United States v. Brake , 666 F.3d 800 ( 2011 )

United States Court of Appeals
For the First Circuit
No. 11-1215
UNITED STATES OF AMERICA,
Appellee,
v.
ADAM BRAKE,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Paul J. Barbadoro, U.S. District Judge]
Before
Lipez, Selya and Howard,
Circuit Judges.
Bjorn Lang, Assistant Federal Public Defender, for appellant.
Seth R. Aframe, Assistant United States Attorney, with whom
John P. Kacavas, United States Attorney, was on brief, for
appellee.
December 30, 2011
HOWARD, Circuit Judge. The defendant Adam Brake was
charged with one count of possession with an intent to distribute
a controlled substance in violation of 21 U.S.C. § 841(a)(1). He
moved to suppress the drugs as evidence, arguing that they were
obtained from him in violation of the Fourth Amendment through an
unlawful Terry stop, an illegal frisk, and an involuntary consent
to search. The district court conducted an evidentiary hearing at
which Brake did not testify. After crediting the police account,
the court denied the suppression motion. Brake pleaded guilty but
preserved his right to appeal the constitutional issues, which he
now exercises. Discerning no error, we affirm the conviction.
I. Background
One afternoon in January 2010, the Somersworth, New
Hampshire police department received a 911 call from a residence
reporting a man with a handgun making threats at that home; a fight
was possibly ensuing. Several police officers responded, arriving
at the scene within two minutes. The officers began walking toward
the site of the call, a duplex residence on Franklin Street. As
Detective Thomas Phelan approached within about 30 yards, he saw
two men walking toward the street, in the short driveway next to
the target residence. They were dressed in baggy jeans and bulky,
hooded sweatshirts.
The police officers watched the men turn onto the
sidewalk and continue walking toward a parked red minivan. Phelan
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saw the men stop at the van, where one slid open the side door and
the other bent inside of the vehicle. The two momentarily
concluded their business at the van -- the nature of which the
officers could not discern -- then resumed travel on foot in a
direction away from the police officers. The officers were not
certain whether the men were aware of their presence. Concerned
that the pair may have been involved with the reported disturbance
and might be armed, Detective Phelan directed two patrol officers
to stop and identify the men. Patrolman Larry Mondene and his
partner ran after them, trying to get their attention by shouting
"hey." When the men did not immediately respond, the officers
continued their pursuit, commanding them to "stop." The duo did so
and turned to face the officers.
One of the men provided his identification at the
officers' request. Brake indicated that he did not have physical
identification on him, but he did give his name and date of birth.
The patrolmen informed them of the nature of the reported complaint
and explained their intent to pat them down to check "for any
weapons or anything." While performing the pat-down search,
Mondene felt a bulky, "squishy" object that "felt like a bag" in
the front pocket of Brake's sweatshirt. Mondene described it as
"[r]oughly the size of a quart size bag" which was "full of
something." Discerning that the bag was not a weapon, Mondene
asked Brake what "he had in his pocket." During a brief colloquy
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between them, Brake indicated that the item was a plastic bag that
he had found in the bushes near the duplex. He explained that he
normally picked up trash from the ground, because on a prior
occasion he had discovered money by doing so. Patrolman Mondene
expressed disbelief about Brake's purported habit of garnering
garbage, and Brake told the patrolman that he intended to bring the
item to his friend's house and open it there. The colloquy
continued.
Officer Mondene asked Brake, "would [he] mind just taking
it out" of his pocket, and Brake replied "sure" and did so without
hesitation. It was a dark trash bag that had been cut and knotted.
Mondene asked Brake whether he was curious about its contents, to
which Brake responded by opening the bag.1 After looking into it,
Brake threw the bag down and said "those aren't mine." Officer
Mondene picked it up and saw several hundred pills inside.
