United States v. Wright

United States Court of Appeals
For the First Circuit

No. 06-1351

UNITED STATES OF AMERICA,

Appellee,

v.

GREGORY WRIGHT,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. William G. Young, U.S. District Judge]

Before

Torruella, Circuit Judge,
Stahl, Senior Circuit Judge,
and Lipez, Circuit Judge.

Charles W. Rankin, with whom Michelle Menken and Rankin &
Sultan were on brief, for appellant.
Randall E. Kromm, Assistant United States Attorney, with whom
Michael J. Sullivan, United States Attorney, was on brief, for
appellee.

May 4, 2007
 LIPEZ, Circuit Judge. After several Boston police

officers approached the car in which appellant Gregory Wright was

sitting, the officers saw Wright run from the car and grab the

right side of his sweatshirt. Wright then refused to stop when

ordered to do so. Apprehended almost immediately and found to be

carrying a gun, he was arrested for being a felon in possession of

a firearm. Wright unsuccessfully moved to suppress the gun,

arguing that the stop was illegal. He then entered a conditional

guilty plea. Because a legal error in the district court's

analysis affected its factual findings underlying the issue of

reasonable suspicion, we must vacate the judgment and remand for

further proceedings.

I.

A. Factual Background

On the evening of November 8, 2004, a caravan of four

unmarked police cars was patrolling in Dorchester, Massachusetts.

The cars were Crown Victorias, a model widely associated with

police departments. The plainclothes officers in the caravan were

members of the Boston Police Department Youth Violence Task Force.

At about 7:45 p.m., the caravan was driving north on Blue

Hill Avenue and slowed down as the lead car passed a vehicle that

had just pulled over in front of a mini-mart at 1216 Blue Hill

Avenue. The parked car was partially blocking one of two driveway

entrances to the mini-mart parking lot. Officer Brown, who was

-2-
sitting in the lead car's front passenger seat, looked to his right

as they passed the parked vehicle and observed three people, one of

whom he recognized as Omar Edwards, a neighborhood resident. He

did not recognize the driver or the passenger seated in the back

seat of the parked car. Immediately after passing this parked

vehicle, Officer Brown's car pulled over to the right parking lane,

in front of the parked car. The rest of the caravan came to a stop

in the right travel lane to the rear of the parked car. The front

passenger of the second police car, Officer Bordley, then observed

the back seat passenger of the parked car, later identified as

Gregory Wright, lean forward as though he was looking at the Crown

Victoria that had just pulled over in front of his car.1 Wright

then exited his car, on the passenger side, and began to run

southward down Blue Hill Avenue. As he ran, Wright put one hand on

the right side of his sweatshirt, grabbing or holding onto the

sweatshirt pocket.

Officer Brown quickly exited his car, as did a number of

the other officers in the caravan. The police ordered Wright to

stop running, but he did not obey this directive. Within a matter

1
There was some disagreement about the order in which the
police cars were driving. Officers Brown and Bordley both
testified that their cars were first and second, respectively, of
the four cars. However, Officer Celester testified that his car
was second and Officer Bordley's was third. The district court did
not make any factual findings about the order of the vehicles. We
assume, for ease and clarity, that Officer Bordley's car was second
and Officer Celester was in the third car.

-3-
of seconds, the officers caught up to Wright, who resisted the

officers' attempts to frisk him. The police succeeded in patting

Wright down and recovered a silver pistol from his sweatshirt

pocket. Wright was arrested for being a felon in possession of a

firearm, in violation of 18 U.S.C. § 922(g)(1).

Wright moved to suppress the gun on the ground that the

stop was unlawful. After a hearing, which included testimony by

Officers Brown, Bordley, and Celester, the district court made a

series of factual findings and concluded, based on those findings,

that the officers had reasonable suspicion to stop Wright. Given

their centrality to this appeal, we recount those findings in

detail.

B. The Court's Findings

1. Wright's Conduct

The first, and most significant, factual issue at the

suppression hearing was whether Wright had fled from the police.

