Opinion
CRIMINAL NO. 06-10393-RGS.
August 6, 2008
Adam J. Bookbinder United States Attorney's Office, Boston, MA, representing USA Plaintiff.
William W. Fick Federal Defender's Office District of Massachusetts, Boston, MA, representing Terry W Lewis (1) Defendant.
Glenn A. MacKinlay United States Attorney's Office, Boston, MA, representing USA Plaintiff.
FINDINGS OF FACT, RULINGS OF LAW AND ORDER ON DEFENDANT'S MOTION TO SUPPRESS
An early morning encounter with Fall River police on August 10, 2006, led to the arrest of defendant Terry Lewis and his indictment by a federal grand jury as a felon in possession of a firearm and ammunition. On August 9, 2007, Lewis moved to suppress a .45 caliber pistol and six rounds of ammunition seized by the arresting officers. Lewis alleges that he was accosted and detained without probable cause or reasonable suspicion. A hearing on Lewis's motion was scheduled for November 27, 2007. The hearing was continued at the government's request (and with Lewis's assent) to January 16, 2008. The hearing lasted two days. A third hearing was held on February 8, 2008, at which Lewis testified. At Lewis's request, his counsel was given to April 8, 2008, to obtain transcripts and supplement his original brief. The government was then permitted an additional thirty days to May 8, 2008, to respond. The parties waived further oral argument. The briefing now complete, the court enters this Memorandum and Order denying Lewis's motion to suppress.
Lewis also moved to suppress certain incriminating statements that he made after the arrest, as well as a small quantity of drugs and a spent shell casing that were seized during a search of his motorcycle. This aspect of the motion to suppress is moot on the government's representation that it will offer neither the statements nor the drugs or shell casing as part of its case-in-chief.
FINDINGS OF FACT
Based on the credible evidence, I make the following findings of fact.
1. At approximately 1:45 a.m. on August 10, 2006, two veteran Fall River police officers, Brian Saurette and Donald Gosselin, were on patrol in the Flint Village neighborhood of Fall River, a "high crime" area plagued by drug dealing and shootings. The officers were in uniform and driving a marked cruiser. They had been alerted at roll call to a report of someone seen carrying a sawed-off shotgun. Gosselin spoke with a clerk at a Store 24 on Pleasant Street, a major commercial thoroughfare. The clerk told him about an incident the night before just outside the store, which involved shots being fired. The officers noticed that Pleasant Street was largely deserted, which was unusual for a hot summer's night.
The officers shared a total of over forty years of policing experience.
2. While at the intersection of Flint Street and Pleasant (a block from Store 24), the officers observed a young black male on a bicycle pause briefly to speak with a white male pedestrian. The bicyclist then rode two blocks to the corner of Pleasant and Quequechan Street where he stopped to speak to a somewhat older black male (later identified as Lewis), who was standing astride a motorcycle. Lewis then drove away on the bike. Believing that they had witnessed the inception of a drug deal, the officers approached the bicyclist and asked him for identification. A radio check showed no outstanding warrants. The bicyclist was permitted to go on his way. The officers then located the white male standing near his car on Flint Street. After some initial evasiveness, the man admitted that he had come to Flint Village looking to buy "weed on the cuff." He produced identification at the officer's request. Again, a check showed no outstanding warrants.
The young black male was 18 years old. Lewis was in his mid-twenties.
Neither officer knew Lewis prior to August 10, 2006.
The identities of the young black male and the white pedestrian appear in the record, but have no bearing on the decision in this case except to the extent they corroborate the officers' testimony.
3. The officers returned to their vantage point at the intersection of Flint and Pleasant. Within a few minutes, they observed Lewis return on his motorcycle and park on Flint Street. He walked to the door of Store 24, looked about, and then returned to the motorcycle. A few minutes later, Lewis reappeared walking west on Pleasant Street towards Store 24, carrying his motorcycle helmet. The officers pulled across the street in their cruiser, driving directly toward Lewis as he stood in front of a hardware store. The officers did not activate the cruiser's patrol lights. Saurette and Gosselin alit from the cruiser and walked towards Lewis. Saurette asked Lewis, "What are you doing here?" Lewis did not respond. Instead he dropped his helmet and turned around, extending his arms while pressing himself against the store's plate glass window. As he did so, he complained to the officers, "What are you pushing me for?"
Lewis testified that in the interim he had moved the motorcycle to a designated parking area on Cash Street some two blocks away (where police later seized it).
Lewis insists that he was cornered in front of a public library a block from the hardware store. Saurette has at times remembered the location differently. Gosselin testified that the encounter occurred in front of the hardware store. Whichever is the accurate location has no bearing on the outcome of the case.
Lewis testified that the officers "whipped across the yellow line" in the cruiser, jumped out, grabbed him, and without saying a word, threw him against the plate glass window. I find Lewis's account completely lacking in credibility.
