U.S. v. Nee, s. 00-2037

Citation261 F.3d 79
Decision Date03 April 2001
Docket NumberNos. 00-2037,00-2315,s. 00-2037
Parties(1st Cir. 2001) UNITED STATES OF AMERICA, APPELLANT, v. BRIAN J. NEE, DEFENDANT, APPELLEE. UNITED STATES OF AMERICA, APPELLANT, v. KEVIN M. KELLEY, DEFENDANT, APPELLEE. Heard
CourtUnited States Courts of Appeals. United States Court of Appeals (1st Circuit)

[Copyrighted Material Omitted] Timothy Q. Feeley, Assistant U.S. Attorney, with whom Donald K. Stern, United States Attorney, and Donald L. Cabell, Assistant U.S. Attorney, were on brief, for appellant.

Brian J. McMenimen, with whom Burke, McMenimen & Payton, was on brief, for appellee Nee.

Benjamin D. Entine, with whom Donald K. Freyleue, were on brief, for appellee Kelley.

Before Torruella, Circuit Judge, Bownes, Senior Circuit Judge, and Lipez, Circuit Judge.

Lipez, Circuit Judge

Pursuing an interlocutory appeal "from a decision or order of a district court suppressing or excluding evidence," 18 U.S.C. § 3731, the government appeals the district court's decision to suppress evidence seized from defendants-appellees, Brian J. Nee and Kevin M. Kelley. Kelley and Nee were charged with violating 18 U.S.C. § 922(g)(1), which prohibits the possession of a firearm by a convicted felon, after police discovered two loaded weapons in Nee's car during the course of a traffic stop. Although the district court found that the initial stop was permissible under Terry v. Ohio, 392 U.S. 1 (1968), the court rejected the police officers' account of the subsequent search of the car and their claim that the weapons were discovered inadvertently. Instead, the court found that the officers had conducted an intentional search for evidence of a crime despite their acknowledgment that they did not have probable cause for such a search. Consequently, the court concluded that the search violated the Fourth Amendment.

On appeal, the government argues that there was no constitutional violation, either because the district court erred in its factual findings about the purpose of the search, or, in the alternative, because the officers had an objectively reasonable basis for conducting a protective sweep of the car that justified the search irrespective of its true object, pursuant to Michigan v. Long, 463 U.S. 1032 (1983) and Whren v. United States, 517 U.S. 806 (1996). We affirm, concluding that the court did not err in its factual findings and that the government waived its alternative argument.

I.

At approximately 9:30 p.m. on March 10, 1999, Boston Police Officers Gillis, Yalmokas and Cellucci, along with Massachusetts State Police Trooper Ball, were on duty in an unmarked car in the Dorchester section of Boston. The officers observed a green Ford Mustang and noted that: 1) there was a hole where the trunk lock should have been; 2) the rear license plate was hanging from a single screw; 3) there was no front license plate; and 4) the vehicle had dark tinted windows. Suspecting that the car might be stolen, the officers decided to stop the car and investigate it. Before they could, the car, driven by Nee with Kelley in the passenger seat and a third passenger, Brian Wallace, in the back, pulled into a gas station. The officers saw Nee exit the vehicle and begin to pump gas, and Kelley get out of the car from the passenger side.

The officers turned on their police lights and drove into the gas station. Trooper Ball approached Nee, offered a greeting, and advised him that the car he was driving had "no front plate, [a] rear plate hanging off, [a] trunk lock popped and windows [that were] too dark." In the exchange that followed, Nee stated that the car belonged to his wife. Nee then tried to walk past Ball, indicating that his driver's license was in the vehicle. Ball told Nee to stop. According to the police report and Ball's testimony, Nee appeared nervous and agitated. He reported that his license was in the center console of the car but he was not sure where the registration was located. At this point, Nee again tried to walk past Ball toward the vehicle. This time, Ball physically stopped him and told him to relax, adding, "We don't know what you have in there." Officer Gillis, standing nearby, patted Nee down for weapons, and Officer Cellucci did the same for Kelley. No weapons were found.

