United States v. Andrade

United States Court of Appeals
For the First Circuit

No. 08-1175

UNITED STATES OF AMERICA,

Appellee,

v.

CLARENCE ANDRADE,

Defendant, Appellant.

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

[Hon. Rya W. Zobel, U.S. District Judge]

Before

Lynch, Chief Judge,
Howard, Circuit Judge,
and Garcia-Gregory,* District Judge.

Mark T. Quinlivan, Assistant United States Attorney, with whom
Michael J. Sullivan, United States Attorney, was on brief, for
appellee.
Martin J. Vogelbaum, Assistant Federal Public Defender, for
appellant.

December 31, 2008

*
Of the District of Puerto Rico, sitting by designation.
 GARCIA-GREGORY, District Judge. Defendant-appellant

Clarence Andrade (“Andrade”) was charged in the United States

District Court for the District of Massachusetts with being a felon

in possession of a firearm and ammunition in violation of 18 U.S.C.

§ 922(g)(1). On January 23, 2007, Andrade filed a motion to

suppress the firearms and ammunition seized by Officer Gary

Sarmento (“Sarmento”) of the New Bedford, Massachusetts Police

Department (the “Department”). After holding a suppression hearing,

the district court upheld the legality of a stop and frisk

performed by Sarmento, which revealed that Andrade had two weapons

and ammunition with him. Accordingly, the district court denied

Andrade’s motion. United States v. Andrade, 502 F. Supp. 2d 173 (D.

Mass. 2007). The defendant thereafter entered a guilty plea,

reserving the right to challenge the denial of his suppression

request. Following the imposition of sentence,1 the defendant,

acting on the reservation, instituted this appeal.

FACTUAL AND PROCEDURAL BACKGROUND

“We recount the relevant facts as the trial court found

them, consistent with record support.” United States v. Ngai Man

Lee, 317 F.3d 26, 30 (1st Cir. 2003). Shortly after midnight on

January 22, 2006, New Bedford police received numerous reports of

shots being fired. The New Bedford police members that responded to

1
On January 24, 2008, Andrade was sentenced to one hundred
eighty (180) months imprisonment, forty-eight (48) months of
supervised release, and a $ 100 assessment.

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these reports recovered numerous shell casings from the area of

Purchase Street and Madison Street. About an hour later, two men

that confessed to being in the area were admitted into St. Luke’s

Hospital with non-life threatening gunshot wounds.2

On that same date, at 2:25pm, a 911 caller reported a

shooting threat to a New Bedford, Massachusetts police operator.

After being told by the operator that he was on a recorded line,

the caller reported that “[t]hree guys [are] looking to start with

some other guy outside on the street here” and confirmed that he

was calling from 37 Madison Street. The caller further stated that

each of the three men were wearing a hooded sweatshirt - one white,

one gray, and one black. The caller told the operator that one of

the three men threatened the man who lived in the third floor of 37

Madison Street, telling him that “I’ll come back and shoot you or

kill you or whatever.” In addition, the caller stated that the

three men were “walking south on [what] looks like Pleasant

Street.” The operator, who had a caller ID display showing the name

and address associated with the calling telephone number, took

notes of the caller’s statements.

Sergeant John T. Catterall (“Catterall”), the

Department’s patrol supervisor at the time, received a textual

report of the call on a mobile data computer in his cruiser. The

2
The two men conceded to being in the area, but provided no
further information.

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report indicated that the caller was the first floor tenant at 37

Madison Street and that the potential victim was the third floor

tenant. After reading the report, Catterall radioed the

Department’s dispatcher to send other officers to the Madison

Street area, telling her that he would go there as well. The

dispatcher then broadcasted over the police radio system:

12 and 13, can you make your way [to] 37
Madison Street? There’s a complainant on the
first floor saying, uh, guess some males were
arguing with a party that lives on the third
floor here, and they threatened to come back
and shoot the party. Uh, they are going to be
three males, all had hooded sweatshirts, uh,
black, gray and white in color. Left south on
Pleasant Street on foot.

