United States Court of Appeals
For the First Circuit
No. 03-2735
UNITED STATES OF AMERICA,
Appellee,
v.
COREY PARDUE,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Gene Carter, U.S. Senior District Judge]
Before
Boudin, Chief Judge,
Torruella and Dyk,* Circuit Judges.
Robert C. Andrews, on brief, for appellant.
Margaret D. McGaughey, Appellate Chief, with whom Paula D.
Silsby, United States Attorney, was on brief, for appellee.
October 6, 2004
*
Of the Federal Circuit, sitting by designation.
TORRUELLA, Circuit Judge. Defendant-appellant Corey
Pardue ("Pardue") appeals the district court's denial of his motion
to suppress evidence and a motion in limine related to his
conviction for violating 18 U.S.C. § 922(g)(9). For the reasons
stated below, we affirm.
I.
Pardue entered a conditional guilty plea to a one-count
indictment charging him with possession of ammunition by a person
convicted of a misdemeanor crime of domestic violence, in violation
of 18 U.S.C. § 922(g)(9).1 The guilty plea reserved the right to
appeal the denial of his motion to suppress the evidence and the
grant of the government's motion in limine.
On March 30, 2002, Portland Police Officer Christopher
Coyne ("Coyne"), alone in his police cruiser, received a radio
report of a 911 call for a domestic disturbance at 27 Veranda
Street. Officer Richard Vogel ("Vogel") testified that he also
heard the radio report of a domestic disturbance between Kyra
1
This statute states in full:
It shall be unlawful for any person . . . who
has been convicted in any court of a
misdemeanor crime of domestic violence to ship
or transport in interstate or foreign commerce
. . . any firearm or ammunition; or to receive
any firearm or ammunition which has been
shipped or transported in interstate or
foreign commerce.
18 U.S.C. § 922(g)(9).
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Pardue and her brother Corey Pardue. Vogel, who was a more
experienced officer than Coyne, knew the Pardue siblings.
During Coyne's ride to 27 Veranda Street, the dispatcher
commented that a male was screaming at a female. In addition, the
dispatcher explained that Kyra had complained she was assaulted by
her brother, who was described as a white male, 20 or 21 years old,
wearing a baseball hat and hooded sweatshirt, and carrying a
backpack. The man had, according to dispatch, thrown a lighter at
his sister and left 27 Veranda Street.
Although Coyne did not know either of the Pardue
siblings, he recalled that Vogel reported being familiar with them
and had suggested that Pardue might be absent without leave from
the United States Marine Corps.
Coyne drove towards 27 Veranda Street to serve as back-up
for Vogel. As he reached the intersection of Veranda and Pembroke,
Coyne noticed a man fitting the description given by the dispatcher
wearing a backpack, walking on Pembroke Street and heading away
from Veranda Street. The man was several hundred feet away from
the address given by the dispatcher. Coyne asked for his name and
identification; Pardue gave both. Asked what was going on, Pardue
said that, after getting into an argument with his sister, he left
27 Veranda Street so that nothing would happen. Coyne did not
place Pardue under arrest. Vogel heard over the radio that Coyne
had located Pardue.
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Coyne testified that he took Pardue's backpack, which
Pardue had on his person, and put it on the trunk of his police
cruiser. Coyne then explained to Pardue that he wanted to conduct
a pat-down, in light of the information from the dispatcher that
Pardue had been involved in a domestic disturbance. Coyne
performed the pat-down; no weapons were revealed. Coyne then asked
Pardue to sit in the rear of the police cruiser, but kept the door
open. Coyne testified that he searched the backpack without
obtaining Pardue's consent because he was concerned about officer
safety. Inside the backpack were various items of personal
hygiene, paperwork from the Marine Corps, a scope and mounting
brackets for a rifle and two boxes of rifle ammunition in a clear
case.
Meanwhile, Vogel reached 27 Veranda Street and
interviewed Kyra Pardue. According to Kyra, she argued with her
brother because Pardue picked up her 17-month-old son and
accidentally struck him in the eye with the corner of a toy box.
Kyra yelled at her brother to put the boy down. Pardue threw the
boy in a pile of dirty laundry. Kyra yelled at her brother to
leave. Pardue responded by throwing a lighter at her leg, causing
a welt. While Kyra called the police, Pardue threatened her,
picked up his belongings and left the house.
Coyne heard Vogel, through the radio, saying that he had
spoken to Kyra. Vogel asked that Coyne ride to 27 Veranda Street.
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During the drive, Pardue was in the back of the police cruiser but
was not handcuffed.
