United States v. Taylor

United States Court of Appeals
For the First Circuit

No. 06-2687

UNITED STATES OF AMERICA,

Appellee,

v.

ROBERT E. TAYLOR,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

[Hon. Ernest C. Torres, U.S. District Judge]

Before

Boudin, Chief Judge,
Selya and Stahl, Senior Circuit Judges.

William T. Murphy, by appointment of the Court, for appellant.
Donald C. Lockhart, Assistant United States Attorney, with
whom Lee H. Vilker, Assistant United States Attorney, and Robert
Clark Corrente, United States Attorney, were on brief for appellee.

December 21, 2007
 STAHL, Senior Circuit Judge. Robert E. Taylor appeals

his conviction on one count of possession of a firearm by a

convicted felon, arguing that the district court erred in denying

his motion to suppress the firearm seized from him during a brief

investigatory stop by members of the Providence, Rhode Island,

police force. We find no error in the district court's denial of

the motion to suppress and therefore no grounds to vacate Taylor's

conviction.

I. Background

In the afternoon of March 19, 2005, three Providence

police officers were conducting a routine patrol in a high-crime

area when they observed a group of people loitering in the rear

corner of a parking lot. The officers noticed that one of the men

in the crowd was Miriour Perkins, a suspected drug dealer with a

prior arrest record. Concerned about possible drug-related

activity, the officers pulled into the parking lot with the

intention of dispersing the crowd. They parked their unmarked car

behind a black SUV stopped in front of a building along the right

edge of the lot and exited their vehicle, passing the SUV as they

proceeded towards the crowd at the back of the lot.

One of the officers, Thomas Zincone, recognized Taylor,

whom he had encountered previously on five to seven occasions,

sitting in the driver's seat of the black SUV. According to the

testimony of Officer Zincone, which the district court credited,

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Taylor appeared far more nervous than he had been during their

prior encounters and began to make quick movements with the right

side of his body, as if attempting to hide something from Zincone's

view. Zincone greeted Taylor and approached the driver's side

window, at which point Taylor grabbed the steering wheel and leaned

forward, moving so as to conceal his right side. Taylor responded

nervously to Zincone's greeting and, “his hand . . . shaking,

frantically pulled his ID from the window” and offered it to

Zincone, unasked. Zincone then saw Taylor's right hand moving

around on top of a beige towel, as though Taylor was endeavoring to

conceal something beneath it. His suspicions aroused by Taylor's

uncharacteristically nervous demeanor and furtive movements,

Zincone asked Taylor to exit the vehicle. When Taylor stepped out

of the vehicle, Zincone discerned the butt of a firearm protruding

from underneath the beige towel. Zincone reached into the vehicle

and pushed back the towel to confirm that there was in fact a

firearm concealed beneath it. Just as Zincone leaned into the SUV,

Taylor attempted to flee but was tackled by the officers. At that

point, Taylor blurted out, "That ain't my gun!" and was then placed

under arrest.

On February 1, 2006, a federal grand jury indicted Taylor

on one count of possession of a firearm by a convicted felon in

violation of 18 U.S.C. § 922(g)(1). Taylor moved to suppress all

evidence seized and statements taken from him during the March 19th

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encounter with the police, arguing that the investigatory stop was

unconstitutional because the police officers "did not possess any

articulable facts showing [he] was engaged in any criminal

activity." The district court denied Taylor's motion to suppress,

considering the high-crime location, the officers' initial

suspicions regarding the crowd amassed in the parking lot, the

presence of known drug-dealer Miriour Perkins, Taylor's unusually

nervous behavior, and Taylor's apparent attempts to conceal

something from Officer Zincone's view, and concluding that "while

none of the factors . . . alone [was] sufficient to have supported

this stop and search, all of the factors considered together, when

you look at the totality of the circumstances, [were] sufficient."

Following a jury trial,1 Taylor was convicted on one

count of possession of a firearm by a convicted felon and sentenced

to fifty-seven months' incarceration.