Several officers notified Catterall that they were headed to the

Madison Street area, among them was Sarmento. Catterall proceeded

to 37 Madison Street and interviewed the first floor tenant. Before

he began his interview, Catterall heard over his walkie-talkie that

Sarmento had stopped several males at Russell and Purchase Streets

that matched the description of the caller.

After receiving the Department’s dispatch, Sarmento had

confirmed with the dispatcher that the males were “walking south on

Pleasant from Madison” and that he was in the area. The officer

then proceeded to look for the men matching the caller’s

description. Sarmento did not see anyone on Pleasant Street.

However, three houses down on the next intersection he observed

that five individuals were walking south on Purchase Street. The

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officer noted that three of the individuals were males clad in a

black, gray, and white hooded sweatshirts respectively. Sarmento

pulled over and ordered the individuals to stop. Four of the

individuals stopped. Only one refused to obey Sarmento’s order:

Andrade. Sarmento then put his arm out to stop Andrade and the

defendant continued forward, walking into Sarmento’s arm. Andrade

refused to make eye contact and looked around as if he was

attempting to flee. Additionally, Andrade and another of the males

had their hands in their front pockets. Sarmento also recognized

one of the other males as having a criminal history and as having

been involved in violent gang related activities. Sarmento then

grabbed Andrade by his sweatshirt and held him against the trunk of

his police cruiser, bent over at the waist. The officer did the

same thing to the other male who had his hands in his pocket.

Sarmento later testified that he was concerned that the men might

be armed and that he felt he was in danger. Another officer arrived

at the scene and Sarmento requested that said officer take control

of the second male. Sarmento then turned his attention to Andrade

to frisk him for weapons. He was able to observe that Andrade had

the handle of a firearm sticking from his waistband. Sarmento was

able to see the handle of the weapon because Andrade’s sweatshirt

had bunched up around the back of his neck and had been pulled up

above his waist when he was bent at the waist over the police

cruiser. Sarmento seized the weapon, placed Andrade on the

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sidewalk, handcuffed him, and began to frisk him further. This

frisk led to his finding a second handgun together with a bag

containing ammunition, which the officer seized. Sarmento then

arrested Andrade.

While these events were taking place on Purchase Street,

Catterall had gone to the building at 37 Madison Street where the

911 caller lived. Catterall interviewed the caller, Jason Alcock

(“Alcock”), who shared the last name and the residence with the

registered owner of the place from which the 911 call was made.

Alcock confirmed that he had made the 911 call. Following his

conversation with Alcock, Catterall interviewed Ernie Souza

(“Souza”), the third-floor tenant at 37 Madison. The interview with

Souza revealed that Alcock had related the facts incorrectly to the

911 operator. Souza told Catterall that while he was lighting

firecrackers, three men stopped to admonish him telling him that it

was not smart for him to light firecrackers when there had been a

shooting nearby earlier that morning. Souza stated that the three

men had not threatened to shoot him and that after an unfriendly

exchange of words the men had walked off. Sarmento could not have

been aware of this information when he stopped and frisked Andrade.

Andrade was charged in the United States District Court

for the District of Massachusetts with being a felon in possession

of a firearm and ammunition in violation of 18 U.S.C. § 922(g)(1).

On January 23, 2007, Andrade filed a motion to suppress the

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firearms and ammunition seized. After holding a suppression

hearing, the district court denied the motion. The district court

upheld the legality of Andrade’s stop because the totality of

circumstances at the time were sufficient for Sarmento to have a

reasonable suspicion that Andrade was involved in wrongdoing.

Specifically, the district court found that the totality of the

following facts provided Sarmento with a reasonable suspicion of

criminal activity justifying Andrade’s stop: (1) Sarmento was an

experienced officer, who was familiar with gang activity in New

Bedford; (2) he was aware that the area where Andrade was stopped

and frisked was a high-crime area and that two individuals had been

shot in that vicinity approximately fourteen (14) hours earlier;

(3) no suspects had been identified in that shooting; (4) Sarmento

was responding to a radio dispatch warning that, a few minutes

earlier, three males wearing black, white, and gray hooded

sweatshirts had threatened to shoot another person; (5) Sarmento

spotted five individuals walking in the direction described by the

dispatch caller; and (6) three of them were wearing hooded

sweatshirts that matched the description of the dispatch caller.

