United States Court of Appeals
For the First Circuit
No. 07-1479
UNITED STATES OF AMERICA,
Appellee,
v.
MICHAEL SOARES,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Nathaniel M. Gorton, U.S. District Judge]
Before
Boudin, Chief Judge,
Torruella, Circuit Judge,
and Stahl, Senior Circuit Judge.
Albert F. Cullen, Jr. and Law Office of Albert F. Cullen, Jr.,
on brief for appellant.
Kelly Begg Lawrence, Assistant United States Attorney, and
Michael J. Sullivan, United States Attorney, on brief for appellee.
March 28, 2008
TORRUELLA, Circuit Judge. Michael Soares was the
passenger in a car that the police stopped in a heavy crime area,
late at night, for driving without headlights. During the course
of the stop, Soares was removed from the car by the police and
pat-frisked. A loaded hand-gun was found on his person. Soares
argues that the police pat-frisked him in violation of the Fourth
Amendment. Soares's motion to suppress the hand-gun was denied by
the district court, and he entered a conditional plea of guilty to
being a felon in possession of a hand-gun under 18 U.S.C. § 922
(g)(1). He now appeals the district court's denial of his motion
to suppress. After careful consideration, we affirm.
I. Background
"We view the facts in the light most favorable to the
district court's ruling with respect to [the defendant's] motion to
suppress." United States v. Kimball, 25 F.3d 1, 3 (1st Cir. 1994).
We recite the facts as found by the district court, consistent with
record support. See United States v. Brown, 510 F.3d 57, 61 n.1
(1st Cir. 2007); see also United States v. Soares, 451 F. Supp. 2d
282, 284-286 (D. Mass. 2006) (district court's factual findings).
On December 6, 2005, at approximately 1:15 a.m., Boston
police officers Linwood Jenkins and Jason Reid, dressed in plain
clothes and in an unmarked car, observed a green Lexus take off
from a curb without headlights and with malfunctioning breaklights.
The Lexus was in a high-crime area. The officers decided to stop
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the car based on the driver's failure to illuminate his headlights,
which the police deduced from the lack of taillights. Before the
Lexus stopped, the police noticed the passengers in the car make
movements down and to their left. The driver motioned towards his
door, and the front-seat passenger motioned towards the console.
No movement was observed in the back seat.
Reid testified that the movement in the car concerned
him, and he wanted "to keep a good eye on everyone's movement from
that point on." The officers called dispatch before approaching
the car. Reid called out "furtive movements" when he observed the
passengers moving around in the car. He approached the car on the
passenger's side with his gun unholstered in a "low ready"
position, making his weapon clearly visible to Soares who was
sitting in the front seat. Jenkins approached the car on the
driver's side with his hand on his gun in an unsnapped holster.
Reid repeatedly ordered the passengers in the car to keep their
hands where he could see them and remain still. Soares, Allen Lee,
the driver, and Rasheed Marsman, the backseat passenger, complied
with the orders at first. Almost immediately, Soares became
agitated, began to rock back and forth, was verbally abusive, and
kept moving his hands around. He accused the officers of stopping
them for "driving while Black."
Meanwhile, Lee gave his license and registration to
Jenkins, and Jenkins returned to his car to check them. Reid
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remained at the Lexus with his flashlight. Jenkins then returned
from the police car to read Lee a citation for the malfunctioning
lights. After Lee complained that there was no justification for
the stop, Jenkins offered to show Lee the malfunctioning light.
Lee stepped out of the car to view the malfunctioning light and
consented to a pat-frisk. At about this time, two other policemen,
Jeff Lapolis and Paul Brooks arrived at the scene in separate cars;
these officers happened to be in the area. One officer parked in
front of the Lexus; the second officer parked behind Reid and
Jenkins, who were directly behind the Lexus.
As this was going on, Reid went to the driver's side of
the car. Soares became verbally abusive to Reid, and he continued
moving his hands despite Reid's orders to keep still. Although
Reid repeatedly asked Soares to stay still, Soares persisted in his
agitation. Reid testified that Soares was "rocking back and forth"
and "flailing" and "flipping" his hands around -- all the while
using profane language directed at the officers.
Reid testified that at that point he "got a little
uneasy." In response to Soares's erratic behavior, Reid asked the
back-up officers to remove Soares from the car because he "felt
really uneasy about . . . the way [Soares] was behaving." Lapolis
and Brooks were standing at the passenger side of the car. After
Lapolis removed Soares from the car, he attempted to pat-frisk
Soares, but Soares swatted Lapolis's hand away from his waist.
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Lapolis and Brooks then moved Soares to a nearby wall where Lapolis
frisked him after a scuffle. Lapolis felt a hard object through
Soares's clothes and yelled "gun." Lapolis and Brooks subdued
Soares and removed a loaded .9mm gun from Soares's pants. Soares
was arrested, along with Marsman and Lee. A federal grand jury
returned a one-count indictment charging Soares with being a felon
in possession of a firearm and ammunition under 18 U.S.C. § 922
(g)(1).
