United States Court of Appeals
For the First Circuit
No. 00-2037
UNITED STATES OF AMERICA,
Appellant,
v.
BRIAN J. NEE,
Defendant, Appellee.
No. 00-2315
UNITED STATES OF AMERICA,
Appellant,
v.
KEVIN M. KELLEY,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Nancy Gertner, U.S. District Judge]
Before
Torruella, Circuit Judge,
Bownes, Senior Circuit Judge,
and Lipez, Circuit Judge.
Timothy Q. Feeley, Assistant U.S. Attorney, with whom Donald K.
Stern, United States Attorney, and Donald L. Cabell, Assistant U.S.
Attorney, were on brief, for appellant.
Brian J. McMenimen, with whom Burke, McMenimen & Payton, was on
brief, for appellee Nee.
Benjamin D. Entine, with whom Donald K. Freyleue, were on brief,
for appellee Kelley.
August 20, 2001
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LIPEZ, Circuit Judge. Pursuing an interlocutory appeal
"from a decision or order of a district court suppressing or excluding
evidence," 18 U.S.C. § 3731, the government appeals the district
court's decision to suppress evidence seized from defendants-appellees,
Brian J. Nee and Kevin M. Kelley. Kelley and Nee were charged with
violating 18 U.S.C. § 922(g)(1), which prohibits the possession of a
firearm by a convicted felon, after police discovered two loaded
weapons in Nee's car during the course of a traffic stop. Although the
district court found that the initial stop was permissible under Terry
v. Ohio, 392 U.S. 1 (1968), the court rejected the police officers'
account of the subsequent search of the car and their claim that the
weapons were discovered inadvertently. Instead, the court found that
the officers had conducted an intentional search for evidence of a
crime despite their acknowledgment that they did not have probable
cause for such a search. Consequently, the court concluded that the
search violated the Fourth Amendment.
On appeal, the government argues that there was no
constitutional violation, either because the district court erred in
its factual findings about the purpose of the search, or, in the
alternative, because the officers had an objectively reasonable basis
for conducting a protective sweep of the car that justified the search
irrespective of its true object, pursuant to Michigan v. Long, 463 U.S.
1032 (1983) and Whren v. United States, 517 U.S. 806 (1996). We
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affirm, concluding that the court did not err in its factual findings
and that the government waived its alternative argument.
I.
At approximately 9:30 p.m. on March 10, 1999, Boston Police
Officers Gillis, Yalmokas and Cellucci, along with Massachusetts State
Police Trooper Ball, were on duty in an unmarked car in the Dorchester
section of Boston. The officers observed a green Ford Mustang and
noted that: 1) there was a hole where the trunk lock should have been;
2) the rear license plate was hanging from a single screw; 3) there was
no front license plate; and 4) the vehicle had dark tinted windows.
Suspecting that the car might be stolen, the officers decided to stop
the car and investigate it. Before they could, the car, driven by Nee
with Kelley in the passenger seat and a third passenger, Brian Wallace,
in the back, pulled into a gas station. The officers saw Nee exit the
vehicle and begin to pump gas, and Kelley get out of the car from the
passenger side.
The officers turned on their police lights and drove into the
gas station. Trooper Ball approached Nee, offered a greeting, and
advised him that the car he was driving had "no front plate, [a] rear
plate hanging off, [a] trunk lock popped and windows [that were] too
dark." In the exchange that followed, Nee stated that the car belonged
to his wife. Nee then tried to walk past Ball, indicating that his
driver's license was in the vehicle. Ball told Nee to stop. According
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to the police report and Ball's testimony, Nee appeared nervous and
agitated. He reported that his license was in the center console of
the car but he was not sure where the registration was located. At
this point, Nee again tried to walk past Ball toward the vehicle. This
time, Ball physically stopped him and told him to relax, adding, "We
don't know what you have in there." Officer Gillis, standing nearby,
patted Nee down for weapons, and Officer Cellucci did the same for
Kelley. No weapons were found.