The district court also held that Sarmento had a

reasonable basis to perform a pat down frisk on Andrade. First, the

court noted that Sarmento recognized that one of the individuals

had been involved in violent gang activity. Second, Andrade ignored

Sarmento’s order to stop and walked into the officer’s arm. Third,

-7-
Andrade refused to make eye contact and looked around as if he

wanted to flee. Fourth, Sarmento noted that Andrade’s hands were in

his pocket, possibly concealing a weapon. Finally, the district

court noted that Sarmento testified at the suppression hearing that

he felt outnumbered and in danger when he decided to secure Andrade

against the trunk of his car, in order to check him for weapons.

Andrade argued in the district court that Sarmento’s

search was more intrusive than a mere frisk because the officer

lifted his sweatshirt to find one of the guns when he pushed him

against the trunk of the car. The other gun and ammunition was

found after Sarmento handcuffed Andrade and further frisked him for

weapons. At the hearing, the district court allowed defense counsel

to wear the sweatshirt worn by defendant on the day of the events

and Sarmento to simulate how Andrade was pushed against the trunk.

During the simulation, Andrade’s sweatshirt rode up on its own

revealing counsel’s waist. The district court determined that

Sarmento’s testimony was credible and that the demonstration was in

accordance with his testimony of how he came about the gun in

Andrade’s waistband. In addition, the district court heard the

testimony of Officer Michael Oliver (“Oliver”), who arrived at the

scene after Sarmento and secured one of the other males, while

Sarmento concentrated on Andrade. The district court determined

that Oliver’s testimony was credible and that the word “search” did

not properly describe Sarmento’s action. In conclusion, the

-8-
district court held that under the totality of circumstances,

Sarmento had a reasonable suspicion that Andrade was involved in

the reported altercation and that he could have been armed, which

justified the stop and frisk.

Following the district court’s decision, defendant

entered a guilty plea, reserving the right to challenge the denial

of his suppression request. Following the imposition of sentence,

the defendant, acting on the reservation, instituted this appeal.

Andrade argues that Sarmento did not have a reasonable suspicion of

criminal activity justifying his stop and frisk. Furthermore,

Andrade claims that the frisk performed on him exceeded permissible

bounds. As such, Andrade requests that this court vacate his

conviction, reverse the district court’s denial of his motion to

suppress, and remand this case for further proceedings.

STANDARD OF REVIEW

This court applies a mixed standard of review for orders

granting or denying suppression. United States v. Ruidíaz, 529 F.3d

25, 28 (1st Cir. 2008). The 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. Id.;

United States v. Garner, 338 F.3d 78, 80 (1st Cir. 2003). This

court “will uphold a denial of a motion to suppress if any

reasonable view of the evidence supports it.” Garner, 338 F.3d at

80.

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 DISCUSSION

A temporary police detention constitutes a seizure under

the Fourth Amendment. Terry v. Ohio, 392 U.S. 1, 19 (1968);

Ruidíaz, 529 F.3d at 29. Hence, such detention must be reasonable

in order to pass constitutional muster. Id. “The oversight of brief

investigatory stops has two aspects.” Ruidíaz, 529 F.3d at 29.

First, in order to make the initial stop, a police officer must

have a reasonable, articulable suspicion of an individual’s

involvement in some criminal activity. Id.(citing Terry, 392 U.S.

at 21; United States v. Chhien, 266 F.3d 1, 6 (1st Cir. 2001)).

Second, any action undertaken pursuant to that stop must be

reasonably related in scope to the stop itself “unless the police

have a basis for expanding their investigation.” United States v.

Henderson, 463 F.3d 27, 45 (1st Cir. 2006). Thus, it is

insufficient that the stop itself is valid because there must also

be a separate analysis of whether the pat-frisk is reasonable.

United States v. McKoy, 428 F.3d 38, 39 (1st Cir. 2005).

The inquiry into reasonableness requires a reviewing

court to consider the totality of the surrounding circumstances.

