United States Court of Appeals
For the First Circuit
No. 07-1988
UNITED STATES OF AMERICA,
Appellee,
v.
FLORENTINO RUIDÍAZ, JR.,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Mark L. Wolf, U.S. District Judge]
Before
Torruella, Circuit Judge,
Selya, Senior Circuit Judge,
and Howard, Circuit Judge.
Robert S. Sinsheimer, with whom Lauren M. Thomas and Denner
Pellegrino, LLP were on brief, for appellant.
James E. Arnold, Assistant United States Attorney, with whom
Michael J. Sullivan, United States Attorney, was on brief, for
appellee.
June 12, 2008
SELYA, Senior Circuit Judge. Charged with being a felon
in possession of a firearm and ammunition, defendant-appellant
Florentino Ruidíaz, Jr., attempted to suppress the most damning
evidence against him. The district court denied the motion. The
defendant thereafter entered a conditional guilty plea, reserving
the right to challenge that order.
Following the imposition of sentence the defendant,
acting on the reservation, instituted this appeal. We conclude
that the police acted reasonably under the circumstances and,
accordingly, uphold the lower court's refusal to suppress the
evidence in question.
I. BACKGROUND
In reviewing the disposition of a motion to suppress,
"[w]e recount the relevant facts as the trial court found them,
consistent with record support." United States v. Lee, 317 F.3d
26, 30 (1st Cir. 2003). The venue of the events at issue here is
Brockton, Massachusetts.
Not long after midnight on July 17, 2005, a 911 caller
reported a shooting. The caller told the dispatcher that he was a
neighbor, situated at or near 126 French Avenue. He said that he
had heard gunfire on the street and that those involved were
wearing red shirts. Pertinently, the caller stated that the
shooter or shooters were in a green Mercedes Benz parked on the
street at the French Avenue address.
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The dispatcher received the caller's assurance that the
police could return the call and confirmed the telephone number
from whence the call had originated. At no time did the caller
furnish his name. Moreover, he warned that he would not be on the
street when the officers arrived.
News of the reported shooting was transmitted immediately
to the Brockton police department. Officers Thomas Hyland and
Brian Benvie, who as personnel seconded to the "impact shift" were
designated to handle calls about dangerous situations, responded.
Both officers were veterans of the force: each had worked as a
Brockton policeman for at least seven years; each had made many
arrests and dealt extensively with armed suspects; and each was
aware that the locus of the incident was within a notorious high-
crime area.
The 911 dispatcher told the officers what he had learned
from the caller. Officer Hyland, having been trained in the
workings of the 911 system, knew that callers' telephone numbers
were automatically disclosed and recorded by the system.
Within five minutes of receiving the report, the two
officers reached 126 French Avenue. Upon their arrival, they
observed a green Mercedes parked on the wrong side of the street
(i.e., facing the wrong way), partially on the sidewalk. The
vehicle's front passenger door was fully ajar and jutted out into
the street. As positioned, the Mercedes was in obvious violation
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of at least two dictates embodied in a municipal ordinance. See
Brockton Rev. Ords. ch. 12, art. 4, § 12-71.
The officers approached the car and shined their
flashlights into it. They observed the defendant slumped over in
the front passenger seat. The district court did not make a
finding about the color of the defendant's shirt.
The defendant did not respond to the flashlight beams.
Concerned that he might be either injured or dead, Officer Hyland
reached into the vehicle, touched the defendant's shoulder, and
asked if he was okay. The defendant replied profanely, "Are you f-
----- okay?" Startled by this outburst, Officer Hyland began to
worry that the defendant might be a shooter, not a victim. Fearing
that the defendant might be armed, the officer asked him to step
out of the car. The defendant replied either "Why do you want me
out of the f------ car?" or "Why the f--- do you want me out?" The
officer then grabbed the defendant's right arm and pulled him from
the vehicle.
At this point, Officer Benvie came to his partner's
assistance. He grabbed the defendant's left arm and helped to
force the defendant to the ground. By that time, another police
cruiser had arrived. A third patrolman, Officer Nazaire Paul,
conducted a pat-frisk that disclosed a loaded handgun tucked into
the defendant's waistband. An arrest followed.
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A search of the surrounding area revealed nothing of
consequence. Officer Benvie tried the 911 caller's telephone
number and spoke to someone, but the person would not identify
himself.