Ball directed Cellucci to get Nee's driver's license from the
center console. Before doing so, Cellucci frisked Wallace who was
still seated in the back seat, and again, no weapons were found.
Officer Cellucci told the passenger to get out of the car. He and
Officer Gillis then visually inspected the car through the passenger
and driver's side doors respectively before Cellucci entered the
vehicle. Both saw a screwdriver located in the passenger door as well
as some damage to the interior that was consistent with a stolen
vehicle.1 Gillis saw what looked like an ignition switch on the
passenger side floor. Cellucci saw some damage to the steering column.
After these quick observations, Cellucci entered the vehicle.
1 Despite these indicia that the car might be stolen, the car in
fact belonged to Nee's wife and was properly in his possession.
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At this point the district court ceased to credit the
officers' story.2 Cellucci said that he had inadvertently discovered
the guns when he entered the vehicle to retrieve Nee's license from the
center console, an account corroborated by Officer Gillis. According
to the officers, Cellucci placed his hand on the top part of the
passenger seat to steady himself as he reached into the car. The seat,
however, was improperly bolted to the floor and gave way. As he was
falling, Cellucci brought his other hand down to maintain his balance.
It landed on a knapsack that Cellucci testified was lying on the floor
in front of the seat. Cellucci claimed he could feel guns through the
fabric when his hand landed on the knapsack. The officers subsequently
arrested all three men.
The district court rejected this account of the discovery of
the guns. After noting that neither Cellucci nor Gillis testified to
having seen the knapsack when they visually inspected the interior of
the car, the court concluded that the knapsack was not located on the
floor in front of the seat as the officers had testified. Instead, the
district court found that the officers had not mentioned seeing the
knapsack because it was actually located underneath the passenger seat,
2 The district court initially found as fact in its order granting
the motions to suppress that Officer Gillis had not confirmed the
presence of a screwdriver or ignition switch on the passenger side of
the vehicle. As the court acknowledged when denying Wallace's later
motion to sever, see infra at 13 (discussing motion), that specific
finding was erroneous.
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and that Cellucci had conducted an intentional search of the vehicle
for evidence of a crime. As part of this search, therefore, Cellucci
pulled the knapsack out from under the seat and then discovered the
weapons that led to the arrest of the three men.
Before trial, Nee, Kelley, and Wallace filed motions to
suppress the two loaded firearms found in the knapsack.3 The government
opposed the motions, raising Michigan v. Long in defense of Cellucci's
entry into the car to retrieve Nee's license because of a concern that
weapons might be in the vehicle. The district court concluded,
however, that because Officer Cellucci conducted an intentional search
for evidence of a crime, that search had to be justified by probable
cause. Noting that the officers conceded a lack of probable cause, the
court suppressed the guns as the fruit of an unconstitutional search.4
II.
In determining whether, in the absence of probable cause, an
investigatory seizure and search violates the Fourth Amendment, we use
3 The district court granted Nee's motion in an order dated June 16,
2000. However, the court afforded additional time to Kelley and
Wallace so that they could submit memoranda concerning their standing
to challenge the search of the car and the knapsack. In an order dated
August 28, 2000, the court determined that Wallace lacked standing and
denied his motion to suppress, but granted Kelley's motion on the same
grounds as stated in its June 16 order. The government appealed both
orders, and we consolidated the two appeals.
4 The government does not challenge on appeal the district court's
conclusion that the officers lacked probable cause to conduct a search
of the vehicle.
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the two-prong test set forth in Terry v. Ohio, 392 U.S. 1, 19-20
(1968). First, we ask whether the officers' actions were justified at
their inception, and second, whether their actions were reasonably
related in scope to the circumstances which justified the officers'
initial interference. Id.; see also United States v. Sharpe, 470 U.S.
