United States Court of Appeals
For the First Circuit
No. 07-2794
UNITED STATES OF AMERICA,
Appellee,
v.
SAMNANG AM, a/k/a Sammang Am
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Rya W. Zobel, U.S. District Judge]
Before
Boudin, Stahl, and Lipez, Circuit Judges.
Walter H. Underhill, by Appointment of the Court, for
appellant.
Samnang Am on brief pro se.
Lisa M. Asiaf, Assistant U.S. Attorney, with whom
Michael J. Sullivan, United States Attorney, was on brief for
appellee.
April 21, 2009
STAHL, Circuit Judge. Defendant-appellant Samnang Am
appeals both his conviction and sentence under the felon-in-
possession statute, 18 U.S.C. § 922(g)(1). Am's primary argument
is that the district court erred in denying his motion to suppress
a firearm and ammunition seized incident to a Terry stop.1 He
additionally claims that the court was in error when it found that
one of his prior convictions qualified as a predicate under the
Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e)(1). Finding
no error, we affirm both the conviction and subsequent sentence.
I.
We relate the facts "as the trial court found them,
consistent with record support." United States v. Ruidíaz, 529
F.3d 25, 27 (1st Cir. 2008) (quoting United States v. Lee, 317 F.3d
26, 30 (1st Cir. 2003)). On May 26, 2005, Sergeant Michael Vail
and Officer Michael Kmiec of the Lynn Police Department were
patrolling in a marked police cruiser a high-crime area of Lynn,
Massachusetts, where there were frequent shootings and where the
Department was conducting increased patrols as part of its ongoing
gang suppression strategy. At approximately 7:00 p.m., the
uniformed officers observed Am, who Vail recognized, walking alone
1
Am also seeks to suppress statements he allegedly made to
the officers during the stop. The district court found as fact
that the statements were not actually made and that, in the
alternative, the statements were not subject to suppression because
Am was not the subject of a custodial interrogation when the
statements were claimed to have been made.
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down Essex Street. Am then on probation, a fact Vail knew, was on
his way to a mandatory anger management course, a term of his
probation. Upon seeing Am, Vail turned the cruiser around and
without using the take down lights or siren, pulled up behind Am.
Just minutes before the officers observed Am, Detective
Robert Hogan of the Lynn Police Gang Unit had informed Vail that Am
was a suspect in a recent shooting. Vail had previously interacted
with Am roughly twenty to thirty times, the encounters varying in
nature with twenty percent resulting in a pat-frisk. Although none
of Vail's prior searches had yielded a weapon, Vail had interviewed
Am in 2003 after Am was arrested with a rifle on his person, and
Vail knew that Am had been a suspect in several prior shootings.
Vail also was aware that Am was a leader of the Oriental Street
Boys, a Massachusetts gang affiliate of the Los Angeles-based
Crypts. Further, Vail was familiar with Am's reputation for
carrying a weapon and knew that Am was prohibited from doing so by
the terms of his probation. Importantly, Vail never before had
seen Am walking alone and surmised that he would not do so, in
rival gang territory, without being armed.2
After pulling approximately five to fifteen feet behind
Am, both officers exited the vehicle. Am did an "about face,"
2
Indeed, at the suppression hearing, Vail testified that he
said to Kmiec, "There’s no way he would be walking down Essex
Street without a gun on him," and Am conceded that during his
previous encounters with Vail, "It's never me walking like this by
myself."
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began walking toward the officers, and in a quick motion, put his
right hand into his right-hand pants pocket. Vail immediately
ordered Am to take his hand out of his pocket, and Am complied.3
Vail and Kmiec put Am against the hood of the police cruiser, pat-
frisked him, found a gun in his left front pocket, and then
arrested him. Am filed a motion to suppress evidence seized from
the Terry stop on the basis that the stop was not supported by
reasonable suspicion and thus violated the Fourth Amendment. After
the district court denied Am’s motion, Am filed a conditional
guilty plea.
Prior to and during the sentencing hearing, Am objected
to his Presentence Report which concluded that he was an armed
career criminal because he had been convicted for a violation of 18
U.S.C. § 922(g) and because he had at least three prior convictions
for violent felonies. See 18 U.S.C. § 924(e)(1); U.S.S.G. § 4B1.4.