Wright argued that he had not "fled," but simply had arrived near

his pre-designated destination, exited the car, and run to that

destination. Given well-established precedent that a defendant's

flight from the police contributes to reasonable suspicion, Wright

argued that there was insufficient evidence that his running could

properly be characterized as flight. In support of a finding of

flight, the government argued that the police officers had seen

Wright lean forward in his seat, enabling him to better observe the

-4-
car that had pulled over in front of his vehicle, and that Wright

ran when he recognized it as a police car. Two officers, Brown and

Bordley, testified to seeing Wright lean forward.

The district court did not credit Officer Brown's

testimony, finding it implausible that he had observed Wright's

movement through a rearview mirror. Therefore, the pivotal

testimony was that of Officer Bordley, who was in the second

vehicle, behind Wright's car. Bordley testified that after the

lead vehicle pulled over, he saw Wright "lean[] forward to observe

the unmarked motor vehicle that had pulled over." He stated that

after Wright leaned forward, Wright got out of the car, grabbed the

right side of his sweatshirt, and ran down the street.

The court credited Officer Bordley's testimony,2 and

found that when Wright leaned forward in his seat, he was able to

see the Crown Victoria and its occupants, thereby becoming aware

that it was a police car which contained police officers. The

court also found that Wright then promptly opened the rear

passenger door and exited the car, in response to the police

presence, and fled down Blue Hill Avenue to avoid interaction with

those officers. The court summarized its reasoning as follows:

"Can I reason backwards from the fact that what happened next was

2
The district court stated that its finding was also based
upon Officer Celester's testimony. Both parties agree, however,
that Officer Celester testified that he did not see anything that
occurred inside of Wright's car, and only observed Wright's
movements after he exited his car.

-5-
that the police officers discovered the weapon on Mr. Wright? I

think it is undisputed he was carrying a weapon and I do so

reason."

The court then proceeded to its second factual finding —

that Wright "clutched" or grabbed at his sweatshirt while running.

All three police officers who testified described Wright "grabbing"

or "tugging at" the right side of his sweatshirt while he ran.

Officer Brown described Wright's movement as follows: "Once he

exited the vehicle he turned, turned to his right, grabbed onto his

hooded sweatshirt pocket right about here and began to run up Blue

Hill Avenue." Officer Celester testified that Wright was "tugging"

at his clothes with his right hand, in his "waist area," and that

he "appeared to be trying to pull something out of his waist area."

Officer Bordley said that Wright "stepped out of the motor vehicle,

grabbed the right side of his sweater and took off running up Blue

Hill Avenue." These statements were the only evidence presented to

the district court on this issue.

The court, however, found not simply that Wright had made

a grabbing movement, but that he did so because he was carrying a

gun. The court explained: "Because he was carrying the weapon in

his sweatshirt and the weapon was heavy, naturally, he clutched it

and his, he clutched it through the, through the sweatshirt and his

clutching of the weapon, the better to run while carrying a heavy

object, was observed by the police officers . . . ."

-6-
 2. High Crime Area

The district court also considered the character of the

area in which the stop occurred, in response to the government's

attempt to show that it was a "high crime area."

Officer Brown testified that "that area of Blue Hill

Avenue, as well as that corridor, is a very high crime area

consisting of firearm violence, drug activity, street robberies,

breaking and enterings, all type of street crimes actually." He

added that he had personally investigated crimes and responded to

shootings and drug incidents "in that area."3 Officer Celester

described the 1200 block of Blue Hill Avenue as a "trouble spot,"

and explained that "there's been shootings there, there's been a

lot of crime there. It's a high crime area." He further testified

more generally that he had previously made arrests "in that

neighborhood" and had witnessed crimes being committed "in that

area." Officer Bordley explained how he, and other members of the

Youth Violence Task Force, determine whether a particular area is

a high crime area: "There are weekly and biweekly reports that are

done. They keep stats on what's happening in the city, and they

have a meeting every two weeks and they report those stats in the

meeting." He went on to explain that the "neighborhood around the

1200 block of Blue Hill Avenue" has a "level of criminal activity

3
None of the officers offered boundaries or a definition of
the "area" being described as a "high crime area."

-7-
[that] would be considered high for that area. Numerous arrests

for drug offenses, violent crimes, violent assaults, assaults and

batteries, firearms arrests, things of that nature." Like the

others, he had personally visited the neighborhood for previous

criminal incidents.