675, 682 (1985); United States v. Stanley, 915 F.2d 54, 55 (1st Cir.
1990). The district court concluded that the initial stop in this case
-- for "possible traffic infractions and [a] possible stolen car" --
was legally permissible under the first prong of Terry. At issue,
then, is only the second prong of Terry, namely, whether the ensuing
search was reasonable in its scope. The government argues that
Michigan v. Long, 463 U.S. 1032 (1983) provides support for Cellucci's
entry into the vehicle to obtain Nee's driver's license from the center
console.
Limited searches of a person for weapons are constitutionally
permissible adjuncts to a Terry stop if "a reasonably prudent man in
the circumstances would be warranted in the belief that his safety or
that of others was in danger." Terry, 392 U.S. at 27. Long expanded
the permissible area of such a search from people to automobiles.
Long, 463 U.S. at 1049. Specifically, the Long Court held that a
purely protective search of the areas of an automobile where weapons
may be hidden does not violate the Fourth Amendment if the officers
"possess[] a reasonable belief based on 'specific and articulable facts
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which . . . reasonably warrant' the officers in believing that the
suspect is dangerous and the suspect may gain immediate control of the
weapons." Id. (quoting Terry, 392 U.S. at 21).
By its own admission, the government did not anticipate that
the district court would not credit the officers' "inadvertent"
discovery description of the search of the vehicle. As a result, the
government's argument before the district court that this case fell
under Long was based upon the inadvertent discovery of the guns by
Cellucci, following his entry into the vehicle for the limited purpose
of retrieving the license. According to the government, this entry was
valid as a protective search under Long because it allowed the officers
to continue their investigation while also excluding Nee from an area
that could possibly contain weapons. When the district court rejected
the officers' account of Cellucci's entry, however, it eliminated the
factual predicate of this Long argument.
On appeal, the government seeks to revive this Long argument
through a challenge to the district court's factual finding that
Cellucci entered the vehicle to conduct an intentional search for
evidence of a crime or contraband. "The findings of the district court
after a hearing on a pretrial motion to suppress are binding on the
court of appeals unless they are clearly erroneous." United States v.
Watson, 76 F.3d 4, 6 (1st Cir. 1996). "This deferential standard
requires that an appellate court exhibit great respect for the
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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). The government seeks to
clear this high hurdle through a series of attacks upon the district
court's credibility determinations. Making much of the fact that no
witnesses contradicted the officers' account of the discovery of the
knapsack and guns and that there was no direct evidence supporting the
finding that the knapsack was under the seat, the government argues
that the district court's conclusion that Cellucci's testimony lacked
credibility was clearly erroneous.
The government's arguments, however, are unpersuasive.
"Where evaluations of witnesses' credibility are concerned, we are
especially deferential to the district court's judgment; we may
overturn its decision only if, after reviewing all of the evidence, we
have a definite and firm conviction that a mistake has been committed."
United States v. Jones, 187 F.3d 210, 214 (1st Cir. 1999) (internal
quotation marks omitted). Despite the court's minor error in reporting
what Officer Gillis saw upon looking into the vehicle, see supra note
2, the record as a whole lends support to the court's credibility
determinations.
Officer Gillis testified that he saw an ignition switch on
the passenger side floor of the vehicle. This was precisely where
Cellucci claimed the knapsack was located, yet Gillis did not mention
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seeing the knapsack until after Cellucci had placed his hand on it.
The district court also questioned the need for Gillis to assist
Cellucci in his efforts to retrieve a license from a now empty car,
noting that "[i]t did not take two officers, Gillis 'leaning' from the
driver's side, Cellucci 'leaning' from the passenger's side, to
retrieve Nee's driver's license from the center console of the car."
