United States Court of Appeals
For the First Circuit
No. 08-2382
UNITED STATES OF AMERICA,
Appellee,
v.
JAMONT DUBOSE,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Patti B. Saris, U.S. District Judge]
Before
Lynch, Chief Judge,
Torruella and Ebel, * Circuit Judges.
Daniel J. Cloherty, by appointment of the court, with
whom Victoria L. Steinberg and Dwyer & Collora, LLP were on
brief for appellant.
Mark T. Quinlivan, Assistant United States Attorney,
with whom Michael J. Sullivan, United States Attorney, was
on brief for appellees.
August 31, 2009
*
Of the Tenth Circuit, “sitting by designation”.
EBEL, Circuit Judge. Defendant-Appellant Jamont Dubose
challenges the district court’s denial of his motion to
suppress evidence found when he was stopped and frisked by
the police. After the district court denied his motion to
suppress, Dubose pled guilty to being a felon in possession
of a firearm, but preserved his right to appeal the denial
of his motion to suppress. This timely appeal followed.
Exercising jurisdiction pursuant to 28 U.S.C. § 1291,
we AFFIRM.
I. Background
“We relate the facts ‘as the trial court found them,
consistent with record support.’” United States v. Am, 564
F.3d 25, 27 (1st Cir. 2009) (quoting United States v.
Ruidíaz, 529 F.3d 25, 27 (1st Cir. 2008)). In the afternoon
of February 22, 2007, two Boston Police Officers, Officers
Canuto and Ryan, witnessed a Camry double-parked on
Fairmount Street, near the corner with Washington Street.
Shortly thereafter, the officers observed Jamont Dubose walk
down Washington Street, turn on Fairmount Street, and
approach the Camry. Dubose then leaned into the front
driver’s side of the Camry and, with both hands and his
upper torso inside the vehicle, had a brief encounter with
its occupants. He then turned around and walked back the
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way he came. Because of the location of the car and the
configuration of the streets, Dubose could not have seen the
Camry on Fairmount Street from where he was walking on
Washington Street. Therefore, Officer Canuto concluded that
this was a pre-arranged meeting. Given the brief nature of
the meeting, the fact that it appeared to have been pre-
arranged, and the fact that this encounter fit the
description of drug transactions that had previously
occurred in the area 1 , the officers thought that they may
have witnessed a drug transaction.
Their suspicions aroused, Officers Canuto and Ryan
decided to question Dubose. They turned their car around,
parked at an angle facing the wrong way on the street, and
with their badges displayed, began walking towards Dubose.
Officer Ryan soon became sidetracked speaking with some
pedestrian bystanders, so Officer Canuto approached Dubose
alone. Officer Canuto stated that, as he approached Dubose,
who was walking away with his right hand in his sweatshirt
pocket, he said, “Excuse me, sir, can I talk to you for a
second?” (Appx. at 10, 52, 95.) Initially, Dubose ignored
1
Although brief pre-arranged drug transactions were
fairly common in this area, the district court explicitly
found that this area was not a “hot spot” of criminal
activity at that time. However, Officer Canuto had
previously made arrests in the area and a shooting had
occurred there about four months before the events leading
to this case.
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him and kept walking. However, after Officer Canuto
repeated the question in an increasingly loud voice a few
more times, Dubose, with his right hand still in his
sweatshirt pocket, turned around and faced Officer Canuto.
Concerned that Dubose might have a firearm in his pocket,
Officer Canuto told him to remove his hand from his pocket.
Dubose initially refused to do so but, after Canuto repeated
his order a number of times, Dubose “reluctantly complied”
with Officer Canuto’s demands. (Appx. at 11.) Because of
Dubose’s reluctance to remove his hand from his pocket, his
nervous demeanor, and Officer Canuto’s prior experience with
drug dealers who often carry weapons, Officer Canuto decided
to conduct a pat-frisk of Dubose’s sweatshirt pockets.
As he patted Dubose’s sweatshirt, Officer Canuto
immediately noticed a hard object that he suspected might be
a firearm and asked, “What is this?” (Id. at 69.) Dubose
responded, “It’s not mine.” (Id.) Officer Canuto then
reached into the pocket and retrieved a loaded .22 caliber
revolver. Officer Canuto alerted Officer Ryan that he had
retrieved a firearm. Dubose then attempted to flee and,
after a brief foot chase, the officers subdued him. As the
officers were arresting him, Dubose stated, “I just found it
and picked it up.” (Id. at 11.)
