United States v. Camacho

United States Court of Appeals
For the First Circuit

No. 09-2415

UNITED STATES OF AMERICA,

Appellee,

v.

ÁNGEL CAMACHO, A/K/A ANÍBAL CASTRO,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Richard G. Stearns, U.S. District Judge]

Before

Torruella, Boudin, and Lipez,
Circuit Judges.

William W. Fick, with whom Federal Public Defender Office, was
on brief for appellant.
Mark T. Quinlivan, Assistant United States Attorney, with whom
Carmen M. Ortiz, United States Attorney, was on brief for appellee.

November 23, 2011
 TORRUELLA, Circuit Judge. Appellant Ángel Camacho was

charged with one count of unlawful possession of a firearm and

ammunition despite having a prior felony conviction, in violation

of 18 U.S.C. § 922(g)(1), and one count of possession of a firearm

with an obliterated serial number, in violation of 18 U.S.C. § 922

(k). Camacho moved to suppress the firearm and ammunition, arguing

that they were obtained through an illegal search and seizure in

violation of the Fourth Amendment. The trial judge denied that

motion. United States v. Camacho, 608 F. Supp. 2d 178, 185 (D.

Mass. 2009). Camacho then entered conditional guilty pleas on both

counts, reserving his right to challenge the trial judge's

suppression ruling on appeal. He now exercises that right. We

agree with Camacho that his motion to suppress should have been

granted. Accordingly, we reverse.

I. Background and Procedural History

We summarize the facts as found by the district court in

its denial of Camacho's motion to suppress. See Camacho, 608 F.

Supp. 2d at 180-81. Those findings of fact are consistent with the

record and are not clearly erroneous. See United States v. Dancy,

640 F.3d 455, 458 (1st Cir. 2011).

A. A Rumble in New Bedford

At 5:37 p.m., on January 11, 2008, a series of 911 calls

reported a fight in progress in the North End neighborhood of New

Bedford, Massachusetts, at the intersection of Nye and Brook

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Streets. One of the callers identified "most" of the combatants as

members of the Latin Kings, a prominent national street gang.

Sargeant Scott Carola of the New Bedford Police Department's Gang

Unit was the first officer to arrive at the scene. Within a

minute, two other Gang Unit members -- Officers Adelino Sousa and

David Conceicao -- also arrived, driving an unmarked, police-issued

Ford Crown Victoria1 and wearing jackets adorned with the image of

a police badge and the words "New Bedford Police" on the front and

the words "Gang Unit" on the back.

Sargeant Carola saw twelve to fifteen people scattering

from what appeared to have been a street brawl; Officer Sousa

recognized several of them as affiliates of the Latin Kings. Sgt.

Carola also noticed two men he did not recognize walking down the

street; he directed Officers Sousa and Conceicao to intercept and

question the two men. Those two men were Camacho and Louis Osario-

Meléndez.

B. The Confrontation

Still driving in the Crown Victoria, Officers Sousa and

Conceicao followed the two men as they walked around the corner,

then pulled ahead of them into a driveway, partially blocking their

1
The district court noted that the Crown Victoria was "easily
recognizable as a police vehicle." Camacho, 608 F.3d at 180.
Though the car was not painted with police markings, it did have
police lights. And we have previously noted that the Crown
Victoria is "a model widely associated with police departments."
United States v. Wright, 582 F.3d 199, 203 (1st Cir. 2009).

-3-
path. Officer Sousa stepped out of the car and approached Camacho,

while Officer Conceicao ordered Osario-Meléndez to put his hands on

the hood of the car. Sousa and Conceicao did not recognize the two

men, and neither officer had reason to believe that either Camacho

or Osario-Meléndez was a member of the Latin Kings.

Officer Sousa did notice, however, that Camacho's clothes

were wet and his breathing was labored. Sousa asked Camacho where

he was coming from, and Camacho replied, "Nye Street." Camacho

said that he had seen the Nye Street fight, but denied having been

involved in it. Camacho's speech was normal, and he was wearing a

hooded sweatshirt, which Officer Sousa did not consider unusual.

During their colloquy, Camacho held his hands in the front pockets

of the sweatshirt. When Officer Sousa told him to remove his

hands, Camacho did so slowly and deliberately, clasping his hands

in front of his waistband, seeming to protect his midriff.

Finding Camacho's studied movement and hand placement

unusual, Officer Sousa tapped Camacho's waist with his open palm.

Sousa immediately felt the butt of a gun, and yelled, "Gun!"

Camacho then "automatically" shoved Sousa, and Officer Conceicao

drew his service revolver and aimed it at Osario-Meléndez. Sousa

and Camacho began struggling, which Officer Conceicao ended "within

thirty seconds" by hitting Camacho over the head with his

flashlight, knocking him to the ground. With Camacho now subdued,

Officer Sousa seized a .40 caliber Glock revolver -- with a live

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round in the chamber and eight rounds in the magazine -- from

beneath Camacho's belt.

