United States Court of Appeals
For the First Circuit
No. 02-2698
UNITED STATES OF AMERICA,
Appellant,
v.
LAWRENCE F. MAGUIRE,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Reginald C. Lindsay, U.S. District Judge]
Before
Torruella and Lipez, Circuit Judges,
and Schwarzer,* Senior District Judge.
Cynthia A. Young, Assistant United States Attorney, with whom
Michael J. Sullivan, United States Attorney, were on brief, for
appellant.
Albert F. Cullen, Jr., for appellee.
March 3, 2004
*
Of the Northern District of California, sitting by designation.
TORRUELLA, Circuit Judge. Defendant Lawrence T. Maguire
("Maguire") was arrested by the Medford Police Department ("MPD")
on September 7, 2001. He was indicted on one count of bank
robbery, in violation of 18 U.S.C. § 2113(a). He filed a motion to
suppress arguing that his arrest was unlawful. He further argued
that, as a result of the unlawful arrest, statements made to the
police and physical evidence obtained by them should be suppressed.
The district court held an evidentiary hearing on Maguire's motion,
which was subsequently granted in part. United States v. Burhoe,
Crim. No. 01-10464-RCL (D. Mass. Nov. 27, 2002).1 The government
filed an interlocutory appeal, pursuant to 18 U.S.C. § 3731,
arguing that the officers engaged in a valid investigatory stop.
We conclude that the district court's decision was in error, and
thus, we reverse.
I.
On September 7, 2001, at approximately 10:19 a.m., the
MPD radio dispatcher broadcast to all police units information
regarding an armed robbery that had occurred at the Citizen's Bank
inside the Shaw's Supermarket on Locust Street in Medford,
Massachusetts around 10:00 a.m. The dispatcher stated that the
robbery had been committed using a knife and that the two male
robbers had used a black getaway vehicle with Massachusetts
registration number 9936RT. The vehicle had turned left out of a
1
Burhoe, Maguire's co-defendant, is not a party to this appeal.
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parking lot located on Locust Street and was, according to the
police radio report, headed towards Riverside Avenue.
After the initial dispatches were reported over radio
broadcast, MPD Officer Sheila Quinn ("Quinn") reported that she was
in pursuit of a black car on Riverside Avenue. By this time, the
police knew that the car had been stolen. Quinn said over the
radio that there were two white males inside the car. The car was
reported to have crossed the Fellsway and Middlesex Avenue, gone
down Fifth Street and turned left. The vehicle was abandoned in
the vicinity of the Osgood School on Fourth Street, and the
occupants fled on foot.
Lieutenant Michael Goulding ("Goulding") was on duty at
the time of the initial broadcast regarding the armed robbery. He
left the station in an unmarked police car accompanied by Detective
Robert Scully ("Scully"). They drove towards the reported location
of the getaway car. When they arrived at Fourth Street and
Middlesex Avenue, they heard over the radio that the suspects had
abandoned the car in front of the Osgood School. The suspects were
reported to be on foot, and according to the radio broadcast, one
suspect was heading towards the Fellsway.
Goulding and Scully, in plain clothes, parked their
unmarked car near 112 Second Street. The officers wanted to
position themselves along the likely escape route of the suspects.
Second Street was empty at the time, as most of the police cruisers
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were already parked on Fourth Street near the Osgood School.
Shortly after parking on Second Street, Goulding saw a white man,
later identified as defendant Maguire, emerge from a backyard on
Second Street, apparently coming out of a private residential
property. Maguire appeared disheveled, unkempt and confused, and
he had scratches on his face and hands. He also appeared to be
wearing several layers of clothing on what was described as a very
warm and sunny day.
The accounts diverge at this point. According to
Goulding's account, after stepping out of the vehicle, Goulding and
Scully approached Maguire, who continued to walk at a steady pace.2
The officers began speaking with Maguire, and Goulding asked
Maguire if he was from the area. According to Goulding, Maguire
was not responsive and appeared dazed. When asked how he was
doing, defendant responded "Huh?" Eventually, Maguire informed the
officers that he was from Malden, not Medford, which is
approximately half a mile away.3 Goulding testified that, up to
this point, neither he nor Scully had restrained Maguire in any
way.
2
Scully's badge was displayed.
3
A report prepared by MPD Detective Michael Fahey, who arrested
Maguire's co-defendant, said that Maguire did not acknowledge the
officers and continued to walk past them. Goulding testified that
although Maguire continued walking during the encounter, he did
acknowledge the officers' presence and answered their questions.