II. Discussion

When reviewing a district court's determination whether

to suppress evidence on Fourth Amendment grounds, we review the

district court's fact-findings for clear error and its legal

conclusions de novo. United States v. Aitoro, 446 F.3d 246, 252

(1st Cir. 2006)(citing United States v. McKoy, 428 F.3d 38, 39 (1st

Cir. 2005)). We are mindful that an appellate court must "exhibit

1
There were in fact two jury trials; the first ended with a
hung jury, the second with Taylor's conviction.

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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. Zapata, 18 F.3d 971, 975 (1st Cir. 1994).

“An officer may conduct a brief investigatory stop when

he or she has a reasonable, articulable suspicion that criminal

activity is afoot.” McKoy, 428 F.3d at 39 (citing Terry v. Ohio,

392 U.S. 1, 30 (1968); United States v. Romain, 393 F.3d 63, 71

(1st Cir. 2004)). "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. Coplin, 463 F.3d 96, 100

(1st Cir. 2006), cert. denied, 127 S. Ct. 1320 (2007)(quoting

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

court evaluates each case based on the "totality of the

circumstances . . . to ascertain whether the officer had a

particularized, objectively reasonable basis for suspecting

wrongdoing (and, thus, for making the initial stop)." Id.

On appeal, Taylor first argues that the stop began when

the officers pulled into the parking lot and parked behind his SUV,

maintaining that the stop was therefore unjustified at its

inception because the police had no reasonable grounds to suspect

Taylor of criminal activity at that time. This argument is without

merit. As a preliminary matter, Taylor did not raise this argument

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before the district court; in fact, it seems clear from the record

below that Taylor's theory at the suppression hearing was quite to

the contrary.2 Absent extraordinary circumstances, "[i]t is a

bedrock rule that when a party has not presented an argument to the

district court, [he] may not unveil it in the court of appeals."

United States v. Slade, 980 F.2d 27, 30 (1st Cir. 1992).

Even assuming arguendo that this issue is properly before

us, we find Taylor's position unconvincing. The district court

held that "there was no Terry stop or anything resembling a Terry

stop until the officers told Mr. Taylor to exit the vehicle." This

holding presents a mixed question of law and fact; accordingly, we

review the legal conclusion de novo and the underlying factual

findings, and any inferences drawn from those findings, for clear

error. See United States v. Espinoza, 490 F.3d 41, 48 (1st. Cir.

2007)("[O]ur function is not to decide whether we, if sitting as

arbiters of the facts, would have drawn the same inferences but,

rather, to determine whether the district court's chosen inferences

are plausible (and, thus, permissible) based on the raw facts as

supportably found.").

2
At the suppression hearing, Taylor offered two theories
regarding the commencement of the investigatory stop, neither of
which comports with his theory on appeal. Counsel for Taylor at
that hearing stated, "I think the first point that the Court could
make that determination is when the police are parked behind the
SUV and Officer Zincone and Officer O'Brien are outside . . .
hanging in the doorway of the SUV," but then conceded, "I think
that the stronger argument for when Terry's invoked is when the
police open up the [SUV] door."

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 The district court credited Officer Zincone's testimony

that the police pulled into the parking lot not because of Taylor,

but because of the crowd gathering in the far corner, and indeed

were unaware of Taylor's presence until Zincone exited the police

cruiser and began to walk past the black SUV towards the crowd.3

This testimony was supported by that of the other officers on

patrol with Zincone, and Taylor offered no plausible evidence to

the contrary. Accordingly, we find no clear error in the district

court's factual findings.

As a matter of law, approaching a parked car and

questioning the occupant does not necessarily rise to the level of

a Terry stop, "unless it was objectively reasonable for that person

to believe that he was compelled to stay and answer the question."

United States v. Smith, 423 F.3d 25, 30 (1st Cir. 2005); see also

United States v. Drayton, 536 U.S. 194, 200 (2002) (holding that

"[l]aw enforcement officers do not violate the Fourth Amendment .