On June 19, 2006, prior to trial, Soares filed a motion
to suppress all evidence on the ground that there was no reasonable
justification for stopping the vehicle and the police officers
lacked probable cause and justification for a pat-frisk. On
September 12, 2006, after an evidentiary hearing, the district
court denied Soares's motion to suppress. The district court found
that the stop was valid, that Soares's Fourth Amendment rights were
not violated, and that the officers' actions were objectively
reasonable. On November 27, 2006, Soares entered a conditional
guilty plea to the indictment, which the district court accepted on
November 27, 2006. On March 1, 2007, Soares was sentenced to
thirty months' imprisonment, followed by twenty-four months of
supervised release. Soares appeals the motion to suppress pursuant
to the conditional plea, but on appeal only challenges the pat-
frisk.
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II. Discussion
A. Standard of review
This court reviews a district court's determination of
reasonable suspicion and probable cause on a motion to suppress de
novo. See Ornelas v. United States, 517 U.S. 690, 699 (1996);
United States v. Capelton, 350 F.3d 231, 240 (1st Cir. 2003). The
district court's findings of fact are reviewed for clear error.
Capelton, 350 F.3d at 240. We give "due weight to inferences drawn
from those facts by resident judges and local law enforcement
officers." Ornelas, 527 U.S. at 699. We will uphold a denial of
a motion to suppress "if any reasonable view of the evidence
supports it." Brown, 510 F.3d at 64 (internal quotation marks and
citations omitted); see also United States v. Kornegay, 410 F.3d
89, 93 (1st Cir. 2005).
B. Analysis
The Fourth Amendment protects against "unreasonable
searches and seizures." U.S. Const. amend. IV. "[I]ts protections
extend to brief investigatory stops of persons or vehicles that
fall short of traditional arrest." United States v. Arvizu, 534
U.S. 266, 273 (2002) (citing Terry v. Ohio, 392 U.S. 1, 9 (1968)).
Yet "we cannot blind ourselves to the need for law enforcement
officers to protect themselves and other prospective victims of
violence in situations where they may lack probable cause for an
arrest." Terry, 329 U.S. at 24. A pat-frisk of a passenger in a
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car that is stopped for a traffic violation is one of those
situations.
On appeal, Soares acknowledges that the police had
probable cause to stop Lee's car. See Whren v. United States, 517
U.S. 806, 810 (1996). The stop is not at issue here. What is at
issue is whether after the police officers made their stop, they
had justification to pat-frisk Soares. A fair reading of the facts
demonstrates that the officers acted lawfully out of concern for
their safety.
In examining the pat-frisk of Soares, we are guided by
United States v. Romain, 393 F.3d 63 (1st Cir. 2004). In Romain,
we said that, "in determining whether a pat-down search is an
appropriate step following a valid Terry stop, the key is whether,
under the circumstances, 'the officer is justified in believing
that the person is armed and dangerous to the officer or others.'"
Id. at 71 (quoting United States v. Schiavo, 39 F.3d 6, 8 (1st Cir.
1994)). The facts demonstrate that the officers believed that
their safety was at risk. Several additional facts became known as
the stop progressed, which, taken together, created reasonable
suspicion that Soares might be armed and dangerous. United States
v. Sowers, 136 F.3d 24, 27 (1st Cir. 1998) ("Based on unfolding
events, the trooper's attention (and, thus, his reasonable
suspicions) shifted away from the equipment violations that
prompted the initial stop toward a belief that the detainees were
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engaged in more serious skulduggery. Such a shift in focus is
neither unusual nor impermissible."). The occupants' movements
caused Jenkins to approach the car with his hand on his gun while
Reid had his in a "low ready position." See United States v.
Trullo, 809 F.2d 108, 113 (1st Cir. 1987) ("draw[ing] a gun while
approaching a suspect in this context is an act of caution")
(internal quotation marks omitted). The record reflects that Reid
and Jenkins made several other observations that alerted them to
the potential for danger: the traffic stop occurred in the middle
of the night; it occurred in an area "plagued with numerous drug
arrests, assaults by handgun, assaults by stabbing, robbery,
fighting . . . illicit narcotics . . . barroom fights and nuisances
like that"; the officers saw Lee and Soares bend over toward their
left, as if putting something on the floor, which the officers
testified were "furtive movements" and were "not ordinary." See
United States v. Ivery, 427 F.3d 69, 73-74 (1st Cir. 2005) ("Though
. . . any one of these features, standing alone, may be
insufficient to support reasonable suspicion, we have repeatedly
held that when evaluating the validity of a Terry stop, we must
consider all of the relevant circumstances . . . which are not to
be dissected and viewed singly; rather they must be considered as
a whole.") (internal citation and quotation marks omitted).