C. Legal Proceedings

1. The Indictment and Camacho's Motion to Suppress

A federal grand jury charged Camacho with two counts: one

count of unlawful possession of a firearm and ammunition by a prior

felon, in violation of 18 U.S.C. § 922(g)(1), and one count of

possession of a firearm with an obliterated serial number, in

violation of 18 U.S.C. § 922(k). Challenging both counts, Camacho

moved to suppress the firearm and ammunition, arguing that they

were obtained through an illegal search and seizure. The trial

judge conducted an evidentiary hearing on the motion, at which Sgt.

Carola, Officer Sousa, and Officer Conceicao testified.

2. The District Court's Ruling on the Motion to Suppress

The trial judge denied Camacho's motion to suppress.

Camacho, 608 F. Supp. 2d at 185. As a preliminary matter, the

judge ruled that Camacho was seized for Fourth Amendment purposes

when Officer Sousa began questioning him, noting that Officer

Conceicao ordered Osario-Meléndez to place his hands on the hood of

officers' car while just a few feet away Officer Sousa was asking

Camacho "questions that were accusatory in tone and content." Id.

at 184. The judge agreed with Camacho that the police officers

lacked the reasonable suspicion necessary for a Terry stop,

explaining that "[t]he most that can be said is that the two men

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were observed in a high crime area walking away from the vicinity

of a street fight that one caller reported as involving Latin

Kings." Id. For the judge, this was not enough to raise a

reasonable suspicion. See Illinois v. Wardlow, 528 U.S. 119, 124

(2000) ("An 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.").

Nonetheless, the judge concluded that suppression of the gun was

"neither called for nor appropriate." Camacho, 608 F. Supp. 2d at

185. The trial judge found it material that "[t]he gun was seized

only after Camacho shoved Sousa and only after the officers

succeeded in wrestling Camacho to the ground and placing him under

arrest." Id. Therefore, the judge reasoned, "[t]he acts of

shoving Officer Sousa and resisting arrest were intervening crimes

giving the officers independent grounds to arrest Camacho," id.

(citing United States v. Bailey, 691 F.2d 1009, 1013 (11th Cir.

1983) (en banc) (noting that resistance to even an unlawful arrest

is a sufficient and independent ground for a second arrest for a

new, distinct crime)), and the seizure of the gun was justified

under the search incident to arrest exception to the Fourth

Amendment. See United States v. Robinson, 414 U.S. 218, 236

(1973).

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 3. Sentence and Appeal

After his motion to suppress was denied, Camacho entered

conditional guilty pleas on both counts, reserving his right to

challenge the district court's suppression ruling on appeal. The

district court accepted Camacho's pleas and sentenced him to the

mandatory minimum sentence of 15 years of imprisonment on Count One

(to be served concurrently with 5 years of imprisonment on Count

Two), followed by 5 years of supervised release, and a monetary

penalty of $200.

On appeal, Camacho challenges the district court's denial

of his motion to suppress the firearm and ammunition. He also

argues that the district court erred by sentencing him as an "armed

career criminal" based on his two prior felony convictions in

Massachusetts. We agree with Camacho regarding the search and

seizure, and we reverse on that basis, making his sentencing

arguments moot.

II. Discussion

A. Standard of Review

When reviewing a challenge to the district court's denial

of a motion to suppress, "[w]e view the facts in the light most

favorable to the district court's ruling" on the motion, United

States v. Soares, 521 F.3d 117, 118 (1st Cir. 2008), and we review

the district court's findings of fact and credibility

determinations for clear error. Dancy, 640 F.3d at 460. "A clear

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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. McCarthy, 77 F.3d 522, 529 (1st Cir.

1996). Under this clear error standard for findings of fact, we

"will uphold a denial of a motion to suppress if any reasonable

view of the evidence supports it." United States v. Méndez-de

Jesús, 85 F.3d 1, 2 (1st Cir. 1996); see also United States v.

Reynolds, 646 F.3d 63, 73 (1st Cir. 2011); United States v. Cruz-

Jiménez, 894 F.2d 1, 7 (1st Cir. 1990) ("Where there are two

competing interpretations of the evidence, the district court's

choice of one of them cannot be clearly erroneous.").

However, we review de novo the district court's

conclusions of law, including its application of the law to the

facts, its probable cause and reasonable suspicion determinations,

and the district court's ultimate legal decision to grant or deny

the motion to suppress. See United States v. Crespo-Ríos, 645 F.3d

37, 41 (1st Cir. 2011); Reynolds, 646 F.3d at 73; Dancy, 640 F.3d

at 460; United States v. Lawlor, 406 F.3d 37, 41 (1st Cir. 2005);

Méndez-de Jesús, 85 F.3d at 2 ("Our review of a district court's

decision to grant or deny a suppression motion is plenary."). The

appellant bears the burden of showing a violation of his Fourth

Amendment rights. United States v. Werra, 638 F.3d 326, 330 (1st

Cir. 2011).

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B. The Fourth Amendment and Terry Stops

The Fourth Amendment prohibits "unreasonable searches and

seizures." U.S. Const. amend. IV; see also Terry v. Ohio, 392 U.S.

1, 9 (1968). Warrantless searches are per se unreasonable under

the Fourth Amendment, unless "one of a few specifically established

and well-delineated exceptions" applies. Arizona v. Gant, 556 U.S.