Specifically, Am argued that a 1997 juvenile conviction for assault
with a dangerous weapon, a knife, did not qualify as an ACCA
predicate because the court documents from the 1997 conviction did
3
At the suppression hearing, the parties disputed whether Am
made certain statements, such as "I'm strapped," after the officers
told him to take his hand out of his pocket. The district court
heard testimony from Vail, Kmiec, and Am and examined both Kmiec's
police report, transcribed some hours after the incident had
occurred, and Am's deposition, signed more than a year after the
encounter. The court concluded that time had clouded the minds of
the parties and ultimately determined that the statements were not
made. For purposes of deciding whether the court properly admitted
the firearm and ammunition, it is not necessary to determine
whether the statements were or were not made.
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not make clear whether Am had pled guilty to assault by means of a
dangerous weapon or, more specifically, to assault by means of a
dangerous weapon, a knife. The court rejected Am's argument and
sentenced him to fifteen years imprisonment with three years of
supervised release.
II.
A. The Motion to Suppress
Am challenges the denial of his motion to suppress the
evidence seized during the pat-frisk. Am first argues that the
district court's denial was improper because the Lynn officers
lacked reasonable suspicion to conduct a Terry stop. Terry v.
Ohio, 392 U.S. 1, 19-20 (1968). Alternatively, he contends that
the officers exceeded the bounds of a permissible Terry stop,
constituting a de facto arrest in the absence of probable cause.
We review the district court's factual findings for clear
error and its legal conclusions de novo. Ruidíaz, 529 F.3d at 28.
"A clear error exists only if, after considering all the evidence,
we are left with a definite and firm conviction that a mistake has
been made." United States v. Barnes, 506 F.3d 58, 62 (1st Cir.
2007) (quoting United States v. McCarthy, 77 F.3d 522, 529 (1st
Cir. 1996)). This "[d]eference to the district court's findings of
fact reflects our awareness that the trial judge, who hears the
testimony, observes the witnesses' demeanor and evaluates the facts
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first hand, sits in the best position to determine what actually
happened." United States v. Young, 105 F.3d 1, 5 (1st Cir. 1997).
The Fourth Amendment provides that "[t]he right of the
people to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures, shall not be violated."
U.S. Const., amend. IV. Its primary purpose is to protect against
"arbitrary and oppressive interference by enforcement officials
with the privacy and personal security of individuals." I.N.S. v.
Delgado, 466 U.S. 210, 215 (1984) (quoting United States v.
Martinez-Fuerte, 428 U.S. 543, 554 (1976)).
In Terry v. Ohio, the Supreme Court counseled 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." 392 U.S. at 21. Thus, a police officer is
permitted to make a brief investigatory stop of an individual if
the officer has reasonable suspicion that criminal activity may be
afoot, United States v. Arvizu, 534 U.S. 266, 273 (2002), and to
frisk an individual if the officer has reasonable suspicion that
the person is armed and dangerous, Terry, 392 U.S. at 27. See id.
at 30 (permitting a limited search to discover weapons "where a
police officer observes unusual conduct which leads him reasonably
to conclude in light of his experience that criminal activity may
be afoot."). The so-called Terry stop "lies somewhere between a
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consensual encounter and a full-blown custodial arrest," United
States v. Harris, 218 Fed. Appx. 525, 527 (7th Cir. 2007), such
that reasonable suspicion "requires more than a mere hunch but less
than probable cause," Ruidíaz, 529 F.3d at 29.
Under our "familiar two-pronged inquiry," we evaluate
"whether the officer's action was justified at its inception, and
whether the action taken was reasonably related in scope to the
circumstances which justified the interference in the first place."
United States v. Taylor, 162 F.3d 12, 18 (1st Cir. 1998) (quoting
Terry, 329 U.S. at 20). To satisfy the first prong, we decide
whether the police officer can "point to specific and articulable
facts which, taken together with rational inferences from those
facts, reasonably warrant that intrusion." United States v.
Kimball, 25 F.3d 1, 6 (1st Cir. 1994) (quoting Terry, 392 U.S. at
21); see also Terry, 392 U.S. at 27 ("[I]n determining whether the
officer acted reasonably in such circumstances, due weight must be
given, not to his inchoate and unparticularized suspicion or
'hunch,' but to the specific reasonable inferences which he is
entitled to draw from the facts in light of his experience."). To
determine whether a pat-frisk is justified under the second prong
of our analysis, we consider the totality of the circumstances.
United States v. Cortez, 449 U.S. 411, 417 (1981); see United
States v. Bayless, 201 F.3d 116, 133 (2d Cir. 2000) ("[T]he court
must evaluate those circumstances 'through the eyes of a reasonable
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and cautious police officer on the scene, guided by his experience
and training.'") (quoting United States v. Oates, 560 F.2d 45, 61
(2d Cir. 1977)).
