United States v. Coplin

United States Court of Appeals
For the First Circuit

No. 05-2077

UNITED STATES OF AMERICA,

Appellee,

v.

EDDIE COPLIN,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Douglas P. Woodlock, U.S. District Judge]

Before

Torruella, Selya and Dyk,** Circuit Judges.

Bernard Grossberg for appellant.
Randall E. Kromm, Assistant United States Attorney, with whom
Michael J. Sullivan, United States Attorney, was on brief, for
appellee.

September 20, 2006

*
Of the Federal Circuit, sitting by designation.
 SELYA, Circuit Judge. This appeal hinges on an

interesting and important point in the jurisprudence of the Fourth

Amendment: does reasonable suspicion, based on a plausible but

mistaken view of the facts, justify a Terry stop? The district

court answered this question in the affirmative, and so do we.

Consequently, we uphold the district court's denial of the

defendant's motion to suppress. We also reject, more easily, the

defendant's remaining claims of error, which challenge the district

court's regulation of cross-examination and its sentencing

protocol.

I. BACKGROUND

We rehearse the facts as the district court found them,

consistent with record support. See United States v. Romain, 393

F.3d 63, 66 (1st Cir. 2004).

On July 1, 2002, the Boston police were intensifying

their patrol of the Grove Hall neighborhood in response to a recent

incident of gun violence. Just before 4:45 p.m. on that date,

Officers Scott O'Brien and Steven Rioux spotted a Honda Accord and

decided to run a check of its license plate because, as Officer

O'Brien later testified, Hondas are stolen with more frequency than

virtually any other make of automobile.

In Boston, police cruisers are commonly equipped with

mobile data terminals (MDTs). These MDTs are linked to various

databases including those of the Massachusetts Registry of Motor

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Vehicles and the National Crime Information Center. Officer

O'Brien entered the Honda's license plate number into the MDT and,

according to both officers, the MDT indicated that the owner of the

car had a suspended driver's license.

The officers pulled up behind the Honda near the corner

of Blue Hill Avenue and Quincy Street. O'Brien disembarked from

the cruiser and approached the driver's-side door of the Honda,

while Rioux approached the passenger's-side door. O'Brien

confirmed that the operator of the vehicle, defendant-appellant

Eddie Coplin, was the vehicle's owner. He then asked the defendant

to disembark. As the defendant exited the vehicle, he tried to

keep his right hand out of view and close the door behind him.

During that process, O'Brien spied a gun on the driver's seat.

O'Brien immediately placed the defendant under arrest and

instructed Rioux to handcuff him.

When this transpired, the passenger in the stopped car,

Sheila Fuentes, became visibly agitated, started to move into the

driver's seat, and disregarded the officers' instruction to keep

her hands in sight. In response, the police handcuffed her as

well. Subsequent searches revealed eleven baggies of marijuana in

Fuentes's purse and a sack of cocaine base in her lingerie.

Following his detention, the defendant insisted that he

held a valid driver's license. O'Brien re-entered the license

plate number into the MDT and showed the defendant a screen that

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indicated the suspended license. At that point, however, O'Brien

noticed, apparently for the first time, a screen indicating that

the defendant's license was in full force.

II. TRAVEL OF THE CASE

In due season, a federal grand jury indicted the

defendant on various firearms and drug charges involving the items

that the police had retrieved from the car and from Fuentes's

person. The defendant moved to suppress these items, challenging

the constitutionality of the initial traffic stop.

The district court held a two-day evidentiary hearing on

the motion to suppress. Officers O'Brien and Rioux testified about

the events surrounding the stop and the ensuing arrest. Neither

officer recalled having seen an active license indicator prior to

initiating the stop. The government also presented the testimony

of Officer Vincent Stancato, a technical trainer in the police

department's information technology division. Stancato provided

background information on the workings of the MDT system and its

wonted use within the police department.

