579 F.3d 117 (1st Cir. 2009), 08-2382, United States v. Dubose

Docket Nº:08-2382.
Citation:579 F.3d 117
Opinion Judge:EBEL, Circuit Judge.
Party Name:UNITED STATES of America, Appellee, v. Jamont DUBOSE, Defendant, Appellant.
Attorney:Daniel J. Cloherty, by appointment of the court, with whom Victoria L. Steinberg and Dwyer & Collora, LLP were on brief for appellant. Mark T. Quinlivan, Assistant United States Attorney, with whom Michael J. Sullivan, United States Attorney, was on brief for appellees.
Judge Panel:Before LYNCH, Chief Judge, TORRUELLA and EBEL,[*] Circuit Judges.
Case Date:August 31, 2009
Court:United States Courts of Appeals, Court of Appeals for the First Circuit
 
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Page 117

579 F.3d 117 (1st Cir. 2009)

UNITED STATES of America, Appellee,

v.

Jamont DUBOSE, Defendant, Appellant.

No. 08-2382.

United States Court of Appeals, First Circuit.

August 31, 2009

Heard June 1, 2009.

Page 118

Daniel J. Cloherty, by appointment of the court, with whom Victoria L. Steinberg and Dwyer & Collora, LLP were on brief for appellant.

Mark T. Quinlivan, Assistant United States Attorney, with whom Michael J. Sullivan, United States Attorney, was on brief for appellees.

Page 119

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 area 1, 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,

Page 120

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...

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