United States v. Shaw
United States v. Shaw
Opinion of the Court
MEMORANDUM
I. Introduction
Defendant Jose Shaw was indicted on one count of being a felon in possession of a firearm and ammunition in violation of 18 U.S.C. § 922(g)(1).
II. Background
A. Findings of Fact
In the early morning hours of December 4, 2009, Brockton Police Detectives George Almeida and Samuel Carde were on patrol.
The confidential informant was known to Detective Hilliard and had provided reliable information to Detective Hilliard on three previous occasions, beginning in 2007.
The confidential informant told Detective Hilliard that he was following the two suspects in his car.
Upon crossing Crescent Street on to Perkins Street, Detective Almeida testified that he, “observed two Cape Verdean looking males fitting [the informant’s] description, one wearing a red hat, red sweatshirt, blue jeans. The other one ... wearing a black hat, black sweatshirt, and black jeans.”
Detective Carde then positioned the unmarked cruiser on the east side of the
Detective Almeida testified that “blading” is a defensive gesture designed to remove a weapon from a potential opponent’s line of sight. The armed individual essentially turns so that the weapon is on the side of his body furthest from the opponent. Police are trained to do this, and according to Detective Almeida, most armed individuals that they encounter typically do the same.
This gesture prompted Detective Carde to remove his service weapon and demand to see the men’s hands.
Upon pat-frisking the right side of Defendant’s waist band, Officer Drane shouted, “I got one,” indicating that he had found a firearm, and both suspects were ordered to their knees.
B. Procedural History On March 2, 2010, the government filed a criminal complaint against Defendant, and an arrest warrant was issued. On March 3, 2010, Defendant was arrested, and on March 4, 2010, counsel was appointed. On April 7, 2010, a grand jury indicted Defendant on one count of being a felon in possession of a firearm and ammunition. On April 13, 2010, Defendant was arraigned before Magistrate Judge Bowler. On September 6, 2011, Judge Bowler held a final status conference, and subsequently issued a Report and Order. On October 27, 2011, Defendant filed a Motion to Suppress Evidence [#46]. After a hearing held on January 12, 2012 and continued on March 15, 2012, the court took the matter under advisement.
III. Discussion
Defendant moves to suppress the gun and ammunition seized by the Brockton Police Department on the grounds that the December 4, 2009 search was in violation of his Fourth Amendment rights.
A. Legal Standard
The Fourth Amendment proscribes unreasonable searches and seizures of individuals’ persons, homes, papers, or effects.
In order to effect a lawful Terry stop, an officer must have reasonable suspicion at the time that the suspect is seized
In determining if a seizure has occurred, “the crucial test is whether, taking into account all of the circumstances surrounding the encounter, the police conduct would ‘have communicated to a reasonable person that he was not at liberty to ignore the police presence and go on about his business.’ ”
At its inception, a seizure pursuant to a Terry stop must be supported by an officer’s “reasonable suspicion supported by articulable facts that ‘criminal activity may be afoot.’ ”
A tip’s reliability is enhanced when it comes from an informant who is
A tip need not be given to the officer making the Terry stop himself in order to inform the officer’s finding of reasonable suspicion. The First Circuit has emphasized that, “police may rely on information of other members of their force and respond accordingly.”
In sum, at the time a Terry stop occurs and a suspect is seized for purposes of the Fourth Amendment, the officer conducting the stop must have a reasonable suspicion based on the totality of the circumstances, that the suspect is engaged in criminal activity. Reasonable suspicion may be based on all available information, including information received from fellow officers, the seizing officer’s prior knowledge of the suspect, and the course of events leading up to the stop itself.
Where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience , that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous, where in the course of investigating this behavior he identifies himself as a policeman and makes reasonable inquiries, and where nothing in the initial stages of the encounter serves to dispel his reasonable fear for his own or others’ safety, he is. entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him. Such a search is a reasonable search under the Fourth Amendment,, and any weapons seized may properly be introduced in evidence against the person from whom they were taken.62
The Fourth Amendment analysis of-a Terry stop and subsequent frisk, therefore, runs along a continuum with the officer and the suspect’s conduct during the course of the stop being taken into account in determining the propriety and scope of a search.
B. Application
In the present matter, the encounter between the detectives, Teixeira and Defendant Shaw began as a consensual encounter, escalated to a seizure, and culminated with the search of Defendant that produced the gun and ammunition Defendant now seeks to suppress. In order to assess the propriety of the search that lead to the discovery of the gun and ammunition, the court must first consider when Defendant was “seized” for Fourth Amendment purposes, and whether that seizure was supported by the detectives’ reasonable suspicion that Defendant was engaged in criminal activity.