332, 129 S. Ct. 1710, 1716 (2009). This prohibition on

unreasonable searches and seizures2 is enforced through the

exclusionary rule, which excludes evidence seized in violation of

the Fourth Amendment. See Terry, 392 U.S. at 12 ("Ever since its

inception, the rule excluding evidence seized in violation of the

Fourth Amendment has been recognized as a principal mode of

discouraging lawless police conduct."). It is this exclusionary

rule on which Camacho's motion to suppress relies.

The Government, for its part, opposes suppression by

relying on one of the few "well-delineated exceptions" to the

warrant requirement -- namely, the exception for a search incident

to a lawful arrest. See Gant, 129 S. Ct. at 1716. The Government

argues that "Camacho's acts of shoving Officer Sousa and resisting

2
To review basic terminology for purposes of the Fourth
Amendment, "[i]t must be recognized that whenever a police officer
accosts an individual and restrains his freedom to walk away, he
has 'seized' that person." Terry, 392 U.S. at 16. And "a careful
exploration of the outer surfaces of a person's clothing all over
his or her body in an attempt to find weapons"" qualifies as a
"search." Id. Thus, when police officers conduct a "stop and
frisk," the stop amounts to a "seizure" and the frisk constitutes
a "search" for purposes of the Fourth Amendment. See id. at 16-19.

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arrest constituted intervening crimes that gave the officers

independent grounds to arrest him and conduct a search incident to

that arrest."

The protections of the Fourth Amendment apply not only to

traditional arrests, but also to those brief investigatory stops

generally known as Terry stops. See United States v. Arvizu, 534

U.S. 266, 273 (2002); Terry, 392 U.S. 1; United States v. Young,

105 F.3d 1, 6 (1st Cir. 1997). Terry held that

where a police officer observes unusual
conduct which leads him reasonably to conclude
in light of his experience that criminal
activity may be afoot and that the persons
with whom he is dealing may be armed and
presently dangerous, where in the course of
investigating this behavior he identifies
himself as a policeman and makes reasonable
inquiries, and where nothing in the initial
stages of the encounter serves to dispel his
reasonable fear for his own or others' safety,
he is entitled for the protection of himself
and others in the area to conduct a carefully
limited search of the outer clothing of such
persons in an attempt to discover weapons
which might be used to assault him. Such a
search is a reasonable search under the Fourth
Amendment, and any weapons seized may properly
be introduced in evidence against the person
from whom they were taken.

Terry, 392 U.S. at 30-31.

Accordingly, applying the principles of Terry and its

progeny to this case, we address four questions. First, in view of

the totality of the circumstances, did Camacho's initial encounter

with Officer Sousa rise to the level of a seizure, triggering the

protections of the Fourth Amendment? See United States v. Ford,

-10-
548 F.3d 1, 4-5 (1st Cir. 2008). Second, did the police officers

have a reasonable suspicion that Camacho was engaged in criminal

activity, thus making his initial detention a valid Terry stop?

See Wright, 582 F.3d at 205. Third, was Officer Sousa legally

justified under the Fourth Amendment in frisking Camacho? See

United States v. McGregor, 650 F.3d 813, 820 (1st Cir. 2011). And

finally, was the gun admissible under the search incident to arrest

exception?

1. Did Officer Sousa Seize Camacho?

A Fourth Amendment seizure occurs when a police officer

"has in some way restrained the liberty of a citizen" through

"physical force or show of authority." Terry, 392 U.S. at 19 n.16;

see also Brendlin v. California, 551 U.S. 249, 254 (2007); United

States v. Chaney, 647 F.3d 401, 408 (1st Cir. 2011) ("Any detention

of an individual by a police officer constitutes a seizure and, to

be lawful, must be adequately justified under the Fourth

Amendment."). To determine whether an officer has restricted an

individual's freedom of movement, courts determine the "coercive

effect of the encounter" by asking whether "a reasonable person

would feel free to decline the officers' requests or otherwise

terminate the encounter." Brendlin, 551 U.S. at 255 (quoting

Florida v. Bostick, 501 U.S. 429, 435-36 (1991)) (internal

quotation marks omitted).

-11-
 Applying this standard, we conclude that Camacho's

initial detention constituted a seizure rather than a consensual

encounter. This is not a case in which the officers "merely

approach[ed] an individual on the street . . . by asking him if he

[was] willing to answer some questions." See Florida v. Royer, 460

U.S. 491, 497 (1983) (plurality opinion); see also Young, 105 F.3d

at 5-6 (finding only a "minimally intrusive" interaction that

"d[id] not trigger the protections of the Fourth Amendment" when

the police officers had pulled alongside the appellant, identified

themselves as police officers, and asked "Got a minute?", to which

the appellant replied, "Sure"). Rather, Officers Sousa and

Conceicao intentionally blocked Camacho's path with their Crown

Victoria; both officers were wearing jackets labeled "New Bedford

Police" and "Gang Unit"; Officer Sousa stepped out of the car and

confronted Camacho with "accusatory" questions; and Officer

Conceicao ordered Osario-Meléndez to place his hands on the hood of

the car. Under the totality of these circumstances, we agree with

the district court that a reasonable person in Camacho's

circumstances would not "feel free 'to disregard the police and go

about his business.'" See Bostick, 501 U.S. at 434 (quoting

California v. Hodari D., 499 U.S. 621, 628 (1991)); cf. also Gentry

v. Sevier, 597 F.3d 838, 845 (7th Cir. 2010) ("A reasonable person

in [the appellant's] position, who saw a marked police car pull up

and who was told by a police officer to keep his hands up, would

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not believe that he was free to leave."). And Camacho submitted to