After the government completed its presentation of the

officers' testimony, Wright requested the Police Department reports

mentioned by Officer Bordley. These reports provided the number of

violent crimes that had occurred throughout the city during the

preceding two weeks, broken down by police precinct. In addition,

the reports identified certain "hot spots," or specific locations

where crime had been particularly high. The district court

permitted some additional limited discovery and the city produced

incident reports for August 2004.4 Wright then offered these

reports into evidence and relied on them in his closing argument to

the court. Wright cited the reports as evidence that the location

of his arrest was not high in crime, according to the Boston Police

Department's own definition, because it was not encompassed by any

of the "hot spots" identified in the August incident reports.

4
The court ordered the government to provide the two reports
produced immediately before Wright's stop on November 8, 2004.
Although Officer Bordley testified that these reports were
typically generated for biweekly meetings, the government stated
that the Police Department was altering the "format and procedures"
for those meetings during the months of September and October in
2004. Therefore, no reports were available for the months
immediately preceding Wright's stop and the August reports were the
most recent.

-8-
 The district court deemed most of the evidence presented

on this issue — including the officers' testimony and the Boston

Police Department incident reports — credible:

I find that the Boston Police
Department has [a] mapping system and it maps
criminal incidents. I find that the evidence
that I have received as to where those
incidents occurred and when is credible. I
find that the internal operations of the
Boston Police Department quite properly
results in periodic updates of these maps and
based in part upon the maps and the officers'
own law enforcement skills and intelligence
information about what's going on on the
street they deploy their resources accordingly
and in good faith and not in a stereotypical
or racially motivated or any improper basis.
I find all that evidence credible.

However, the court acknowledged a concern about the relevant scope

of a high crime area designation: "It may be crucial here to

conclude that the specific mini mart area, this specific portion of

Blue Hill Avenue and Morton Street is a high crime area."

Describing the high crime finding first as "a mixed question of

fact and law" and later as "a legal conclusion," the court

concluded that it could not find that the relevant area, whatever

it might be, was a high crime area.

I reject the argument that because
there were four police unmarked police
cruisers coming up Blue Hill Avenue in this
area, filled with a number of police officers,
skilled and experienced police officers, that
somehow by definition because they're there
it's a high crime area. And I do not conclude
on this evidence that the area is a, quote,
high crime area, close quote. Primarily
because I'm not clear what that is. I mean, I

-9-
 have a common sense definition of it. And
it's quite clear to me, I think I could take
judicial notice that the incidence of crime in
the Dorchester area of Boston is higher in an
absolute sense than the surrounding suburbs.
I am not insensitive, though I don't know that
I could take judicial notice of the fact that
as it is reported in the newspapers and as
this Court has had some experience in other
cases, gang violence is a phenomenon seen more
often in certain residential sections of the
City of Boston than in surrounding suburbs.
Any common sense judgment would corroborate
that.
But does that constitute a, quote, high
crime area as the Supreme Court of the United
States was referring to it in Illinois v.
Wardlow?[5] I'm not clear that it does.
Because in that case, though on the surface it
seems so similar, the language of Chief
Justice Rehnquist when he says they were
converging on a specific area known for heavy
narcotics traveling, and they expected to
encounter drug customers and individuals
acting as lookouts. That's different than
this. This was aggressive patrolling where
they intend, I infer, to get out of their
cruiser, make inquiry of the Wright vehicle,
if not of other people, lawfully but
aggressively to find out where they were going
and what they were doing.