By all accounts, Brake was entirely cooperative during
the encounter, which lasted a few minutes, and the tone between
Brake and Mondene remained cordial throughout. The two patrolmen
never drew their weapons, threatened to use handcuffs, or placed
1
At the suppression hearing, defense counsel cross-examined
Mondene, making use of a written report in which Mondene had
previously described this portion of the discourse slightly
differently. The report indicated that Mondene had asked the
defendant to open the bag, rather than the defendant simply doing
so in response to a question by Mondene about whether Brake was
curious. To the extent that the district court took the report
into account, it nevertheless found that Mondene had not issued any
commands or instructions obliging Brake to open the bag.
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their hands on Brake other than to conduct the brief pat-down.
Neither did they inform Brake that he was free to leave after the
pat-down search or that he need not cooperate with Mondene's
inquiries about the bag.
It was later determined that the bag contained more than
six hundred OxyContin (oxycodone) tablets of varying dosages and
nearly one hundred generic oxycodone tablets of another dosage.
After Brake was charged with possession with an intent to
distribute a controlled substance in violation of 21 U.S.C. §
841(a)(1), he filed a suppression motion challenging the
constitutionality of the stop, the frisk, and his consent to the
search that disclosed the bag and its contents.
Although Brake did not testify at the suppression
hearing, the record reveals that the district court carefully
evaluated the credibility of the police witnesses. Crediting their
account, the court found both the stop and the frisk lawful, and
also found that Brake had opted to cooperate with the police and
had consented to reveal the bag and its contents. After his effort
to suppress the inculpatory evidence failed, Brake pleaded guilty
but appealed as to the preserved suppression issues.
II. Governing Law and Analysis
Brake reprises his claims made in the district court that
the police lacked reasonable suspicion justifying either the Terry
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stop or the pat-down frisk, and that his consent to remove the bag
from his pocket and open it was not voluntary.
In reviewing a district court's denial of a motion to
suppress, we review the facts "in the light most favorable to the
district court's ruling on the motion, and we review the district
court's findings of fact and credibility determinations for clear
error." United States v. Camacho, 661 F.3d 718, 723 (1st Cir.
2011) (citation, internal quotation marks and brackets omitted).
"A clear error exists only if, after considering all the evidence,
we are left with a definite and firm conviction that a mistake has
been made." Camacho, 661 F.3d at 723 (internal quotation marks
omitted); see also United States v. Jones, 523 F.3d 31, 36 (1st
Cir. 2008). Under the clear error standard for factual findings,
"we will uphold the denial of a motion to suppress as long as any
reasonable view of the evidence supports it." Id. (internal
quotation marks and citations omitted).
The district court's determination of "whether consent is
free and voluntary is a question of fact" which involves "an
examination of the totality of the circumstances surrounding the
relevant transaction between law-enforcement authorities and the
consenting party." Jones, 523 F.3d at 37. Its factual findings
relating to the validity of the consent are thus reviewed for clear
error. Id. We review de novo, however, "the district court's
conclusions of law, including its application of the law to the
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facts, its . . . reasonable suspicion determinations, and [its]
ultimate legal decision to grant or deny the motion to suppress."
See Camacho, 661 F.3d at 724.
A. The Stop and Frisk
Limited investigatory seizures known as Terry stops and
oft-accompanying pat-down frisks are included within the ambit of
Fourth Amendment protections against unreasonable searches and
seizures. Terry v. Ohio, 392 U.S. 1(1968); see Camacho, 661 F.3d
at 724-25. In essence, a Terry stop is a brief detention of an
individual for questioning based on a police officer's reasonable
suspicion that the person is or has been engaged in criminal
activity. See United States v. Pontoo, No. 10-2455, 2011 WL
6016141, at *3 (1st Cir. Dec. 5, 2011); Camacho, 661 F.3d at 726.
Reasonable suspicion must be more than a hunch but need not amount
to probable cause. See Terry, 392 U.S. at 22; Camacho, 661 F.3d
at 726. More definitively, the officer must have a particularized
and objective basis for suspecting the person stopped of criminal
activity, rooted firmly "in specific and articulable facts."