Officer Sousa's show of authority by responding to his questions,

at which point "his liberty ha[d] been restrained and he [was]

seized under the Fourth Amendment." United States v. Dubose, 579

F.3d 117, 121 (1st Cir. 2009) (citing United States v. Sealey, 30

F.3d 7, 9 (1st Cir. 1994)); see Hodari D., 499 U.S. at 626 (holding

that when a seizure is based upon an officer's show of authority,

no seizure occurs until the suspect yields to that authority and is

thereby restrained in his liberty). Therefore, we conclude that

Officer Sousa's initial questioning of Camacho constituted a

seizure for purposes of the Fourth Amendment.

2. Was Stopping Camacho an Unreasonable Seizure?

Terry v. Ohio and its progeny provide an exception to the

Fourth Amendment's warrant requirement, establishing that a police

officer may briefly detain an individual for questioning if the

officer "reasonably suspects that the person apprehended is

committing or has committed a crime." Arizona v. Johnson, 555 U.S.

323, 323 (2009). Accordingly, we next ask whether Officers Sousa

and Conceicao held a reasonable suspicion that Camacho was engaged

in criminal activity.

The reasonable suspicion standard is an intermediate,

indeterminate standard that requires more than a mere hunch but

less than probable cause. United States v. Chhien, 266 F.3d 1, 6

(1st Cir. 2001). Somewhat more precisely, it demands "a

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'particularized and objective basis' for suspecting the person

stopped of criminal activity." Ornelas v. United States, 517 U.S.

690, 696 (1996) (quoting United States v. Cortez, 449 U.S. 411,

417-18 (1981)). Thus, the suspicion must be both objectively

reasonable and "grounded in specific and articulable facts."

United States v. Hensley, 469 U.S. 221, 229 (1985). We evaluate

reasonable suspicion based on "the totality of the circumstances."

United States v. Jones, 432 F.3d 34, 40 (1st Cir. 2005).

Under the totality of these circumstances, we agree with

the district court that the initial stop of Camacho "cannot be

justified under the principles of Terry." Camacho, 608 F. Supp. 2d

at 184. The police officers lacked an objectively reasonable,

particularized basis for suspecting Camacho of criminal activity.

See Ornelas, 517 U.S. at 696. None of the police officers at the

scene recognized Camacho or Osario-Meléndez or had reason to

believe that they were affiliated with the Latin Kings. Camacho,

608 F. Supp. 2d at 184. No one had identified Camacho or Osario-

Meléndez, or men fitting their descriptions, as combatants in the

brawl. Id. "The men were walking normally on a residential

sidewalk and displayed no apprehension or nervousness when the

officers approached," and Camacho's responses to Sousa's questions

"were direct and non-evasive." Id. As for "specific and

articulable facts" that could have formed the basis for an

officer's reasonable suspicion, see Hensley, 469 U.S. at 229,

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"[t]he most that can be said is that the two men were observed in

a high crime area walking away from the vicinity of a street fight

that one caller reported as involving Latin Kings." Camacho, 608

F. Supp. 2d at 184.3 Under these circumstances, the facts fall

3
The dissent's depiction of the facts in this regard strays from
the district court's findings and the record before us on appeal.
An appellate court is not free to disregard findings of fact by a
district court without meeting the high standards required of a
reviewing court, which in the present appeal the dissent neither
explains nor meets. Cruz-Jiménez, 894 F.3d at 7 (noting that this
court has opined on numerous occasions that "the findings of a
district court made during a suppression hearing are binding on
appeal unless clearly erroneous"); see also Young, 105 F.3d at 5
("Deference 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 first hand, sits in
the best position to determine what actually happened."); cf.
Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 123
(1969) (indicating, in the context of Fed. R. Civ. P. 52(a), that
"[t]he authority of an appellate court, when reviewing the findings
of a judge as well as those of a jury [under the clearly erroneous
standard], is circumscribed by the deference it must give to
decisions of the trier of the fact, who is usually in a superior
position to appraise and weigh the evidence"). Contrary to the
record or the findings of the district court, the dissent
implicates Camacho and his companion in the reported street fight
by characterizing them as two in a swarm of fleeing, known gang
members. There is no such evidence in the record. It also relies
on an argument that the government affirmatively stated it was not
making on appeal; that is, a challenge to the district court's
determinations regarding reasonable suspicion.

