United States v. Cook

United States Court of Appeals
For the First Circuit
No. 01-1405
UNITED STATES OF AMERICA,
Appellee,
v.
Donald Cook,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Joseph L. Tauro, U.S. District Judge]
Before
Lipez, Circuit Judge
Coffin, Senior Circuit Judge
and Barbadoro,* District Judge
John H. LaChance, for appellant.
John A. Wortmann, Jr., Assistant United States Attorney, with whom
James B. Farmer, United States Attorney, were on brief for the
appellee.
January 18, 2002
*Of the District of New Hampshire, sitting by designation.
BARBADORO, District Judge. A grand jury indicted Donald
Cook for possession of crack cocaine with intent to distribute. See 21
U.S.C. § 841(a)(1). Cook subsequently moved to suppress the cocaine,
arguing that the police seized it in violation of his Fourth Amendment
rights. The district court denied the motion because it determined
that the cocaine was lawfully seized following an investigative stop
authorized by Terry v. Ohio, 392 U.S. 1 (1968). Ultimately, Cook was
convicted of the lesser-included offense of possession of more than
five grams of crack cocaine. See 21 U.S.C. § 844. He appeals his
conviction, arguing that the court erred in denying his suppression
motion. We affirm.
I.
We construe the record in the light most favorable to the
district court’s ruling, drawing reasonable inferences in the
government’s favor. See United States v. McCarthy, 77 F.3d 522, 525
(1st Cir. 1996); see also United States v. Payton, 615 F.2d 922, 923
(1st Cir. 1980). The following recitation is derived from testimony
given at the suppression hearing, as well as from affidavits submitted
by two of the three arresting officers.
-2-
In the early morning hours of July 31, 1999, Boston Police
Officers Craig Jones, Mark Freire, and John Conroy were patrolling the
River Street area of Mattapan in an unmarked Crown Victoria sedan.
Jones was driving. The officers were members of the Boston Police
Department’s Youth Violence Strike Force and were in plain clothes.
Freire and Jones, who had 28 years of experience between them, were
familiar with their locale and understood it to be a high-crime area in
which the trafficking of cocaine and other drugs was common.
At approximately 1:30 a.m., the officers approached the Rolls
Club, a Mattapan bar. All of the officers knew that members of a
street gang, known as KOZ, frequented the Rolls Club. Jones knew that
KOZ was heavily involved in drug trafficking and firearms offenses.
Jones also understood that Cook, whom he had known for years, was a
member of KOZ and had a criminal history that included convictions for
drug trafficking, crimes of violence, and at least one firearms
offense. Freire did not know Cook. Nor was he familiar with Cook’s
criminal history.
As the officers approached the club in their unmarked
vehicle, Freire observed Cook and a second man facing each other with
their hands extended as if they were about to exchange something.
Before any exchange took place, the men looked at the approaching
police vehicle and, apparently recognizing it as such, pulled their
hands back and separated. Cook then entered the passenger side of a
-3-
nearby Ford Explorer, which was illegally parked with all four wheels
on the sidewalk, and slid across behind the steering wheel. Jones
first noticed Cook when he was inside the Explorer. After recognizing
Cook, Jones stopped his vehicle and made eye contact with Cook, who
looked alarmed. Both Freire and Jones thereafter saw Cook rise up out
of his seat as if to place something in his pants or in the seat behind
him. Jones identified Cook to his fellow officers and advised them
that he thought Cook might have a gun. Freire, who had observed Cook’s
interaction with the unidentified man on the street, also was concerned
that Cook had risen up out of his seat to hide drugs.
All three officers exited the police vehicle and approached
the Explorer. Jones advanced toward the driver’s side with his weapon
drawn and asked Cook, through the open window, whether he had a gun.
Cook replied that he did not. Jones then leaned in the driver’s side
window and, to the extent that he was able, patted Cook down. He then
escorted Cook to the back of the Explorer and left him with Freire
while he searched the vehicle for weapons. Freire, having noticed that
Jones had not been able to conduct a complete pat-down of Cook, began
patting him down. As he was doing so, he asked Cook whether he was
concealing anything of which the officers should be aware. Cook
responded that he had some marijuana.
Jones completed his search of the Explorer within a minute
and returned to the back of the vehicle while Freire was completing the
-4-
pat-down. Jones asked Cook if he had placed something in his pants,
and Cook replied that he had “a little bit of weed” on him. Jones was
skeptical and told Cook so, commenting that he wasn’t going to lock him
up for “a little bit of weed.” At that point, Cook admitted that he
had “few hits of crack.” Freire thereafter patted Cook down in the
area of his buttocks and confirmed the presence of a hard object. The
officers subsequently placed Cook under arrest and, after a brief
scuffle, subdued him and transported him to a nearby police station.
There, after being informed that the officers had the right to remove
the object from his buttocks, Cook produced a bag containing
approximately 16 grams of crack cocaine from the back of his shorts.
II.
The law governing investigative stops is well understood.
A law enforcement officer ordinarily may not stop someone and restrain
his freedom to walk away unless the officer has a “reasonable and
articulable suspicion of criminal activity.” United States v. Chhien,
266 F.3d 1, 6 (1st Cir. 2001). The reasonable suspicion test has been
described as an intermediate standard requiring more than unfounded
speculation but less than probable cause. See id. At a minimum, the
officer must have a “particularized and objective basis” for suspicion.
Ornelas v. United States, 517 U.S. 690, 696 (1996) (quoting United
States v. Cortez, 449 U.S. 411, 417-18 (1981)). When determining the
legitimacy of an investigative stop, a court must undertake a
-5-
contextual analysis using common sense and a degree of deference to the
expertise that informs a law enforcement officer’s judgments about
suspicious behavior. See Chhien, 266 F.3d at 6.