Once Coyne arrived, he spoke with Vogel regarding Kyra
Pardue's accusations. At Vogel's request, Coyne placed Pardue
under arrest for domestic assault, explained the charge, handcuffed
Pardue, and took him to the Cumberland County Jail. On February 5,
2003, Pardue was indicted for possession of ammunition by a person
convicted of misdemeanor domestic violence, 18 U.S.C. § 922(g)(9).
Pardue moved to suppress the items found in his backpack,
arguing that they were the product of an unlawful search. After an
evidentiary hearing, the district court denied Pardue's motion.
Prior to trial, the government filed a motion in limine
to exclude evidence related to Pardue's defense of entrapment by
estoppel. Pardue sought to introduce testimony to the effect that
a government official had somehow condoned the conduct for which he
was convicted. The district court, after a hearing, granted the
government's motion. Subsequently, Pardue entered a conditional
guilty plea and filed the present appeal.
II.
A. Discovery of the Ammunition
We review a ruling on a motion to suppress under a
bifurcated standard. The district court's factual rulings are
reviewed for clear error and its legal conclusions are reviewed de
novo. United States v. Maguire, 359 F.3d 71, 76 (1st Cir. 2004).
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A determination regarding probable cause is reviewed de novo as it
is a mixed question of law and fact. Ornelas v. United States, 517
U.S. 690, 699 (1996).
Pardue's motion to suppress sought to exclude the
ammunition which formed the basis of the indictment. The
government opposed the motion on three grounds: first, it argued
that the initial discovery of the ammunition was incident to a
lawful arrest based on probable cause to believe that Pardue had
committed an assault; second, that the discovery was part of a
lawful Terry stop; and finally, that the ammunition would have
inevitably been discovered during an inventory search following
Pardue's arrest. The district court held a hearing on the motion.
Although it found that the officers did not have probable cause to
arrest Pardue until they arrived back at 27 Veranda Street, and
thus that the initial discovery of the ammunition was unlawful, the
district court denied the motion to suppress because the evidence
would inevitably have been discovered. Specifically, the district
court found that probable cause to arrest existed once Coyne
learned that Pardue had hit his sister in the leg with a lighter
and thrown her son on a pile of laundry. At that point, a lawful
arrest would have been effectuated and Pardue would have been
properly taken into custody. Upon his arrival at the Cumberland
County Jail, an inventory of his belongings would have taken place,
and the ammunition would have been discovered.
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In Terry v. Ohio, 392 U.S. 1 (1968), the Supreme Court
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 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. 7-8 (quotations and citations
omitted).
The stop of Pardue was appropriate and reasonable at its
inception. Examining the circumstances leading up to the stop, we
recount the relevant facts Coyne knew or could have reasonably
inferred when he initially stopped Pardue. He knew that a domestic
assault had been committed in the vicinity, that it had been
committed by someone whose physical description matched that of the
individual he saw, and that the assailant had departed from the
scene on foot.
The second inquiry is whether the scope of the
investigatory stop was reasonable under the circumstances. United
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States v. Trueber, 238 F.3d 79, 92 (1st Cir. 2001). While the
district court found that the officers had reasonable suspicion to
stop Pardue, it held that Coyne did not have a particularized
safety concern. Indeed, we note that by the time Coyne searched
the backpack, it had already been taken away from Pardue and there
was no apparent risk that Pardue could have obtained a weapon or
anything else from it. Thus, the district court held, and we
agree, that the initial search of the backpack was outside the
bounds set by Terry.
The district court also found that Coyne lacked probable
cause to arrest Pardue until after he had taken Pardue to 27
Veranda Street and learned that the lighter Pardue threw at his
sister had, in fact, hit her.2 Nevertheless, the district court
2
We disagree with the district court's emphasis on this point.
Throwing a lighter at someone is itself an attempted assault under
Maine law. See State v. Bridges, 413 A.2d 937, 944 (Me. 1980)
("[T]he actual consummation of bodily injury is not a requisite
element . . . of attempted assault."). Thus, Coyne may well have
had probable cause to arrest Pardue for attempted assault as soon
as he identified Pardue. Although Coyne's testimony at the
suppression hearing calls into doubt whether he believed that the
information about throwing the lighter amounted to probable cause,
the Supreme Court has held that an officer's subjective belief is
not dispositive of whether probable cause existed. See Florida v.
Royer, 460 U.S. 491, 507 (1983) ("[T]he fact that the officers did
not believe there was probable cause and proceeded on a consensual
or Terry-stop rationale would not foreclose the State from
justifying . . . custody by proving probable cause and hence
removing any barrier to relying on . . . consent to search.").
