United States v. Greene ( 1997 )

[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 96-2124
UNITED STATES,
Appellee,
v.
OMAR GREENE,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Joseph L. Tauro, U.S. District Judge]
Before
Torruella, Chief Judge,
Stahl and Lynch, Circuit Judges.
Diana L. Maldonado on brief for appellant.
Donald K. Stern, United States Attorney, and Christopher F.
Bator, Assistant United States Attorney, on brief for appellee.
October 14, 1997
Per Curiam. Pursuant to Fed. R. Crim. P. 11(a)(2),
appellant Omar Greene entered a conditional guilty plea to
the charge of being a felon in possession of a firearm. See
18 U.S.C. 922(g)(1). He now appeals the denial of his pre-
plea motion to suppress. For the reasons discussed below, we
affirm the order denying the motion to suppress and
appellant's conviction.
I.
The following facts are undisputed. On the evening of
July 10, 1994, Boston police officers Charles Byrne, Michael
Linsky, and James Freeman, members of the Anti-Gang Violence
Unit, were together in a police vehicle in Roxbury. At
approximately 10:50 p.m., a taxicab sped by them and went
down Blue Hill Avenue. The officers pursued the cab and
activated their lights and siren once they had caught up to
it. The cab pulled over near an intersection that was about
3/4 of a mile from the place the police had first seen it.
Officers Linsky and Freeman then approached the driver's side
of the cab while officer Byrne proceeded to its right rear
passenger's side. Appellant was the sole passenger seated in
the rear of the cab. Officer Byrne saw appellant turn and
look at the approaching officers.
When officer Byrne arrived at the open passenger's
window, he heard appellant exclaim, "What did I do?"
Appellant appeared nervous. Byrne responded, "Who said you
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did anything?" and shined his flashlight in at appellant.
Byrne then observed a large bulge in appellant's right pants
pocket. Although he did not know appellant and indeed had
not even heard of him before that day, officer Byrne thought
that the bulge might be a gun and decided that it was
necessary to check to preserve the officers' safety. Byrne
opened the door of the cab, put his hand on the bulge, and
felt what he thought was a firearm. He announced this to his
colleagues and held appellant's arms while officer Freeman
removed from appellant's pocket a fully loaded semi-automatic
handgun with one round in the chamber and seven rounds in the
clip.1 During the course of these events, appellant made no
1
movements, save perhaps for turning his head when officer
Byrne initially shined his light on him. Appellant was
arrested and charged with two state firearm offenses.2
2
Ultimately, the state charges were dismissed and appellant
was charged with violating 18 U.S.C. 922(g).
Relying on the transcript of officer Byrne's testimony
at his pretrial detention hearing, appellant moved to
suppress the gun and ammunition on the ground that the police
1The gun bore an obliterated serial number and was later
1
found to be stolen. The record does not suggest that
appellant was the thief.
2The cab driver was given a verbal warning and sent on his
2
way.
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lacked reasonable suspicion to stop and search him.3 After
3
the government filed an opposition, the district court
entered a one-sentence order that denied the appellant's
motion without stating its reasons. Ten months later, the
appellant entered a conditional guilty plea and was sentenced
to 30-months' imprisonment and two years of supervised
release. He now challenges the denial of his motion to
suppress.
II.
Ordinarily, in reviewing the denial of a motion to
suppress, we scan the district court's findings of fact for
clear error, while affording plenary review to its
conclusions of law, including determinations of probable
cause and reasonable suspicion. See, e.g., Ornelas v. United
States, 116 S. Ct. 1657, 1659-63 (1996); United States v.
Young, 105 F.3d 1, 5 (1st Cir. 1997). Our review here is
somewhat hampered because the district court's order denying
appellant's motion to suppress gave no reasons.
Nevertheless, an "order denying a motion to suppress is to be
upheld if any reasonable view of the evidence supports it."
United States v. Lamela, 942 F.2d 100, 102 (1st Cir.
1991)(internal punctuation and citations omitted). As the
3The motion to suppress also sought to exclude an
3
unspecified amount of marijuana which was found on appellant
after he was arrested. Appellant has not been charged with a
criminal offense based on this conduct.
-4-
essential facts are undisputed and the district court's legal
conclusions are subject to de novo review, we may simply
decide whether the stop and search of appellant were valid.
Cf. United States v. Sepulveda, 102 F.3d 1313, 1315 (1st Cir.
1996)(undertaking similar inquiry where underpinnings of
denial of motion to suppress were somewhat unclear).
A reviewing court evaluating the reasonableness of an
investigative stop must perform a two-step inquiry. First,
the court must determine whether the police action was
justified at its inception. Second, the court must determine
whether the action taken was reasonably related in scope to
the circumstances which justified the intrusion. See, e.g.,
United States v. Young, 105 F.3d 1, 6 (1st Cir. 1997); United
States v. Kimball, 25 F.3d 1, 6 (1st Cir. 1994). In
assessing the reasonableness of a police officer's actions, a
court "must consider the totality of the circumstances which
confronted the officer at the time of the stop." United
States v. Kimball, 25 F.3d at 6.
It is clear that the stop of the speeding cab was valid,
and appellant does not seriously contend otherwise. See
United State v. Moorefield, 111 F.3d 10, 12 (3d Cir.