Moreover, the officers could have called in the license plate of the
car to determine if it had been reported stolen or to check whether Nee
was telling the truth when he said the car belonged to his wife,
thereby addressing the suspicion that the officers testified prompted
the stop of the car. Instead, the officers pressed forward with
Cellucci's entry and search of the vehicle. In light of such evidence,
we do not have the necessary basis--a "definite and firm conviction
that a mistake has been committed"--for rejecting the court's
credibility determinations. Jones, 187 F.3d at 214 (internal quotation
marks omitted); Jackson v. United States, 156 F.3d 230, 232-33 (1st
Cir. 1998).
The district court's credibility determination that Cellucci
entered Nee's car in search of evidence of a crime undercuts the
Michigan v. Long argument made by the government before the district
court. Under established precedent, such a search exceeds the limited
boundaries of the exception to the probable cause requirement created
by Terry and Long. The purpose of a Terry "search is not to discover
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evidence of crime, but to allow the officer to pursue his investigation
without fear of violence." Adams v. Williams, 407 U.S. 143, 146
(1972); see also Ybarra v. Illinois, 444 U.S. 85, 93-94 (1979)
("Nothing in Terry can be understood to allow . . . any search whatever
for anything but weapons."). In United States v. Lott, 870 F.2d 778
(1st Cir. 1989), we applied this precedent to a search that the
government claimed was permitted by Long, invalidating the search
because the officers conceded that the search "was for contraband, not
just weapons." Id. at 783, 785 (holding that the validity of the
search was "fatally undercut" because it "was directed towards finding
contraband. It was not a search for weapons only").
III.
Invoking Whren v. United States, 517 U.S. 806 (1996), and its
admonition that "[s]ubjective intentions play no role in ordinary,
probable-cause . . . analysis," id. at 813, and seeking to dismiss the
relevance of the district court's factual findings about the purpose of
Cellucci's entry into the vehicle,5 the government presses an
alternative basis for holding Cellucci's search for evidence or
contraband valid under Long. According to the government, Whren means
that Adams, Ybarra, and Lott are no longer good law. Consequently,
5 The government concedes that the district "court . . . found that
the officers discovered the gun by engaging in an illegal search of the
car, and then the knapsack, for contraband." Government's Brief at 9;
see also id. at 26, 27 & 31. Unlike the dissent, we cannot read the
decision of the district court in any other way.
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instead of focusing upon Cellucci's purpose in entering the vehicle and
excluding evidence seized during the intentional search for evidence or
contraband because of that subjective purpose, the government argues
that the district court should have examined the facts objectively.
Thus viewed, the government argues, there were "specific and
articulable facts" that justified a reasonable police officer "in
believing that the suspect is dangerous and the suspect may gain
immediate control of weapons," Long, 463 U.S. at 1049, and that
justified, therefore, a protective search of all parts of the vehicle
where weapons could be hidden. As a result, the government continues,
"the seizure of evidence in this case must be affirmed even if the
officers searched the knapsack hoping to find contraband, as the
district court concluded."
The implications of this argument about the scope of the
Terry/Long exception to the probable cause requirement are substantial.
Accepting it would require the reversal of our decision in Lott, 870
F.2d at 783-85 (holding that officers must subjectively--that is, in
fact--search for weapons in order for a search to be a valid protective
search under Long). Nonetheless, we decline to address this argument
because the government has waived it. The district court itself noted
in a later order denying a motion for severance that the "legal
argument the government makes on appeal . . . was not pressed in this
Court." Filed by Wallace, the only occupant of the car who did not
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have standing to challenge the search of the car and knapsack, that
motion to sever sought a trial separate from that of his co-defendants
on the ground that the present appeal violated his Sixth Amendment
right to a speedy trial. The district court therefore undertook an
evaluation of the merits of the government's appeal to determine
whether it was frivolous and consequently could not stop the speedy
trial clock. Though noting that "the government challenges [in its
interlocutory appeal] the conclusions of law that [the court] made on
a ground that has little or nothing to do with the hearing conducted on
the motion, the arguments made or indeed, the testimony," and
expressing reservations about the merits of the government's new
Michigan v. Long argument, the district court nonetheless concluded
that the government's appeal was not frivolous and denied the motion to
sever.