Nevertheless, it is unnecessary to determine whether the
information available to Coyne alone constituted probable cause,
since, as discussed below, the information available after Vogel
spoke with Kyra established probable cause under the doctrine of
collective police knowledge.
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held that, even if Coyne's initial search of Pardue's backpack
exceeded the bounds of a Terry search, "[a]s a result of
defendant's lawful arrest [at 27 Veranda Street for domestic
assault], the ammunition would have inevitably been discovered
during the security search at the Cumberland County Jail or when
Officer Coyne inventoried the contents of the backpack . . . ."
See generally Nix v. Williams, 467 U.S. 431, 447-48 (1984); United
States v. Zapata, 18 F.3d 971, 978-79 (1st Cir. 1994).
We have identified a three-part test for applying the
inevitable discovery exception:
first, whether the legal means [are] truly
independent; second, whether both the use of
the legal means and the discovery by that
means are truly inevitable; and, third,
whether the application of the inevitable
discovery exception either provides an
incentive for police misconduct or
significantly weakens fourth amendment
protection.
United States v. Scott, 270 F.3d 30, 42 (1st Cir. 2001)(quoting
United States v. Silvestri, 787 F.2d 736, 744 (1st Cir. 1986))
(internal quotation marks omitted).
In this case, the district court found that the
government had met its burden of showing the legal means were truly
independent, since the evidence put forth in the suppression
hearing established that both the jail and the Portland Police
Department had policies that would have led to a search of the
backpack after Pardue's lawful arrest for domestic assault. Noting
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the district court's finding of no probable cause to arrest Pardue
at the site where he was initially stopped, however, appellant
argues that his transfer to 27 Veranda Street fell outside the
scope of a lawful Terry stop. Coyne should have released Pardue
rather than driving him to 27 Veranda Street, appellant argues, and
therefore Pardue's subsequent arrest and the security search of his
backpack were not independent of his unlawful detention.
It is not necessary for us to determine whether driving
Pardue to 27 Veranda Street exceeded the bounds of a lawful Terry
stop. Even if the transfer in Coyne's police cruiser constituted
a de facto arrest, rather than a lawful component of the Terry
stop, probable cause for such arrest existed under the collective
police knowledge doctrine. As we explained in United States v.
Paradis, 802 F.2d 553, 557 (1st Cir. 1996), "that the arresting
officer may have lacked probable cause for the arrest of the
suspect does not mean that the arrest is invalid for lack of
probable cause. It is enough that the collective knowledge and
information of all the officers involved establishes probable cause
for the arrest." (internal citations omitted) (emphasis in
original), quoted in Sheehy v. Town of Plymouth, 191 F.3d 15, 19
(1st Cir. 1999).
We review the determination of whether probable cause
existed to arrest Pardue without a warrant in light of the totality
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of the circumstances. Illinois v. Gates, 462 U.S. 213, 230-32
(1983); United States v. Lee, 317 F.3d 26, 32 (1st Cir. 2003).
Probable cause exists when the facts and
circumstances within the police officers'
knowledge and of which they had reasonably
trustworthy information were sufficient to
warrant a prudent person in believing that
defendant had committed or was committing an
offense.
United States v. Fiasconaro, 315 F.3d 28, 34-35 (1st Cir. 2002)
(quoting United States v. Figueroa, 818 F.2d 1020, 1023 (1st Cir.
1987)(internal quotation marks and brackets omitted)).
While Pardue was being held at Coyne's police car, Vogel
had obtained Kyra's account of the altercation. In light of her
assertions that Pardue had thrown her 17-month-old son into a pile
of laundry and had thrown a lighter at her leg, causing a welt,
coupled with Pardue's description matching the one given by the
dispatcher and his presence in the vicinity of the altercation,
Vogel correctly determined that probable cause existed to arrest
Pardue on a domestic violence charge. See Lee, 317 F.3d at 32
("Probable cause often accretes gradually . . . ."). Even if Coyne
had not himself established grounds for probable cause, under the
circumstances of this case -- where Coyne and Vogel were working in
collaboration over the radio to respond to the same emergency call,
Vogel had obtained information establishing probable cause, and had
instructed Coyne to bring Pardue to 27 Veranda Street -- probable
cause to arrest Pardue existed on the basis of the officers'
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collective knowledge. See Sheehy, 191 F.3d at 19. Consequently,
the security search conducted subsequent to Pardue's arrest at 27
Veranda Street was independent of both the unlawful search of his
bag and any arguable violation of the limits on moving suspects
during a Terry stop.