The dissent points to Illinois v. Wardlow, 528 U.S. 119 (2000),
in support of its contention that the stop in this case was valid.
In Wardlow, a 5-4 decision, the Supreme Court held that the Terry
stop was valid because, prior to the stop, the officers were
justified in suspecting that Wardlow was involved in criminal
activity. Aside from his presence in an area of heavy narcotics
trafficking, Wardlow had fled upon seeing police officers approach
the area. The Court noted that "[h]eadlong flight--wherever it
occurs--is the consummate act of evasion: It is not necessarily
indicative of wrongdoing, but it is certainly suggestive of such."
Wardlow, 528 U.S. at 124. This fact, coupled with the officers'

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short of an objectively reasonable, particularized basis for

suspecting Camacho of criminal activity. See Ornelas, 517 U.S. at

696. Therefore, as determined by the district court, Officer

Sousa's initial questioning of Camacho was not a valid Terry stop,

but was instead an unreasonable seizure in violation of the Fourth

Amendment.

3. Was Frisking Camacho an Unreasonable Search?

Having already found the stopping and questioning of

Camacho unconstitutional, we now turn to the second Fourth

Amendment intrusion, the pat frisk. See United States v. Gilliard,

847 F.2d 21, 25 (1st Cir. 1988). As a preliminary matter, we note

that Sousa's "tap" of Camacho's waist with his open palm was a

frisk that constitutes a search subject to the protections of the

Fourth Amendment. See, e.g., Terry, 392 U.S. 1, 19 ("In this case

there can be no question, then, that Officer McFadden 'seized'

petitioner and subjected him to a 'search' when he took hold of him

and patted down the outer surfaces of his clothing."); see also

United States v. Davis, 202 F.3d 1060, 1061 (8th Cir. 2000) ("The

understanding that they were converging on an area known for heavy
narcotics trafficking, supported a finding of reasonable suspicion.
But see id., 528 U.S. at 136-139 (Stevens, J., concurring in part
and dissenting in part) (approving majority's rejection of a per se
rule in favor of the totality-of-the-circumstances test, but noting
that "even in a high crime neighborhood unprovoked flight does not
invariably lead to reasonable suspicion"). In this case, what the
record shows, and the district court found was two persons "walking
normally on a residential sidewalk" and down the street, although
others were scattering about. Thus, the facts in this case clearly
fall outside of the holding in Wardlow.

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[Terry] Court concluded that a protective frisk or pat-down search,

however brief, is both a search and a seizure for Fourth Amendment

purposes."). After a valid Terry stop, a police officer may

conduct a protective frisk or pat-down search if "the officer is

justified in believing that the person is armed and dangerous to

the officer or others." United States v. Romain, 393 F.3d 63, 71

(1st Cir. 2004) (quoting United States v. Schiavo, 29 F.3d 6, 8

(1st Cir. 1994)) (internal quotation marks omitted). Therefore, in

evaluating whether Sousa's tap of Camacho's waist was an

unreasonable search in violation of the Fourth Amendment, we are

confronted by two issues. First, as a matter of law, is it

possible for a protective frisk to be valid under the Fourth

Amendment when it immediately follows -- and directly results from

-- an invalid Terry stop, in the absence of any intervening

crimes?4 Second, at the time of the frisk, was Officer Sousa

4
In recent dicta, the Supreme Court has seemingly answered this
question in the negative. See Arizona v. Johnson, 555 U.S. 323,
129 S. Ct. 781, 784 (2009) (noting that under Terry, a "stop and
frisk" is only "constitutionally permissible if two conditions are
met" -- "[f]irst, the investigatory stop must be lawful," and
"[s]econd, to proceed from a stop to a frisk, the police officer
must reasonably suspect that the person stopped is armed and
dangerous"). See also Terry, 392 U.S. at 32-33 (Harlan, J.,
concurring) ("[I]f the frisk is justified in order to protect the
officer during an encounter with a citizen, the officer must first
have constitutional grounds to insist on an encounter, to make a
forcible stop. . . I would make it perfectly clear that the right
to frisk in this case depends upon the reasonableness of a forcible
stop to investigate a suspected crime.").

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justified in believing that Camacho was armed and dangerous to the

officers or others?5

Under these facts, we need not address the legality of

the frisk itself. We conclude that regardless of the legality of

the frisk, the discovery of the gun was so tainted by the illegal

stop that it should have been suppressed as "fruit of the poisonous

tree." See Werra, 638 F.3d at 341 (noting that the reasonableness

of a protective frisk does not determine the suppression issue

generated by an earlier Fourth Amendment violation).

Evidence obtained during a search may be tainted by the

illegality of an earlier Fourth Amendment violation, so as to

render such evidence inadmissable as "fruit of the poisonous tree."

See United States v. D'Andrea, 648 U.S. 1, 6 (2011) (quoting Wong

Sun v. United States, 371 U.S. 471, 488 (1963)) (internal quotation

marks omitted); see also Werra, 638 F.3d at 341. "[T]he

exclusionary rule reaches not only primary evidence obtained as a

5
The Government does not argue -- either in its brief or at oral
argument -- that Officer Sousa was justified in believing that
Camacho was armed and dangerous. Nor does the Government argue
that a lawful frisk may immediately follow an illegal seizure.
Indeed, the Government maintains that we "need not decide this
issue," because "it was not necessary to the district court's
ultimate conclusion." Rather than argue that the initial stop or
the subsequent frisk were lawful, the Government relies entirely on
one argument that it considers dispositive -- that "Camacho's acts
of shoving Officer Sousa and resisting arrest constitute
intervening crimes . . . that removed any possible 'taint' from the
initial encounter with the officers, and provided probable cause to
arrest Camacho for his new crimes and conduct a search incident to
that lawful arrest."

