United States v. Soares

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

-2-
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

-3-
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.

-4-
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.

-5-
 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

-6-
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

-7-
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

-8-
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

-9-
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.

-10-
 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

-11-
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.

-12-