We fast-forward to August 24, 2005, when a federal grand
jury indicted the defendant on a single count of being a felon in
possession of a firearm and ammunition. See 18 U.S.C. § 922(g)(1).
After the usual formalities (not relevant here), the defendant
moved to suppress the gun and ammunition. He argued that the
police had acquired that evidence in violation of the Fourth
Amendment. The government opposed the motion.
The district court conducted an evidentiary hearing. It
ultimately denied the motion from the bench. The court found that
the government had proved by a preponderance of the evidence that
the officers' actions were reasonable under the circumstances. The
court later memorialized its findings and conclusions in a well-
reasoned rescript. See United States v. Ruidíaz, Crim. No. 05-
10214, slip op. (D. Mass. June 28, 2007) (unpublished).
On January 17, 2007, the defendant entered a conditional
guilty plea, see Fed. R. Crim. P. 11(a)(2), reserving the right to
appeal the denial of his suppression motion. The district court
sentenced him to serve a 180-month incarcerative term. This timely
appeal followed.
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II. DISCUSSION
This appeal tests the limits of a so-called Terry stop.
See Terry v. Ohio, 392 U.S. 1, 19-20 (1968). The defendant
contends that the police lacked sufficient legal justification to
order him from the Mercedes, effect his removal, and frisk him. In
order to place his contention in context, we first erect the legal
framework applicable to Terry stops and then apply that framework
to the facts as supportably found by the district court. Our
standard of review for orders granting or denying suppression is
familiar: we scrutinize the district court's factual findings for
clear error and evaluate its conclusions of law (including its
constitutional determinations) de novo. Ornelas v. United States,
517 U.S. 690, 699 (1996); United States v. Chhien, 266 F.3d 1, 5
(1st Cir. 2001).
A. The Legal Framework.
Because even a temporary police detention constitutes a
seizure under the Fourth Amendment, that detention must be
reasonable in order to pass constitutional muster. Terry, 392 U.S.
at 19; Chhien, 266 F.3d at 5-6. The oversight of brief
investigatory stops has two aspects. First, a police officer must
have a reasonable, articulable suspicion of an individual's
involvement in some criminal activity in order to make the initial
stop. Terry, 392 U.S. at 21; Chhien, 266 F.3d at 6. Second,
actions undertaken pursuant to that stop must be reasonably related
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in scope to the stop itself "unless the police have a basis for
expanding their investigation." United States v. Henderson, 463
F.3d 27, 45 (1st Cir. 2006).
Reasonableness in this context is a construct that must
be judged according to objective criteria; it is not dependent on
an individual officer's subjective motives. See Terry, 392 U.S. at
21-22; see also Whren v. United States, 517 U.S. 806, 813 (1996).
Not surprisingly, then, an inquiry into reasonableness requires a
reviewing court to consider the totality of the surrounding
circumstances. United States v. Romain, 393 F.3d 63, 71 (1st Cir.
2004). This inquiry is fact-sensitive, and the requisite objective
analysis must be performed in real-world terms. In other words,
reasonableness requires a practical, commonsense determination, see
United States v. Sowers, 136 F.3d 24, 28 (1st Cir. 1998) — a
determination that entails a measurable degree of deference to the
perceptions of experienced law enforcement officers, see Ornelas,
517 U.S. at 699; Chhien, 266 F.3d at 8.
Because reasonable suspicion is a protean concept,
suspicion sufficient to justify an investigatory stop may be rooted
in any of a variety of permissible scenarios. One such scenario
exists when presumptively reliable information about criminal
activity is provided by third parties. See, e.g., Romain, 393 F.3d
at 71. That scenario includes reasonable inferences that may be
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drawn when that information is viewed in light of the attendant
circumstances. See id.
While no perfectly precise definition of reasonable
suspicion exists, it is well established that, in terms of the
continuum of knowledge, reasonable suspicion requires more than a
mere hunch but less than probable cause. United States v. Sokolow,
490 U.S. 1, 7 (1989); Romain, 393 F.3d at 71. It follows,
therefore, that no direct link between the suspect and the
suspected criminal activity need be forged in order to achieve
reasonable suspicion. Chhien, 266 F.3d at 6.