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direct result of an illegal search or seizure, but also evidence

later discovered and found to be derivative of an illegality or

'fruit of the poisonous tree.'" Segura v. United States, 468 U.S.

796, 804 (1984) (citation omitted) (quoting Nardone v. United

States, 308 U.S. 338, 341 (1939)). This rule equally extends to

both the direct and the indirect products of unlawful searches and

seizures. See Wong Sun, 371 U.S. at 484. "[T]he indirect fruits

of an illegal search or arrest should be suppressed when they bear

a sufficiently close relationship to the underlying illegality."

New York v. Harris, 495 U.S. 14, 19 (1990). Suppression is not

appropriate, however, if "the connection between the illegal police

conduct and the discovery and seizure of the evidence is 'so

attenuated as to dissipate the taint.'" Segura, 468 U.S. at 805

(quoting Nardone, 308 U.S. at 341).

Determining the consequences of unlawful police conduct

for seized evidence requires looking at both causation and

attenuation. The Supreme Court has declined to adopt a simple "but

for" test that would mandate suppression of any evidence that "came

to light through a chain of causation that began with an illegal

arrest" or another Fourth Amendment violation. United States v.

Leon, 468 U.S. 897, 910-11 (1984); see also Hudson v. Michigan, 547

U.S. 586, 592 (2006) ("[B]ut-for causality is only a necessary, not

a sufficient, condition for suppression."). A strict but-for rule

would prove nearly limitless. "Rather, the more apt question in

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such a case is 'whether, granting establishment of the primary

illegality, the evidence to which instant objection is made has

been come at by exploitation of that illegality or instead by means

sufficiently distinguishable to be purged of the primary taint.'"

Wong Sun, 371 U.S. at 488 (quoting J. Maguire, Evidence of Guilt

221 (1959). When determining attenuation, "temporal proximity [],

the presence of intervening circumstances, and, particularly the

purpose and flagrancy of the official misconduct are all relevant."

Brown, 422 U.S. at 603-604.

Here, Officers Sousa and Conceicao were responding to 911

calls that described "at most a misdemeanor assault and battery or

disturbance of the peace" that "was not terribly serious."

Camacho, 608 F. Supp. 2d at 184. The participants had already

dispersed, so the police interest in investigating suspected

participants in the misdemeanor brawl was minimal. Nonetheless,

the officers pursued -- without reasonable suspicion -- two men who

were merely "walking normally on a residential sidewalk." Yet the

officers accosted the two men with a substantial show of authority,

including: cutting off their path with an unmarked police car,

ordering Osario-Meléndez to put his hands on the hood, asking

Camacho "accusatory" questions, and ordering Camacho to take his

hands out of his pockets. Up until at least that point, the

officers' conduct amounted to a flagrant violation of the core of

Camacho's Fourth Amendment right against unreasonable seizures.

-20-
Cf. Gentry, 597 F.3d at 845-46 (noting that the defendant "himself

did not give the officers a reason to suspect that he had been

engaged in any wrongdoing," and that "it should have been apparent

to the officers that they had no basis to execute a Terry stop when

they first observed" him).

Without cause, Officer Sousa reached out toward Camacho,

felt the gun, and yelled "Gun!". The only intervening action by

Camacho between the illegal stop and the frisk was removing his

hands from his pockets at Officer Sousa's direction. After Officer

Sousa's "tap," Camacho immediately responded by shoving him. A

brief struggle ensued, after which Camacho was arrested and the gun

was seized. The time elapsed between the illegal stop and the

discovery and seizure of the gun was minimal. The officers'

encounter with Camacho and the discovery of the gun "were both

results of the officers' unconstitutional conduct." Werra, 638

F.3d at 341. Discovery of the gun flowed directly from the

original unlawful seizure of Camacho and was not "so attenuated as

to dissipate the taint" of the initial unlawful stop. See Nardone,

308 U.S. at 341. Under these facts, we conclude that the gun was

fruit poisoned by the unlawful seizure and, accordingly, should

have been suppressed. See Werra, 638 F.3d at 341.

4. Is the Gun Admissible Pursuant to the Search Incident
to Arrest Doctrine?

The Government's sole argument against suppression tracks

the district court's reasoning that Camacho's actions immediately

-21-
following the stop and frisk -- shoving Officer Sousa and resisting

arrest -- "were intervening crimes giving the officers independent

grounds to arrest Camacho." Camacho, 608 F. Supp. 2d at 185.

Therefore, the argument goes, the seizure of the gun was justified

under the search incident to arrest exception to the Fourth

Amendment, and the gun was admissible on that basis alone,

notwithstanding the illegality of the initial stop. Id. We

disagree.

A search incident to a lawful arrest is another

traditional exception to the Fourth Amendment's warrant

requirement. United States v. Robinson, 414 U.S. 218, 224 (1973).