It is a cardinal principle that "[i]ssues not squarely raised
in the district court will not be entertained on appeal." United
States v. Barnett, 989 F.2d 546, 554 (1st Cir. 1993). This "raise-or-
waive rule prevents sandbagging; for instance, it precludes a party
from making a tactical decision to refrain from objecting, and
subsequently, should the case turn sour, assigning error (or, even
worse, planting an error and nurturing the seed as insurance against an
infelicitous result)." United States v. Taylor, 54 F.3d 967, 972 (1st
Cir. 1995). Upon careful examination of the government's arguments
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below, we conclude that the district court, from its superior vantage
point, correctly observed that the government failed to preserve its
alternative Whren-based Long argument.
The government filed four legal memoranda objecting to
suppression of the evidence seized pursuant to the search of Nee's
vehicle. Although the cornerstone of the government's claim on appeal
as to the irrelevance of the officers' subjective intentions is the
purported conflict between Whren and Lott, that conflict is not
mentioned in any of these memoranda. Indeed, the government cites to
Whren only twice, both times for the simple proposition that the
officers could stop the vehicle and order the occupants out of the car.
Though Lott is discussed, the government only distinguishes the facts
in that case from the facts here as the officers presented them, rather
than attacking the legal principles underlying the Lott holding.6
Moreover, there is nothing in the memoranda that serves as
an equivalent to the alternative argument the government now presses on
appeal. Though the government does suggest that the officers were
6 Even on appeal, the government's attack on Lott has the flavor of
a work in progress. In its principal brief, the government claims in
a footnote that the "extent to which Lott remains viable after Whren is
obviously suspect." Despite the fact that Lott is directly on point
and controlling precedent unless Whren does overrule it, see, e.g.,
United States v. Wogan, 938 F.2d 1446, 1449 (1st Cir. 1991) ("We have
held, time and again, that in a multi-panel circuit, prior panel
decisions are binding upon newly constituted panels in the absence of
supervening authority sufficient to warrant disregard of established
precedent."), the government waited until its reply brief to argue
explicitly that Lott is no longer good law.
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entitled to perform a full search of the car for weapons, this
suggestion is based upon the officers' subjective motivations, as they
were expected to testify to them. Indeed, the subjective motivations
of the officers are central to the analysis in the government's
memoranda. The government never argues that these subjective
motivations are irrelevant or that the district court should ignore the
officers' subjective purpose and undertake an objective analysis of the
facts. "Judges are not expected to be mindreaders. Consequently, a
litigant has an obligation to spell out its arguments squarely and
distinctly, or else forever hold its peace." United States v. Zannino,
895 F.2d 1, 17 (1st Cir. 1990) (internal citations and quotations
omitted).
Although the raise-or-waive rule is not absolute, "it is
relaxed only in extreme cases. Arguments not raised below will be
entertained on appeal only in horrendous cases where a gross
miscarriage of justice would occur and, in addition, where the newly
asserted ground is so compelling as virtually to insure appellant's
success." United States v. Haggert, 980 F.2d 8, 11 (1st Cir. 1992)
(internal quotation marks omitted); see also United States v. Ramirez-
Rivera, 241 F.3d 37, 40 (1st Cir. 2001). This is not an exceptional
case, despite the government's claim that it "could hardly be expected
to have anticipated (or invited) the district court's adverse
credibility determinations and factual findings," and hence the need to
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argue in the alternative. We reject this claim. District courts
routinely find facts and make credibility determinations during
suppression hearings. No party is immune from the possibility that
those credibility judgments will be adverse. If the government had an
argument, as it now claims it does, that would justify the search of
Nee's vehicle no matter what credibility determinations the court made
about the purpose of Cellucci's search, the onus was on the government
to press that argument in the first instance. Not having done so, the
government cannot raise it for the first time on appeal.
