United States v. Rabbia

United States Court of Appeals
For the First Circuit

No. 11-1510

UNITED STATES,

Appellee,

v.

ANTHONY RABBIA,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Steven J. McAuliffe, U.S. District Judge]

Before

Lynch, Chief Judge,
Boudin and Lipez, Circuit Judges.

Robert M. Greenspan for appellant.
Seth R. Aframe, Assistant United States Attorney, with whom
John P. Kacavas, United States Attorney, was on brief, for
appellee.

November 7, 2012
 LIPEZ, Circuit Judge. Appellant Anthony Rabbia was

indicted in federal district court on two counts of being a felon

in possession of firearms and ammunition in violation of 18 U.S.C.

§ 922(g)(1). Rabbia moved to suppress the ammunition, as well as

inculpatory statements he made in connection with his arrest.

After an evidentiary hearing, the district court denied the motion.

Rabbia then entered a conditional guilty plea on both counts,

reserving his right to appeal the denial of his suppression motion.

He now exercises that right. Finding no error in the district

court's ruling, we affirm.

I.

The following facts are drawn from the district court's

findings of fact in its bench decision, as well as the testimony

taken at the evidentiary hearing. See United States v. Chaney, 647

F.3d 401, 403 (1st Cir. 2011).

At 11:00 p.m. on September 3, 2008, police detectives

Derek Sullivan and Emmett Macken were patrolling an area in

downtown Manchester, New Hampshire they knew to be the site of

significant drug trafficking activity. Sullivan and Macken were

members of the Manchester Police Department's Street Crime Unit, a

plain clothes unit assigned to urban neighborhoods with high rates

of criminal activity. A majority of the unit's arrests were

related to drug crimes and, in the detectives' experience, the

individuals involved in these crimes tended to be armed.

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 While driving an unmarked vehicle, Sullivan and Macken

observed a small group of men gathered in front of 282 Concord

Street, a rooming house known to the detectives to be a center of

drug activity. One of the men, later determined to be Joshua Lacy,

reached into his waistband with his hand concealed by his shirt,

which led Macken to suspect that he was carrying a gun. Concerned,

the detectives parked their vehicle one block away and got out to

conduct surveillance on foot.

After watching the group for a short while, the

detectives saw Lacy and another man, later identified as Bryan

Bleau, separate from the group and walk to a parking lot behind 282

Concord Street that abutted a busy public alleyway. There, they

were joined by a third man, who remains unidentified. As the three

men were conversing, Lacy held out his wallet, and the detectives

heard him say to the unidentified man "I already gave you $70" and

"don't let me down." The unidentified man then left the lot.

Believing that they were observing the beginnings of a

drug deal, the detectives continued to watch Lacy and Bleau. After

several minutes, a black Honda Civic pulled into the parking lot,

and Bleau entered the passenger's side door. The Civic then drove

away. When it returned a few minutes later, Bleau emerged from the

passenger's side door and retrieved a bag from the trunk.

Expecting the bag to contain drugs, the detectives decided to

approach Lacy, Bleau, and the driver of the Civic, later identified

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as Rabbia. Because they were outnumbered three to two, Sullivan

and Macken called for backup to detective Paul Thompson, who was

nearby.

Without waiting for Thompson, Sullivan and Macken drew

their service weapons and approached the trio. Lacy and Bleau were

standing in the parking lot. Rabbia was still seated in his car.

Because the detectives were wearing civilian clothes, they

announced themselves as police officers and displayed their badges.

Macken then ordered Lacy and Bleau to lay on the ground and

proceeded to pat-frisk and handcuff them. As he was restraining

Lacy and Bleau, Macken was joined by Thompson, who began to

question Bleau about the contents of the bag he had removed from

the Civic.

Meanwhile, Sullivan walked up to the Civic alone with his

weapon drawn. He was approximately thirty or forty feet from

Macken and Thompson, who were occupied with Lacy and Bleau. From

where he stood, Sullivan could only see Rabbia's upper body and

could not determine if he was armed. Sullivan instructed Rabbia to

exit the car. When he complied, Sullivan placed him in handcuffs.