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In September 2007, a grand jury indicted Dubose for
being a felon in possession of a firearm in violation of 18
U.S.C. § 922(g)(1), and charged that, if convicted, his
firearm would be subject to the forfeiture provisions of 18
U.S.C. § 924(d) and 28 U.S.C. § 2461(c). Dubose filed a
motion to suppress the evidence found during his encounter
with the police, arguing that the search and seizure that
led to the recovery of the firearm in his possession were
conducted in violation of the Fourth Amendment to the United
States Constitution and Article 14 of the Massachusetts
Declaration of Rights. 2 In March 2008, the district court
issued a written opinion denying Dubose’s motion to
suppress. In June 2008, Dubose notified the court of his
intent to enter a conditional plea of guilty to Count I of
the indictment, expressly preserving his ability to appeal
the district court’s denial of his motion to suppress. See
Fed. R. Crim. P. 11(a)(2). On October 2, 2008, the court
2
Although Dubose also mentions the Massachusetts
Declaration of Rights in his opening brief, he fails to
actually quote the Declaration or any cases interpreting the
relevant portion of that document. Instead, the substantive
portions of his brief are focused exclusively on his federal
constitutional challenge to the admissibility of the
evidence in this case. Following Dubose’s lead, this court
will address only the federal constitutional issues in this
case. See United States v. Zannino, 895 F.2d 1, 17 (1st
Cir. 1990) (stating that, on appeal, “issues adverted to in
a perfunctory manner, unaccompanied by some effort at
developed argumentation, are deemed waived”).
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entered judgment against Dubose on Count I of the
indictment, and sentenced him to 180 months’ imprisonment.
This timely appeal, challenging the order denying his motion
to suppress as well as the judgment and sentence, was filed
on October 8, 2008.
II. Analysis
A. Standard of Review
“This court applies a mixed standard of review for
orders granting or denying suppression. [This] court reviews
a district court’s findings of fact and credibility
determinations on a suppression motion for clear error and
its conclusions of law de novo.” United States v. Andrade,
551 F.3d 103, 109 (1st Cir. 2008) (citation omitted). “We
recount the facts in the light most favorable to the
district court’s ruling on the motion to suppress, but only
to the extent that they have support in the record and are
not clearly erroneous.” United States v. Holloway, 499 F.3d
114, 115 (1st Cir. 2007); see also United States v. Cook,
277 F.3d 82, 84 (1st Cir. 2002) (“We construe the record in
the light most favorable to the district court’s ruling,
drawing reasonable inferences in the government’s favor.”);
United States v. Nee, 261 F.3d 79, 84 (1st Cir. 2001)
(explaining that “[t]his deferential standard requires that
an appellate court exhibit great respect for the presider’s
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opportunity to hear the testimony, observe the witnesses’
demeanor, and evaluate the facts at first hand”) (quoting
United States v. Zapata, 18 F.3d 971, 975 (1st Cir. 1994))
(internal quotation marks omitted).
B. Dubose Was Seized
A person is seized when the police restrain that
person’s liberty. Holloway, 499 F.3d at 117. The Supreme
Court has distinguished two kinds of restraint: physical or
a verbal “show of authority” that would compel a reasonable
person to comply. California v. Hodari D., 499 U.S. 621,
626 (1991). Physical force alone is a seizure. Id. at
624-25. But when an officer makes a show of authority
instead, the person is not seized until the person submits
to the show of authority by complying with the officer’s
instruction. Id.; Holloway, 499 F.3d at 117. Once the
person complies, his liberty has been restrained and he is
seized under the Fourth Amendment. United States v. Sealey,
30 F.3d 7, 9 (1st Cir. 1994).
When Officer Canuto first approached Dubose, he said,
“Excuse me, sir, can I talk to you for a second?” (Appx.
at 10, 52, 95.) Initially, Dubose ignored him and kept
walking, but after Officer Canuto repeated the question in
an increasingly loud voice, Dubose, with his hand in his
sweatshirt pocket, stopped and turned to face Officer
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Canuto. Office Canuto several times ordered Dubose to take
his hand out of his pocket because the officer feared Dubose
might have a gun. Dubose initially refused to comply, but
after several such commands by Officer Canuto, eventually he
complied.
We need not get excessively embroiled in whether the
seizure occurred when Dubose stopped walking and turned to
face Officer Canuto or whether it occurred a few seconds
later when he removed his hand from his sweatshirt in
response to Officer Canuto’s command. Only a few seconds
elapsed during this interaction which is best analyzed as a
single ongoing encounter that should be viewed holistically,
rather than bifurcated into artificially small increments.
We have no difficulty concluding that by the time Dubose
had complied with Officer Canuto’s demand that he stop and
remove his hand from his sweatshirt pocket, there had been
a seizure.
C. Dubose’s Seizure Was Justified by the Officers’
Reasonable and Articulable Suspicion of Criminal Activity
“A law enforcement officer ordinarily may not stop
someone and restrain his freedom to walk away unless the
officer has a reasonable and articulable suspicion of
criminal activity.” Cook, 277 F.3d at 85 (internal
quotations omitted). The seizure in this case was justified
because, when Officer Canuto seized Dubose, he had “a
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reasonable and articulable suspicion” that Dubose had
engaged in criminal activity.