A Terry stop is not necessarily a snapshot of events
frozen in time and place. Often, such a stop can entail an ongoing
process. For that reason, "[t]he propriety of an officer's actions
after an initial stop depends on what the officer knows (or has
reason to believe) and how events unfold." Romain, 393 F.3d at 71.
This means that if an officer undertakes an investigation pursuant
to a Terry stop, his ensuing actions must be "fairly responsive to
the emerging tableau." Chhien, 266 F.3d at 6. As the
investigation proceeds, however, the officer "may shift his focus
and increase the scope of his investigation by degrees if his
suspicions mount during the course of the detention." Id.; see
Sowers, 136 F.3d at 27 (suggesting that "the actions undertaken by
the officer following the stop [must be] reasonably responsive to
the circumstances justifying the stop in the first place, as
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augmented by information gleaned by the officer during the stop").
B. The Merits.
With this framework in place, we return to the
particulars of the case at hand. The defendant does not challenge
the constitutionality of the officers' approach. He argues instead
that their subsequent actions exceeded the permissible scope of a
Terry stop when Officer Hyland ordered him out of the car, effected
his removal, and had a pat-frisk performed.
The defendant's thesis proceeds along the following
lines. The ordering of a passenger out of a parked car, under the
guise of investigating a parking violation, was unconstitutional
when the passenger had done nothing to make the officer fear for
his safety. Yanking the passenger from the vehicle and frisking
him were further steps down this unconstitutional path. Because
the gun and ammunition were discovered through these
unconstitutional means, that evidence should have been suppressed.
Based on these arguments, we are tasked with determining
only the constitutionality of the officers' actions following their
initial approach to the illegally parked Mercedes and their
preliminary inquiry to the defendant. The totality of the
circumstances is, therefore, of obvious importance.
When the officers arrived at the scene, it was after
midnight. They found themselves in a notorious high-crime
neighborhood. They were responding to a 911 call made roughly five
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minutes earlier, reporting a shooting in progress. They were told
that the gunfire had come from a green Mercedes located outside 126
French Avenue. Upon their arrival, they saw such a vehicle parked
at that location in violation of a municipal ordinance. They also
saw a man slumped over in the Mercedes — a man who proved
unresponsive to flashlight beams. And, finally, the man acted
belligerently when an officer inquired as to his welfare.
Although any one of those facts, taken alone, might not
have been sufficient to create reasonable suspicion, see, e.g.,
Illinois v. Wardlow, 528 U.S. 119, 124 (2000), a fact that is
innocuous in itself may in combination with other innocuous facts
take on added significance. So it is here: the individual facts,
taken in the aggregate, seem sufficient to trigger a reasonable
suspicion that some criminal activity was afoot — and that the
defendant was involved. See, e.g., Adams v. Williams, 407 U.S.
143, 147-48 (1972) (informant's report, high-crime area, and time
of night combined to yield reasonable suspicion); United States v.
Soares, 521 F.3d 117, 120-21 (1st Cir. 2008) (time of night, high-
crime area, suspect's unusual behavior and use of profanity
combined to yield reasonable suspicion); Romain, 393 F.3d at 72
(911 call, together with suspect's visible agitation and
belligerence combined to yield reasonable suspicion); United States
v. Stanley, 915 F.2d 54, 56 (1st Cir. 1990) (time of night, high-
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crime location, and unusual conduct combined to yield reasonable
suspicion).
The defendant asserts that an important integer in this
equation — the 911 call — should not have been accorded any weight.
In his view, that call exhibited insufficient indicia of
reliability to warrant any reliance on it. In particular, he
points to the anonymity of the caller and attempts to analogize the
call to the anonymous tip discussed in Florida v. J.L., 529 U.S.
266 (2000).
The analogy to J.L. is flawed. There, an unknown tipster
called the police from an unknown location and gave them
information. See id. at 270. The Court's opinion teaches that
truly anonymous tips must be corroborated in some meaningful way in
order to justify crossing the reasonable suspicion threshold. See
id.
The defendant's argument overlooks that not every report
from a nameless source is truly anonymous. As we have said, a
label like "anonymous" has a chameleon-like quality; it can embrace
a variety of things that differ from one another in important ways.
See Romain, 393 F.3d at 74. Even though the caller in this case,
like the caller in J.L., did not give his name, that similarity
masks a salient difference between the two calls.