As he did so, Sullivan told Rabbia that he was not under arrest,

that he was being handcuffed as a safety measure, and that the

handcuffs would be removed when other officers arrived. Rabbia

indicated that he understood. Sullivan then pat-frisked Rabbia for

weapons and found none. During the frisk, Sullivan reiterated that

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Rabbia had been handcuffed as a precaution and that the handcuffs

would be removed when additional officers appeared.

While Rabbia was still in handcuffs, Sullivan heard

Thompson say that the bag retrieved from the Civic contained a gun.

Shortly thereafter, another officer arrived on the scene and, as

promised, Rabbia's handcuffs were removed. In all, he had been

handcuffed for approximately five minutes.

After the handcuffs were removed, Sullivan asked Rabbia

what he had been doing, without advising him of his constitutional

rights pursuant to Miranda v. Arizona, 384 U.S. 436 (1966). When

Rabbia responded that he had been giving Bleau a ride home,

Sullivan replied that he did not believe him. Rabbia then said

that he had picked up Bleau and sold the gun in the bag to him for

$200. Sullivan asked Rabbia to describe the gun, and Rabbia

identified the weapon as a shotgun. Sullivan confirmed with

Thompson that the bag contained a 12-gauge shotgun and shells.

After a records check revealed that Rabbia and Bleau had

previously been convicted of felonies, they were formally arrested

for unlawful possession of a firearm and ammunition following a

felony conviction.1 See 18 U.S.C. § 922(g)(1). About thirty

minutes had elapsed since Sullivan first confronted Rabbia.

Rabbia was then transported to the police station and

read his Miranda rights. He waived those rights and gave a more

1
Lacy was released.

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complete description of the gun sale. Rabbia and Bleau had been

imprisoned together previously. As they were finishing their

sentences and leaving prison, Rabbia told Bleau that he had a gun

he wanted to sell. Bleau later contacted Rabbia to purchase the

gun, offering to pay $200. They arranged a meeting place for the

sale, which is what led to the events immediately prior to the

encounter described above.

At the police station, Rabbia gave written consent to

search a room in his mother's apartment, where he claimed to be

living. That search was unproductive, but Rabbia's mother informed

the detectives that he had in fact been staying with his girlfriend

in a different apartment. Rabbia's girlfriend consented to a

search of her apartment and, in a drawer containing Rabbia's

clothing, the detectives found a box of .45 caliber shells and an

empty box of 12-gauge shotgun shells.

After he was indicted, Rabbia moved to suppress his

statements, as well as the ammunition discovered at his

girlfriend's apartment. The district court denied the motion, and

Rabbia entered a conditional guilty plea without prejudice to his

right to appeal the suppression ruling. See Fed. R. Crim. P.

11(a)(2). He was sentenced to thirty-seven months of imprisonment

to be followed by three years of supervised release. This appeal

followed.

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 II.

In evaluating the denial of Rabbia's suppression motion,

we review the district court's findings of fact for clear error and

its legal conclusions de novo. See Chaney, 647 F.3d at 405; United

States v. Battle, 637 F.3d 44, 48 (1st Cir. 2011).

Rabbia raises two challenges to the district court's

ruling. First, he argues that his initial stop in the parking lot

was an unlawful seizure because it was not based on a reasonable

suspicion that he was involved in criminal activity, as required by

the Fourth Amendment under the rule announced in Terry v. Ohio, 392

U.S. 1 (1968). Next, he argues that the stop, even if lawful at

its inception, evolved into a de facto arrest long before he was

formally arrested and that he was therefore entitled under the

Fifth Amendment to Miranda warnings before any questions were asked

of him. We address each contention in turn.

A. The Fourth Amendment Challenge

The Fourth Amendment prohibits "unreasonable searches and

seizures." U.S. Const. amend. IV. In Terry, the Supreme Court

held that, consistent with this prohibition, "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 22. More specifically, a police officer is permitted to

make a brief investigatory stop, commonly known as a Terry stop,

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based on a reasonable suspicion that criminal activity may be

afoot. See United States v. Brake, 666 F.3d 800, 804 (1st Cir.

2011); United States v. Pontoo, 666 F.3d 20, 26 (1st Cir. 2011).