Pertinently, Stancato testified that after a query (such

as a license plate number) is entered into an MDT unit, data from

the networked databases filter back to the unit at varying speeds.1

The MDT unit displays the information it receives in the form of

1
Speed depends on a miscellany of factors, such as whether a
given database is busy fielding other inquiries from other
requesters.

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successive screens. The data reflected in the later screens

supersede — that is, are more accurate and, hence, more reliable

than — the data reflected in the earlier screens.

In order to receive the updated information screens, a

user is prompted to hit a "next message" button. Using this

modality, every officer is trained to scroll through successive

data screens in order to reach the most up-to-date information

about the subject matter in question. O'Brien testified that he

had done exactly that.

With respect to the MDT query in this case, the district

court admitted into evidence a printout from the MDT system. The

printout tracked the flow of data beginning with O'Brien's initial

entry of the license plate number at 4:45 p.m. (recorded as time

16:45:44) on the afternoon of July 1, 2002.2 The MDT printout

indicated that five and six seconds later (that is, at 16:45:49 and

again at 16:45:50), the data flow indicated that the car's owner

had an active driver's license. Instantaneously thereafter, also

at 16:45:50, the printout indicated a suspended license. While

Officer Stancato could not determine from the printout whether

O'Brien and Rioux actually had seen the earlier screens indicating

2
It is clear that this printout, which was offered into
evidence by the defendant, is not identical in format to the
display the officers would have seen at the time the events
unfolded; it did, however, track the sequence in which the data
about the defendant and his vehicle would have been received by the
officers' MDT unit.

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a valid driver's license, he testified that based on how the system

works the officers would have had to scroll through the earlier

screens in order to reach the later-received screen that reported

a suspended license (the information upon which the officers based

the stop).3

At the conclusion of the hearing, the district court

ruled from the bench. Relying on Whren v. United States, 517 U.S.

806 (1996), the court found that the police department's decision

to target the Grove Hall area and focus its attention on "high-risk

vehicles" was within the encincture of its discretion. As to the

stop itself, the court found it likely that Officer O'Brien had

"conflated the information that he had" by making "the suspension

the only observation with respect to the license." This

conflation, whatever its source, did not trouble the court because

"even if [O'Brien] saw both" license entries, he "did focus on what

was the ultimate determination here that justified the stop. And

that is that it was a suspended license." The court found

O'Brien's testimony credible and his actions reasonable, given that

events were unfolding rapidly in "realtime." Indeed, the printout

3
At the suppression hearing, there was conflicting testimony
as to whether the active screen or the suspended screen appeared
first. Officer O'Brien testified that "it c[a]me up suspended
first and then active." However, the MDT printout and Officer
Stancato's testimony both indicated that the active screen would
have appeared before the suspended screen. Since the district
court reasonably credited the latter evidence, we will assume for
purposes of this appeal that the active screen was displayed first.

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reveals that there was a delay of only one second between the

initial screen showing an active license and the later screen

showing a suspended license.

The district court concluded that the officers had

reasonable suspicion to stop the defendant's car in order to

investigate whether the driver was operating on a suspended

license. This reasonable suspicion justified the initial stop, and

the combination of the defendant's behavior, the sighting of the

gun, and Fuentes's antics collectively justified the arrest and the

ensuing searches.

After the district court denied his motion to suppress,

the defendant entered a conditional plea of guilty to each of the

four counts contained in the superseding indictment, reserving his

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

11(a)(2). The district court thereafter sentenced the defendant to

an aggregate incarcerative term of 180 months: 120 months on count

2, 60 months on each of counts 1 and 3 (to run concurrently with

each other and with the sentence on count 2), and 60 months on

count 4 (to run consecutively to the terms imposed for the other

three counts). This appeal followed.

III. DISCUSSION

The defendant assigns error to the district court's

refusal to suppress, its regulation of cross-examination, and its

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sentencing protocol. We discuss these claims of error

sequentially.

