U.S. v. Dubose

Decision Date31 August 2009
Docket NumberNo. 08-2382.,08-2382.
Citation579 F.3d 117
PartiesUNITED STATES of America, Appellee, v. Jamont DUBOSE, Defendant, Appellant.
CourtU.S. Court of Appeals — First Circuit

Before LYNCH, Chief Judge, TORRUELLA and EBEL,* Circuit Judges.

EBEL, Circuit Judge.

Defendant-Appellant Jamont Dubose challenges the district court's denial of his motion to suppress evidence found when he was stopped and frisked by the police. After the district court denied his motion to suppress, Dubose pled guilty to being a felon in possession of a firearm, but preserved his right to appeal the denial of his motion to suppress. This timely appeal followed.

Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we AFFIRM.

I. Background

"We relate the facts `as the trial court found them, consistent with record support.'" United States v. Am, 564 F.3d 25, 27 (1st Cir.2009) (quoting United States v. Ruidíaz, 529 F.3d 25, 27 (1st Cir.2008)). In the afternoon of February 22, 2007, two Boston Police Officers, Officers Canuto and Ryan, witnessed a Camry double-parked on Fairmount Street, near the corner with Washington Street. Shortly thereafter, the officers observed Jamont Dubose walk down Washington Street, turn on Fairmount Street, and approach the Camry. Dubose then leaned into the front driver's side of the Camry and, with both hands and his upper torso inside the vehicle, had a brief encounter with its occupants. He then turned around and walked back the way he came. Because of the location of the car and the configuration of the streets, Dubose could not have seen the Camry on Fairmount Street from where he was walking on Washington Street. Therefore, Officer Canuto concluded that this was a pre-arranged meeting. Given the brief nature of the meeting, the fact that it appeared to have been pre-arranged, and the fact that this encounter fit the description of drug transactions that had previously occurred in the area1, the officers thought that they may have witnessed a drug transaction.

Their suspicions aroused, Officers Canuto and Ryan decided to question Dubose. They turned their car around, parked at an angle facing the wrong way on the street, and with their badges displayed, began walking towards Dubose. Officer Ryan soon became sidetracked speaking with some pedestrian bystanders, so Officer Canuto approached Dubose alone. Officer Canuto stated that, as he approached Dubose, who was walking away with his right hand in his sweatshirt pocket, he said, "Excuse me, sir, can I talk to you for a second?" (Appx. at 10, 52, 95.) Initially, Dubose ignored him and kept walking. However, after Officer Canuto repeated the question in an increasingly loud voice a few more times, Dubose, with his right hand still in his sweatshirt pocket, turned around and faced Officer Canuto. Concerned that Dubose might have a firearm in his pocket, Officer Canuto told him to remove his hand from his pocket. Dubose initially refused to do so but, after Canuto repeated his order a number of times, Dubose "reluctantly complied" with Officer Canuto's demands. (Appx. at 11.) Because of Dubose's reluctance to remove his hand from his pocket, his nervous demeanor, and Officer Canuto's prior experience with drug dealers who often carry weapons Officer Canuto decided to conduct a pat-frisk of Dubose's sweatshirt pockets.

As he patted Dubose's sweatshirt, Officer Canuto immediately noticed a hard object that he suspected might be a firearm and asked, "What is this?" (Id. at 69.) Dubose responded, "It's not mine." (Id.) Officer Canuto then reached into the pocket and retrieved a loaded .22 caliber revolver. Officer Canuto alerted Officer Ryan that he had retrieved a firearm. Dubose then attempted to flee and, after a brief foot chase, the officers subdued him. As the officers were arresting him, Dubose stated, "I just found it and picked it up." (Id. at 11.)

In September 2007, a grand jury indicted Dubose for being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1), and charged that, if convicted, his firearm would be subject to the forfeiture provisions of 18 U.S.C. § 924(d) and 28 U.S.C. § 2461(c). Dubose filed a motion to suppress the evidence found during his encounter with the police, arguing that the search and seizure that led to the recovery of the firearm in his possession were conducted in violation of the Fourth Amendment to the United States Constitution and Article 14 of the Massachusetts Declaration of Rights.2 In March 2008, the district court issued a written opinion denying Dubose's motion to suppress. In June 2008, Dubose notified the court of his intent to enter a conditional plea of guilty to Count I of the indictment, expressly preserving his ability to appeal the district court's denial of his motion to suppress. See Fed.R.Crim.P. 11(a)(2). On October 2, 2008, the court entered judgment against Dubose on Count I of the indictment, and sentenced him to 180 months' imprisonment. This timely appeal, challenging the order denying his motion to suppress as well as the judgment and sentence, was filed on October 8, 2008.

