U.S. v. Pardue

Decision Date06 October 2004
Docket NumberNo. 03-2735.,03-2735.
Citation385 F.3d 101
PartiesUNITED STATES of America, Appellee, v. Corey PARDUE, Defendant, Appellant.
CourtU.S. Court of Appeals — First Circuit

Appeal from the United States District Court for the District of Maine, Gene Carter, J.

COPYRIGHT MATERIAL OMITTED

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 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 States v. Maguire, 359 F.3d 71, 76 (1st Cir.2004). A determination regarding probable cause is reviewed de novo as it is a mixed question of law and fact. Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996).

Pardue's motion to suppress sought to exclude the ammunition which formed the basis of the indictment. The government opposed the motion on three grounds first, it argued that the initial discovery of the ammunition was incident to a lawful arrest based on probable cause to believe that Pardue had committed an assault; second, that the discovery was part of a lawful Terry stop; and finally, that the ammunition would have inevitably been discovered during an inventory search following Pardue's arrest. The district court held a hearing on the motion. Although it found that the officers did not have probable cause to arrest Pardue until they arrived back at 27 Veranda Street, and thus that the initial discovery of the ammunition was unlawful, the district court denied the motion to suppress because the evidence would inevitably have been discovered. Specifically, the district court found that probable cause to arrest existed once Coyne learned that Pardue had hit his sister in the leg with a lighter and thrown her son on a pile of laundry. At that point, a lawful arrest would have been effectuated and Pardue would have been properly taken into custody. Upon his arrival at the Cumberland County Jail, an inventory of his belongings would have taken place, and the ammunition would have been discovered.

In Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), the Supreme Court held that "a police officer may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest." Id. at 22, 88 S.Ct. 1868. To withstand scrutiny, an officer "must be able to articulate something more than an inchoate and unparticularized suspicion or `hunch.'" United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989)(quoting Terry, 392 U.S. at 27, 88 S.Ct. 1868) (internal quotations omitted). In evaluating the validity of a Terry stop, we consider the totality of the circumstances, mindful that "[t]he concept of reasonable suspicion, like probable cause, is not readily, or even usefully, reduced to a neat set of legal rules." Id. 7-8, 88 S.Ct. 1868 (quotations and citations omitted).

The stop of Pardue was appropriate and reasonable at its inception. Examining the circumstances leading up to the stop, we recount the relevant facts Coyne knew or could have reasonably inferred when he initially stopped Pardue. He knew that a domestic assault had been committed in the vicinity, that it had been committed by someone whose physical description matched that of the individual he saw, and that the assailant had departed from the scene on foot.

The second inquiry is whether the scope of the investigatory stop was reasonable under the circumstances. United States v. Trueber, 238 F.3d 79, 92 (1st Cir.2001). While the district court found that the officers had reasonable suspicion to stop Pardue, it held that Coyne did not have a particularized safety concern. Indeed, we note that by the time Coyne searched the backpack, it had already been taken away from Pardue and there was no apparent risk that Pardue could have obtained a weapon or anything else from it. Thus, the district court held, and we agree, that the initial search of the backpack was outside the bounds set by Terry.

The district court also found that Coyne lacked probable cause to arrest Pardue until after he had taken Pardue to 27 Veranda Street and learned that the lighter Pardue threw at his sister had, in fact, hit her.2 Nevertheless, the district court held that, even if Coyne's initial search of Pardue's backpack exceeded the bounds of a Terry search, "[a]s a result of defendant's lawful arrest [at 27 Veranda Street for domestic assault], the ammunition would have inevitably been discovered during the security search at the Cumberland County Jail or when Officer Coyne inventoried the contents of the backpack...." See generally Nix v. Williams, 467 U.S. 431, 447-48, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984); United States v. Zapata, 18 F.3d 971,...

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