202 F.3d 1 (1st Cir. 2000), 99-1697, United States v Woodrum

Docket Nº:99-1697.
Citation:202 F.3d 1
Case Date:January 20, 2000
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

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202 F.3d 1 (1st Cir. 2000)




No. 99-1697.

United States Court of Appeals, First Circuit

January 20, 2000

Heard Nov. 2, 1999.

Rehearing snd Suggestion for Rehearing En Banc Denied April 6, 2000.[*]


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[Copyrighted Material Omitted]

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Jonathan Shapiro, with whom Noel Richardson and Stern, Shapiro, Weissberg & Garin were on brief, for appellant.

Patrick M. Hamilton, Assistant United States Attorney, with whom Donald K. Stern, United States Attorney, and John A. Wortmann, Jr., Assistant United States Attorney, were on brief, for the United States.

Before Selya, Circuit Judge, Coffin, Senior Circuit Judge, and Boudin, Circuit Judge.

Selya, Circuit Judge.

This appeal raises a novel constitutional question. After traversing uncharted Fourth Amendment waters, we affirm the trial court's denial of a passenger's motion to suppress evidence gleaned as a result of a police stop, on bare suspicion, of a taxicab enrolled in a voluntary Boston Police Department (BPD) program designed to ensure cabdriver safety.

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Understanding this case requires familiarity with both the BPD's Taxi Inspection Program for Safety (TIPS) and the events surrounding the traffic stop. We treat these topics separately.

A. The Program.

In 1991, responding to safety concerns accentuated by two recent murders, Boston's police commissioner promulgated an executive order that instituted "Operation Taxi." In terms, the order "actively encouraged" police officers "to make frequent stops of taxicabs for the purpose of checking on the operator's safety," especially after dark and in high-crime areas. In the order's aftermath, however, a number of state trial judges ruled that stops made pursuant to Operation Taxi violated the constitutional proscription against unreasonable searches and seizures. See U.S. Const. amend. IV. Rather than throw out the baby with the bath water, the BPD reconfigured the program in an effort to meet the courts' objections.

The police commissioner launched the new program, nicknamed TIPS, on September 3, 1996. The promulgating order made taxi owners' participation voluntary and assigned responsibility for enrolling acquiescent owners to the BPD's Hackney Carriage Unit. Owners who opted to participate were given decals and told to affix one to each of the cab's rear side windows and a third in a conspicuous location in the rear passenger compartment. Each decal is four by five inches in size, with a bright red border, and bears the BPD shield. Each states in block print (in English and Spanish): "THIS VEHICLE MAY BE STOPPED AND VISUALLY INSPECTED BY THE BOSTON POLICE AT ANY TIME TO ENSURE DRIVER'S SAFETY." The words "PUBLIC NOTICE" appear in enlarged letters above this statement and the words "BOSTON POLICE TAXI INSPECTION PROGRAM FOR SAFETY" appear in enlarged letters below. TIPS differs from its predecessor program in these two respects: voluntary participation and deployment of identifying decals.

The police commissioner's order instructed uniformed and plainclothes personnel to make frequent stops of taxis that featured the decals to check on the operators' safety. The order continued:

Stops should be conducted when and wherever necessary, particularly during the evening and early morning hours. Attention will be given to isolated and high crime areas. Taxi drivers are not to be detained longer than is necessary to check on the welfare of the operator. Passengers in occupied taxis are to be given a brief explanation of the purpose of the stop: Operator Safety. A Taxi Inspection Program for Safety form (BPD form 1833, revised 8/96)... shall be completed at the time of the stop.

B. The Stop and its Aftermath.

TIPS was in effect shortly after midnight on January 22, 1998, when police sergeants Stephen Meade and Eric Bulman heard a report of a shooting near the intersection of Columbia Rd. and Washington St. in the Grove Hall section of Dorchester (a high-crime neighborhood). The officers, who were in plainclothes, drove toward that intersection in an unmarked car to offer assistance. As they neared their destination, they heard a second radio bulletin: two police officers, on foot, were pursuing an individual in the vicinity of Castlegate Rd. and Blue Hill Ave. Meade and Bulman drove there instead - the locus was only a few blocks away from the site of the reported shooting - and discovered that their fellow officers had cornered the object of their pursuit inside a building on Blue Hill Ave. The pursuing officers arrested the individual, informing Meade and Bulman that the arrest related to a drug transaction rather than to the recent shooting.