"[T]he officer must have a particularized and objective basis for

suspecting the person stopped of criminal activity, rooted firmly

in specific and articulable facts." Brake, 666 F.3d at 804

(quoting Pontoo, 666 F.3d at 28) (internal quotation marks

omitted).

Sullivan and Macken observed Lacy and Bleau engage with

another man in what seemed to be the first stage of a commercial

transaction in the parking lot behind 282 Concord Street. Lacy

held out his wallet to the man and said "I already gave you $70"

and "don't let me down." The detectives then saw the man leave and

Rabbia drive into the parking lot, pick up Bleau, and drop him off

again a few minutes later. Bleau then removed a bag from the trunk

of Rabbia's car, appearing to complete the transaction.

A reasonably prudent and experienced police officer would

have recognized this behavior as consistent with the consummation

of a drug deal. See United States v. Miller, 959 F.2d 1535, 1539

(11th Cir. 1992) (describing drug transactions in which "the

supplier arrived by car, [the customer] got in the car, the car

drove around the block during which time the exchange of drugs for

money occurred, and then the car returned to the residence and

dropped [the customer] off"); United States v. Morris, 223 F. App'x

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491, 495 (7th Cir. 2007) (referring to "behavior consistent with

drug-dealing, namely entering a car, riding around the block, and

then exiting the vehicle"); cf. United States v. Funches, 327 F.3d

582, 586 (7th Cir. 2003) ("Experienced agents would recognize the

use of an intermediary and the parties moving to a less-visible

location before goods are exchanged as common characteristics of

drug transactions undertaken to protect the identity of sellers and

to avoid detection by authorities.").

Although the behavior in question also could have been

consistent with legitimate commercial activity, the circumstances

"reasonably supported a more sinister explanation." Brake, 666

F.3d at 805; see also United States v. Stanley, 915 F.2d 54, 57

(1st Cir. 1990) ("Under Terry, the test is whether the

circumstances give rise to a reasonable suspicion of criminal

activity, not whether the defendant's actions are subject to no

reasonable innocent explanation."); cf. Illinois v. Wardlow, 528

U.S. 119, 124 (2000) ("Even in Terry, the conduct justifying the

stop was ambiguous and susceptible of an innocent explanation.").

Here, those circumstances included Rabbia's presence late at night

in an area known to be a hotbed of drug activity. On its own, of

course, the character of the location where a stop occurs "is

insufficient to create reasonable suspicion," United States v. Am,

564 F.3d 25, 30 (1st Cir. 2009), and we do not suggest that

residents of poorer urban neighborhoods, where crime typically is

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more prevalent than in nearby suburban communities, may be detained

on suspicion of criminal activity simply because of where they

live. See United States v. Brown, 334 F.3d 1161, 1165 (D.C. Cir.

2003) (stating that "an individual's presence in [a certain

neighborhood], 'standing alone, is not enough to support

reasonable, particularized suspicion that the person is committing

a crime'" (quoting Wardlow, 528 U.S. at 124)). However, "officers

are not required to ignore the relevant characteristics of a

location in determining whether the circumstances are sufficiently

suspicious to warrant further investigation." Wardlow, 528 U.S. at

124. Accordingly, Rabbia's presence at 11:00 p.m. in a

neighborhood with a high incidence of drug crimes is a relevant

consideration supporting the reasonableness of the detectives'

suspicion that he was involved in a drug deal. See id.; Am, 564

F.3d at 30 (noting that location "is clearly a consideration that

a police officer may use to decide to make a Terry stop" (quoting

United States v. Kimball, 25 F.3d 1, 7 (1st Cir. 1994) (internal

quotation marks omitted)).

It is of no constitutional significance that, as it

turned out, Rabbia was involved in an illicit gun sale, not a drug

deal. See Pontoo, 666 F.3d at 28 ("In carrying out a Terry stop,

a police officer is not required to possess the clarity of vision

that arises only in hindsight."). There was a particularized and

objective basis for suspecting Rabbia of criminal activity, rooted

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firmly in specific and articulable facts, even if the nature of

that activity ultimately proved different than Sullivan and Macken

originally thought. As a result, the Terry stop was justified at

its inception, and we find no error in the district court's ruling

that it did not constitute an unlawful seizure warranting the

suppression of evidence.