Pontoo, 2011 WL 6016141, at *5 (internal quotation marks omitted);
see also United States v. Romain, 393 F.3d 63, 71 (1st Cir. 2004)
(noting that court also considers a police officer's rational
inferences drawn from the specific facts); United States v. Chhien,
266 F.3d 1, 6 (1st Cir. 2001) (emphasizing that "reasonable
suspicion" must be determined "case by case" with "broad-based
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consideration of all the attendant circumstances"). Similarly, a
pat-down frisk also must be grounded on specific articulable facts
giving rise to a suspicion that the individual seized may be armed
and dangerous to the officer or to others. See Terry, 392 U.S. at
24; Camacho, 661 F.3d at 728; Dancy, 640 F.3d at 461.
Here, the facts display reasonable suspicion with respect
to both the stop and the pat-down. With respect to the stop, the
911 caller had reported the presence of a man with a handgun at the
residence making threats and that a fight seemed imminent. See
Romain, 393 F.3d at 73-74 (contrasting reliability of information
provided by a 911 caller who is at the site of the reported
criminal activity with the holding in Florida v. J.L., 529 U.S. 266(2000), in which uncorroborated information from an anonymous tip
emanating from an "unknown caller" phoning from an "unknown
location" was deemed insufficient to warrant a Terry stop). A
potentially fatal situation may have been rapidly cresting; indeed,
five police officers responded, arriving without delay. The police
immediately noticed two men who, given their temporal and spatial
connection to the scene, may very well have just left the
residence. Cf. United States v. Golab, 325 F.3d 63, 66-67 (1st
Cir. 2003) (holding that Terry stop was improperly based only on an
"impermissible hunch" in part because the seized car was located in
a remote parking lot and thus lacked a geographical connection to
the site of the suspected criminal activity). The baggy clothing
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that the men wore easily could have concealed a handgun. Finally,
the cohorts' conduct at the parked van gave rise to a fair
suspicion that they may have either deposited a gun or retrieved
additional weaponry. Although their actions could have been
entirely innocent, the circumstances reasonably supported a more
sinister explanation. See United States v. Stanley, 915 F.2d 54,
57 (1st Cir. 1990) (noting that "[u]nder Terry, the test is whether
the circumstances give rise to a reasonable suspicion of criminal
activity, not whether the defendant's actions are subject to no
reasonable innocent explanation.").
These circumstances called for quick decision-making by
the police. See generally United States v. Sharpe, 470 U.S. 675,
686 (1985). Viewing the whole fabric through the lens of a
reasonable and cautious police officer, we conclude that specific
and articulable facts justified the Terry stop to investigate
Brake's possible involvement in the reported disturbance.
Turning to consider the frisk, we need not tarry long.
Brake argues that the frisk was unlawful because his cooperative
demeanor and lack of any furtive or threatening gestures
ameliorated any legitimate concern that he may have posed a risk to
the officers. We disagree.
The purpose of the initial stop was for the police to
determine whether one of the men was the armed menacing threat that
had prompted the 911 call. Again, the pair's baggy garb provided
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ample stow-away opportunity for a firearm, and their conduct at the
van legitimately heightened police concern that the men had
procured additional weaponry. Their failure immediately to heed
police attempts to stop them -- even if an innocent explanation
existed -- further supported the officers' reasonable safety
concerns under the circumstances. See United States v. Wright, 582
F.3d 199, 212 (1st Cir. 2009) (holding that the defendant's failure
to heed police command to stop supported reasonable suspicion and
that seemingly innocuous acts can in combination culminate in a
reasonable suspicion). The officers reasonably could have believed
that the men were deliberately ignoring them as they attempted to
remove themselves from the scene without showing concern for police
presence.
Brake's subsequent compliance during his interaction with
the police in no way vitiated an otherwise justified perception
that he posed an immediate danger to them by his possible
possession of a handgun under these circumstances. See Schubert v.