The chain of events leading up to the search of Defendant Shaw began when Detective Hilliard received a tip from a confidential informant. The informant was known to Detective Hilliard and had provided reliable information on three prior occasions.
Police officers conducting a terry stop are entitled to rely on information provided by their colleagues on the police force. As the Supreme Court has stated, “effective law enforcement cannot be conducted unless police officers can act on directions and information transmitted by one officer to another and that officers, who must often act quickly cannot be expected to cross-examine their fellow officers about the foundation for the transmitted information.”
When an officer relies in whole or in part on information provided by another member for the force, “[u]nder the ‘collective knowledge’ or ‘pooled knowledge’ principle, ‘reasonable suspicion can be imputed to the officer conducting a search if he acts in accordance with the direction of another officer who has reasonable suspicion.’”
Reasonable suspicion based on an initial apparently reliable tip may be enhanced if officers are able to confirm details provided by the informant upon reaching the suspects identified in the tip.
Once they had located the suspects described by the confidential informant, Detectives Almeida and Carde proceeded to investigate further before seizing the suspects. Detective Almeida immediately recognized one of the men identified by the tip as Peter, ‘Hurt Neck,’ Teixeira, whom he knew to be a felon and ineligible to carry a firearm.
At this point, under the objective analysis, there was no Terry stop, and the suspects were not seized for Fourth Amendment purposes. As this court has previously held, “Law Enforcement officers do not violate the Fourth Amendment’s prohibition of unreasonable seizures merely by approaching individuals on the street or in other public places and putting questions to them if they are willing to listen.”
Events occurring after the start of the interaction between an officer and a suspect may be taken into account in determining whether the officer had a reasonable suspicion that criminal activity was afoot at the time the suspect was seized.
The tip, the suspects’ location, Detective Almeida’s knowledge of Teixeira’s ineligibility to possess a firearm, and the suspects’ movements once Detective Almeida approached combined to provide a basis for Detective Almeida’s reasonable suspicion that Teixeira and Shaw were engaged in criminal activity. The First Circuit has emphasized that, “even innocuous facts, which taken alone may not be ‘sufficient to create reasonable suspicion [,] ... may in combination with other innocuous facts take on added significance.’ ”
The next question presented, therefore, is whether the pat-frisk of Defendant was appropriate after the lawful Terry stop. “‘Officers are permitted to take actions to protect their own safety and the safety of others in the area,’ including conducting a pat-frisk, if under all the circumstances they have ‘a particularized and objective basis to suspect the individual ha[s] a weapon.’ ”
“[I]n determining whether a pat-down search is an appropriate step following a valid Terry stop, the key is whether ... ‘the officer is justified in believing that the person is armed and dangerous to the officer or others.’ ”
IV. Conclusion
Because the stop and the subsequent pat-frisk were did not violate the Fourth Amendment, there is no basis for the exclusion of the gun and ammunition that were found on Defendant Shaw. Accordingly, Defendant’s Motion to Suppress Evidence [# 46] is hereby DENIED.
AN ORDER HAS BEEN ISSUED.
. Indictment [# 7],
. Hearing Tr. 9:12-16.
. Hearing Tr. 9:21-23.
. Hearing Tr. 10:7-22 (A Nextel Direct Connect communication is a telephone service similar to a "walkie-talkie.” It is a one way communication, where an individual speaks and the other may then re-connect and speak.).
. Hearing Tr. 10:25-11:4.
. Hearing Tr. 77:16-3. For convenience, the informant will be referred to as "he” although the gender and identity of the informant are not known to the court.
. Hearing Tr. 78:2-83:4.
. Hearing Tr. 63:3-64:10.
. Hearing Tr. 104:11-107:3; 10:12-12:24.
. Hearing Tr. 66:9-18.
. Hearing Tr. 11:3-8; 63:17-64:1.
. Hearing Tr. 11:3-8.
. Hearing Tr. 12:22-13:12.
. Hearing Tr. 21:1-19.
. Hearing Tr. 13:14-25.
. Hearing Tr. 14:6-12.
. Hearing Tr. 14:20-15:2.
. See Hearing Tr. 15:5-11.
. Hearing Tr. 15:17-16:5, 18:23-19:3.
. Hearing Tr. 42:17-43:5.
. Hearing Tr. 16:3-14.
. Hearing Tr. 16:12-15.
. Hearing Tr. 18:1-22.
. Hearing Tr. 19:6-23.
. Hearing Tr. 19:6-20:5.
