United States v. Pardue

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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