City of Springfield, 589 F.3d 496, 502 (1st Cir. 2009) (concluding
that defendant's innocuous appearance did not undercut the
reasonableness of the police officer's concern about potential
criminal activity based on his "on-the-spot" observations of
specific, articulable facts). We emphasize once again the
importance of police officer safety during a Terry stop: "In a
world fraught with peril, officer safety must have a place at the
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forefront of police work. It follows logically that a pat-frisk
may accompany an investigatory stop whenever an officer 'has reason
to believe that the suspect is armed and dangerous.'" Pontoo, 2011
WL 6016141, at *8 (quoting Adams v. Williams, 407 U.S. 143, 146
(1972)). Stopping an individual thought to be recently involved in
an armed conflict unquestionably warrants precautionary measures
for the protection of the investigating officers. See id. (holding
that pat-frisk was justified where "the individual stopped is
suspected of having just committed a murder").
Without hesitation, we conclude that frisking Brake for
weapons under these circumstances was within the bounds of
constitutional police conduct. See Terry, 392 U.S. at 27(remarking that “[t]he officer need not be absolutely certain that
the individual is armed; the issue is whether a reasonably prudent
man in the circumstances would be warranted in the belief that his
safety or the safety of others was in danger.”).
B. The Squishy Bag
What is left then, is to review the post-frisk events
concerning the bag in Brake's pocket. Without challenging whether
or how long the Terry stop could extend beyond the pat-down, Brake
contends that, in all events, his conduct in retrieving the bag
from his pocket was not based on his voluntary consent to search.
Accordingly, he urges us to hold that the police seizure of the bag
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violated his Fourth Amendment right to be free from an unreasonable
search.
A warrantless search does not offend the Fourth Amendment
when it is properly circumscribed and stands on a voluntary consent
given by a person so authorized. United States v. Chaney, 647 F.3d
401, 405-06 (1st Cir. 2011). "Consent is voluntary if it is 'the
product of an essentially free and unconstrained choice.'" Chhien,
266 F.3d at 7 (quoting Schneckloth v. Bustamonte, 412 U.S. 218, 225
(1973)). In determining voluntariness, the focus is often on
whether the individual's will has been overborne and his capacity
for self-determination critically impaired. See Schneckloth, 412
U.S. at 225; United States v. Calderon, 77 F.3d 6, 9 (1st Cir.
1996).
Determining whether an individual's consent was indeed
voluntary or instead the product of coercion requires a highly
fact-specific inquiry dependent upon a careful scrutiny of the
totality of the circumstances, rather than on a mechanical
application of legal factors to a factual scenario. See United
States v. Vanvliet, 542 F.3d 259, 264 (1st Cir. 2008); United
States v. Marshall, 348 F.3d 281, 286 (1st Cir. 2003). The common
list of relevant fact drivers for assessing whether consent was
voluntary includes the person's "age, education, experience,
knowledge of the right to withhold consent, and evidence of
coercive tactics." Chaney, 647 F.3d at 407 (internal quotation
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marks omitted); see Vanvliet, 542 F.3d at 264 n.2 (listing range of
pertinent factors). While "there is no requirement that the person
who gave consent must have been explicitly advised of the right to
withhold it," valid consent requires "more than mere acquiescence
in the face of an unfounded claim of present lawful authority."
United States v. Perez-Montañez, 202 F.3d 434, 438 (1st Cir. 2000)
(citing Schneckloth, 412 U.S. at 234 and Bumper v. North Carolina,
391 U.S. 543, 548 (1968)); see also Ohio v. Robinette, 51 U.S. 33,
40 (1996); Chaney, 647 F.3d at 407-08; Vanvliet, 542 F.3d at 264.
Brake argues that he did not voluntarily consent to
removing the bag from his pocket, but was "acced[ing] to directives
from a police officer whom he understood was continuing to detain
him." According to Brake, because Mondene did not inform him that
he was free to leave after the pat-down search, a reasonable person
would have understood that he remained detained, and thus a proper
reading of the evidence establishes that "[b]efore the frisk he was
submitting to the show of lawful authority by Mondene [and] after
the frisk he simply continued to do so." This compliance and
submission, he says, cannot amount to voluntary consent.