4. As Lewis came in contact with the window, the officers heard the sound of a heavy object hitting the plate glass. Suspecting a gun, Saurette grabbed at Lewis's sweatshirt. Lewis turned, elbowed Saurette in the shoulder and arm, and began to run. Gosselin in turn grabbed Lewis's sweatshirt. Lewis wrested free, slipping out of the sweatshirt. As he did so, a .45 caliber pistol fell to the ground. Saurette tackled Lewis after a 20' chase. After Lewis was subdued, he was found to be wearing a (now) empty shoulder holster.
APPLICABLE PRINCIPLES OF LAW
1. Police "do not violate the Fourth Amendment by merely approaching an individual on the street or in another public place, by asking him if he is willing to answer some questions, by putting questions to him if the person is willing to listen, or by offering in evidence in a criminal prosecution his voluntary answers to such questions." Florida v. Royer, 460 U.S. 491, 497 (1983) (plurality opinion).
2. "The Fourth Amendment does not require a policeman who lacks the precise level of information necessary for probable cause to arrest to simply shrug his shoulders and allow a crime to occur or a criminal to escape. . . . A brief stop of a suspicious individual, in order to determine his identity or to maintain the status quo momentarily while obtaining more information, may be most reasonable in light of the facts known to the officer at the time." Adams v. Williams, 407 U.S. 143, 145-146 (1972). See also Terry v. Ohio, 392 U.S. 1 (1968).
3. "Based upon [the] whole picture the detaining officers must have a particularized and objective basis for suspecting the particular person stopped of criminal activity." United States v. Cortez, 449 U.S. 411, 417-418 (1981). See also United States v. Sokolow, 490 U.S. 1, 9 (1989). Conduct that would most likely be perceived as innocent by a casual onlooker may in the totality of the circumstances appear suspicious to a trained and experienced police officer. See United States v. Arvizu, 534 U.S. 266, 273 (2002). The test is an objective one: an officer's subjective motivations and state of mind are irrelevant in assessing the legality of a stop or an arrest. See Whren v. United States, 517 U.S. 806, 812-813 (1996).
4. Factors that officers may consider in assessing the existence of reasonable cause include a suspicious presence at a late hour in a high crime area, United States v. Trullo, 809 F.2d 108, 111-112 (1st Cir. 1987), furtive movements or gestures,Florida v. Rodriguez, 469 U.S. 1, 6 (1984), flight and other indicia of consciousness of guilt, Illinois v. Wardlow, 528 U.S. 119, 124 (2000), innately suspicious behavior, United States v. Sears, 663 F.2d 896, 903 (9th Cir. 1981), and knowledge of criminal behavior gained from an officer's training and experience, such as a familiarity with the techniques used by persons who sell illegal drugs. See Arvizu, 534 U.S. at 296.
5. A threshold inquiry is initiated by a stop; the resulting detention, however brief, is a seizure within the meaning of the Fourth Amendment. See Terry, 392 U.S. at 16-19; Cortez, 449 U.S. at 417.
6. The test distinguishing a seizure from a consensual encounter is whether "in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave," United States v. Mendenhall, 446 U.S. 544, 554 (1980), or otherwise terminate the encounter.Florida v. Bostick, 501 U.S. 429, 436 (1991). See also Brendlin v. California, 127 S.Ct. 2400, 2407 (2007) (no reasonable passenger in a vehicle stopped by police would believe that he "was free to depart without police permission.").
7. "`A show of authority' which could be expected to command compliance" may, under the Mendenhall test, transform an otherwise permissible street encounter into a stop requiring reasonable suspicion. United States v. West, 651 F.2d 71, 73 (1st Cir. 1981), vacated on other grounds, 463 U.S. 1201 (1983). See Royer, 460 U.S. at 501-502 (where agents, after asking for a suspect's airline ticket and driver's license, escorted him to a private room for questioning, a seizure had occurred).
8. A show of authority by itself does not transform a pursuit into a Fourth Amendment seizure. "The word `seizure' readily bears the meaning of a laying on of hands or application of physical force to restrain movement, even when it is ultimately unsuccessful. . . . It does not remotely apply, however, to the prospect of a policeman yelling `Stop, in the name of the law!' at a fleeing form that continues to flee. . . . [A seizure] requires either physical force . . . or, where that is absent, submission to the assertion of authority." California v. Hodari D., 499 U.S. 621, 626 (1991). See also Brower v. County of Inyo, 489 U.S. 593, 597 (1989).
9. Flight in the face of authority may be considered as one of the factors that in the totality of the circumstances gives rise to a reasonable suspicion justifying a stop. "Headlong flight — wherever it occurs — is the consummate act of evasion: It is not necessarily indicative of wrongdoing, but it is certainly suggestive of such." Wardlow, 528 U.S. at 124 (defendant's unprovoked flight, coupled with his presence in an area of heavy narcotics trafficking, justified the suspicion that he was engaged in criminal activity).
