U.S. v. McCargo
| Decision Date | 13 September 2006 |
| Docket Number | Docket No. 05-4238-cr(XAP).,Docket No. 05-4026-cr(L). |
| Citation | 464 F.3d 192 |
| Parties | UNITED STATES of America, Appellant-Cross-Appellee, v. Dustin L. McCARGO, Defendant-Appellee-Cross-Appellant. |
| Court | U.S. Court of Appeals — Second Circuit |
James P. Kennedy, Jr., Assistant United States Attorney (Kathleen M. Mehltretter, Acting United States Attorney for the Western District of New York, on the brief), Buffalo, NY, for Appellant-Cross-Appellee.
Marianne Mariano, Assistant Public Defender, Federal Public Defender's Office, Western District of New York, Buffalo, NY, for Defendant-Appellee-Cross-Appellant.
Celeste L. Koeleveld, Assistant United States Attorney (Michael J. Garcia, United States Attorney for the Southern District of New York, Harry Sandick, Assistant United States Attorney; Kevin J. O'Connor, United States Attorney for the District of Connecticut, William J. Nardini and Robert M. Spector, Assistant United States Attorneys; Roslynn R. Mauskopf, United States Attorney for the Eastern District of New York, David C. James, Assistant United States Attorney; Glenn T. Suddaby, United States Attorney for the Northern District of New York, Brenda K. Sannes, Assistant United States Attorney David V. Kirby, United States Attorney for the District of Vermont, of counsel) for the United States Attorneys' Offices of the Southern, Eastern, and Northern Districts of New York, the District of Connecticut, and the District of Vermont as amici curiae in support of Appellant-Cross-Appellee.
Darrell B. Fields, Federal Defenders of New York, Inc. Appeals Bureau (Alexander Bunin, Federal Public Defender for the Northern District of New York; Thomas Dennis, Federal Public Defender for the District of Connecticut; and Michael DeSaultels, Federal Public Defender for the District of Vermont, of counsel) for the Federal Public Defenders Offices of the Second Circuit as amici curiae in support of Defendant-Appellee-Cross-Appellant.
Before WALKER, Chief Judge, JACOBS and WALLACE,* Circuit Judges.
Defendant-appellee-cross-appellant Dustin L. McCargo ("defendant" or "McCargo") was stopped by the Buffalo Police on July 28, 2003, blocks from a reported attempted burglary. The officers decided to take McCargo back to the scene of the alleged crime to see if the victim could identify him. Because the officers planned to transport him in the back of their patrol car, they frisked him for weapons in accordance with a departmental policy. During the frisk, the officers discovered a handgun. McCargo was arrested and later charged in federal court with possession of a firearm by a convicted felon. See 18 U.S.C. §§ 922(g)(1), 924(a)(2).
McCargo moved to suppress the gun. He argued that the frisk of his person, without a reasonable suspicion that he was armed, violated his Fourth Amendment rights. The district court agreed and suppressed the gun. It held that the initial stop and detention of McCargo was constitutional but that the officers were not permitted to frisk him unless they had a reasonable suspicion that he was armed. The government appealed, and McCargo, claiming error in the district court's holding that the initial stop was constitutional, cross-appealed.
At 12:53 a.m. on July 28, 2003, the 911 operator for the Buffalo Police Department was told by a caller from 501 Berkshire Avenue that someone was attempting to break into his residence. The only additional details the caller provided were that more than one person was trying to enter the house and that some of the perpetrators had gone around to the back of the house. Based on this 911 call, a Buffalo Police dispatcher transmitted a radio message to patrol cars in the area of 501 Berkshire Avenue.
Buffalo Police officers Sterlace and White were in a patrol car less than two blocks from 501 Berkshire when they received the radio transmission. They then proceeded eastbound on Berkshire. As they came to the intersection of Berkshire and Suffolk Street, the officers saw McCargo crossing Berkshire and continuing to walk north on the east side of Suffolk. The residence at 501 Berkshire is located on the south side of Berkshire, approximately 200 feet to the east of the intersection. The officers testified that as McCargo was walking north he was staring intently to his right at another patrol car that had already arrived at 501 Berkshire, so intently in fact that he did not notice Sterlace and White's car as the officers approached him.
The officers turned left onto Suffolk, drew along side the defendant, and told him to stop and approach the car. Sterlace testified that he wanted to detain McCargo to take him back to 501 Berkshire for possible identification by the victim. Both officers then left their car, and Sterlace patted down the defendant. White testified that it was departmental policy to pat down all persons before placing them in the back of a police car to protect the officers' safety.
While patting down McCargo, Sterlace felt a gun in McCargo's waistband. McCargo jumped away from Sterlace, and the gun became lodged in McCargo's sweatshirt and eventually fell to the ground. McCargo was placed under arrest and taken to police headquarters. A total of two minutes and thirty-eight seconds elapsed between the time the officers advised dispatch that they were proceeding to the scene and the time of the arrest. Because the officers responded to the dispatch call at most three minutes after the initial 911 call, less than six minutes elapsed between the time the 911 call was placed and the time of McCargo's arrest.