We turn first to the inception of the Lynn officers' stop
and note that even innocuous facts, which when taken alone may not
be "sufficient to create reasonable suspicion[,] . . . may in
combination with other innocuous facts take on added significance."
Ruidíaz, 529 F.3d at 30 (citation omitted). Here, the officers
articulated six factors that led them to believe Am might be
engaged in criminal activity. We find that five factors
articulated by the officers, even excluding the tip from Hogan,
were sufficient to show that the officers possessed the reasonable
suspicion necessary to conduct a Terry stop of Am.
Among the factors taken into account by Vail and Kmiec
was Am's presence in a high-crime area. While location on its own
is insufficient to create reasonable suspicion, it "is clearly a
consideration that a police officer may use to decide to make a
Terry stop." Kimball, 25 F.3d at 7; see also Illinois v. Wardlow,
528 U.S. 119, 124 (2000) ("[O]fficers 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."); United States v.
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Stroman, 500 F.3d 61, 64 (1st Cir. 2007). Am argues that location
was not a permissible consideration because the area in which he
was stopped had no connection with the type of criminal activity in
which he was engaged. We disagree that there was no such
connection. Given his familiarity with Am, Vail believed that it
was uncharacteristic for Am to walk unaccompanied in the area. The
stop occurred in a location of known gang violence based on
suspicion that Am was engaged in criminal activity related to his
gang membership, namely carrying a weapon for protection from rival
gangs. Compare Kimball, 25 F.3d at 6-7 (holding that reasonable
suspicion existed to justify the inception of the search where the
officer was aware of the defendant's criminal history, the
defendant was spotted in a school parking lot, and the officer knew
that a number of schools had been burglarized in the area) with
United States v. Monteiro, 447 F.3d 39, 47 (1st Cir. 2006) (finding
search unconstitutional where a co-defendant's gang involvement and
prior arrest were not linked to reliable information about the
potential criminal activity which the officers were investigating).
The officers also were aware of and considered Am's known
gang affiliation, past criminal conduct, proclivity to carry a
firearm, and probationary status. While any of these four factors
standing alone could well be insufficient to warrant a Terry stop,
the combination provided a reasonable basis to conduct an
investigatory stop of Am. See Ruidíaz, 529 F.3d at 30; United
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States v. Feliciano, 45 F.3d 1070, 1074 (7th Cir. 1995) ("Knowledge
of gang association and recent relevant criminal conduct, while of
doubtful evidentiary value in view of the strictures against
proving guilt by association or by a predisposition based on past
criminal acts, is a permissible component of the articulable
suspicion required for a Terry stop."). Am concedes that Vail knew
he was on probation but contends that his previous convictions were
irrelevant because none involved firearms. However, we have noted
that officers can consider all prior criminal activity, including
gang membership, in determining whether to initiate a Terry stop,
Kimball, 25 F.3d at 7. Vail testified at the suppression hearing
that he was aware that Am had been arrested for a drive-by
shooting. Vail also had been the interviewing officer when Am was
arrested while possessing a .22 caliber rifle. Therefore, we find
that the district court was correct in concluding that the factors
articulated by the officers, taken together, demonstrated that when
they decided to approach Am, they reasonably believed that Am was
engaged in criminal conduct. See United States v. Hart, 334 F.
Supp. 2d 5, 10 (D. Mass. 2003) (noting that there was reasonable
suspicion to stop the defendant because of the officers' belief
that he would be carrying a weapon for protection and did not have
the requisite license to do so).4
4
In its opinion, the district court cited and discussed Hart
at some length, comparing it to the operative facts in the present
case. Am, 2007 WL 465676 at *3-4. Am spends considerable time
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Finally, the officers testified that they considered
Detective Hogan's tip to Vail that Am was a suspect in a recent
shooting. Am argues that this reliance was improper because
Hogan's tip was unsubstantiated. Under the "collective knowledge"
or "pooled knowledge" principle, "reasonable suspicion can be
imputed to the officer conducting a search if he acts in accordance
with the direction of another officer who has reasonable
suspicion." Barnes, 506 F.3d at 62-63; see also Morelli v.
Webster, 552 F.3d 12, 17 (1st Cir. 2009); United States v. Cook,
277 F.3d 82, 86 (1st Cir. 2002) ("[T]he knowledge of each officer
should be imputed to others jointly involved in executing the
stop."). Thus, for example, Officer Kmiec was entitled to assume
that Sergeant Vail, who had far greater familiarity with Am, was
"acting in a manner consistent with [his] legal responsibilities."