These facts taken together created reasonable suspicion
on the part of the officers. Reasonable suspicion is evaluated
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based on "the totality of the circumstances and it demands a
'practical, commonsense approach.'" United States v. Jones, 432
F.3d 34, 40 (1st Cir. 2005) (quoting Sowers, 136 F.3d at 28);
United States v. Taylor, 162 F.3d 12, 19 (1st Cir. 1998) (citation
omitted). We have found that officers faced with similar
circumstances were justified in conducting warrantless pat-frisk
searches for weapons. See United States v. Cruz, 156 F.3d 22, 26
(1st Cir. 1998) ("The circumstances of this stop are such that the
officer would have been 'foolhardy' not to have frisked appellant
for weapons.").
After Reid approached Soares, Soares gave Reid even more
reason to fear for his safety. See United States v. Bizier, 111
F.3d 214, 217 (1st Cir. 1997) ("The information developed in
connection with [a] temporary investigative stop may in turn
provide grounds for a full custody arrest."). Once the car was
stopped Soares refused repeated orders to remain still and keep his
hands in Reid's view. Soares continually used abusive and profane
language, and he became increasingly agitated as the stop
progressed. Reid testified that Soares's erratic and uncooperative
behavior made him "extremely nervous." Reid observed him move his
hands out of the officers' sight towards the area that he first saw
him motion towards at the start of the stop. Reid could reasonably
have thought that Soares was reaching for a weapon. Reid only
asked Lapolis to remove and frisk Soares after his continued
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erratic movements and disconcerting behavior. See Maryland v.
Wilson, 519 U.S. 408, 414 (1997) ("[D]anger to an officer from a
traffic stop is likely to be greater when there are passengers in
addition to the driver in the stopped car" and "therefore . . . an
officer making a traffic stop may order passengers to get out of
the car pending completion of the stop."). Reid testified that he
asked Lapolis to pat-frisk Soares only because he "felt really
uneasy about . . . the way [Soares] was behaving." Under the
circumstances, Reid's judgment that Soares posed a threat was an
objectively reasonable and a justified reaction to the situation.
Soares also argues that the facts here are substantially
the same as those in McKoy, in which we held that the police lacked
reasonable suspicion for a pat-frisk. See United States v. McKoy,
428 F.3d 38, 41 (1st Cir. 2005). In that case, the officers based
their suspicion on the dangerousness of the neighborhood and
McKoy's nervousness. Id. ("It is simply not reasonable to infer
that a driver is armed and dangerous because the officers believe
that he appears nervous and reaches toward the car's console when
approached by police, even in a high-crime neighborhood.").
Soares's heavy reliance on the outcome in McKoy fails to account
for the differences between McKoy and this case. The officers
clearly had reason to believe that Soares was dangerous and a
threat to their safety.
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We have reminded the police that "the character of the
neighborhood does not provide automatic permission" for them to
stop and search any and everybody in a high-crime neighborhood.
United States v. Villanueva, 15 F.3d 197, 199 (1st Cir. 1994)
(citing Brown v. Texas, 443 U.S. 47, 52 (1979)). But "every case
must be considered on its own reasons for suspicion of danger."
Id. (citation omitted). Our reminder was not meant to prevent the
police from performing lawful stops of cars and pat-frisks of its
passengers just because they happen to be in high-crime
neighborhoods. There is nothing inconsistent with Villanueva and
the actions of the police on the night in question. Unlike in
McKoy, the police here relied on more than just nervousness and the
fact that they stopped the car in a high-crime neighborhood. See
McKoy, 428 F.3d at 40. The police testified that movement in the
car as Lee stopped the vehicle, the verbal abuse, and Soares's
constant arm-flailing and rocking back and forth all contributed to
the officers' suspicions and fears. In McKoy, we said that
"[a]fter a valid Terry stop, a pat frisk for weapons is . . .
permissible where 'the officer is justified in believing that the
person is armed and dangerous to the officers or others.'" Id. at
39 (quoting Romain, 393 F.3d at 71).
The officers demonstrated that they feared for their
safety. They approached the car with their sidearms, ready to use
them if the situation required it. Soares was not only verbally
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abusive, but he repeatedly ignored the officers' orders to remain
still; he continuously waved his arms around erratically. His
movements could easily be seen as an attempt to create a diversion
and confusion amongst the officers while he and the other
passengers created an environment that was unsafe for the officers.
Nothing in Soares's version of events conflicts with what the
officers offered to demonstrate the threat that he posed. See
Cruz, 156 F.3d at 26; United States v. Stanley, 915 F.2d 54, 56
(1st Cir. 1990) ("Officer['s] suspicion was reasonable, based on
the location and the defendant's conduct both before and after the
officers approached [defendant's] car."); Romain, 393 F.3d at 72
("frenetic behavior [was] a plausible basis for suspecting that the
appellant was armed and dangerous").
III. Conclusion
As the facts demonstrate, a "reasonable view of the
evidence supports" the denial of the motion to suppress. Kornegay,
410 F.3d at 93 (citation omitted). We affirm the denial of the
motion to suppress.
Affirmed.
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