The difference is subtle but significant. Here, the 911
caller confirmed his telephone number and agreed that the police
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could call him back. Because he was aware that his identity could
easily be unearthed, the likelihood of prevarication was
diminished. In addition, the police were well aware of the trace
capabilities of the 911 system, so they knew that a caller could be
tracked down if he provided false information. These accoutrements
furnish substantial reliability insurance and serve to distinguish
this case from J.L.1
That the caller did not want to be front and center does
not cancel that insurance. The caller's self-identification as a
neighbor permitted a reasonable inference that his reluctance to be
seen or named derived from a fear of retaliation at the hands of
the shooters. The Eleventh Circuit reasoned persuasively to that
effect in United States v. Holloway, 290 F.3d 1331 (11th Cir.
2002), in which it concluded that "the fact that a 911 caller
chooses . . . to remain anonymous may very well have little bearing
on [his] veracity." Id. at 1339.
The test, of course, does not hinge on the definition of
"anonymous" but, rather, on whether the 911 call possessed
sufficient indicia of reliability. See United States v. Brown, 500
1
We add, moreover, that J.L. addressed anonymous tips in the
context of the first — not the second — step of the Terry analysis.
The J.L. Court noted that its decision applied only to "cases in
which the officer's authority to make the initial stop is at issue"
and "in no way diminishes a police officer's prerogative, in accord
with Terry, to conduct a protective search of a person who has
already been legitimately stopped." J.L., 529 U.S. at 274. The
case at hand falls within the encincture of the latter scenario.
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F.3d 48, 54 (1st Cir. 2007). That determination must be made in
light of all the circumstances. Id. In our judgment, the facts
alluded to above, taken in combination, comprised more than
adequate indicia of reliability to allow the arriving officers to
give some credence to the 911 report.2
The stage now set, we hark back to the scene. To
recapitulate, when the police arrived, they noted the presence of
the green Mercedes, illegally parked. That the car was
impermissibly parked gave the officers all the more reason to
approach it. See Chhien, 266 F.3d at 6.
Once they reached the vehicle, a new piece of information
came to their attention: a man slumped over in the front passenger
seat, unresponsive to lights shined in his face. Officer Hyland
testified that, given the man's posture and the earlier report of
gunfire associated with a green Mercedes, he believed that the man
was injured or dead. Under the circumstances, that stated belief
was objectively reasonable.
Spurred by a desire to check on the well-being of the
comatose passenger, the officer touched the man's shoulder and
2
This is especially so because the call referenced an ongoing
emergency — gunfire in the streets. We have recognized before that
reports about ongoing emergencies, by virtue of their very nature,
necessitate quick action. See, e.g., United States v. Monteiro,
447 F.3d 39, 49 (1st Cir. 2006) (noting special weight due to
anonymous tips when "imminent threat to public safety" is in
prospect); Romain, 393 F.3d at 71 (attaching weight to emergency
nature of 911 call).
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inquired as to his status. That action, too, was objectively
reasonable.
This brings us to the defendant's rejoinder. According
to the officer, the defendant responded with a belligerent
expletive. The defendant challenges the credibility of this
testimony and, in support, points out that Officer Benvie did not
hear the alleged response.
The defendant's challenge fails. Within wide limits,
credibility judgments are for the district court, not for the court
of appeals. See, e.g., United States v. Laine, 270 F.3d 71, 76
(1st Cir. 2001); United States v. Valle, 72 F.3d 210, 213-14 (1st
Cir. 1995). Here, the district court credited Officer Hyland's
version of the encounter. The officer's testimony is not sullied
by any palpable inaccuracies, internal contradictions, or evident
implausibilities such as would justify us in overriding the
district court's credibility call.3 Finding no clear error, we
must defer to the lower court's decision to credit Officer Hyland's
testimony about the defendant's response.
The defendant has a fallback position. He suggests that
even if he did make a profane response, there may have been an
innocent explanation for it. That suggestion misconceives the
3
That officer Benvie did not hear the defendant's utterance is
of little moment. At the time, he was positioned near the rear of
the vehicle.
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applicable legal principle. The relevant question is not whether
the officers could have interpreted the response in some more
benign way but, rather, what degree of suspicion they reasonably
could attach to the utterance in light of the surrounding
circumstances. See Wardlow, 528 U.S. at 128; Stanley, 915 F.2d at
57. Using commonsense judgment, an objectively reasonable officer
plausibly could have concluded — as Officer Hyland did — that the
belligerence of the response indicated more than mere annoyance.