5
In Illinois v. Wardlow, 528 U.S. 119, 124-26 (2000), the
Supreme Court held that officers had reasonable suspicion when they
encountered a man who fled from them without provocation in a "high
crime area." The Court explained that
[a]n individual's presence in an area of expected
criminal activity, standing alone, is not enough to
support a reasonable, particularized suspicion that the
person is committing a crime. But officers are not
required to ignore the relevant characteristics of a
location in determining whether the circumstances are
sufficiently suspicious to warrant further investigation.
Accordingly, we have previously noted the fact that the
stop occurred in a "high crime area" among the relevant
contextual considerations in a Terry analysis.
Id. at 124.

-10-
C. Reasonable Suspicion

Having made its factual findings regarding Wright's

conduct, and having rejected the government's assertion that Wright

was arrested in a high crime area, the district court addressed the

legal question of reasonable suspicion.

Mr. Wright got out [of the car] and
started to run clutching the weapon in his
sweatshirt. When he did that, I rule the
officers had sufficient reasonable
suspicion . . . to compel him to stop for a
brief interaction, a Terry interaction. And
since that's so, everything that happened
thereafter was appropriate police conduct and
the motion to suppress is denied.
I make this ruling on the specific
facts of this case, and the specifics of this
particular case without drawing what I think
is a legal conclusion that this was a high
crime area but finding, really without
equivocation, that he did lean forward, he
knew that was a police car that had stopped in
front of him, that's why he got out of the car
and that's why he ran.

With the motion to suppress denied, the gun that was recovered when

the officers frisked Wright became admissible evidence.

Wright entered a conditional guilty plea, while reserving

his right to appeal the district court's suppression ruling. He

was sentenced to 70 months' imprisonment and filed this appeal. He

now argues that some of the district court's factual findings

underlying its conclusion of reasonable suspicion of criminal

activity were clearly erroneous.

-11-
 II.

Wright raises two questions on appeal. He asserts that

the district court's factual finding of flight was erroneous, and,

alternatively, requests that we reverse the legal finding of

reasonable suspicion. We do not address the court's reasonable

suspicion analysis because we find an impermissible error in its

antecedent factual findings. Thus, we express no opinion as to

whether the facts of this case, had they been appropriately found,

provided a sufficient basis for the officers to reasonably believe

that Wright was engaged in criminal activity.

A. Wright's Conduct

On appeal, Wright first challenges as unsupported the

district court's factual finding of flight — specifically, that

Wright leaned forward to see the Crown Victoria's occupants,

recognized them as police officers, and ran because of their

presence. We typically review a district court's factual findings

for clear error. United States v. Coplin, 463 F.3d 96, 100 (1st

Cir. 2006). This case, however, presents an unusual complication.

Throughout its oral ruling, the district court relied on the later-

acquired knowledge that Wright possessed a gun to evaluate the

evidence about his conduct. Indeed, the court candidly

acknowledged its backwards reasoning: "Can I reason backwards from

the fact that what happened next was that the police officers

discovered the weapon on Mr. Wright? I think it is undisputed he

-12-
was carrying a weapon and I do so reason." It is a central tenet

of Fourth Amendment jurisprudence that the fruits of a search

cannot be used to establish that same search's validity. "A search

prosecuted in violation of the Constitution is not made lawful by

what it brings to light . . . ." Byars v. United States, 273 U.S.

28, 29-30 (1927). Similarly, a court evaluating the validity of

a stop must determine whether the officer, at the time he began the

stop, had reasonable suspicion of criminal activity. Terry v.

Ohio, 392 U.S. 1, 19-20 (1968). Use of the results of the stop to

determine whether the objective facts available to the officer

justified the stop is a legal error. See United States v. Ubiles,

224 F.3d 213, 218-19 (3d Cir. 2000) ("The District Court's

rationale for not suppressing the firearm in this case is

troubling, therefore, insofar as it seems to endorse the stop based

on the fruits obtained as result of the subsequent search. This

post-hoc justification for stops and searches has been repeatedly

rejected.").