We next address whether the search of Pardue's backpack
by lawful means, and the discovery of the ammunition thereby, were
truly inevitable. Lawrence LaPointe, a staff sergeant at the
Cumberland County Jail who was in charge of intake and booking,
testified that it is standard procedure to perform a security check
of personal belongings when a person is taken into custody. He
also testified that the policy of the jail is to perform security
searches of the personal belongings of any suspect taken into
custody in order to locate any possible contraband. In his
testimony, LaPointe stated that there was no possibility that
Pardue's backpack would have escaped the search and inventory
procedure after his arrest, because LaPointe would have checked it
himself regardless of Coyne's search. It is routine practice to
confiscate contraband such as ammunition, according to the staff
sergeant. Thus, the ammunition would have been discovered in the
backpack by way of a routine search of personal belongings. Cf.
Illinois v. Lafayette, 462 U.S. 640, 645 (1983)(search of backpack
is permissible during inventory search); United States v.
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Burnette, 375 F.3d 10, 18 (1st Cir. 2004)(permissible to search
bags pursuant to inventory search policy).
In addition, the Portland Police Department would have
conducted a standard inventory of the suspect's property for the
officers' protection and to safeguard the property. Coyne
testified he took the backpack inside the jail when he was going to
fill in Pardue's arrest forms. It was considered personal
property, not evidence. Pursuant to Portland Police Department
policy, Coyne conducted an inventory search of the backpack. He
then secured the backpack in a locker. When asked whether the
backpack would have remained unsearched at the jail, Coyne said "no
chance. Either the [c]ounty would have searched it or I would have
searched it." We have previously upheld the validity of these
practices, see United States v. Scott, 270 F.3d at 42, as well as
the fact that they are independent means of discovery from the
tainted search. Id.; see also Colorado v. Bertine, 479 U.S. 367,
369 (1987)(exception to warrant requirement for an inventory
search); Zapata, 18 F.3d at 979 n.6. In this case, Pardue's
backpack would inevitably have been opened by either the Portland
Police Department or the Cumberland County Jail staff sergeant and
the ammunition would have been discovered.
Finally, the record suggests that any Fourth Amendment
violation was unintentional, and is clear that application of the
inevitable discovery doctrine in this case does not create an
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incentive for future police misconduct. See Scott, 270 F.3d at 45
(stating that under the third prong of the inevitable discovery
doctrine "a court . . . must bear always in mind the social costs
of the exclusionary rule"). Therefore the motion to suppress was
properly denied.
B. Entrapment by Estoppel
Pardue also attempted to put forth in the district court
a defense of entrapment by estoppel. The government filed a motion
in limine seeking to exclude this defense to the charges.
We review de novo whether a defense is established as a
matter of law. United States v. Ellis, 168 F.3d 558, 561 (1st Cir.
1999)(citing United States v. Caron, 64 F.3d 713, 715 (1st Cir.
1995)). "A defense of entrapment by estoppel would require
[defendant] to show that he had been told by a government official
that his behavior was legal and that he reasonably relied on that
advice." United States v. Bunnell, 280 F.3d 46, 49 (1st Cir. 2002)
(citing Ellis, 168 F.3d at 561). In addition, defendant would have
to show that his prosecution would be unfair given his reasonable
reliance. Ellis, 168 F.3d at 561.
In order to establish a prima facie case for entrapment
by estoppel, a defendant must put forth an affirmative
representation by a government official that his conduct was or
would be legal. Id. In this case, Pardue did not produce any
evidence that a Marine Corps official told him it was legal to keep
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ammunition in his backpack or on his person. Instead, Pardue
proffered evidence that he was given a waiver for his conviction
for domestic assault when he joined the Marines in 1998. Thus, he
argues, he could not violate § 922(g)(9).
Defendant's argument fails because entrapment by estoppel
requires that a government official make an affirmative
representation that carrying ammunition would be legal. At the
hearing regarding the motion in limine, Pardue indicated that he
intended to introduce evidence that while in the Marines he was
trained in the use of firearms and weapons and that he believed
that because he was authorized to possess weapons while in the
Marines, it was legal to do so after his discharge. According to
defendant, he could also show that the Marines had waived his
domestic violence misdemeanor when he enlisted, implying that he
could carry weapons. Defendant has disclosed no affirmative
representation from any government official regarding the legality
of possessing ammunition in civilian life. He merely assumed,
without being told, that he could possess ammunition after his
discharge from the Marines. See Bunnell, 280 F.3d at 49-50 (where
defendant never claimed government official told him he could
possess weapon, entrapment by estoppel is not applicable); Ellis,
168 F.3d at 561 (same). Thus, defendant could not prove as a
matter of law that he was entrapped and the defense was properly
excluded.
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For the reasons stated above, the defendant's conviction
is affirmed.
Affirmed.
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