B. The Fifth Amendment Challenge

Rabbia also seeks to suppress the statements he made at

the scene of the encounter, which included comments inculpating him

in the gun transaction and identifying the firearm in question, due

to the officers' failure to give him proper Miranda warnings. As

noted, "[i]n the context of a motion to suppress, we review a

district court's factual findings for clear error [and] review a

district court's legal conclusions de novo." United States v.

Trueber, 238 F.3d 79, 91 (1st Cir. 2001) (citation omitted).

"[T]he ultimate conclusion whether a seizure is a de facto arrest

'qualifies for independent review' because it presents a 'mixed

question of law and fact.'” United States v. Fornia-Castillo, 408

F.3d 52, 63 (1st Cir. 2005) (quoting Trueber, 238 F.3d at 91, 93).

"Because a Terry stop allows an individual to be seized

on less than probable cause, the extent of that intrusion must be

limited." Pontoo, 666 F.3d at 30. If those limits are exceeded,

the stop may evolve into a de facto arrest, and if it does, the

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suspect is entitled under the Fifth Amendment to Miranda warnings

before being interrogated. See Fornia-Castillo, 408 F.3d at 63.

There is no bright line that distinguishes a valid Terry

stop from a de facto arrest:

Instead, we inquire, in light of the totality
of the circumstances, whether a reasonable
person in the suspect's position would have
understood her position to be tantamount to
being under arrest. This objective,
suspect-focused inquiry is informed by our
assessment of the reasonableness of the
detaining officer or officers' actions in
response to developing conditions. Where an
investigatory stop is justified at its
inception, it will generally not morph into a
de facto arrest as long as the actions
undertaken by the officer[s] following the
stop were reasonably responsive to the
circumstances justifying the stop in the first
place as augmented by information gleaned by
the officer[s] during the stop.

Chaney, 647 F.3d at 409 (alterations in original) (quoting Trueber,

238 F.3d at 92) (internal quotation marks omitted). Whether a

Terry stop has escalated into a de facto arrest depends on a number

of factors, including, inter alia, the location and duration of the

stop, the number of police officers present at the scene, the

degree of physical restraint placed upon the suspect, and the

information conveyed to the suspect. See Pontoo, 666 F.3d at 30;

Fornia-Castillo, 408 F.3d at 63. "Above all, an inquiring court

must bear in mind that it would be unreasonable to require that

police officers take unnecessary risks in the performance of their

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duties." Pontoo, 666 F.3d at 30 (quoting United States v. Taylor,

162 F.3d 12, 18 (1st Cir. 1998) (internal quotation marks omitted).

Rabbia contends that the combination of Sullivan's

display of his service weapon, his use of handcuffs, and his pat-

frisk quickly transformed his stop into a de facto arrest. As a

result, he asserts that he should have been advised of his Miranda

rights before Sullivan began questioning him in the parking lot.

While we have held that none of these measures,

considered individually, necessarily converts a valid Terry stop

into a de facto arrest, see Pontoo, 666 F.3d at 30-31; Chaney, 647

F.3d at 409; Fornia-Castillo, 408 F.3d at 64, the presence of all

three in a single encounter warrants a careful examination of the

facts. When addressing the use of handcuffs, we have looked for

some specific fact or circumstance that could
have supported a reasonable belief that the
use of such restraints was necessary to carry
out the legitimate purposes of the stop
without exposing law enforcement officers, the
public, or the suspect himself to an undue
risk of harm.

Acosta-Colon, 157 F.3d at 18-19 (emphasis omitted). A fortiori,

specific facts or circumstances justifying the use of officer

safety measures must be present when the use of handcuffs is

combined with other indicia of arrest.

"[T]he intrusiveness of the measures taken . . . is only

part of the equation," however. Pontoo, 666 F.3d at 30. When

officer safety is a legitimate concern, these prophylactic measures

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can be employed, even in combination, without exceeding the

constitutional limits of a Terry stop. See id. at 30-31; see also

United States v. Mohamed, 630 F.3d 1, 6-7 (1st Cir. 2010)

(observing that "valid concerns for [officers'] safety during the

stop" justified use of drawing weapons, surrounding defendant, and

using handcuff and pat-frisk during brief detention).