United States v. Romain, 393 F.3d 63, 71 (1st Cir. 2004). “This

inquiry is fact-sensitive,” and, therefore, “requires a practical,

commonsense determination.” Ruidíaz, 529 F.3d at 29. This

determination “entails a measurable degree of deference to the

perceptions of experienced law enforcement officers.” Id.

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Furthermore, “[b]ecause reasonable suspicion is a protean concept,

suspicion sufficient to justify an investigatory stop may be rooted

in any of a variety of permissible scenarios.” Id. “The

reasonableness of a search entails an objective inquiry into the

search from the perspective of the searching officers.” United

States v. Aitoro, 446 F.3d 246, 253 (1st Cir. 2006).

Andrade individually attacks the factors that the

district court relied on to determine that Andrade’s stop and frisk

was lawful and then argues that the totality of these circumstances

do not sustain the reasonableness of Andrade’s stop and frisk. The

Supreme Court has warned that, in determining the reasonableness of

a stop and frisk, a court should not engage in “divide-and-conquer

analysis,” isolating the individual factors underlying an officer’s

suspicion to determine whether any given factor is “by itself

readily susceptible to an innocent explanation” and thus “entitled

to ‘no weight.’” United States v. Arvizu, 534 U.S. 266, 274 (2002).

Rather, the critical inquiry is whether reasonable suspicion arose

under the totality of the circumstances. Even if “each of [a]

series of acts was ‘perhaps innocent in itself,’” the Court has

held that, “taken together,” they may justify a stop and frisk.

Id. (quoting Terry, 392 U.S. at 22).

In this case, the totality of the circumstances facing

Sarmento were clearly sufficient to give him a “‘particularized and

objective basis’ for suspecting legal wrongdoing.” Id. at 273.

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Beyond this, we reject defendant’s attacks on the individual

factors.

Andrade first claims that the 911 call in this case

should not have been accorded any weight because the caller was

anonymous and did not report an actual threat. Andrade relies on

Florida v. J.L., 529 U.S. 266 (2000), which holds that truly

anonymous tips must be corroborated in some meaningful way in order

to justify crossing the reasonable suspicion threshold. Ruidíaz,

529 F.3d at 30. However, not every 911 call from a nameless source

can truly be considered anonymous. Id. When determining whether to

afford any weight to a nameless 911 call, the proper test “does not

hinge on the definition of ‘anonymous’ but, rather, on whether the

911 call possessed sufficient indicia of reliability.” Id. at 31.

“That determination must be made in light of all the

circumstances.” Id.

In the present case, Alcock, the caller, made no attempt

to hide his identity. Even though Alcock did not state his name,

after being told that he was on a recorded line, he confirmed that

his location was 37 Madison. Moreover, the operator had a caller ID

display showing the name and address associated with the calling

telephone number. Additionally, the caller made comments about what

was happening outside his home. Another circumstance that weighs in

favor of the 911 call’s reliability is the fact that the radio

dispatch received by Sarmento ordered him to look for three males

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that had made a shooting threat with the description given by the

caller, i.e. three young males with hooded sweatshirts, one white,

one gray, and one black, and Sarmento saw three males matching said

description walking on Purchase Street near the area where the

shooting threat was made.3 As such, the just mentioned facts taken

together, show that the 911 call possessed sufficient indicia of

reliability. Ruidíaz, 529 F.3d at 31 (finding that a 911 call from

a nameless source was reliable because among other things the

caller was “aware that his identity could easily be unearthed”).

Next, Andrade contends that the record does not support

the conclusion that the area was a high-crime area because none of

the officers involved could specifically delineate which area was

a high-crime area. Andrade further argues that the most prevalent

criminal activity in the area was gang related, which is not the

type of crime involved in the case before this court. Additionally,

Andrade claims that no one testified that the shootings that

occurred at the intersection of Purchase and Madison Street,

fourteen hours before Andrade’s stop and frisk, were gang related.

The relevant evidence for a factual finding that an area

is a high-crime area “will include some combination of the

following: (1) the nexus between the type of crime most prevalent

3
The district court acknowledged that Purchase Street was
very near the area where the shooting threat was reported to have
occurred and where the suspects where reportedly headed.