Wright claims that the district court's finding on flight

should be rejected because it was infected with self-described

"backwards" reasoning. Although the government concedes that the

reasoning was erroneous, it contends that the factual finding on

flight may still be affirmed because the error was harmless. The

government claims that the district court's reliance on the

eventual recovery of a gun was limited to its comments regarding

-13-
Wright's motives for running, and motive is irrelevant to the

reasonable suspicion analysis. Noting that a stop is valid if an

"objectively reasonable" appraisal of the facts available to the

officers supports their suspicion of the defendant, Coplin, 463

F.3d at 100, the government argues that the court's finding about

Wright's flight from the police officers was not affected by its

"backwards" reasoning.

We disagree. The court explained that it found Wright

had fled not simply because it credited Officer Bordley's testimony

about his observations and the inferences he drew from them, but

also because that testimony was corroborated by the logical notion

that Wright was running from the police because he had a gun.

I also, I want complete candor here,
but of course I, I find that Mr. Wright was
carrying a weapon. There's been no evidence
he was licensed or not. But given the nature
of these charges, I infer that Mr. Wright knew
that at least there was some question about
his carrying that weapon and he didn't want to
confront the police. And so I infer that it
made perfect sense for him, seated in the back
seat of a car, to lean forward to assure
himself that the vehicle that had pulled out
of the traveled way and come to a stop in
front of the car in which he was riding was in
fact a police vehicle.
Can I reason backwards from the fact
that what happened next was that the police
officers discovered the weapon on Mr. Wright?
I think it is undisputed he was carrying a
weapon and I do so reason.

We find it impossible to discern whether the court would

have concluded that Wright knowingly fled from the police if it had

-14-
not considered the eventual recovery of the gun. At the hearing,

Wright argued that Officer Bordley's testimony, alone, was

insufficient to support a finding of flight because Bordley was

behind Wright's car and could not see what Wright did while leaning

forward (i.e., whether Wright leaned forward to look at the car in

front of him, or to talk to the front seat passengers, or for some

other reason altogether). The district court appears to have

responded to this argument by citing the fact of the gun as

corroboration that Wright's running was specifically a response to

the police presence. Given that explanation, we cannot determine

how much weight the court gave to the gun and how much it gave to

Officer Bordley's testimony describing what he saw before Wright

ran. Moreover, we are unable to say that the error was confined to

irrelevant comments on Wright's motives for running. The court's

oral ruling suggests that the court used the gun to illuminate a

likely motive, and, more importantly, further relied on that motive

for its finding of flight. The legal error committed by the

district court is thus significant and, we conclude, incurable.

See 9A Charles Alan Wright & Arthur R. Miller, Federal Practice &

Procedure: Civil § 2585 (2d ed. 1995) ("Insofar as a finding [of

fact] is derived from the application of an improper legal standard

to the facts, it cannot be allowed to stand.").

The same type of "backwards" reasoning affected the

court's analysis of the testimony by the officers that Wright was

-15-
"clutching" or "grabbing" at his sweatshirt as he fled. None of

the police officers testified that Wright's grabbing motion

suggested to them that he was carrying a gun. None of them

testified that they believed, at the time they initiated the stop,

that he was carrying a heavy object. The district court, however,

explained that it credited their testimony about the grabbing

movement because Wright did, in fact, have a gun and it would be

sensible for him to clutch it while running:

Because he was carrying the weapon in his
sweatshirt and the weapon was heavy,
naturally, he clutched it and his, he clutched
it through the, through the sweatshirt and his
clutching of the weapon, the better to run
while carrying a heavy object, was observed by
the police officers following and indeed by
Officer Brown who by now had turned around.

Again, the court appears to have made a factual finding in

erroneous reliance on the eventual fruits of the search. Here,

though, the court used the evidence recovered through the search

not only to validate the officers' testimony, but to expand upon

it. Using the existence of the gun, and the court's commonsense

assumption that the gun was heavy, the court made a factual finding

that Wright grabbed his sweatshirt because he was carrying a heavy

gun. As with the finding of flight, we conclude that this factual

finding about Wright grabbing his sweatshirt was tainted with a

significant legal error and cannot be allowed to stand.