In this case, Rabbia was stopped because of a reasonable

suspicion that he was trafficking in drugs, which suggested to

Sullivan that he might be armed, given that "drug dealing is often

associated with access to weapons." United States v. Acosta, 67

F.3d 334, 339 (1st Cir. 1995); cf. United States v. Cooper, 19 F.3d

1154, 1163 (7th Cir. 1994) (stating that "weapons are tools of the

trade of drug dealers" (internal quotation marks omitted)).

Because Rabbia was seated in his car, the lower half of his body

was not visible as Sullivan approached him, and he easily could

have been concealing a weapon. What is more, Sullivan was

effectively alone in confronting Rabbia, with Macken and Thompson

busy detaining Lacy and Bleau thirty to forty feet away. Cf.

Fornia-Castillo, 408 F.3d at 65 (holding that stop did not ripen

into arrest in part because detaining officer initially "was the

only officer on the scene" (internal quotation marks omitted)).

Under these circumstances, there was good reason for Sullivan to

fear that Rabbia was armed and dangerous, and to neutralize the

risk of harm by drawing his weapon, applying handcuffs, and

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conducting a pat-frisk. See Acosta-Colon, 157 F.3d at 18 ("Police

officers engaged in an otherwise lawful stop must be permitted to

take measures . . . they believe reasonably necessary to protect

themselves from harm . . . .").

Moreover, other relevant facts support the conclusion

that Sullivan's prophylactic measures did not transform Rabbia's

stop into an arrest. See Fornia-Castillo, 408 F.3d at 65 (noting

that use of handcuffs and drawing of weapon were justified in part

because encounter took place on "busy public street" and

interaction between officers and defendant "was not confrontational

or bellicose"). Rabbia was stopped and detained in a parking lot

abutting a busy public alleyway. See United States v. Lee, 317

F.3d 26, 31 (1st Cir. 2003) (noting fact that suspect was "detained

and questioned in a public place" as factor weighing against

arrest). The officers explicitly informed Rabbia that he was not

under arrest, that he was being handcuffed as a safety measure and

that the handcuffs would be removed when other police officers

arrived, which should have clarified the circumstances to a

reasonable person. See Pontoo, 666 F.3d at 30 (noting that

"information conveyed to the detainee" is relevant consideration)

(quoting United States v. Sowers, 136 F.3d 24, 28 (1st Cir. 1998)).

The handcuffs were, in fact, removed as soon as another officer

appeared.

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 The relative brevity of Rabbia's detention further

undermines the notion that he was de facto arrested. The handcuffs

remained on him for only five minutes, see Fornia-Castillo, 408

F.3d at 65 (handcuffs remained on suspect for ten or fifteen

minutes and were removed when other officers arrived), and no

questioning occurred until after the handcuffs were taken off. In

all, Rabbia was detained for only thirty minutes or thereabouts

before being formally arrested. See Mohamed, 630 F.3d at 7

(stating that brief detention supported conclusion that encounter

was only "valid investigatory stop"); see also United States v.

Owens, 167 F.3d 739, 749 (1st Cir. 1999) (detention of fifty

minutes was not de facto arrest); Sowers, 136 F.3d at 28 ("at

least" thirty minute detention was not de facto arrest); United

States v. McCarthy, 77 F.3d 522, 531 (1st Cir. 1996) (seventy-five

minute detention in police car was not de facto arrest).

We acknowledge that the use of measures such as handcuffs

or drawing guns are among "the most recognizable indicia of a

traditional arrest." Acosta-Colon, 157 F.3d at 18. The

circumstances that we have identified, however, indicate that

"[t]he stop at issue here, while intrusive, was both proportional

to the occasion and brief in duration." Pontoo, 666 F.3d at 31.

Therefore, the district court properly declined to grant Rabbia's

suppression motion on the ground that evidence had been obtained as

a result of a violation of the Fifth Amendment.

Affirmed.

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