Some courts have held that a defendant's resistance to even an

invalid Terry stop or arrest can be independent grounds for a new,

independent arrest, and that evidence discovered in a search

incident to that lawful arrest is admissible. See, e.g., United

States v. Dawdy, 46 F.3d 1427, 1430-31 (8th Cir. 1995) (citing

cases from the Fifth, Ninth, Tenth, and Eleventh Circuits and

holding that "a defendant's response to even an invalid arrest or

Terry stop may constitute independent grounds for arrest," and "the

evidence discovered in the subsequent searches of [the defendant's]

person and his automobile is admissible"); see also United States

v. King, 724 F.2d 253, 255-56 (1st Cir. 1984) (assuming some

illegality in the police conduct, but denying suppression of

evidence against a passenger in a car when: the driver of the car

-22-
committed an intervening crime of shooting at the officers; "the

shooting was an independent intervening act which purged the taint

of the prior illegality"; and the passenger's gun was discovered

and seized after the shooting). We agree that Camacho's actions of

shoving Officer Sousa and resisting arrest provided grounds for his

arrest and a search incident to that arrest. But the validity of

that search does not determine the suppression issue generated by

the original unlawful seizure of Camacho. See Werra, 638 F.3d at

341.

The gun at issue here was not discovered in a search

subsequent to or incident to Camacho's arrest. While the district

court correctly noted that "[t]he gun was seized only after Camacho

shoved Sousa and only after the officers succeeded in wrestling

Camacho to the ground and placing him under arrest," the district

court failed to account for the fact that Officer Sousa conducted

the frisk -- the search that first discovered the gun -- before

Camacho shoved him and before Camacho was arrested. See Camacho,

608 F. Supp. 2d at 185. The gun was not discovered by a search

incident to his arrest, but rather by the frisk that preceded

Camacho's subsequent actions of shoving Officer Sousa and resisting

arrest.

The temporal relationship between the discovery of the

weapon and the unlawful acts distinguishes this case from King,

which the government cites as support. In King, we assumed initial

-23-
unlawful police conduct but denied suppression of a seized weapon

against the passenger in a car because the driver of the car

committed the intervening crime of shooting at the police officers

before the officers discovered the passenger's weapon. "At the

moment the shot was fired, [the officer] had all the probable cause

that was needed to search King." King, 724 F.2d at 256 ("[T]he

shooting was an independent intervening act which purged the taint

of the prior illegality."). In this case, Officer Sousa discovered

the gun in a search conducted prior to Camacho committing any

unlawful acts. Camacho's "intervening" crimes were not, in fact,

intervening and thus could not purge the taint of the prior illegal

stop.

III. Conclusion

We conclude that the district court erred in denying

Camacho's motion to suppress the firearm and ammunition.

Accordingly, the judgment of the district court is reversed.

Reversed.

(Dissenting opinion follows)

-24-
 BOUDIN, Circuit Judge, dissenting. It is settled law

that the police may not, without more, detain a suspect merely

because he is present in a neighborhood where violent crime or drug

dealing is common. Illinois v. Wardlow, 528 U.S. 119 (2000). So,

too, "mere presence" at the scene of a crime is not the same as

guilt. United States v. Llinas, 373 F.3d 26, 32 (1st Cir. 2004).

But the devil is in the details, and the details here confirm that

this is not a simple presence case and the police acted reasonably.

In January 2008, police were alerted by "911" calls that

a street fight was in progress in a rough neighborhood of New

Bedford, Massachusetts. One call identified many of the

participants as members of the Latin Kings, a well known and

dangerous street gang. See United States v. Lara, 181 F.3d 183

(1st Cir. 1999). Officers of the New Bedford Police Gang Unit

responded only to discover people scattering from the scene of the

brawl--some of whom were recognized by officers as members of the

gang.

Seeing two men he did not recognize leaving the scene,

Sergeant Scott Carola directed Officers Adelino Sousa and David

Conceicao to stop the two men. The two officers drove around the

corner, pulled their police car into a driveway in front of the two

men, and exited the car. Conceicao confronted one of the men,

Louis Osario-Meléndez, and ordered him to place his hands on the

hood of the police car. Sousa began to question the other man,

-25-
Angel Camacho, and noticed that he was wet and breathing hard.

Camacho conceded that he had seen the fight but said he was not

involved.

Camacho kept his hands in his sweatshirt pockets and

Sousa asked him to take them out; Camacho moved his hands out but

kept them in front of his waistband where a gun could easily have

been tucked. Drawing on his experience as a veteran policeman,

Sousa tapped Camacho's waist and felt the butt of a gun. After a

struggle with Camacho, the police seized what turned out to be a

.40 caliber handgun with an obliterated serial number, loaded

magazine and a bullet in the chamber. Camacho's arrest followed.

Camacho moved to suppress the gun as illegally seized.

The district judge said that Camacho's seizure was unlawful but

that the seizure of the gun was justified by Camacho's intervening

crimes of shoving Officer Sousa and resisting arrest, which allowed

a search incident to a lawful arrest and seizure of the gun.

United States v. Camacho, 608 F. Supp. 2d 178, 185 (1st Cir. 2009).