Meade and Bulman began walking toward their car at approximately 12:40 am

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(a half-hour after they had heard the report of the shooting). As they stood on the sidewalk, they saw a cab pull up to the corner and stop before making a right turn from Castlegate Rd. The officers noticed a passenger - defendant-appellant Ronald Woodrum - on the far side of the rear seat. He glanced in their direction and then slouched down.

Thinking that the passenger might be the perpetrator of the earlier shooting, Meade and Bulman decided to follow the taxi. They trailed the vehicle for about a block, observing that the passenger sat up straight once it had turned the corner. The officers then decided to stop the cab. They have testified that, although they were aware of the TIPS decals, their primary concern was the shooting investigation.

The officers flashed their lights and the taxi pulled to the side of the road. As Meade and Bulman walked toward it, they could see the appellant's right shoulder go up and his left shoulder dip as he glanced down toward the left. Based on these movements, the officers suspected that the appellant was secreting a weapon inside his coat. They flanked the cab and shined flashlights into the back seat. Meade could see that the appellant's right hand was moving around inside his coat. Meade opened the rear door closest to where Woodrum was seated, and Bulman opened the opposite door.

The appellant immediately started to protest that all he had was a beer. When he reached into his left jacket pocket with his left hand, Bulman told him not to take anything out of his coat and to put his hands in plain view. Notwithstanding this admonition, the appellant kept his right hand under his coat; Meade, concerned for his safety, directed the appellant to step outside. He grudgingly complied. When he freed his right hand and exited the taxi, a gun fell out of his jacket. At that point, the officers arrested him. Bulman and Meade filled out a TIPS form and took the appellant to the station house for booking. A search performed at that time turned up crack cocaine, a pipe, a pager, and some cash.

In due course, federal authorities charged the appellant with being a felon in possession of a firearm and ammunition, and with possessing cocaine base with intent to distribute. See 18 U.S.C. § 922(g)(1); 21 U.S.C. § 841(a)(1). The appellant moved to suppress the physical evidence gleaned as a result of the stop, as well as evidence of incriminating statements made during his detention. Following an evidentiary hearing, the district court upheld the stop on dual grounds: first, that the circumstances gave rise to reasonable suspicion of criminal activity, warranting the stop; and second, that TIPS legitimated it. See United States v. Woodrum, No. 98-10183-RGS, 1998 WL 849373, at *3 (D. Mass. Dec. 1, 1998). The appellant then entered a conditional guilty plea to reduced charges, reserving the right to appeal the denial of his suppression motion. See Fed. R. Crim. P. 11(a)(2). The district court imposed sentence and this appeal followed.


We begin our substantive discussion with a synopsis of certain Fourth Amendment principles and then proceed to discuss this case.

A. The Legal Landscape.

It is doctrinal bedrock that a police stop of a moving vehicle constitutes a seizure of the vehicle's occupants and therefore comes within the purview of the Fourth Amendment. See Whren v. United States, 517 U.S. 806, 809-10 (1996); United States v. Hensley, 469 U.S. 221, 226 (1985). This principle applies equally to drivers and passengers. See United States v. Sowers, 136 F.3d 24, 27 (1st Cir. 1998); see also Whren, 517 U.S. at 819 (evaluating a passenger's challenge to a traffic stop along with

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the driver's). Hence, each occupant of a car has a right to challenge the propriety of a traffic stop under the Fourth Amendment. Although courts occasionally use the term "standing" as a shorthand for this status, the real implication is that the individual's Fourth Amendment interests were affected by official actions. See Rakas v. Illinois, 439 U.S. 128, 138-39 (1978); United States v. Sanchez, 943 F.2d 110, 113 n.1 (1st Cir. 1991).

The primary interests that the Fourth Amendment protects in this type of situation include an interest in freedom of movement and a concomitant interest in being insulated from the fear and anxiety that frequently accompany a sudden, unexplained stop. These interests "are personal to all occupants of the vehicle." United States v. Kimball, 25 F.3d 1, 5 (1st Cir. 1994). Although Kimball dealt with a private automobile, its logic applies equally to taxicabs. A taxi fare - who by definition has contracted to pay for both the right to exclude others from the cab and the right to control its destination in certain respects - has a reasonable expectation that he will...

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