A. Refusal to Suppress.

The defendant's challenge to the district court's denial

of his motion to suppress is narrowly focused. The main thrust is

directed to the validity of the stop itself. The applicable

standards of review are familiar. In considering the denial of a

motion to suppress, we accept the trial court's findings of fact

unless they are clearly erroneous and subject its conclusions of

law to de novo review. Ornelas v. United States, 517 U.S. 690, 699

(1996); Romain, 393 F.3d at 68.

It is axiomatic that a brief investigatory stop

"constitutes a seizure within the purview of the Fourth Amendment

and, therefore, is subject to the constitutional imperative that it

must be reasonable under all the circumstances." Romain, 393 F.3d

at 70-71 (citing Terry v. Ohio, 392 U.S. 1 (1968)). An officer may

conduct such a stop if he has a "reasonable, articulable suspicion

that criminal activity is afoot." Id. at 71. The officer's

initial actions must be justified at their inception and his

subsequent actions must be "responsive to the emerging tableau —

the circumstances originally warranting the stop, informed by what

occurred, and what the officer learned, as the stop progressed."

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

benchmarks require us to assess the totality of the circumstances,

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on a case-specific basis, in order to ascertain whether the officer

had a particularized, objectively reasonable basis for suspecting

wrongdoing (and, thus, for making the initial stop). United States

v. Arvizu, 534 U.S. 266, 273 (2002).

In this instance, the district court placed heavy

emphasis on the MDT data and the protocols for interpreting the

data as described by Stancato (the training officer). Stancato

explained that police officers are trained to focus on the

superseding, more accurate, data that populate the MDT screen, and

the district court found that this orientation (favoring reliance

on later-arriving data) animated the officers' initiation of the

stop. While blind deference to the perceptions of officers

deciding whether to undertake a stop is inappropriate, deference is

due to objectively reasonable perceptions. See, e.g., United

States v. Woodrum, 202 F.3d 1, 7 (1st Cir. 2000). Given that the

suspended screen arrived after the active screen and thereafter

continued to indicate that the defendant's license was suspended,

we cannot fault the district court's determination that Officer

O'Brien's suspicion was objectively reasonable.4

4
The defendant does not challenge the officers' implicit
assumption that the owner and operator of the Honda were one and
the same. This assumption has grounding in the case law, see,
e.g., West v. Duncan, 179 F. Supp. 2d 794, 803 (N.D. Ohio 2001);
Commonwealth v. Deramo, 436 Mass. 40, 43, 762 N.E.2d 815, 818
(2002), and we therefore do not question it.

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 The fact that, as matters turned out, the defendant's

license was not suspended at the time of the stop — a fact that the

government conceded for purposes of the suppression motion — does

not alter this assessment. To be sure, O'Brien's reliance on the

computer database record indicating a suspended driver's license

constituted a mistake, regardless of whether, in initiating the

stop, he relied solely upon the suspension information or acted

upon a conflation of the conflicting responses. But there is no

dispute in this case that driving with a suspended license would be

a violation of Massachusetts law. See Mass. Gen. Laws ch. 90, §§

10, 21, 23. The mistake was, therefore, one of fact, not of law.

This dichotomy is important because of the material

difference between traffic stops based on a police officer's

mistake of law and those based on a police officer's mistake of

fact. Stops premised on a mistake of law, even a reasonable, good-

faith mistake, are generally held to be unconstitutional. See,

e.g., United States v. McDonald, 453 F.3d 958, 961-62 (7th Cir.

2006) (holding stop invalid where statute did not proscribe

defendant's use of the turn signal); United States v.

Chanthasouxat, 342 F.3d 1271, 1277-80 (11th Cir. 2003) (finding no

reasonable suspicion where applicable code did not require inside

rear-view mirrors). But see United States v. Martin, 411 F.3d 998,

1001 (8th Cir. 2005) (stating that "in mistake cases the question

is simply whether the mistake, whether of law or fact, was an

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objectively reasonable one" (citation and internal quotation marks

omitted)).