Camacho thereafter pled guilty to being a felon in possession and

possessing a gun with an obliterated serial number, reserving his

illegal seizure claim for this appeal.

The government on appeal stands by the district court's

reasoning that Camacho's intervening actions--his independent crime

of assaulting the officer by shoving him away--removed the taint of

a supposedly unconstitutional stop and justified the subsequent

-26-
seizure of the gun. The Supreme Court has upheld the admission of

evidence seized after an unlawful search based on a series of

exceptions and the circuit courts have followed suit.6 We have a

decision directly in point supporting the district judge, United

States v. King, 724 F.2d 253 (1st Cir. 1984), which the panel

majority is unable to distinguish.

However, the predicate assumption--that the stop of

Camacho was unlawful--is also mistaken, because in fact the police

had "'a particularized and objective basis' for suspecting the

person stopped of criminal activity." Ornelas v. United States,

517 U.S. 690, 696 (1996) (quoting United States v. Cortez, 449 U.S.

411, 417-18 (1981)). We may affirm the decision below on any

grounds supported by the record, see United States v. Mendoza-

Acevedo, 950 F.2d 1, 3 (1st Cir. 1991), and the Terry-stop issue is

the more important and recurring issue.

Whether or not a gang fight is graded as a major crime,

it is potentially a very serious matter. Sometimes such fights are

about control of the neighborhood drug trade, stem from persistent

violent rivalries or have the potential to create ongoing dangerous

6
Wong Sun v. United States, 371 U.S. 471 (1963) (attenuation);
United States v. Paradis, 351 F.3d 21 (1st Cir. 2003)(same); Nix v.
Williams, 467 U.S. 431 (1984) (inevitable discovery); United States
v. Almeida, 434 F.3d 25 (1st Cir. 2006) (same); Murray v. United
States, 487 U.S. 533 (1988) (independent source); United States v.
Jadlowe, 628 F.3d 1 (1st Cir. 2010) (same); United States v. Leon,
468 U.S. 897 (1984) (good faith exception); United States v.
Belton, 520 F.3d 80 (1st Cir. 2008) (same).

-27-
feuds. Deadly weapons may be used, just like the one carried by

Camacho; fighters or passers-by may be injured or killed. This

fight had provoked multiple 911 calls.

The officers in this case had every reason to suspect

anyone scattering upon the arrival of the police. Although the

officers did not recognize Camacho and his companion as gang

members, in this instance the gang unit had been told at a briefing

that the Latin Kings were importing gunmen from out-of-state to

retaliate against another gang. Detaining any such persons was

thus especially urgent and, once the participants fled the scene,

further investigation was likely to be fruitless.

Wardlow said that presence in a high crime area was not

alone enough for reasonable suspicion, 528 U.S. at 124, but the

Court then added that presence in such an area was relevant, id.,

and that such presence coupled with other reasons for suspicion can

furnish reasons for the stop. Id. at 124-25. The Wardlow Court

continued:

In allowing such detentions, Terry accepts the
risk that officers may stop innocent people.
Indeed, the Fourth Amendment accepts that risk
in connection with more drastic police action;
persons arrested and detained on probable
cause to believe they have committed a crime
may turn out to be innocent. The Terry stop
is a far more minimal intrusion, simply
allowing the officer to briefly investigate
further. If the officer does not learn facts
rising to the level of probable cause, the
individual must be allowed to go on his way.
But in this case the officers found respondent

-28-
 in possession of a handgun, and arrested him
for violation of an Illinois firearms statute.

Id. at 126.

Directly in point is United States v. Brewer, 561 F.3d

676 (7th Cir. 2009) (Posner, J.). There a police officer

investigating a report of a fight at an apartment complex heard

gunshots as he approached. A car passed in the opposite direction,

the officer had it stopped by a second officer, and the defendant

admitted that he had a gun in the car and on his person. The basis

for suspicion was thin because other evidence linking the car to

the gunfire was unknown to the officers at the time of the stop.

Id. at 677-78.

But the unanimous Seventh Circuit panel made clear that

not much suspicion was required for a brief investigatory stop, and

what was present in Brewer sufficed:

When we consider the dangerousness of the
crime, the brevity of the interval between the
firing of the shots and the spotting of the
sole vehicle quickly exiting, the minimal
intrusion on the occupants of the vehicle, the
need of the police to inform themselves of the
conditions in the complex before endangering
themselves by entering it in the dark, and the
further need to stop potentially fleeing
suspects until more information about the
crime could be obtained, we conclude that the
police acted reasonably . . . .

561 F.3d. at 679. One detail aside, which did not involve

suspicion at all but rather officer safety, Brewer and the present

case are twins.

-29-
 Wardlow and Brewer quite properly set a low threshold of

suspicion for a "minimal intrusion, simply allowing the officer to

briefly investigate further." Wardlow, 528 U.S. at 126. The

suspicion may be modest; but the intrusion is similarly modest and

the need for prompt inquiry is compelling. Brewer, 561 F.3d at

679. In questioning Camacho, the police acted reasonably.

Reasonableness, as it happens, is the standard set by the Fourth

Amendment itself.

-30-