Morelli, 552 F.3d at 17.
The district court credited Vail with the information
conveyed by Hogan -- Hogan, a gang specialist in the Lynn police
force, had interviewed an anonymous witness who believed Am was the
here objecting to the court's reliance on Hart and argues that the
court instead should have found controlling United States v. Weaks,
1995 WL 791944 (D. Mass. 1995), in which the court suppressed
evidence seized in a taxicab stop and search after officers
observed the defendant cover his face. We find no fault with the
district court's reasoning. We agree with the government that the
court discussed Hart to support one of the multiple factors upon
which it relied in reaching its decision. Moreover, we concur with
the district court that the facts leading up to Am's search more
closely align with those in Hart than in Weaks.
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triggerman in a recent shooting. A tip to an officer must bear
sufficient "indicia of reliability." Adams v. Williams, 407 U.S.
143, 147 (1972). If information is conveyed "in the absence of a
reasonable suspicion, then a stop in the objective reliance upon it
violates the Fourth Amendment." United States v. Hensley, 469 U.S.
221, 232 (1985). Compare Ruidíaz, 529 F.3d at 30-31 (finding stop
justified where police relied in part on an anonymous telephone
call but the caller confirmed his phone number and agreed that the
officers could call him back) with Monteiro, 447 F.3d at 44-45
(determining that police unreasonably relied on a tip by an
anonymous relative of a rival rang member who relayed the
information, noting hearsay and motive concerns). In its brief and
at oral argument, the government failed to provide information
regarding the source or reliability of Hogan's tip.5 Without more,
we refrain from passing judgment on the reasonableness of Hogan's
reliance on the witness report. Instead, as the government
suggested at oral argument, we excise Hogan's information from our
analysis of the officers' decision to approach Am.6 Nonetheless,
5
For example, we do not know the manner in which the witness
provided his information to Hogan, a consideration which has proven
material in prior cases. See, e.g., Florida v. J.L., 529 U.S. 266,
270 (2000) (unknown tipster called police from an unknown
location); Adams, 407 U.S. at 146 (informant came forward to
provide the information); Taylor, 162 F.3d at 15 (1st Cir. 1998)
(officer recognized informant's voice and knew informant, who
previously had provided accurate information, by name).
6
Indeed, on cross-examination, Vail stated, "Regardless of my
phone call with Detective Hogan, I would have spoke[n] with [Am]."
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we find that the other factors discussed -- the high-crime area;
Am's criminal history, gang affiliation, probationary status, and
proclivity to carry a weapon; and the unusual occurrence of Am
walking alone in a rival gang's territory -- were sufficient to
establish the reasonable suspicion required to initiate a Terry
stop of Am.
We next review whether the search conducted by the
officers was reasonably related in scope to the circumstances which
justified the stop. The district court properly noted that "[t]he
reasonable suspicion that permitted the police to stop Am does not
automatically give police the authority to frisk him attendant to
that search." Am, 2007 WL 465676 at *4. Instead, an officer's
"subsequent actions must be 'responsive to the emerging tableau -
the circumstances originally warranting the stop, informed by what
occurred, and what the officer learned, as the stop progressed.'"
United States v. Coplin, 463 F.3d 96, 100 (1st Cir. 2006) (quoting
United States v. Chhien, 266 F.3d 1, 6 (1st Cir. 2001)). When the
officers exited their vehicle, they did not call for backup, and
neither unholstered his weapon to suggest the stop would escalate
to an arrest. Cf. United States v. Smith, 423 F.3d 25, 30 (1st
Cir. 2005). Meanwhile, Am did an "about face" and thrust his hand
into his pocket. This action corroborated the officers' reasonable
suspicion that Am was engaged in criminal activity and heightened
their concern that he might be armed and dangerous, justifying the
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officers' decision to conduct a pat-frisk.7 Cf. United States v.
Andrade, 551 F.3d 103, 112-13 (1st Cir. 2008) (finding that the
officer reasonably could have thought the defendant was concealing
a weapon because he had his hands in his pocket); United States v.
Alston, 112 F.3d 32, 33 (1st Cir. 1997) (same).
The officers limited their search to the exterior of Am's
clothing and felt an object in his left-hand pocket before reaching
into the pocket to retrieve the gun. Compare United States v.
Romain, 393 F.3d 63, 72 (1st. Cir 2004) (finding search reasonable
where the officer began at the defendant’s waist and went no
further than to extract the gun) with United States v. Casado, 303
F.3d 440, 447 (2d Cir. 2002) (suppressing evidence where officer
reached into defendant's pocket before conducting a pat-down).