Stops premised on mistakes of fact, however, generally

have been held constitutional so long as the mistake is objectively

reasonable. See, e.g., United States v. Miguel, 368 F.3d 1150,

1153 (9th Cir. 2004); United States v. Cashman, 216 F.3d 582, 587

(7th Cir. 2000). A finding of reasonable suspicion demands only an

objectively reasonable appraisal of the facts — not a meticulously

accurate appraisal.

With respect to the significance of the mistake of fact

in this case, we draw upon our analysis in United States v. Fox,

393 F.3d 52 (1st Cir. 2004).5 There, a police officer initiated an

investigatory stop when he was unable to determine whether a

vehicle driven by the defendant had a functioning license plate

light (which he knew to be required under Maine law). Id. at 56,

59. The defendant challenged this stop based on the testimony of

the vehicle's owner that she checked the plate light soon after the

stop and found it in good working order. We rejected that

challenge, concluding that the stop was lawful because, whether or

not mistaken, the officer "reasonably believed . . . that the plate

light was not functioning." Id. at 59 n.6.

5
The Supreme Court vacated the decision in Fox on a sentence-
related ground. 125 S. Ct. 2949 (2005). The original sentence was
then affirmed on remand. See 429 F.3d 316 (1st Cir. 2005). None
of this affects the validity of the Fox court's Fourth Amendment
ruling.

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 Fox stands for the proposition that an objectively

reasonable suspicion, even if found to be based on an imperfect

perception of a given state of affairs, may justify a Terry stop.

So it is here.6 It is unclear why the MDT screen inaccurately

indicated a suspended license after having correctly indicated an

active license. Whether or not the defendant was driving with a

suspended license, however, the fact that the officers, in line

with the guidance they had received for interpreting the MDT

screens, reasonably believed that his license was suspended

adequately grounded their initiation of the stop. Accordingly, we

uphold the district court's determination that the officers

predicated the stop on an objectively reasonable suspicion. See

Miguel, 368 F.3d at 1154 (affirming denial of motion to suppress

where, even though the vehicle registration had not in fact

expired, "the deputies did not have any reason to question the

integrity of the information provided by the Arizona Motor Vehicle

Department").

6
The fact that here, unlike in Fox, the mistake emanated from
a government record raises a potential concern under Arizona v.
Evans, 514 U.S. 1, 6 (1995) (considering suppression of evidence
seized incident to arrest based on erroneous police record). In
this case, however, any argument under Evans is waived. See
Sandstrom v. ChemLawn Corp., 904 F.2d 83, 86 (1st Cir. 1990)
(holding that an argument "not made to the district court or in
appellant's opening brief, [but] surfacing only in his reply brief"
was waived); see also United States v. Slade, 980 F.2d 27, 31 (1st
Cir. 1992) (explaining that "a party is not at liberty to
articulate specific arguments for the first time on appeal simply
because the general issue was before the district court").

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 This does not end our odyssey. At oral argument before

us, the defendant, for the first time, launched a preemptive strike

aimed at the scope of the stop. The burden of this freshly minted

plaint runs as follows: at best, the officers had ambiguous, rather

than sure-fire, information about the status of the driver's

license, so they had leeway only to request production of the

license, not to order the defendant out of the car. Because this

argument was neither presented to the district court nor briefed on

appeal, it is forfeited, if not entirely waived.7 See United

States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990). In all events

the argument is meritless.

Under Pennsylvania v. Mimms, 434 U.S. 106 (1977), and its

progeny, a police officer may, as a matter of course, require the

driver of a car lawfully stopped for a suspected traffic violation

to step out of his vehicle. Id. at 111 & n.6; cf. Maryland v.