10. A defendant's escape from the clutches of an officer terminates the seizure — there is no "continuing arrest during the period of fugitivity" — thus, a defendant's acts after breaking away from police (such as the discarding of drugs or a firearm) may give independent grounds for probable cause for a second arrest. Hodari D., 499 U.S. at 625.
11. If an officer has a reasonable basis for believing that a suspect poses a danger to police or others, he may be frisked (patted down) for weapons; the frisk may extend beneath a person's outerwear if the officer feels a suspicious object.Terry, 392 U.S. at 22-25. See also Adams, 407 U.S. at 146. The right to frisk is immediate and automatic where an officer has an articulable suspicion that a suspect is engaged in a serious crime like drug dealing. See United States v. Clark, 24 F.3d 299, 304 (D.C. Cir. 1994).
12. The common-law doctrine permitting a person to use force or other means of self-help to resist arrest by one whom he knows is an authorized police officer engaged in the performance of his duties has no modern viability, regardless of whether the arrest is lawful. See United States v. Simon, 409 F.2d 474, 477 (7th Cir. 1969); United States v. Martinez, 465 F.2d 79, 82 (2d Cir. 1972); Commonwealth v. Moreira, 388 Mass. 596, 601 (1983). The same is true with respect to a Terry stop. See Melson v. Municipality of Anchorage, 60 P.3d 199, 202 (Alaska Ct.App. 2002).
13. Resistance to an arrest, even one that is unlawful, provides sufficient and independent grounds for a second arrest for a new and distinct offense. See United States v. King, 724 F.2d 253, 256 (1st Cir. 1984); United States v. Bailey, 691 F.2d 1009, 1013 (11th Cir. 1983) (en banc); United States v. Dawdy, 46 F.3d 1427, 1431 (8th Cir. 1995); United States v. Sprinkle, 106 F.3d 613, 619-620 (4th Cir. 1997). See also United States v. Sheppard, 901 F.2d 1230, 1234-1236 (5th Cir. 1990) (consensual submission followed by flight); State v. Miskimins, 435 N.W.2d 217, 222 (S.D. 1989) (assault on arresting officers). Cf. People v. Smith, 870 P.2d 617, 619 (Colo.App. 1994) (assuming that the initial stop was illegal, suppressing evidence of the distinct crimes that defendant committed while attempting to evade arrest would be too high a price for society to pay to deter police misconduct).
14. The Fourth Amendment does not mandate an exclusionary rule. The rule is "a judicially created remedy designed to safeguard Fourth Amendment rights generally through its deterrent effect, rather than a personal constitutional right of the party aggrieved." United States v. Calandra, 414 U.S. 338, 348 (1974). "The exclusionary rule operates . . . to safeguard against future violations of Fourth Amendment rights through the rule's general deterrent effect. . . . Where `the exclusionary rule does not result in appreciable deterrence, then, clearly, its use . . . is unwarranted.'" Arizona v. Evans, 514 U.S. 1, 10-11 (1995). "Suppression of evidence . . . has always been our last resort, not our first impulse." Hudson v. Michigan, 547 U.S. 586, 591 (2006).
ULTIMATE CONCLUSIONS OF FACT AND LAW
1. The decision of officers Saurette and Gosselin to confront Lewis by driving their cruiser in his direction as he walked down the sidewalk on Pleasant Street has no constitutional implications.2. The observations of the bicyclist's interaction with the white male pedestrian, Lewis's subsequent interaction with the bicyclist, and the white male's admission that he was attempting to initiate a drug deal, when coupled with the weeness of the hour, the shady reputation of the neighborhood, and Lewis's bizarre gesture mimicking an impending frisk, provided reasonable grounds for a Terry inquiry.
3. This same concatenation of facts gave the officers reasonable cause to believe that Lewis might be armed. A frisk of Lewis's person was therefore constitutionally permissible.
4. Lewis was seized for Fourth Amendment purposes when officer Saurette grabbed his sweatshirt while initiating the frisk.
5. Even assuming that the seizure was unlawful or that Lewis's unsuccessful attempt to evade arrest was not a terminating event, Lewis's elbowing of Saurette and his efforts to escape arrest constituted independent and intervening acts breaking the chain of causation. Any taint (if there was one) resulting from the initial seizure was therefore dissipated.
6. Lewis's acts of resisting arrest and striking officer Saurette with his elbow gave probable cause for the officers to initiate a second and valid arrest for new and independent offenses.
7. Even if the actions of the officers were in some constitutional sense illegal, in light of Lewis's own unlawful conduct, the suppression of the gun and ammunition would pay a pound for an ounce of deterrence of future police misconduct.
ORDER
For the foregoing reasons, the motion to suppress is DENIED. The Clerk will set the case for trial.
SO ORDERED.