An investigative stop also must “be reasonably related in
scope to the circumstances which justified the interference in the
first place.” Terry, 392 U.S. at 20. If a law enforcement officer
reasonably suspects criminal activity, he may briefly question the
suspect about his concerns. See Berkemer v. McCarty, 468 U.S. 420, 439
(1984); United States v. Jones, 187 F.3d 210, 218 (1st Cir. 1999). If
he has a reasonable basis to suspect that the subject of his inquiry
may be armed, he also may frisk the suspect and undertake a limited
search of the passenger compartment of any vehicle in which he is
sitting. See United States v. Scott, 270 F.3d 30, 41 (1st Cir. 2001).
Once again, context is vital in determining the permissible scope of an
investigative stop.
Cook invokes these principles in challenging the district
court’s suppression ruling. He first argues that the district court
should have suppressed the cocaine because the officers lacked a
sufficient basis to reasonably suspect that he was illegally carrying
a firearm. Alternatively, he contends that, even if the initial stop
was justified, the officers should have released him immediately after
they determined that he was not armed. Both arguments depend upon the
unarticulated assumption that the legitimacy of the stop must be
-6-
determined solely from Jones’s perspective, without regard to
observations made by other officers who jointly participated in the
stop. Cook apparently reasons that because Jones (who first approached
him) did not personally witness any behavior which suggested that Cook
had recently participated in an attempted drug deal, the only possible
justification for the stop was Jones’s suspicion that Cook was
illegally carrying a firearm. This assumption is incorrect.
As the Supreme Court has repeatedly noted, common sense and
practical considerations must guide judgments about the reasonableness
of searches and seizures. See United States v. Sharpe, 470 U.S. 675,
685 (1985) (investigative stops); Illinois v. Gates, 462 U.S. 213, 238
(1983) (probable cause determinations); Texas v. Brown, 460 U.S. 730,
735-36 (1983) (other exceptions to warrant requirement) (plurality
opinion). Here, common sense suggests that, where law enforcement
officers are jointly involved in executing an investigative stop, the
knowledge of each officer should be imputed to others jointly involved
in executing the stop. See United States v. Ledford, 218 F.3d 684, 689
(7th Cir. 2000) (applying principle in similar joint-search situation);
see also United States v. Meade, 110 F.3d 190, 193-94 (1st Cir. 1997)
(discussing “Fellow-Officer/Collective-Knowledge” Rule).
Investigative stops generally occur in a dynamic environment
marked by the potential for violence. Officers who jointly make such
stops rarely will have an opportunity to confer during the course of
-7-
the stop. Basing the legitimacy of the stop solely on what the officer
who first approaches the suspect knows, rather than on the collective
knowledge of all of the officers who participate directly in carrying
out the stop, thus makes little sense from a practical standpoint. See
Ledford, 218 F.3d at 689. Moreover, while we have recognized that a
broad rendition of the collective knowledge principle could promote
illegal searches, see Meade, 110 F.3d at 194 (expressing concern about
applying the principle to impute the knowledge of an entire law
enforcement agency to officers involved in executing a search), a far
more limited application of the principle, one which takes into account
only the knowledge of officers present at the scene and directly
involved in effectuating a stop, is unlikely to encourage illegal
police activity. Therefore, we will determine whether the stop at
issue here was lawful by considering what both Jones and Freire knew
about Cook’s background and recent activities.
When we evaluate Cook’s claims by considering the collective
knowledge of all of the officers who participated in the stop, it
becomes apparent that they had ample grounds to stop Cook and briefly
question him about whether he had been involved in an attempted drug
transaction. As we have noted, Freire testified that he observed Cook
and another man in the midst of what looked to be some sort of exchange
at 1:30 a.m. in an area known for narcotics trafficking; that the men
broke off their interaction and separated when they saw the approaching
-8-
police officers; and that Cook then entered the illegally parked
Explorer and appeared to be secreting some object in his pants or in
the seat beneath him. While the information available to Freire does
not irrefutably establish that Cook had been involved in an attempted
drug deal, it provided a reasonable basis for his suspicions. No more
is required to justify the officers’ collective decision to briefly
detain and question Cook. Cf. United States v. Stanley, 915 F.2d 54,
56-57 (1st Cir. 1990) ( Terry stop reasonable where, just past midnight,
defendant was sitting alone in his car in a high-crime area; appeared
to be engaged in some purposeful though undefined drug-related
activity; and appeared to hide something under his seat when he saw the
officers approach). Moreover, because the officers were entitled to
question Cook about his suspected participation in a drug deal, their
right to detain him did not dissipate after they determined that he was
not armed.1
1 Although Cook does not press the point, we also note
that the officers were entitled to frisk Cook and search his
vehicle for weapons. When the officers encountered Cook
apparently engaged in a drug transaction in a high crime area
at 1:30 a.m., Jones knew that Cook was a member of a gang that
was involved in drug trafficking and violence, and that Cook
himself had a criminal record for engaging in drug
trafficking, violent crimes and at least one firearms offense.
The officers also knew that Cook appeared to be alarmed after
he saw them, and rose up in his seat as if to conceal
something in his pants or in the back of the vehicle. Under
these circumstances, the officers had substantial reason to
fear that Cook might be armed. See, e.g., Scott, 270 F.3d at
41; United States v. Gillard, 847 F.2d 21, 25 (1st Cir. 1988);
United States v. Trullo, 809 F.2d 108, 113 (1st Cir. 1987).
-9-
III.
For the reasons stated, we affirm the conviction of defendant
Donald Cook.
-10-