Wilson, 519 U.S. 408, 414-15 (1997) (permitting officers to order

passengers out of car during traffic stop even though passengers

are not suspected of having committed a crime). That rule is

grounded in legitimate concerns for officer safety — and it is

dispositive here. Since the stop was lawful, it follows inexorably

7
We say "waived" because, in the course of argument before the
district court, the defendant's trial counsel vouchsafed that as
long as the stop was lawful, "I would have to certainly believe
that everything thereafter, both the search and the statements,
would probably come in . . . . [M]y argument is clearly directed at
the beginning, not at the end."

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that the officers were authorized, as a security measure, to order

the driver out of the car pending the completion of their

investigation into the suspected traffic violation.

B. Curtailment of Cross-Examination.

As part and parcel of his attack on the district court's

denial of the motion to suppress, the defendant contends that the

court unfairly curtailed his cross-examination of Officer Rioux

during the suppression hearing. This assignment of error relates

directly to the district court's ruling on suppression and, thus,

comes within the constellation of issues preserved for appeal under

the terms of the conditional guilty plea. See United States v.

Link, 238 F.3d 106, 108-11 (1st Cir. 2001). We approach this topic

mindful that rulings admitting or excluding evidence, such as

rulings regulating the scope and extent of cross-examination, are

reviewed only for abuse of discretion. See United States v.

Balsam, 203 F.3d 72, 87 (1st Cir. 2000).

In mounting this argument, the defendant directs our

attention to the following series of questions posed to Rioux by

defense counsel (page references are to the MDT printout introduced

into evidence):

Q And it says that Mr. Copeland's license is
active; is that correct?

A That is what it says.

Q Is there any reason at that point that you
were concerned that "I need to stop this
vehicle?"

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 A It came back suspended at that time.

Q No, I didn't ask you that.

MR. CHIPMAN [Defense Counsel]: I'll ask that
be stricken from the record, Your Honor.

THE COURT: No. You asked the question. You
got the answer.

Q Again, Officer, on page six at the bottom,
it says Mr. Copeland's license is active; is
that correct?

A It says it.

Q That's what it says. At that point in time,
was there any reason to believe that he was
operating without a valid license?

MR. KANWIT [Prosecutor]: Objection, Your
Honor. Again, we're confusing the exhibit.

THE COURT: Please. You asked the question of
the witness. But I'll tell you, this is not
particularly productive. I go over and look
at the suspended license report and it's
precisely the same time. 16:45:50 seconds.
The question I want to know is does the screen
always show what the printout shows. And I
don't know if this witness can answer it or if
anybody can answer it. But in any event, this
is spelling banana, but refusing to stop.

MR. CHIPIMAN: Well, I have no further
questions of this witness, Your Honor.

On appeal the defendant attempts to characterize the

district court's comments as a "blanket restriction" on a line of

questioning. Building on this porous foundation, he posits that,

therefore, "the issue of whether the officers had reason to believe

that the defendant was operating without a license at the precise

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moment of the stop was not developed." We reject this jerry-built

construct.

As an initial matter, the full transcript of Officer

Rioux's testimony shows beyond hope of contradiction that the court

allowed the defendant to cross-examine the officer at length on his

interpretation of the MDT printout. Moreover, the specific passage

to which the defendant adverts, quoted above, does not reflect any

curtailment by the district court of this expansive cross-

examination. Rather, it reflects only that, after the government

renewed an earlier objection, the court remarked the obvious — that

the line of questioning was "not particularly productive." This

normative observation did not constitute a curtailment.8

If more were needed — and we do not think that it is —

the line of inquiry pursued by the defendant worked backward, from

Officer Rioux's interpretation of the MDT printout while on the

witness stand to establishing what his beliefs may have been while

at the scene. To the extent that the defense counsel sought to

inquire about Officer Rioux's subjective beliefs, the responses

that the cross-examination was designed to elicit were not

especially probative of the basis for the stop (which, after all,

8
We note that, even if it did, defense counsel made no offer
of proof. Any claim of curtailment was, therefore, waived. See
Fed. R. Evid. 103(a)(2) (requiring offer of proof in most cases
following ruling excluding evidence for preservation of objection);
see also United States v. Jadusingh, 12 F.3d 1162, 1166 (1st Cir.
1994) (applying the rule).