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Goulding asserts that while speaking to Maguire, someone
suddenly yelled "Get your hands up!" MPD Officer Richard Dorrance
("Dorrance") was standing on the other side of Maguire with his gun
drawn, yelling at him. Goulding testified that Maguire raised his
hands, which revealed a knife protruding from his waistband at the
small of his back. Goulding testified that he turned his attention
from Dorrance to Maguire after assuring himself that Dorrance was
a fellow officer. Maguire raised his hands, which enabled Goulding
to see a black-handled object protruding from the waistband of
Maguire's pants. Goulding recognized the object as a knife. He
then proceeded to grab Maguire's arm, and with Scully's assistance,
put Maguire on the ground. Goulding and Scully pulled a large
kitchen-style knife out of the back of Maguire's pants and threw it
to the side. To determine if Maguire had any other weapons, they
grabbed anything that was loose on the suspect, which included a
gray shirt, a blue shirt and a towel, which were put to the side.
Goulding also tossed aside a white baseball cap that had fallen off
Maguire's head. He testified that he did not see the knife until
Maguire raised his arms. Goulding did not file a written report of
his activities on September 7, 2001.
Officer Dorrance's account differs from Goulding's in
some respects. Dorrance was on duty in a marked cruiser when the
initial report of the armed robbery came over the police radio.
Dorrance followed Quinn as she pursued the suspects in the black
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car, but he began a separate area search when he heard the suspects
had abandoned their car in front of the Osgood School. Dorrance
then arrived on Second Street, where he heard the officers speaking
to Maguire. According to Dorrance, Maguire was not responsive to
the officers' questions, and kept on walking. Dorrance passed them
in his cruiser, parked ahead of them and got out of the car.
Dorrance testified that, at that moment, Maguire turned
to face the officers and immediately put one hand, and then a
second hand, behind his back, lifted his coat and attempted to get
something out of his waistband. Dorrance drew his weapon and told
Maguire to get on the ground, because he knew from the radio
reports that one of the robbery suspects had been armed with a
knife, and he was concerned that Maguire might have been reaching
for a weapon. Dorrance testified that Maguire ignored his order,
but seconds later Goulding and Scully had each grabbed one of
Maguire's arms and removed the knife. Finally, Dorrance testified
that Maguire was pat-frisked for other weapons.
Scully filed an arrest report, which differs in some
respects from both Goulding's and Dorrance's versions of events.4
Scully wrote that when he and Goulding approached Maguire, "[h]e
appeared to have a black handled item stuffed down the back of his
pants." He further stated that he called for Maguire to stop, and
eventually Goulding and Scully ordered Maguire to the ground and
4
Scully died before he could testify at the evidentiary hearing.
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disarmed him. Dorrance had arrived to assist them, and the suspect
was subsequently handcuffed and read his rights. As the district
court noted, there was no mention of the conversation between
Maguire and Goulding, but Scully mentioned calling for Maguire to
stop.5 Either Goulding or Scully advised Maguire of his rights and
placed him under arrest, and he was taken to the police station by
Dorrance.
Maguire moved to suppress the evidence obtained by the
police as a result of the stop and search. Maguire also moved to
suppress statements made at the time of his arrest and the physical
evidence that resulted from the stop and subsequent arrest.6 The
district court held an evidentiary hearing and heard argument on
the motion to suppress. The district court granted the motion to
suppress Maguire's statements to the police and the physical
evidence found as a result of the stop. It held that Maguire was
de facto arrested at the moment Goulding and Scully held him and
5
The district court also examined a report filed by Medford
Police Officer Michael Fahey. Fahey was the officer who arrested
Maguire's co-defendant. He filed a report which, in the district
court's estimation, contradicted the account of the other officers.
We discuss the reasons why Fahey's testimony is not relevant in
footnote 8.
6
The physical evidence that Maguire sought to be suppressed
included: (1) $392.00 in United States currency; (2) a key; (3) a
fingernail clipper; (4) a white towel; (5) a gray sweatshirt; (6)
a blue shirt; (7) a white baseball cap; (8) a black-handled knife;
and (9) a pair of sneakers.
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put him on the ground and that the government had failed to
establish probable cause for such an arrest.
II.
We review the district court's factual findings for clear
error and its legal conclusions de novo. Ornelas v. United States,
517 U.S. 690, 699 (1996); United States v. Trueber, 238 F.3d 79, 91
(1st Cir. 2001). "Determinations of . . . reasonable suspicion,
relevant to the constitutionality of law enforcement seizures and
arrests under the Fourth Amendment, present mixed questions of law
and fact which we review de novo." United States v. Young, 105
F.3d 1, 5 (1st Cir. 1997)(citing Ornelas, 517 U.S. at 699).