. . by approaching individuals on the street or in other public

3
There is some question as to whether there was truly a crowd
of people gathered in the parking lot or whether Miriour Perkins
was alone. At the suppression hearing, Perkins admitted that he
was standing in the parking lot that day but maintained that he was
standing alone. We agree with the district court that it is a
question of little import; whether the officers' initial target was
Perkins alone or Perkins amidst a crowd of people, Perkins's
testimony casts no aspersions on the officers' version of events
once their attention turned to Taylor. The district court
ultimately accepted the officers' testimony that there was a crowd
gathered in the lot and we see no clear error in that determination
that would compel us to find otherwise.

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places and putting questions to them if they are willing to

listen"); Espinoza, 490 F.3d at 48 (finding that "even without

reasonable suspicion, [a police officer] had a right to approach

the parked vehicle and talk to its occupants if that interview was

purely consensual"); United States v. Douglas, 467 F.3d 621, 623-34

(7th Cir. 2006) (concluding that no seizure occurred when police

officers parked in front of defendant's car, approached the car

from two sides, and shined their flashlights into the car).

Here, the record refutes Taylor's claim that "no one in

[his] position could have reasonably believed he was free to leave"

from the moment the police car parked behind him. As an initial

matter, the officers were driving an unmarked Crown Victoria; there

is no evidence that Taylor knew that the car that had parked behind

him was a police car until the officers approached the SUV in which

he was sitting and Taylor and Zincone recognized each other.

Additionally, while Taylor maintains that, on the afternoon in

question, the parking lot was "flooded with cars" and the police

therefore blocked his only egress by pulling in behind the black

SUV, other evidence indicates that Taylor was not in fact hemmed in

from all sides and could have driven forward and turned left to

exit the parking lot. See Smith, 423 F.3d at 30 (holding "mere

physical limitations on an individual's movement, not created by

police, are insufficient to turn an encounter with police into a

restraint of liberty").

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 In the alternative, Taylor contends that, even if the

investigative stop did not begin until Zincone ordered Taylor to

exit the SUV, the stop and subsequent search of the vehicle that

uncovered the firearm were impermissible. Taylor argues that the

district court erred by premising a finding of reasonable suspicion

largely upon his nervous demeanor. Taylor characterizes his

increased nervousness as a response to police "harassment" and

contends that the police officers could not properly use such

nervousness as a basis for inferring that he was involved in

criminal activity. See McKoy, 428 F.3d at 40-41 (1st Cir. 2005)

(holding that a person's mere nervousness, after being pulled over

for committing a traffic violation in a high-crime area, does not

establish reasonable suspicion for a pat-and-frisk search).

Assessments of reasonable suspicion are highly fact-

specific and must be performed on a case-by-case basis. See

Espinoza, 490 F.3d at 46. After a careful review of the record, we

find this case sufficiently distinguishable from McKoy to support

a finding of reasonable suspicion. Several factors differentiate

this case: 1) the officers, having pulled into the parking lot to

investigate suspected drug activity, were already alert to the

possibility of criminal activity in the lot; 2) Zincone had

interacted with Taylor on prior occasions and testified that Taylor

had not exhibited comparable nervousness on those occasions; and 3)

unlike the driver in McKoy, Taylor did more than merely reach

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towards the center console but rather appeared to be actively

attempting to conceal something from the officers' view. See

McKoy, 428 F.3d at 40-41. The above factors combined provide

sufficient reasonable suspicion to justify Zincone's decision to

order Taylor to step out of the car. Once Taylor exited the car,

the butt of the firearm was in plain view; thus it is fruitless to

argue (and, indeed, on appeal Taylor does not appear to be

attempting to argue) that Zincone's subsequent retrieval of the

firearm implicates any additional Fourth Amendment concerns.

III. Conclusion

For the foregoing reasons, we affirm the district

court's denial of Taylor's motion to suppress.

Affirmed.

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