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depended on objective reasonableness, not on subjective

impressions, see Whren, 517 U.S. at 813). Given the undeniable

authority of trial courts to place reasonable limits on cross-

examination in order to cut off protracted discussion of marginally

relevant subjects, see United States v. Jimenez-Torres, 435 F.3d 3,

11 (1st Cir. 2006); United States v. Mikutowicz, 365 F.3d 65, 72

(1st Cir. 2004), it would have been well within the district

court's discretion to limit the line of inquiry undertaken here.

The defendant's reliance on United States v. Forbes, 181

F.3d 1 (1st Cir. 1999), is misguided. There, the trial judge

denied the defendant's motion to suppress, finding the testimony of

the police officer credible even though the judge (i) questioned or

rejected major aspects of that testimony and (ii) determined that

the officer had not always followed proper police procedures. Id.

at 4 & n.5. We remanded in light of these inconsistencies because

the court had "rested its findings solely on the credibility of

[the officer]." Id. at 7. Here, however, the district court did

not find the officers' testimony fraught with error, did not rely

solely on their credibility, and did not determine that they had

deviated from regular procedure in any way. The two cases simply

are not fair congeners.

C. Sentencing.

The defendant's last asseveration constitutes a challenge

to his sentence on count 2 of the indictment. That count charged

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him with possession of cocaine base with intent to distribute in

violation of 21 U.S.C. § 841(a)(1). The defendant asserts that the

district court erred in considering his prior criminal record when

it imposed a ten-year, rather than a five-year, mandatory minimum

sentence. See 21 U.S.C. § 841(b)(1)(B). This assertion rests on

the premise that the fact of a prior conviction must be specified

in the indictment, found by a jury beyond a reasonable doubt, or

allocuted to during the change-of-plea colloquy (none of which

happened here).

The defendant's premise is incorrect. The Supreme

Court's decision in Almendarez-Torres v. United States, 523 U.S.

224 (1998), made clear that a sentence enhancement may be grounded

on prior criminal convictions not separately charged, proven to a

jury, or admitted by the accused. See id. at 226-27. While the

Almendarez-Torres Court directed itself to prior convictions that

triggered increases in the accused's maximum permissible sentence,

see id. at 244-45, we have applied its reasoning with full force to

prior convictions that trigger mandatory minimum terms of

imprisonment, see, e.g., United States v. Roberson, ___ F.3d ___,

___n.11 (1st Cir. 2006) [2006 WL 2328586, at *14 n. 11]; United

States v. McKenney, 450 F.3d 39, 45-46 (1st Cir. 2006).

As these cases illustrate, we have, even after the

Supreme Court's decision in United States v. Booker, 543 U.S. 220

(2005), unhesitatingly affirmed our fealty to Almendarez-Torres.

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See, e.g., Roberson, ___ F.3d at ___n.11 [2006 WL 2328586, at *14

n.11]; United States v. Richards, 456 F.3d 260, 262 (1st Cir.

2006); United States v. Jiménez-Beltre, 440 F.3d 514, 520 (1st Cir.

2006) (en banc). We are bound to adhere to these precedents unless

and until the Supreme Court itself disavows Almendarez-Torres.

Accordingly, we hold that the district court acted appropriately in

considering the defendant's criminal history in connection with the

imposition of sentence.

IV. CONCLUSION

We need go no further. Discerning no infirmity in the

district court's disposition of the defendant's suppression motion,

its regulation of cross-examination, or its imposition of sentence,

we affirm the judgment below.

Affirmed.

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