Affirmed.
Dissent Follows
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TORRUELLA, Circuit Judge, dissenting. The Michigan v. Long
standard is clear: a protective area search of the car is
constitutional as long as the police officers can point to "specific
and articulable facts which . . . reasonably warrant [them] in
believing that the suspect is dangerous and the suspect may gain
immediate control of the weapons." 463 U.S. 1032, 1049 (1977) (quoting
Terry v. Ohio, 329 U.S. 1, 21 (1968)). This Court has held that the
Long test is subjective, rather than objective. United States v. Lott,
870 F.2d 778, 783-84 (1st Cir. 1989) (highlighting the requirements
that the officers "possess" a reasonable fear that their safety has
been compromised and that they "believe" and "suspect" that the
detainee is armed).1 Consequently, under First Circuit law, a Long
search passes Fourth Amendment scrutiny only if the officers in the
field were actually concerned for their safety. Lott, 870 F.2d at 784.
Because I believe the district court did not analyze the facts using
this standard, I would remand this case for further factual findings.
At the suppression hearing, Officer Cellucci stated that he
entered the car for the sole purpose of retrieving Nee's license.
Cellucci testified that while he was reaching to the center console,
the passenger seat gave way, causing him to "inadvertently" discover
the weapons inside the knapsack. The district court discounted this
1 But see United States v. Mernard, 95 F.3d 9, 11 (8th Cir. 1996);
United States v. Baker, 47 F.3d 691, 694 (5th Cir. 1995).
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testimony, finding Cellucci's account "simply not credible." Instead,
it found that Cellucci intended to search the car when he entered it.
The district court made no further finding concerning the purpose of
the search. A protective area search under Long is consistent with
these findings. That is, even if the officers lied about entering the
car to retrieve Nee's license and were in fact conducting an
intentional search for weapons, Long permits such an intentional search
if the officers believed that the suspects might have access to weapons
located therein. The question for the court, then, was whether the
officers did in fact possess a reasonable fear for their safety.2
The majority, however, infers from the district court's
opinion that the search was for contraband, not weapons, thereby
rendering a Long analysis irrelevant. See Lott, F.2d at 785
(concluding that search was improper because it "was not a search for
weapons only"). Although the opinion contains no such explicit
finding, the majority concludes that this inference is the only way to
explain the district court's focus on probable cause, rather than on
Long. In other words, because the court conducted only a probable
cause analysis, and since a search for contraband can only be justified
by probable cause, the majority believes the district court must have
concluded, sub silentio, that the search was for contraband. The
2 Given that the officers conceded from the outset that they had no
probable cause to search the car, moreover, the Long analysis appears
to be the only analysis pertinent to this case.
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majority thus assumes that the district court had the Long argument in
mind while conducting its probable cause analysis, and uses an inferred
factual finding to reconcile any possible contradiction. While I
normally might be inclined to give the district court such a benefit of
the doubt, I am unwilling to do so in this case for the following
reasons.
First, the inferred factual finding cannot be squared with
the record, which suggests that the officers consistently suspected
that the car contained weapons. It is uncontested that upon entering
the scene, the officers frisked all of the defendants. Cf. Lott, F.2d
at 785 (noting that the officers’ failure to frisk suspects after they
exited the vehicle demonstrated that they did not fear for their
safety). In fact, Officer Cellucci's first action upon entering the
vehicle was to frisk the third occupant of the car and to ask him to
exit the vehicle. Significant as well is Officer Ball's reason --
found in the contemporaneous police report as well as the hearing
transcript -- for not letting Nee back in the car. Ball testified
various times that he did not want Nee to enter the car because he "did
not know what [Nee] had in there." Officer Gillis shared this concern,
stating, "We didn't know if there was [sic] any weapons or anything
that could be used to hurt us in that vehicle." Furthermore, after
asking Cellucci to retrieve Nee's license, Ball asked Nee to step to
the rear of the vehicle. Ball later testified that "for [reasons of]
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officer safety, [he] wanted [Nee] at the back of the car so that [he]
could watch him and watch the two officers in the car." All of these
measures attest to the officers' subjective belief that weapons, not
contraband, were located in the car. Nevertheless, the majority's
reading of the district court opinion suggests that upon entering the
vehicle, this fear simply vanished and the officers were suddenly
motivated to "find evidence of a crime," presumably that the car was
stolen.3 Even if the court did conclude, sub silentio, that the
officers were searching for such evidence, I believe this conclusion
requires explicit justification by the district court given the record
in this case.