The district court concluded, based on the facts
described above, that Maguire was de facto arrested when Goulding
and Scully took hold of him and put him on the ground. The
government disagrees, arguing that the officers were engaged in a
investigatory stop under Terry v. Ohio, 392 U.S. 1 (1968).
Terry held that "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." Id. at 22. To
withstand scrutiny, an officer "must be able to articulate
something more than an inchoate and unparticularized suspicion or
'hunch.'" United States v. Sokolow, 490 U.S. 1, 7 (1989)(quoting
Terry, 392 U.S. at 27)(internal quotations omitted). In evaluating
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the validity of a Terry stop, we consider the totality of the
circumstances, mindful that "[t]he concept of reasonable suspicion,
like probable cause, is not readily, or even usefully, reduced to
a neat set of legal rules." Id. at 7-8 (internal citation and
quotations omitted).
In evaluating whether there was reasonable suspicion, "we
first determine whether the officer[s'] actions were justified at
[their] inception, and if so whether 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 officers during the stop." Trueber,
238 F.3d at 92 (alterations in original) (internal citations and
quotations omitted). The first part of the inquiry is satisfied if
the officers can point to specific and articulable facts which,
taken together with rational inferences derived from those facts,
reasonably show that an investigatory stop was warranted. Sokolow,
490 U.S. at 7 (citing United States v. Kimball, 25 F.3d 1, 6 (1st
Cir. 1994)).
The stop of Maguire was appropriate and reasonable at its
inception.7 Examining the circumstances leading up to the stop of
Maguire, we recount the relevant facts Goulding and Scully knew or
7
There is no discussion in the district court's opinion of
whether the initial stop of Maguire was reasonable at its inception
because the district court held that the seizure was a de facto
arrest and did not engage in the Terry inquiry.
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could have reasonably inferred when they initially stopped Maguire.
First, the officers knew that an armed robbery had been committed
in Malden by two white males. In addition, they had a fairly small
area to cover given that the officers knew the stolen black getaway
car was found abandoned and crashed, in the vicinity of the Osgood
School. Maguire, a white male, was encountered two blocks from the
Osgood School. Second, he was seen emerging from a residential
backyard during mid-morning, but acknowledged to the officers that
he was not from the neighborhood. Third, his appearance was
inappropriate for the weather: it was a warm, sunny day and Maguire
wore many layers of clothing. Further, his appearance was
disheveled, and he appeared to have scratches on his body.
Finally, Maguire's responses were less than forthcoming, and he was
walking away from the officers. See United States v. McCarthy, 77
F.3d, 522, 531 (1st Cir. 1996)(finding that providing vague and
evasive responses to officers' questions is relevant in evaluating
the propriety of a Terry stop). Even before the officers observed
the knife, they had a reasonable and articulable suspicion to
warrant stopping Maguire and asking him questions "likely to
confirm or dispel their suspicions quickly." United States v.
Sharpe, 470 U.S. 675, 686 (1985).
The second inquiry is whether the scope of the
investigatory stop was reasonable under the circumstances.
Trueber, 238 F.3d at 92. "There is no scientifically precise
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formula that enables courts to distinguish between investigatory
stops . . . and . . . 'de facto arrests.'" United States v.
Zapata, 18 F.3d 971, 975 (1st Cir. 1994); see also United States v.
Quinn, 815 F.2d 153, 156-62 (1st Cir. 1987).
"An arrest is a wholly different kind of intrusion upon
individual freedom from a limited search for weapons, and the
interests each is designed to serve are likewise quite different."
Terry, 392 U.S. at 26. To be sure, Maguire was seized when he was
physically restrained by the officers. The appropriate legal
determination to be made in this case is whether the seizure
exceeded the scope of a permissible Terry stop. See Trueber, 238
F.3d at 92-93 (stating that the "central issue is whether an
otherwise valid Terry stop escalated into a de facto arrest"). In
cases regarding the scope of a Terry stop, we examine "whether
there was 'a formal arrest or restraint on freedom of movement of
the degree associated with a formal arrest.'" Id. at 93 (quoting
Thompson v. Keohane, 516 U.S. 99 (1995)). To determine whether
this type of restraint existed, a court must examine all the
circumstances attendant to the restraint. United States v.
Ventura, 85 F.3d 708, 711 (1st Cir. 1996). "This test is objective
only: the relevant inquiry is how a reasonable [person] in the
suspect's shoes would have understood [the] situation. The
subjective beliefs held by the interrogating officers or the person
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being interrogated are not germane." Id. (internal quotations and
citations omitted).
The district court committed an error of law when it
ruled that Maguire had been de facto arrested by Goulding and
Scully at the time he was wrestled to the ground, partly because it
focused on the discrete moment when Maguire was wrestled to the
ground, without considering the totality of the circumstances, as
we will do.8 We explain, focusing on the two arguably coercive
factors: the drawn weapon and the physical contact.