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or common in the area and the type of crime suspected in the

instant case; (2) limited geographic boundaries of the ‘area’ or

‘neighborhood’ being evaluated; and (3) temporal proximity between

evidence of heightened criminal activity and the date of the stop

or search at issue.” United States v. Wright, 485 F.3d 45, 53-54

(1st Cir. 2007).

At the suppression hearing, the district court heard the

testimony of Sarmento, who testified that on the morning of January

22, 2006 he received a memorandum indicating that earlier that day,

shortly after midnight, a shooting had occurred at the intersection

of Purchase and Madison Street and that officers had recovered a

number of shell casings. Furthermore, Sarmento was asked whether

the area of Purchase and Madison Street falls into a high-crime or

low-crime area of New Bedford. The officer testified that the area

around Purchase and Madison Street is an area with a lot of police

activity due to the high level of criminal activity.4 Sarmento also

indicated that the area has been the location of a number of

shootings throughout the years.5 The district court found

Sarmento’s testimony to be credible and determined that the area

around Purchase and Madison Street, which included the area where

4
In determining whether an area is high in crime, courts may
consider evidence which includes a mix of objective data and the
testimony of officers, describing their experiences in that area.
Wright, 485 F.3d at 54.
5
Officer Oliver also testified that the area where Andrade
was stopped and frisked is a high-crime area.

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Andrade was stopped and frisked, was a high-crime area. We see no

reason to disturb that finding.6

Sarmento testified that he had been a police officer for

fifteen (15) years, spending nearly eight of those years patrolling

the area around Purchase and Madison Street. Moreover, Sarmento

mentioned that, at the time he was in the Community Policing

Division of the Department, he answered regular routine police

calls in the area. Sarmento further indicated that through the

years he had responded to incidents in the area involving: “weapons

shootings, stabbing, things of that nature.”7 Number 37 Madison

Street is one house away from the intersection of Madison and

Purchase. Moreover, the area where Andrade was stopped and frisked

is one block away from where the earlier shooting had taken place.

Thus, the area where the shooting threat was made and where Andrade

was stopped and frisked falls within the area described by Sarmento

as having a heightened level of criminal activity. The area was

known for having shooting incidents and one such incident had

6
This court must “exhibit great respect for the presider’s
opportunity to hear the testimony, observe the witnesses’ demeanor,
and evaluate the facts at first hand.” United States v. Nee, 261
F.3d 79, 84 (1st Cir. 2001)(citing United States v. Zapata, 18 F.3d
971, 975 (1st Cir. 1994)).
7
Sarmento also testified that he recalled Andrade’s face from
a wanted poster. However, Andrade argues that Sarmento’s testimony
that he recalled Andrade’s face from a wanted poster cannot
contribute to the reasonable suspicion calculus. The district court
decided not to consider this factor in its totality of the
circumstances analysis. Likewise, we will not consider this factor.

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occurred in the same area fourteen (14) hours earlier. As such, we

find that there is a nexus between the type of crime most prevalent

or common in the area and the type of crime suspected in the

instant case. Furthermore, there is a temporal proximity between

evidence of heightened criminal activity and the date of the stop

and frisk at issue. Accordingly, we agree with the district court’s

finding that the area where the aforementioned incidents occurred

was a high-crime area.8

Andrade also contends that Sarmento’s experience as a

police officer is in gang related activities and, therefore,

irrelevant to Andrade’s case because there is no evidence that the

argument between the three men and Souza was gang related. This

argument is unavailing. Sarmento may draw on his “own experience

and specialized training to make inferences from and deductions

about the cumulative information ... that might well elude an

untrained person.” United States v. Jones, 432 F.3d 34, 40 (1st

Cir. 2005)(internal citations omitted). The fact that Sarmento has

experience in gang related activities does not mean that he does

not have experience in shootings. Sarmento testified that as a

police officer for the past fifteen (15) years, he had substantial

experience in dealing with people in gangs in the Madison and

Purchase Street area. The officer further stated that through the

8
The clearly erroneous standard is applied to the factual
finding that an area was high in crime. Wright, 485 F.3d 45, 53
(1st Cir. 2007).