1997)(traffic stop is lawful where police observe violation
of traffic regulations).4 This case turns on whether the
4
4Although appellant concedes that he was physically
4
stopped as a result of the stop of the cab, he suggests that
he was not legally stopped because he was only a passenger
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ensuing pat-down search of appellant's person was justified.
Appellant argues that the police were not justified in
frisking him because they lacked a particularized reasonable
suspicion directed at him. Since only the driver had
committed the traffic violation and appellant was only, in
his view, an "accidental guest" of the cab, appellant
maintains that the police had no reason to suspect him of any
crime. Appellant further asserts that where he made no
movements, the fact that officer Byrne saw a bulge in
appellant's pants did not give the officer a reasonable
suspicion to conduct a frisk. In contrast, relying on
Pennsylvania v. Mimms, 434 U.S. 106, 111-12 (1977), the
government asserts that a bulge in the clothing of a person
travelling in a car that is lawfully stopped for a traffic
violation provides sufficient grounds for the officer to
believe that the person is armed and dangerous, thus
justifying a pat-down search.5
5
and was not a party to the driver's traffic violation. "When
a police officer effects an investigatory stop of a vehicle,
all occupants of that vehicle are subjected to a seizure as
defined by the Fourth Amendment." United States v. Kimball,
25 F.3d at 5. See also United States v. Robeson, 6 F.3d
1088, 1091 (5th Cir. 1993)("a stop results in the seizure of
the passenger and the driver alike"). Thus, appellant was
lawfully stopped even though he was only a passenger the cab.
5In Pennsylvania v. Mimms, 434 U.S. at 11 n. 6, the
5
Supreme Court held that the police may order the driver to
exit a vehicle lawfully stopped for a traffic violation
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Under Terry v. Ohio, 392 U.S. 1, 27 (1968), whether the
pat-down search of the appellant was justified depends on
"whether a reasonably prudent man in the circumstances would
be warranted in the belief that his safety or that of the
others was in danger." Accord United States v. Villanueva,
15 F.3d 197, 199 (1st Cir. 1994). Although we think it a
close question, we conclude that officer Byrne was warranted
in his belief that the officers' safety was in danger and
that he was further warranted in immediately performing a
pat-down of appellant.
To be sure, all the police knew was that: (1) appellant
was a passenger in a speeding cab who (2) had glanced back at
the officers as they approached, (3) appeared nervous, (4)
asked, "What did I do?" and (5) had a bulge in the pocket of
his pants. Appellant made no sudden or furtive movements,
and was not known to officer Byrne before that day.
Appellant contends that these observations do not support any
suspicion that he was engaged in criminal activity, let alone
a crime where a gun might be present. We disagree.
without violating the Fourth Amendment. The Court recently
extended this rule to passengers. See Maryland v. Wilson,
117 S. Ct. 882, 886 (1997)("an officer making a traffic stop
may order passengers to get out of the car pending completion
of the stop"). While Mimms also upheld a pat-down frisk of
the driver based solely on the police officer's observation
of a bulge, Wilson did not involve a pat-down search.
Because other circumstances were present in this case, we
need not decide whether the observation of a bulge on a
passenger of a vehicle stopped for a traffic violation will
alone justify a pat-down of the passenger.
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Appellant's nervousness and question could reasonably be
construed by a seasoned police officer as evincing
consciousness of guilt. The bulge, even if alone not enough
to support a reasonable suspicion, was surely a factor to be
considered with the others given the widespread presence of
guns on the streets of Boston. See United States v.
Villanueva, 15 F.3d at 199 (recognizing the plethora of gun
carrying, particularly by the young). And while the officer
might well have conducted a lesser intrusion (e.g., by first
ordering the appellant to exit the cab, or by asking him
whether he was carrying a gun), it was not unreasonable for
him to simply proceed with a frisk where to have done
otherwise under the circumstances may have given appellant an
opportunity to use the gun. Cf. United States v. Young, 105
F.3d 1, 7 (1st Cir. 1997)(holding police officer reasonably
lunged at gun of armed robbery suspect where lesser action
may have created risk of harm).6
6
Other courts have upheld pat-down searches of passengers
who exhibited similarly suspicious behavior. See, e.g.,
United States v. Moorefield, 111 F.3d at 13-14 (collecting
cases); United States v. Hassan El, 5 F.3d 726, 731 (4th Cir.
1993)(upholding search in which officer grabbed at bulge
through open car window and removed handgun); United States
6The fact that the gun was found with a round of
6
ammunition chambered suggests that appellant was quite
prepared to use the weapon.
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v. Mitchell, 951 F.2d 1291, 1294-95 (D.C. Cir.
1991)(upholding pat-down search of passenger who obeyed order
to exit car). To be sure, in each of these cases the
passengers appeared nervous and engaged in furtive movements
which gave the police cause for suspicion. Appellant made no
such movements here. Nevertheless, the foregoing cases
remain instructive. The fact that appellant made no
movements toward the gun did not eliminate the suspicion that
he drew to himself with his question, particularly in view of
the "inordinate risk of danger to law enforcement officers
during traffic stops...." United States v. Baker, 78 F.3d
125, 137 (4th Cir. 1996)(upholding protective search of
driver who was subject of lawful traffic stop where driver
exhibited bulge that could be made by weapon). Given
appellant's nervousness, his assumption (evidenced by his
question), that he was the object of the stop, and the bulge
in his pocket, we think the frisk was justified.
Accordingly, the order denying appellant's motion to suppress
and the judgment of conviction are affirmed.
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