Dorrance's use of his weapon when he encountered Maguire
was permissible during an investigatory stop. It is well
established that the use or display of a weapon does not alone turn
an investigatory stop into a de facto arrest. See Trueber, 238
F.3d at 94; see also United States v. Trullo, 809 F.2d 108, 113
(1st Cir. 1987). In addition, Officer Dorrance drew his weapon for
a very short time. See United States v. Taylor, 162 F.3d at 21
(holding that a valid Terry stop did not become a de facto arrest
when two officers drew their weapons after they had stopped a
vehicle).
In examining the physical contact element, the district
court relied heavily on Young, 105 F.3d 1, and Zapata, 18 F.3d 971.
8
To the extent that the district court believed that it had to
reconcile the officers' testimonies, we believe this may have been
improvident, especially when the officers all agree that Maguire
was not put on the ground until the knife was observed.
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In those cases, we held that the police officers engaged in valid
Terry stops. In Young, the officers observed three individuals who
appeared to match the description of the armed robbers sought.
When the officers approached the suspects, Young walked away and
was observed with a gun in his waistband. Young, 105 F.3d at 7.
After being pursued by the officers, the officers brushed Young's
hand. We held that this type of physical contact did not convert
the stop into a de facto arrest. Id. at 8. In Zapata, we
similarly held that touching by a police officer did not transform
a Terry stop into a de facto arrest. Zapata, 18 F.3d at 976.
Working from the premise that arrests and investigatory touching
necessarily carry with it some degree of coercion, we held that
slight physical touching cannot, on its own, produce a de facto
arrest. Id. at 976-77 (commenting on California v. Hodari D., 499
U.S. 621 (1991)).
In the instant case, there was more than de minimis
physical contact. However, merely because physical contact exceeds
de minimis contact, it does not necessarily follow that the scope
of the Terry stop was exceeded. Physical touching attendant to a
Terry stop, particularly when officers are attempting to ensure
their own personal safety in a reasonable manner, must be examined
in the factual context of the case. After detaining Maguire, the
officers were entitled to ask him questions and search him for
weapons if they felt their personal safety was threatened. "[A]
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perfectly reasonable apprehension of danger may arise long before
the officer is possessed of adequate information to justify taking
a person into custody. . . ." Terry, 392 U.S. at 26; see also
United States v. Hensley, 469 U.S. 221, 235-36 (holding that the
mere use of force does not convert an investigative stop into an
arrest). When the officers observed the knife, they were
reasonably concerned for their safety. The pat-frisk can be an
integral part of a Terry stop, and this occasion is no exception.
The fact that Maguire was put on the ground does not imply that
there was a de facto arrest. See United States v. Taylor, 162 F.3d
12, 21 (1st Cir. 1998)(holding that officer's action of putting
suspects on the ground and searching for weapons was within scope
of Terry stop); United States v. Jackson, 918 F.2d 236, 238 (1st
Cir. 1990)(holding that the police could, within the scope of a
Terry stop, block the suspect's exit from a vehicle to determine
whether the suspects were armed). We find that officers Goulding
and Scully putting Maguire on the ground to remove the knife did
not exceed the scope of the investigative stop. Given the
reasonable suspicion that led to the Terry stop, and the fact that
the suspicion was heightened during the stop, we cannot say that
this physical contact between Maguire and the officers exceeded the
bounds of Terry.
Moreover, several other factors counsel against finding
that a de facto arrest took place. The stop occurred on a public
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street in the light of day. Trueber, 238 F.3d at 94 (listing the
encounter's public setting as a factor to be considered). Goulding
and Scully were in plain clothes. The encounter between the police
officers and Maguire lasted a very short time. See Sharpe, 470
U.S. at 685 (stating that time is an important factor in
determining whether a seizure is justifiable on reasonable
suspicion). Finally, Maguire was not handcuffed or detained in a
manner consistent with a formal arrest. See United States v.
Acosta-Colón, 157 F.3d 9, 18 (1st Cir. 1998)(stating "that the use
of handcuffs, being one of the most recognizable indicia of
traditional arrest, 'substantially aggravates the intrusiveness' of
a putative Terry stop.") (citation omitted).
Based on the facts recounted above, and taking into
account the totality of the circumstances, a reasonable person in
Maguire's position would not have believed he was under arrest, but
that he was detained only for an investigatory stop.
III.
For the foregoing reasons, we vacate the district court's
order and remand to the district court for further proceedings
consistent with this opinion.
Reversed and Remanded.
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