Second, other aspects of the district court's opinion tend
to support a conclusion that the officers had a reasonable fear for
their safety. For example, in its conclusions of law, the court
states that "where [the officers'] suspicions went beyond traffic
violations, they had a right to be concerned about weapons." Earlier
in that same paragraph, the court acknowledges that the officers had
the right to conduct an investigatory stop for a "possible stolen car."
Similarly, the decision indicates that "[i]f the officers were
3 Interestingly, the majority, like the district court, suggests that
the officers' suspicion was pretextual, noting that if they really
believed the car was stolen, they "could have called in the license
plate of the car to determine if it had been reported." It is
paradoxical that a disingenuous suspicion could constitute the main
focus of the subsequent search.
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concerned about weapons, they could have ordered the occupants out of
the car." It is plain from the facts that two of the occupants were
already outside of the car when the stop occurred, and the third was
frisked and ordered out of the car before the search began. Once
again, if the court did in fact conclude that the officers were
motivated to look for evidence of a crime, rather than by a concern for
their own safety, the district court's other, contradictory conclusions
require further explanation.
Finally, I am concerned by the fact that the Michigan v. Long
argument, although raised in the district court, is not so much as
cited in the district court's orders. As the hearing transcript
reveals, it was also not addressed orally.4 Even if a finding that the
officers intended to search for contraband might invalidate an
otherwise legal protective area search under Long,5 it does not absolve
4 The only reference to Long occurred in the colloquy regarding
standing, during which the court stated, "[The officers are] not even
suggesting that they had probable cause to search the car, and they're
not suggesting that they had probable cause to, quote, frisk the car,
whatever that means, to look for weapons." An "automobile frisk," of
course, is a common way of referring to protective area searches under
Long. See Lott, 870 F.2d at 782. The court's cursory dismissal of
this theory, along with its apparent association of this type of search
with an incorrect standard reflects, in my opinion, some confusion on
the part of the court between a probable cause analysis and the Long
analysis urged by the government, and is a further reason I disagree
with the inference constructed by the majority.
5 This is the paradigm suggested by Lott, though it was not squarely
addressed since in that case, this Court found that the officers did
not exhibit a fear for their safety in addition to having an improper
motivation for the search. Lott, 870 F.2d at 785. At least one case
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the court from addressing the ultimate issue in the analysis, namely,
whether the officers actually feared for their safety. See, e.g.,
Lott, 870 F.2d at 784 (taking into account "all facts gathered up to
the time of the search" before deciding that the search was "fatally
undercut" due to the officers' improper motivations). Only when the
court considers the legal theories raised by the parties below and has
addressed the implications of its own factual findings upon them can
this Court properly review the decisions appealed therefrom.
To conclude, I believe that the district court failed to
complete its analysis below by neglecting to determine whether the
officers' intentional search was nevertheless a permissible area search
under Michigan v. Long. For this reason, I would remand this case for
further findings in that vein. I respectfully dissent.
on point has concluded otherwise. See, e.g., United States v.
González, 954 F. Supp. 48, 50 (D. Conn. 1997) ("[The officer's]
statement in the incident report that he believed the car contained
narcotics is not inconsistent with his testimony that he feared he
could be shot.").
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