So viewed, the response supported a reasonable suspicion of
criminal activity. See, e.g., Soares, 521 F.3d at 121; Romain, 393
F.3d at 72. Put another way, the hostile response, along with the
background information possessed by the officer and his own
experience, was enough to ground a reasonable suspicion that the
man he originally had thought was a victim might be a shooter.4
See Chhien, 266 F.3d at 6 (recognizing that investigatory officers
may shift the focus in order to remain responsive to emerging
facts); Sowers, 136 F.3d at 27 (similar).
Once that suspicion arose, the officer's request that the
defendant step out of the car was objectively reasonable. When a
Terry stop is effected in connection with a traffic violation and
4
The defendant makes much of the fact that the 911 call
identified the shooters as wearing red shirts, yet the record is
barren of any evidence that the defendant was so attired. The
totality of the circumstances is likely to encompass some facts
favorable to the officer's conclusion and some unfavorable to it.
There is no rule — nor should there be — that every datum in the
totality must favor a finding of reasonable suspicion.
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an officer's concern for his own safety is implicated, it is within
the officer's authority to order a passenger out of the car as a
security measure. Maryland v. Wilson, 519 U.S. 408, 414-15 (1997).
Moreover, an officer may issue such an order as a matter of course;
he does not need to have an independent fear for his safety. See,
e.g., United States v. Coplin, 463 F.3d 96, 102 (1st Cir. 2006).
The defendant suggests that the reasoning behind the
Wilson rule is that an officer's safety is jeopardized only when
the number of occupants in a car outnumbers the police officers who
are present. That suggestion is jejune. The Wilson Court
recognized that the danger may arise "from the fact that evidence
of a more serious crime might be uncovered during the stop." 519
U.S. at 414. This danger exists regardless of the number of
persons in a stopped vehicle and may be traced to a passenger as
easily as to the driver. See id. (explaining that "the motivation
of a passenger to employ violence to prevent apprehension of such
a crime is every bit as great as that of the driver"). Thus, we
hold that Officer Hyland did not exceed the scope of his
constitutional authority when he asked the defendant to step out of
the Mercedes.
The defendant's final challenge is to the decision to
pull him from the car and pat-frisk him. This challenge need not
detain us.
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As we have said, Officer Hyland's fear for his safety was
based on an objectively reasonable belief that the defendant might
be the shooter (and, therefore, might be carrying a gun). Upon
being asked to exit the vehicle, the defendant balked; instead of
exiting, he uttered more profanity, further heightening Officer
Hyland's legitimate concerns.
Even without that further incitement, the pat-frisk would
have been permissible. Once an officer has formed a reasonable
belief that a detained person may be armed and dangerous, a pat-
down for protective purposes is, without more, deemed reasonably
related in scope to the stop. See Terry, 392 U.S. at 30; United
States v. Ivery, 427 F.3d 69, 72 (1st Cir. 2005). Thus, when the
defendant refused to accede to Officer Hyland's request, the
officers were constitutionally entitled to remove him from the
vehicle and pat-frisk him. See Soares, 521 F.3d at 121 (holding
removal from car and pat-frisk constitutional when defendant among
other things refused to remain still and used profanity).
The defendant discourages this holding and invites us to
invalidate the pat-frisk based on our decision in United States v.
McKoy, 428 F.3d 38 (1st Cir. 2005). We decline the invitation.
In McKoy, we held that officers infringed a defendant's
Fourth Amendment rights when the totality of the circumstances did
not support a reasonable suspicion that the defendant posed a
threat to their safety. Id. at 40-41. There, the police relied
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solely on the area's dangerousness and the defendant's apparent
nervousness to ground reasonable suspicion. See id. at 40. Here,
in contrast, the officers were privy to numerous other facts
supporting reasonable suspicion. Thus, the totality of the
circumstances here is incommensurate with that in McKoy. It
follows inexorably that the latter decision cannot carry the weight
that the defendant loads upon it.
III. CONCLUSION
We need go no further. For the reasons elucidated above,
we affirm the district court's denial of the defendant's motion to
suppress.
Affirmed.
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