Further, Am was stopped and questioned in a neutral setting, a
street, the stop only lasted for five minutes before he was
arrested based upon probable cause, and the officers did not
handcuff Am until after their retrieval of the gun. Cf. Taylor,
162 F.3d at 21 (finding pat-frisk reasonable where ten to twelve
officers were at the scene and the detention lasted roughly thirty
minutes). In sum, we find the Terry stop and pat-frisk of Am
7
Am argues that the officers did not conduct a pat-frisk and
instead shoved their hands directly into his pockets. The district
court found that a pat-frisk occurred, and we will not disturb this
factual finding. See Ruidíaz, 529 F.3d at 32 ("[C]redibility
judgments are for the district court, not for the court of
appeals.").
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supported by reasonable suspicion and properly responsive in scope
to the circumstances surrounding the stop.8
B. Sentencing
Am also objects to his sentence separately in a pro se
brief. Citing the Supreme Court's recent decision in Begay v.
United States, 128 S.Ct. 1581 (2008), Am mainly argues that his
prior conviction for assault with a knife does not qualify as a
predicate offense under ACCA because the statute under which he was
convicted, M.G.L. ch. 265, §15B, lacks an express element requiring
force. We agree with the government that this contention fails
regardless of the standard of review we employ. By its terms, the
Massachusetts statute at issue, which criminalizes "an assault upon
another" by "means of a dangerous weapon," id., "has as an element
the use, attempted use, or threatened use of physical force" as
required by ACCA, 18 U.S.C. § 924(e)(2)(B)(i). See Commw. v.
Melton, 436 Mass. 291, 295 (2002) (stating that the Massachusetts
statute requires the state to prove either an attempted or
8
We thus disagree with Am's suggestion that the stop amounted
to a de facto arrest. "There is no scientifically precise formula
that enables courts to distinguish between investigatory stops,
which can be justified by reasonable suspicion . . . and . . . 'de
facto arrests'" which require probable cause. United States v.
Zapata, 18 F.3d 971, 975 (1st Cir. 1994). While Am clearly was
seized when the officers physically restrained him, "[t]he
appropriate legal determination to be made in this case is whether
the seizure exceeded the scope of a permissible Terry stop."
United States v. Maguire, 359 F.3d 71, 77 (1st Cir. 2004). Because
we have concluded that the stop did not exceed such bounds, we
similarly find that no de facto arrest occurred.
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immediately threatened battery perpetrated by means of a dangerous
weapon); Commw. v. Gorassi, 432 Mass. 244, 248 (2000) ("[A]n
assault is defined as either an attempt to use physical force on
another, or as a threat of use of physical force.").9
Finally, we deal summarily with Am's claim, also made in
his pro se brief, that the district court failed to examine the
mens rea requirement of the predicate offense.10 Under
Massachusetts law, assault by means of a dangerous weapon is a
general intent crime and requires either intentional and
unjustified use of force upon another person or the "intentional
commission of a wanton or reckless act . . . causing physical or
bodily injury to another." Cmmw. v. Ford, 424 Mass. 709, 711
(1997) (quotation omitted). Because the state, under either of
these two theories, had to show that Am acted intentionally, his
9
Am's reliance on Begay is misplaced. In Begay, the Court
determined that a New Mexico felony conviction for driving under
the influence of alcohol did not qualify as a violent felony for
ACCA purposes because the crime was not "purposeful, violent, and
aggressive" and was not similar in kind to ACCA's example crimes of
"burglary, arson, extortion, and crimes involving the use of
explosives." 128 S.Ct. at 1586. Am's conviction for assault with
a dangerous weapon, however, clearly satisfies the requirements of
ACCA.
10
The government urges us to treat the argument as waived,
citing United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990), in
which we refused to consider an argument because the defendant's
lawyer presented the issue "in a perfunctory manner, unaccompanied
by some effort at developed argumentation." Because Am introduces
this issue pro se, we decline to require of him the same level of
analysis we would for trained legal counsel.
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conviction for assault by means of a dangerous weapon thus
constituted a "crime of violence" for purposes of career offender
status. Cf. United States v. Zuniga-Soto, 527 F.3d 1110, 1113
(10th Cir. 2008) (reversing district court's determination that the
defendant was a career offender because a prior offense did not
qualify as a "crime of violence" where the state statute permitted
conviction on recklessness grounds).
III.
For the foregoing reasons, we affirm Am's conviction and
sentence.
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