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years he has responded to incidents in the area involving: “weapons

shootings, stabbing, things of that nature.” Hence, the district

court did not err in taking into consideration Sarmento’s

experience because he had been a police officer in the Madison and

Purchase Street area for many years and, in addition to his

experience with gang related activities, he had responded to

shooting incidents in the area.

Furthermore, Andrade contends that the fact that Sarmento

had a subjective belief that he was in danger because he was

dealing initially with five persons by himself is irrelevant

because Sarmento knew that other officers were on the way. The

district court found that Sarmento’s testimony that he felt he was

in danger was credible. Even though Sarmento later acknowledged

that he knew that other officers were on their way, Sarmento

testified that he felt in danger. Sarmento stated that Andrade had

refused to stop, looked around as if he wanted to flee and he and

another of the males had their hands in their pockets. The officer

was concerned that both of them may have been concealing weapons.

According to Andrade, his behavior in continuing to walk when

ordered to stop and in keeping his hands in his sweatshirt pocket

may not be used to generate a reasonable suspicion. Andrade alleges

that his refusal to obey Sarmento’s order does not of itself

generate reasonable suspicion. Additionally, Andrade avers that he

had his hands in the pocket of his sweatshirt because the events

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occurred in January, a month known for its cold weather. Moreover,

Andrade alleges that he refused to make eye contact because he was

nervous. Andrade claims that these circumstances taken together do

not amount to a reasonable suspicion that he was involved in

criminal activity. We disagree.

The district court did not clearly err in crediting

Sarmento’s subjective feeling that he was in danger. As previously

mentioned, Sarmento was in a high-crime area9 and Andrade was

accompanied by four other persons. Andrade refused to obey

Sarmento’s order to stop, walking into his outstretched arm.

Additionally, Andrade had his hands in his pocket, and refused to

make eye contact. We find that under these circumstances,

Sarmento’s belief that he was in danger was objectively reasonable

and a justified reaction to the situation. Sarmento could

reasonably have thought that Andrade was concealing a weapon and

posed a threat to his safety. See, e.g., United States v. Soares,

521 F.3d 117, 121-122 (1st Cir. 2008)(stressing, in determining

whether the district court had reasonable suspicion, that the

officer’s judgment that the defendant posed a threat was

objectively reasonable because he refused repeated orders to remain

9
This court recognizes that the character of a neighborhood
does not provide the police with automatic permission to stop and
search someone in a high-crime neighborhood. United States v.
Soares, 521 F.3d 117, 121 (1st Cir. 2008)(internal citations
omitted). Nonetheless, “every case must be considered on its own
reasons for suspicion of danger.” Id.

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still and keep his hands in the officer’s view and because he

became increasingly agitated as the stop progressed). Andrade

offers innocent explanations for the fact that he had his hands in

his pocket and was looking around. However, the relevant question

is not whether there was an innocent explanation for any particular

factor, but rather the degree of suspicion that Sarmento could

reasonably attach to these factors in light of the surrounding

circumstances. Ruidíaz, 529 F.3d at 32.

Finally, Andrade contends that even if there was a

reasonable suspicion justifying the stop and frisk, Sarmento’s

frisk exceeded permissible bounds. Specifically, Andrade argues

that Sarmento exceeded the scope of a Terry stop and frisk when the

officer grabbed his sweatshirt and held him against the trunk of

the police cruiser. Andrade argues that Sarmento should have

stopped to question the group instead of choosing a more physically

intrusive route. This argument, however, overlooks the reality of

the situation that Sarmento was confronting. Andrade refused

Sarmento’s order to stop, running into the officer’s arm.

Furthermore, Sarmento was alone and felt he was in danger because

Andrade did not look at him and had his hands in his pockets where

he could have been concealing a weapon. Moreover, Sarmento

recognized one of the individuals who were with Andrade as being

involved in violent gang activity. Sarmento’s actions -- grabbing

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Andrade and holding him over the trunk of his car -- were

reasonably responsive to these circumstances.

CONCLUSION

For the reasons stated above, we find that Sarmento’s

actions were reasonable under the totality of circumstances. As

such, the district court’s denial of Andrade’s Motion to Suppress

is AFFIRMED.

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