Officer Canuto testified that he became suspicious of
Dubose because of the brief nature of his meeting with the
occupants of the Camry, the fact that their meeting appeared
to be pre-arranged, the fact that Dubose leaned his entire
upper body into the car during the interaction, and that
Dubose’s conduct was similar to the conduct involved in
other drug transactions in the area. While there may have
been an entirely innocent explanation for Dubose’s conduct,
Officer Canuto is a six-year veteran of the Boston Police
Department, and we owe a measure of deference to his
expertise in interpreting the events in this case. See
Ruidíaz, 529 F.3d at 29 (stating that the determination of
reasonable suspicion “requires a practical, commonsense
determination—a determination that entails a measurable
degree of deference to the perceptions of experienced law
enforcement officers”) (citation omitted); United States v.
Trullo, 809 F.2d 108, 112 (1st Cir. 1987) (deferring to
police officer’s conclusion that defendant was acting
suspiciously when he sat in his car, engaged in a brief
conversation with another individual who subsequently
entered the defendant’s car, then drove with this individual
to a nearby deserted side street where they engaged in a
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further conversation, and the individual then exited the
defendant’s car and went back in the direction the defendant
had just driven). 3
Further, Dubose’s initial refusal to remove his hand
from his pocket after having been ordered to do so provided
additional substantiation of Officer Canuto’s suspicion.
There is no doubt that Officer Canuto had reasonable
suspicion to seize Dubose.
D. Officer Canuto’s Search of Dubose Was Appropriate
After Officer Canuto succeeded in seizing Dubose, he
decided to conduct a pat-down search of Dubose’s outer
clothing. Officer Canuto’s limited search of Dubose’s outer
clothing was justified by legitimate concerns for his
safety.
Officer Canuto testified that after Dubose turned around
with his hand still in his pocket, he became fearful that
Dubose was carrying a weapon. He stated that drug dealers
often carry weapons concealed in their waistbands, and,
3
Of course, we will not blindly adhere to an officer’s
assertion that certain conduct appeared suspicious. See
Rivera v. Murphy, 979 F.2d 259, 264 (1st Cir. 1992) (noting
that relying exclusively on a police officer’s experience to
determine whether a seizure was justified by reasonable
suspicion “would effectively transform the police officer
into a judge, and the court into a rubber stamp”). However,
an officer’s expertise in interpreting criminal conduct is
certainly a factor in this court’s determination of
reasonable suspicion.
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because that is not a very secure position for a gun, they
often keep their hands in their pockets to ensure the gun
does not fall down. Officer Canuto’s concerns were further
compounded by Dubose’s initial refusal to remove his hand
from his pocket, and Dubose’s nervousness during this
encounter. The combination of Dubose’s interaction with the
Camry’s occupants, his initial refusal to heed Officer
Canuto’s order to remove his hand from his pocket, and his
nervousness during his encounter with Officer Canuto,
together with Officer Canuto’s experience in dealing with
drug transactions that often involve guns, were sufficient
to justify a pat-down of Dubose’s outer clothing. See
Trullo, 809 F.2d at 113-14 (holding that protective frisk
was justified when officers had reasonable suspicion that
defendant had engaged in an illegal drug transaction, the
officers’ experience showed that people engaging in drug
crimes often carried firearms, and the officers noticed a
bulge in the defendant’s pocket); United States v. Harris,
313 F.3d 1228, 1236 (10th Cir. 2002) (holding that officer
was justified in conducting a protective frisk of
defendant’s clothing primarily because “[d]efendant refused
to take his hands out of his pockets after [police officer]
requested that he do so”); see also United States v. Aitoro,
446 F.3d 246, 253 (1st Cir. 2006) (“When an officer sees a
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bulge in a detainee's clothing and reasonably believes that
bulge to be a concealed weapon, under the right
circumstances the officer will have license to search the
detainee.”).
During the pat-down of Dubose’s outer garments, Officer
Canuto felt a hard object that he thought might be a
firearm. He asked Dubose, “What is this?” (Appx. at 69.)
Not exactly answering the question, Dubose responded, “It’s
not mine.” (Id.) Officer Canuto then reached into the
pocket and retrieved a loaded .22 caliber revolver.
Officer Canuto’s decision to reach into Dubose’s pocket
was justified by his reasonable belief that the object he
felt was a firearm. As we said in Trullo, 809 F.2d at 114,
Once the “pat down” confirmed that the article in
appellant’s pocket had the characteristics of a weapon,
the officer was justified in reaching into the pocket
and seizing it. The officer had reasonable grounds to
believe that appellant was armed and dangerous. It was
therefore imperative, for the safety of the officers
and the general public, that the officer take the
action that he did. We hold that such conduct clearly
was reasonable under the Fourth Amendment.
Officer Canuto’s justifiable belief that he had detected a
firearm in Dubose’s sweatshirt pocket, in combination with
Dubose’s strange response to Officer Canuto’s question about
the object in his pocket, clearly justified his decision to
reach in and retrieve the firearm in Dubose’s pocket.
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III. Conclusion
For the foregoing reasons, we AFFIRM the district
court’s denial of Dubose’s motion to suppress.
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