (deploring Whren).
In Holland v. City of Portland, 102 F.3d 6, 9-11 (1st
Cir. 1996), this court formally reserved the question whether any
subjective motive for a stop or arrest could be so bad as to
overcome Whren's bar. We expressed grave doubt that Whren admitted
of exceptions, but noted that, in Holland itself, there was no
compelling evidence of harassment, id. at 11; here, there was
evidence of a sort, but it was not admissible for its truth so the
situation is about the same. Nothing since Holland suggests any
erosion of Whren.
What this means is that Bolton cannot collect the $17,500
judgment to which his larger award was reduced, and we need not
reach Taylor’s other claims of alleged error such as the admission
of the tape. Taylor may well have lacked any proper intent, but a
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reasonable police officer could have performed a lawful Terry stop
based on what Taylor knew. That said, we join in the view–-
obviously shared by the district judge and the jury–-that Bolton
was badly treated by the police.
The judgment in Bolton's favor is vacated. The case is
remanded for entry of judgment in Taylor's favor. Each side shall
bear its own costs on this appeal.
It is so ordered.
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