The district court found that Brake chose to cooperate
with the police of his own free will throughout the encounter,
having decided to pursue a "strategy of cooperation and ignorance"
about the origin and contents of the bag. The record supports this
finding. In particular, the testimony shows that Brake was
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cooperative with Mondene from the beginning of their interaction,
and indeed he displayed no nervousness or anxiousness of any kind
during the entire encounter -- even when Mondene discovered the
bag. Mondene testified that when asking about the bag he
intentionally shifted to an inquiry mode rather than a more
commanding one because in his mind the purpose of the Terry stop
had concluded once he conducted the pat-down frisk and found no
weapons. Brake provided an immediate account of the bag's origin,
and without hesitation complied with Mondene's request: proceeding
to display the bag, reveal its contents, and then throw it on the
ground while disclaiming any ownership. Although the defendant did
not testify, the district court was careful to consider whether the
police testimony standing alone was a credible account of the
entire interaction and found that it was. Brake does not challenge
this credibility finding,2 and on this record, we see no clear
error in the district court's determination that Brake voluntarily
chose to take a nothing-to-hide stance with the police and to
consent to retrieve the bag from his pocket and show its contents.
We disagree with the appellant that the factual account
leads to the singular conclusion that he was merely submitting to
2
Brake's decision not to challenge the district court's
judgment on witness credibility is understandable. Appellate
review is especially deferential to such judgments, and we overturn
them "only if, after reviewing all of the evidence, we have a
definite and firm conviction that a mistake has been committed."
United States v. Jones, 187 F.3d 210, 214 (1st Cir. 1999) (internal
quotation marks omitted). The record displays no such mistake.
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a claim of lawful authority, rather than voluntarily consenting to
a search. The legal authority Brake relies on in support of his
position does not help him, because Mondene did not represent,
either expressly or impliedly, that Brake was required to pull the
bag out of his pocket or to reveal its contents. Cf. Bumper v.
North Carolina, 391 U.S. 543, 546-50 (1968) (holding that the
government cannot satisfy its burden of proving that consent was
freely and voluntarily given when homeowner simply stated "go
ahead" in response to police declaration of a warrant to search the
residence; "[t]he situation is instinct with coercion -- albeit
colorably lawful coercion"); United States v. Barnes, 506 F.3d 58,
63 n.6 (1st Cir. 2007) (noting that the defendant produced a drug
cache from his person after the police ordered him to submit to a
visual body cavity search pursuant to police department policy
"only because he recognized that otherwise, the search would be
performed"); United States v. Escobar, 389 F.3d 781, 786 (8th Cir.
2004) (holding that police officer's representation that drug-
sniffing dog had "alerted on" the defendants' travel bag
communicated the message that probable cause to search existed and
they had no choice but to permit it; thus the defendants acquiesced
to display of authority rather than voluntarily consenting to the
search).
That Mondene inquired about the bag in the context of
what a reasonable person may have seen as a continuing Terry stop
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does not, by itself, convert Brake's volitional decisions into
coerced compliance. See United States v. Jones, 523 F.3d 31, 38
(1st Cir. 2008) (noting that while the possibility of coercion may
be heightened if the person is in custody at the time consent is
obtained, "custody alone has never been enough in itself to
demonstrate coerced consent to search" (internal quotation marks
and ellipsis omitted)); see also Florida v. Bostick, 501 U.S. 429,
435-36 (1991) (explaining that consent can be voluntary even though
detainee does not feel free to leave). Although the lack of any
instruction that Brake was free to leave or free to refuse to
cooperate may be relevant to a voluntariness inquiry, such
circumstances do not automatically render consent invalid. See
Robinette, 519 U.S. at 40 (concluding that an officer conducting a
highway stop need not inform driver he is free to go before
requesting permission to conduct a search); Chaney, 647 F.3d at
407-08 (noting that police failure to advise a defendant of his
right to refuse to consent does not automatically vitiate voluntary
consent). Simply put, there is no indication that Brake was
coerced in any fashion to pull the bag out of his pocket and open
it for the police officer to see its contents. Accordingly, the
appellant has not demonstrated clear error.
III. Conclusion
The judgment is affirmed.
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