Ball directed Cellucci to get Nee's driver's license from the center console. Before doing so, Cellucci frisked Wallace who was still seated in the back seat, and again, no weapons were found. Officer Cellucci told the passenger to get out of the car. He and Officer Gillis then visually inspected the car through the passenger and driver's side doors respectively before Cellucci entered the vehicle. Both saw a screwdriver located in the passenger door as well as some damage to the interior that was consistent with a stolen vehicle.1 Gillis saw what looked like an ignition switch on the passenger side floor. Cellucci saw some damage to the steering column. After these quick observations, Cellucci entered the vehicle.

At this point the district court ceased to credit the officers' story.2 Cellucci said that he had inadvertently discovered the guns when he entered the vehicle to retrieve Nee's license from the center console, an account corroborated by Officer Gillis. According to the officers, Cellucci placed his hand on the top part of the passenger seat to steady himself as he reached into the car. The seat, however, was improperly bolted to the floor and gave way. As he was falling, Cellucci brought his other hand down to maintain his balance. It landed on a knapsack that Cellucci testified was lying on the floor in front of the seat. Cellucci claimed he could feel guns through the fabric when his hand landed on the knapsack. The officers subsequently arrested all three men.

The district court rejected this account of the discovery of the guns. After noting that neither Cellucci nor Gillis testified to having seen the knapsack when they visually inspected the interior of the car, the court concluded that the knapsack was not located on the floor in front of the seat as the officers had testified. Instead, the district court found that the officers had not mentioned seeing the knapsack because it was actually located underneath the passenger seat, and that Cellucci had conducted an intentional search of the vehicle for evidence of a crime. As part of this search, therefore, Cellucci pulled the knapsack out from under the seat and then discovered the weapons that led to the arrest of the three men.

Before trial, Nee, Kelley, and Wallace filed motions to suppress the two loaded firearms found in the knapsack.3 The government opposed the motions, raising Michigan v. Long in defense of Cellucci's entry into the car to retrieve Nee's license because of a concern that weapons might be in the vehicle. The district court concluded, however, that because Officer Cellucci conducted an intentional search for evidence of a crime, that search had to be justified by probable cause. Noting that the officers conceded a lack of probable cause, the court suppressed the guns as the fruit of an unconstitutional search.4

II.

In determining whether, in the absence of probable cause, an investigatory seizure and search violates the Fourth Amendment, we use the two-prong test set forth in Terry v. Ohio, 392 U.S. 1, 19-20 (1968). First, we ask whether the officers' actions were justified at their inception, and second, whether their actions were reasonably related in scope to the circumstances which justified the officers' initial interference. Id.; see also United States v. Sharpe, 470 U.S. 675, 682 (1985); United States v. Stanley, 915 F.2d 54, 55 (1st Cir. 1990). The district court concluded that the initial stop in this case -- for "possible traffic infractions and [a] possible stolen car" -- was legally permissible under the first prong of Terry. At issue, then, is only the second prong of Terry, namely, whether the ensuing search was reasonable in its scope. The government argues that Michigan v. Long, 463 U.S. 1032 (1983) provides support for Cellucci's entry into the vehicle to obtain Nee's driver's license from the center console.

Limited searches of a person for weapons are constitutionally permissible adjuncts to a Terry stop if "a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger." Terry, 392 U.S. at 27. Long expanded the permissible area of such a search from people to automobiles. Long, 463 U.S. at 1049. Specifically, the Long Court held that a purely protective search of the areas of an automobile where weapons may be hidden does not violate the Fourth Amendment if the officers "possess[] a reasonable belief based on 'specific and articulable facts which... reasonably warrant' the officers in believing that the suspect is dangerous and the suspect may gain immediate control of the weapons." Id. (quoting Terry, 392 U.S. at 21).

By its own admission, the government did not anticipate that the district court would not credit the officers' "inadvertent" discovery description of the search of the vehicle. As a result, the government's argument before the district court that this case fell under Long was based upon the inadvertent discovery of the guns by Cellucci, following his entry into the vehicle for the limited purpose of retrieving the license. According to the government, this entry was valid as a protective search under Long because it allowed the officers to continue their investigation while also excluding Nee from an area that could possibly contain weapons. When the district court rejected the officers' account of Cellucci's entry, however, it eliminated the factual predicate of this Long argument.

On appeal, the government seeks to revive this Long argument through a challenge to the district court's factual finding that Cellucci entered the vehicle to conduct an intentional search for evidence of a crime or contraband. "The findings of the...

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