. Hearing Tr. 20:4-14.
. Hearing Tr. 20:8-14.
. Hearing Tr. 20:15-18.
. Hearing Tr. 22:9-14.
. Hearing Tr. 22:9-14.
. Hearing Tr. 22:16-18.
. Hearing Tr. 25:3-11.
. Hearing Tr. 25:15-17.
. Hearing Tr. 25:13-21.
. Hearing Tr. 25:24-26:5.
. Def.’s Mot. to Supp. Ev. [# 46].
. U.S. Const. amend. IV.
. United States v. McKoy, 402 F.Supp.2d 311, 313 (D.Mass. 2004), aff'd 428 F.3d 38 (1st Cir. 2005).
. Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), quoted in United States v. Am, 564 F.3d 25, 29 (1st Cir. 2009).
. Am, 564 F.3d at 29.
. Id. (quoting United States v. Harris, 218 Fed.Appx. 525, 527 (7th Cir. 2007)); see also United States v. Camacho, 661 F.3d 718, 726 (1st Cir. 2011) ("The reasonable suspicion standard is an intermediate, indeterminate standard that requires more than a mere hunch but less than probable cause.”).
. United States v. Ford, 440 F.Supp.2d 16, 19-20 (D.Mass. 2006) (Tauro, J.) (citing United States v. Smith, 423 F.3d 25, 28-29 (2005)).
. Ford, 440 F.Supp.2d at 19-20.
. Smith, 423 F.3d at 28 (citing United States v. Mendenhall, 446 U.S. 544, 555, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980)).
. Florida v. Bostick, 501 U.S. 429, 437, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991) (citing Michigan v. Chesternut, 486 U.S. 567, 569, 108 S.Ct. 1975, 100 L.Ed.2d 565 (1988)).
. Ford, 440 F.Supp.2d at 20 (citing Smith, 423 F.3d at 29).
. California v. Hodari D., 499 U.S. 621, 626-29, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991); Smith, 423 F.3d at 31 (quoting United States v. Sealey, 30 F.3d 7, 9 (1st Cir. 1994)).
. Smith, 423 F.3d at 28 (citing Mendenhall, 446 U.S. at 555, 100 S.Ct. 1870 (1980)).
. United States v. Dancy, 640 F.3d 455, 461 (1st Cir. 2011) (citing United States v. Ramos, 629 F.3d 60, 65 (1st Cir. 2010)).
. United States v. Brown, 500 F.3d 48, 54 (1st Cir. 2007).
. United States v. Monteiro, 447 F.3d 39, 44 (1st Cir. 2006).
. Florida v. J.L., 529 U.S. 266, 272, 120 S.Ct. 1375, 146 L.Ed.2d 254 (2000) quoted by Monteiro, 447 F.3d at 47.
. See Monteiro, 447 F.3d at 44; see also Adams v. Williams, 407 U.S. 143, 144-45; 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972).
. United States v. Vasquez, 544 F.3d 348, 350 (1st Cir. 2008).
. See, e.g., Monteiro, 447 F.3d at 47 ("there may be Terry-stop cases in which corroboration comes in part from an individual’s gang affiliation and/or recent arrests for conduct related to the activity referred to in a tip. Criminal history certainly can be considered in a reasonable suspicion analysis.”); see also United States v. Bates, 750 F.Supp.2d 342, 347 (D.Mass. 2010) ("The question is ultimately whether the police had a reasonable suspicion that criminal activity was afoot, and the touchstone of the analysis is whether ‘in light of all the circumstances' the '[tip] possessed sufficient indicia of reliability.’ ”) (quoting United States v. Ruidiaz, 529 F.3d 25, 31 (1st Cir. 2008)).
. Brown, 500 F.3d at 55 (citing United States v. Barnard, 299 F.3d 90, 93 (1st Cir. 2002)).
. Brown, 500 F.3d at 55 (citing Illinois v. Gates, 462 U.S. 213, 230, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983)).
. United States v. Aitoro, 446 F.3d 246, 254 (1st Cir. 2006) (citing United States v. Romain, 393 F.3d 63, 71 (1st Cir. 2004) ("Police officers are not limited to personal observations in conducting investigatory activities.”)).
. Am, 564 F.3d at 31 (quoting United States v. Barnes, 506 F.3d 58, 62-63 (1st Cir. 2007)).
. United States v. Hensley, 469 U.S. 221, 232, 105 S.Ct. 675, 83 L.Ed.2d 604 (1985) quoted in Am, 564 F.3d at 31.
. See, e.g., Am, 564 F.3d at 29-31.