II. Analysis
A. Standard of Review

"This court applies a mixed standard of review for orders granting or denying suppression. [This] court reviews a district court's findings of fact and credibility determinations on a suppression motion for clear error and its conclusions of law de novo." United States v. Andrade, 551 F.3d 103, 109 (1st Cir.2008) (citation omitted). "We recount the facts in the light most favorable to the district court's ruling on the motion to suppress, but only to the extent that they have support in the record and are not clearly erroneous." United States v. Holloway, 499 F.3d 114, 115 (1st Cir.2007); see also United States v. Cook, 277 F.3d 82, 84 (1st Cir.2002) ("We construe the record in the light most favorable to the district court's ruling, drawing reasonable inferences in the government's favor."); United States v. Nee, 261 F.3d 79, 84 (1st Cir.2001) (explaining that "[t]his deferential standard requires that an appellate court exhibit great respect for the presider's opportunity to hear the testimony, observe the witnesses' demeanor, and evaluate the facts at first hand") (quoting United States v. Zapata, 18 F.3d 971, 975 (1st Cir.1994)) (internal quotation marks omitted).

B. Dubose Was Seized

A person is seized when the police restrain that person's liberty. Holloway, 499 F.3d at 117. The Supreme Court has distinguished two kinds of restraint: physical or a verbal "show of authority" that would compel a reasonable person to comply. California v. Hodari D., 499 U.S. 621, 626, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991). Physical force alone is a seizure. Id. at 624-25, 111 S.Ct. 1547. But when an officer makes a show of authority instead, the person is not seized until the person submits to the show of authority by complying with the officer's instruction. Id.; Holloway, 499 F.3d at 117. Once the person complies, his liberty has been restrained and he is seized under the Fourth Amendment. United States v. Sealey, 30 F.3d 7, 9 (1st Cir.1994).

When Officer Canuto first approached Dubose, he said, "Excuse me, sir, can I talk to you for a second?" (Appx. at 10, 52, 95.) Initially, Dubose ignored him and kept walking, but after Officer Canuto repeated the question in an increasingly loud voice, Dubose, with his hand in his sweatshirt pocket, stopped and turned to face Officer Canuto. Office Canuto several times ordered Dubose to take his hand out of his pocket because the officer feared Dubose might have a gun. Dubose initially refused to comply, but after several such commands by Officer Canuto, eventually he complied.

We need not get excessively embroiled in whether the seizure occurred when Dubose stopped walking and turned to face Officer Canuto or whether it occurred a few seconds later when he removed his hand from his sweatshirt in response to Officer Canuto's command. Only a few seconds elapsed during this interaction which is best analyzed as a single ongoing encounter that should be viewed holistically, rather than bifurcated into artificially small increments.

We have no difficulty concluding that by the time Dubose had complied with Officer Canuto's demand that he stop and remove his hand from his sweatshirt pocket, there had been a seizure.

C. Dubose's Seizure Was Justified by the Officers' Reasonable and Articulable Suspicion of Criminal Activity

"A law enforcement officer ordinarily may not stop someone and restrain his freedom to walk away unless the officer has a reasonable and articulable suspicion of criminal activity." Cook, 277 F.3d at 85 (internal quotations omitted). The seizure in this case was justified because, when Officer Canuto seized Dubose, he had "a reasonable and articulable suspicion" that Dubose had engaged in criminal activity.

Officer Canuto testified that he became suspicious of Dubose because of the brief nature of his meeting with the occupants of the Camry, the fact that their meeting appeared to be pre-arranged, the fact that Dubose leaned his entire upper body into the car during the interaction, and that Dubose's conduct was similar to the conduct involved in other drug transactions in the area. While there may have been an entirely innocent explanation for Dubose's conduct, Officer Canuto is a six-year veteran of the Boston Police Department, and we owe a measure of deference to his expertise in interpreting the events in this case. See Ruidíaz, 529 F.3d at 29 (stating that the determination of reasonable suspicion "requires a practical, commonsense determination—a determination that entails a measurable degree of deference to the...

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