A federal grand jury indicted McCargo for the possession of a firearm by a convicted felon. See 18 U.S.C. §§ 922(g)(1), 924(a)(2). After McCargo moved to suppress the gun as the product of an unconstitutional search, the motion was referred to a magistrate judge (H. Kenneth Schroeder, Jr., Magistrate Judge), who found that the police had reasonable suspicion to stop McCargo, based on his location near the scene of the crime in a high-crime area very soon after the 911 call. The magistrate judge determined, however, that the pat-down was unconstitutional because the officers had no suspicion that McCargo was armed and recommended that the gun be suppressed. The district court (John T. Elfvin, Judge) adopted the magistrate judge's recommendations. The government appealed pursuant to 18 U.S.C. § 3731, and McCargo filed a cross-appeal.
The Fourth Amendment protects persons against "unreasonable searches and seizures." U.S. Const. amend. IV. Evidence seized pursuant to an unreasonable search or seizure or evidence that is the "fruit" of an unreasonable search or seizure must be suppressed and cannot be used in the prosecution's case in chief. James v. Illinois, 493 U.S. 307, 312, 110 S.Ct. 648, 107 L.Ed.2d 676 (1990); Wong Sun v. United States, 371 U.S. 471, 484-86, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). While searches and seizures conducted without a warrant are presumptively unreasonable, see Coolidge v. New Hampshire, 403 U.S. 443, 454-55, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971), several exceptions to the warrant requirement have been fashioned when circumstances demand an immediate police response, see, e.g., Terry v. Ohio, 392 U.S. 1, 20, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).
This case requires us to deal with three Fourth Amendment questions: (1) whether the initial stop and brief detention of McCargo by the police was constitutional under Terry; (2) whether the police were entitled, as part of the Terry stop, to transport McCargo to the scene of the crime to see if an identification could be made by the victim; and (3) whether the police were entitled to pat down McCargo before transporting him to the crime scene in a police car. We review de novo each of these legal questions. Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996); accord United States v. Singh, 415 F.3d 288, 293 (2d Cir.2005); see United States v. Moran Vargas, 376 F.3d 112, 114 (2d Cir.2004). For the weapon to be admissible against McCargo, each question must be answered in the affirmative.
The district court held that the officers had reasonable suspicion to stop and briefly detain McCargo, short of patting him down, because of his close physical and temporal proximity to the crime scene in a high-crime area. See Brown v. Texas, 443 U.S. 47, 51, 99 S.Ct. 2637, 61 L.Ed.2d 357 (1979) (). McCargo argues that the officers point to no aspect of McCargo's behavior that itself indicated criminal wrongdoing: he did not act nervous or evasive; he did not match a description of the perpetrator (in fact none existed); and, because he was crossing Berkshire with 501 Berkshire to his right, he was not walking away from the crime scene when the officers approached him.
We agree with the district court. Terry requires that a police officer have only "reasonable suspicion," United States v. Scopo, 19 F.3d 777, 781 (2d Cir.1994), that "criminal activity may be afoot" to justify an investigatory stop, Terry, 392 U.S. at 30, 88 S.Ct. 1868. Reasonable suspicion requires considerably less of a showing than probable cause. See United States v. Arvizu, 534 U.S. 266, 273, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002). Here, based on the totality of the circumstances, the officers had a reasonable suspicion that McCargo had been involved in a crime. Responding to a 911 call at close to 1:00 a.m., the officers spotted McCargo walking alone in a high-crime area where no other pedestrians were about. Cf. Illinois v. Wardlow, 528 U.S. 119, 124, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000) ()....
To continue reading
Request your trial
-
State v. Lewis
...of the crime.The defendant also was the only person in the area late at night in the pouring rain. See, e.g., United States v. McCargo , 464 F.3d 192, 197 (2d Cir. 2006) (reasonable suspicion existed to stop suspect, who was walking alone with no other pedestrians about, approximately 200 f......
-
Dancy v. McGinley
...blocks of the crime scene, such proximity was innocuous given the unremarkable nature of the area in question. Cf. United States v. McCargo , 464 F.3d 192, 197 (2d Cir. 2006). Dancy and Elting were first seen walking west on Main Street, about a block away from the crime scene, some minutes......
-
U.S. v. White
...courts have, for example, upheld the transportation of a suspect back to the crime scene for identification. See United States v. McCargo, 464 F.3d 192, 198 (2d Cir.2006) (concluding, after recognizing that "we have already held that the police may require a person temporarily detained unde......
-
Farag v. U.S.
...490 U.S. 1, 7, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989) (quoting Terry, 392 U.S. at 30, 88 S.Ct. 1868); see also United States v. McCargo, 464 F.3d 192, 197 (2d Cir.2006) (investigative detention under Terry "requires considerably less of a showing than probable cause." (citation omitted)). How......
-
Table of Cases
...151 Maycock, State v., 947 P.2d 695 (Utah App. 1997) 144 Mays v. State, 726 S.W.2d 937 (Tex. App. 1986) 20 McCargo, United States v., 464 F.3d 192 (2d Cir. 2006) 21 McClinton, United States v., 982 F.2d 278 (8th Cir. 1992) 110 McCormick v. State, 48 S.W.3d 549 (Ark. App. 2001) 210 McCoy, Un......
-
Chapter 1. Investigative Detention
...violator in the officer’s car for some valid reason, a frisk may be appropriate without any further reason. United States v. McCargo, 464 F.3d 192 (2d Cir. 2006). However, officers should not place violators in patrol cars merely in an effort to establish a basis to frisk. State v. Varnado,......