. Aitoro, 446 F.3d at 252 (quoting Romain, 393 F.3d at 71).
. Camacho, 661 F.3d at 724—25 (quoting Terry, 392 U.S. at 30-31, 88 S.Ct. 1868).
. Hearing Tr. 77:16-83:5.
. Adams, 407 U.S. at 146-47, 92 S.Ct. 1921.
. Monteiro, 447 F.3d at 44 (quoting Adams, 407 U.S. at 144-45, 92 S.Ct. 1921).
. United States v. Greenburg, 410 F.3d 63, 67 (1st Cir. 2005) (finding law enforcement officer’s knowledge of an informant’s identity bolstered the informant’s credibility because the informant would be able to be held accountable if he provided false information.).
. Brown, 500 F.3d at 55 (citing Gates, 462 U.S. at 230, 103 S.Ct. 2317).
. Brown, 500 F.3d at 55 (citing United States v. Barnard, 299 F.3d 90, 93 (1st Cir. 2002)).
. United States v. Hensley, 469 U.S. 221, 231, 105 S.Ct. 675, 83 L.Ed.2d 604 (1985) (citing United States v. Robinson, 536 F.2d 1298, 1300 (9th Cir. 1976)).
. Am, 564 F.3d at 31 (quoting Barnes, 506 F.3d at 62-63).
. Am, 564 F.3d at 31 (quoting Hensley, 469 U.S. at 232, 105 S.Ct. 675).
. United States v. Alston, 112 F.3d 32, 35 (1st Cir. 1997).
. Hearing Tr. 10:12-12:24.
. Hearing Tr. 13:14-25. Although Defendant contends that the clothing description was not accurate because Defendant’s sweatshirt had prominent white stripes on it {Def. ’s Mem. in Supp. [# 47] at 3-4), this argument is without merit because the consideration of whether a Terry stop was valid requires an evaluation of the totality of the circumstances. In light of the numerous details that were in agreement with the informant’s tip, the infor
. Hearing Tr. 12:22-13:12.
. See Brown, 500 F.3d at 55 (citing Gates, 462 U.S. at 230, 103 S.Ct. 2317) (“While the source's general credibility must be considered, all that the law requires is that, when the pertinent considerations are weighed, the information reasonably appears to be reliable.”)
. Hearing Tr. 14:10-15:2.
. Hearing Tr. 53:5-54:11.
. Ford, 440 F.Supp.2d at 19 (quoting Smith, 423 F.3d at 28).
. See Ford, 440 F.Supp.2d at 20 ("Factors that might elevate a police encounter from a voluntary conversation to a seizure include the threatening presence of several officers, the display of the officers’ weapons, any physical touching of the defendant, and the use of language or tone of voice that indicates that compliance with the officers' request is not discretionary.” (citing Smith 423 F.3d at 29)).
. Bostick, 501 U.S. at 434, 111 S.Ct. 2382 (quoting Hodari D., 499 U.S. at 628, 111 S.Ct. 1547).
. See Bates, 750 F.Supp.2d at 350 (“[T]he question is whether subsequent events ... provided police with a reasonable suspicion of criminal activity that was not supported by the tip alone.”) (citing United States v. Simmons, 560 F.3d 98, 106-07 (2d Cir. 2009)).
. Hearing Tr. 17:1-19:10
. Am, 564 F.3d at 32 (quoting United States v. Coplin, 463 F.3d 96, 100 (1st Cir. 2006)).
. Am, 564 F.3d at 30 (quoting Ruidiaz, 529 F.3d at 30).
. See, e.g., United States v. Simmons, 560 F.3d 98, 109 (2d Cir. 2009).
. See Camacho, 661 F.3d at 725 ("A Fourth Amendment seizure occurs when a police officer 'has in some way restrained the liberty of a citizen’ through 'physical force or show of authority.' ” (quoting Terry, 392 U.S. at 19 n. 16, 88 S.Ct. 1868)).
. United States v. Dancy, 640 F.3d 455, 461 (1st Cir. 2011) (citing United States v. Mohamed, 630 F.3d 1, 6 (1st Cir. 2010)).
. Bates, 750 F.Supp.2d at 351 (quoting Romain, 393 F.3d at 71).
. Aitoro, 446 F.3d at 254 (citing Romain, 393 F.3d at 71 (''[pjolice officers are not limited to personal observations in conducting investigatory activities.”)).
. Hearing Tr. 18:1-14.
Reference
- Full Case Name
- United States v. Jose SHAW
- Cited By
- 2 cases
- Status
- Published