-16-
B. High Crime Area

The district court discussed, at some length, the

character of the area where Wright was stopped. It stated that it

"d[id] not conclude on this evidence that the area is a 'high crime

area.' Primarily because I'm not clear what that is." The court

also expressed its doubts about whether the character of the area

was a legal question or a mixed question of fact and law.

The parties dispute whether the court made a high crime

area finding or declined to do so. Wright insists that the court

explicitly found that the area of his arrest was not a high crime

area. The government insists that the court's uncertainty about

the nature of a high crime area means that the court did not

actually make a high crime area finding. We need not resolve this

dispute. Instead, in light of the remand we must order, we respond

to the court's acknowledged uncertainty about the nature of the

high crime area determination and the factors relevant to that

determination.

We see no reason to treat the character of the stop's

location as other than a factual issue. See, e.g., United States

v. Bonner, 363 F.3d 213, 216 (3d Cir. 2004) (applying the clearly

erroneous standard to the factual finding that an area was not high

in crime); United States v. Diaz-Juarez, 299 F.3d 1138, 1142 n.2

(9th Cir. 2002) (applying clearly erroneous standard to factual

finding that area was high in crime); United States v. Trullo, 809

-17-
F.2d 108, 111 (1st Cir. 1987) (collecting cases showing that the

character of an area is an "articulable fact" that may be

considered in the reasonable suspicion analysis).

In most cases, the relevant evidence for this factual

finding will include some combination of the following: (1) the

nexus between the type of crime most prevalent or common in the

area and the type of crime suspected in the instant case, e.g.,

Wardlow, 528 U.S. at 124 (noting that the area was not simply

generally crime-ridden, but was particularly "known for heavy

narcotics trafficking," where the defendant was suspected of drug

activity); United States v. Edmonds, 240 F.3d 55, 60 (D.C. Cir.

2001) (noting that the finding of a high crime area was supported

by the similarity between the type of crime commonly found at that

location and the type of crime for which the police suspected this

defendant); (2) limited geographic boundaries of the "area" or

"neighborhood" being evaluated, e.g., United States v. Caruthers,

458 F.3d 459, 468 (6th Cir. 2006) (affirming a district court's

finding of a high crime area, in part, because the evidence of

frequent crime was specific to the exact intersection where the

stop occurred); United States v. Montero-Camargo, 208 F.3d 1122,

1138 (9th Cir. 2000) (en banc) ("We must be particularly careful to

ensure that a 'high crime' area factor is not used with respect to

entire neighborhoods or communities in which members of minority

groups regularly go about their daily business, but is limited to

-18-
specific, circumscribed locations where particular crimes occur

with unusual regularity."); and (3) temporal proximity between

evidence of heightened criminal activity and the date of the stop

or search at issue, e.g., United States v. Bailey, 417 F.3d 873,

874-75, 877 (8th Cir. 2005) (affirming high crime area finding, in

part, because of criminal activity during week prior to the stop at

issue, occurring in same location as the stop). Evidence on these

issues could include a mix of objective data and the testimony of

police officers, describing their experiences in the area.

Given the significance of location in evaluating the

totality of the circumstances, see, e.g., United States v. Arvizu,

534 U.S. 266, 273 (2002) ("When discussing how reviewing courts

should make reasonable-suspicion determinations, we have said

repeatedly that they must look at the 'totality of the

circumstances' of each case to see whether the detaining officer

has a 'particularized and objective basis' for suspecting legal

wrongdoing."), and in light of the considerations set forth herein,

the district court, upon remand, may wish to reevaluate the high

crime area issue. However, we wish to be clear that we are not

directing the district court to reconsider its high crime area

finding, and we are not suggesting what that finding should be, if

it chooses to revisit the issue.

-19-
 III.

Because of the legal error that impermissibly tainted the

district court's factual findings on Wright's conduct, we vacate

the judgment below and remand this case for further proceedings

consistent with this opinion.

So ordered.

-20-