385 F.3d 101 (1st Cir. 2004), 03-2735, United States v. Pardue

Docket Nº:03-2735.
Citation:385 F.3d 101
Party Name:UNITED STATES of America, Appellee, v. Corey PARDUE, Defendant, Appellant.
Case Date:October 06, 2004
Court:United States Courts of Appeals, Court of Appeals for the First Circuit
 
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385 F.3d 101 (1st Cir. 2004)

UNITED STATES of America, Appellee,

v.

Corey PARDUE, Defendant, Appellant.

No. 03-2735.

United States Court of Appeals, First Circuit

October 6, 2004

Heard Aug. 3, 2004.

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Robert C. Andrews, on brief, for appellant.

Margaret D. McGaughey, Appellate Chief, with whom Paula D. Silsby, United States Attorney, was on brief, for appellee.

Before BOUDIN, Chief Judge, TORRUELLA and DYK, [*] Circuit Judges.

TORRUELLA, Circuit Judge.

Defendant-appellant Corey Pardue ("Pardue") appeals the district court's denial of his motion to suppress evidence and a motion in limine related to his conviction for violating 18 U.S.C. § 922(g) (9). For the reasons stated below, we affirm.

I.

Pardue entered a conditional guilty plea to a one-count indictment charging him with possession of ammunition by a person convicted of a misdemeanor crime of domestic violence, in violation of 18 U.S.C. § 922(g) (9). 1 The guilty plea reserved the right to appeal the denial of his motion to suppress the evidence and the grant of the government's motion in limine.

On March 30, 2002, Portland Police Officer Christopher Coyne ("Coyne"), alone in his police cruiser, received a radio report of a 911 call for a domestic disturbance at 27 Veranda Street. Officer Richard Vogel ("Vogel") testified that he also heard the radio report of a domestic disturbance between Kyra Pardue and her brother Corey Pardue. Vogel, who was a more experienced officer than Coyne, knew the Pardue siblings.

During Coyne's ride to 27 Veranda Street, the dispatcher commented that a male was screaming at a female. In addition, the dispatcher explained that Kyra had complained she was assaulted by her brother, who was described as a white male, 20 or 21 years old, wearing a baseball hat and hooded sweatshirt, and carrying a backpack. The man had, according to dispatch, thrown a lighter at his sister and left 27 Veranda Street.

Although Coyne did not know either of the Pardue siblings, he recalled that Vogel reported being familiar with them and had suggested that Pardue might be absent without leave from the United States Marine Corps.

Coyne drove towards 27 Veranda Street to serve as back-up for Vogel. As he reached the intersection of Veranda and Pembroke, Coyne noticed a man fitting the description given by the dispatcher wearing a backpack, walking on Pembroke Street and heading away from Veranda Street. The man was several hundred feet away from the address given by the dispatcher. Coyne asked for his name and

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identification; Pardue gave both. Asked what was going on, Pardue said that, after getting into an argument with his sister, he left 27 Veranda Street so that nothing would happen. Coyne did not place Pardue under arrest. Vogel heard over the radio that Coyne had located Pardue.

Coyne testified that he took Pardue's backpack, which Pardue had on his person, and put it on the trunk of his police cruiser. Coyne then explained to Pardue that he wanted to conduct a pat-down, in light of the information from the dispatcher that Pardue had been involved in a domestic disturbance. Coyne performed the pat-down; no weapons were revealed. Coyne then asked Pardue to sit in the rear of the police cruiser, but kept the door open. Coyne testified that he searched the backpack without obtaining Pardue's consent because he was concerned about officer safety. Inside the backpack were various items of personal hygiene, paperwork from the Marine Corps, a scope and mounting brackets for a rifle and two boxes of rifle ammunition in a clear case.

Meanwhile, Vogel reached 27 Veranda Street and interviewed Kyra Pardue. According to Kyra, she argued with her brother because Pardue picked up her 17-month-old son and accidentally struck him in the eye with the corner of a toy box. Kyra yelled at her brother to put the boy down. Pardue threw the boy in a pile of dirty laundry. Kyra yelled at her brother to leave. Pardue responded by throwing a lighter at her leg, causing a welt. While Kyra called the police, Pardue threatened her, picked up his belongings and left the house.

Coyne heard Vogel, through the radio, saying that he had spoken to Kyra. Vogel asked that Coyne ride to 27 Veranda Street. During the drive, Pardue was in the back of the police cruiser but was not handcuffed.

Once Coyne arrived, he spoke with Vogel regarding Kyra Pardue's accusations. At Vogel's request, Coyne placed Pardue under arrest for domestic assault, explained the charge, handcuffed Pardue, and took him to the Cumberland County Jail. On February 5, 2003, Pardue was indicted for possession of ammunition by a person convicted of misdemeanor domestic violence, 18 U.S.C. § 922(g) (9).

Pardue moved to suppress the items found in his backpack, arguing that they were the product of an unlawful search. After an evidentiary hearing, the district court denied Pardue's motion.

Prior to trial, the government filed a motion in limine to exclude evidence related to Pardue's defense of entrapment by estoppel. Pardue sought to introduce testimony to the effect that a government official had somehow condoned the conduct for which he was convicted. The district court, after a hearing, granted the government's motion. Subsequently, Pardue entered a conditional guilty plea and filed the present appeal.

II.

A. Discovery of the Ammunition

We review a ruling on a motion to suppress under a bifurcated standard. The district court's factual rulings are reviewed for clear error and its legal conclusions are reviewed de novo. United...

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