661 F.3d 718 (1st Cir. 2011), 09-2415, United States v. Camacho

Docket Nº:09-2415.
Citation:661 F.3d 718
Opinion Judge:TORRUELLA, Circuit Judge.
Party Name:UNITED STATES of America, Appellee, v.
Attorney:William W. Fick, with whom Federal Public Defender Office, was on brief for appellant. Mark T. Quinlivan, Assistant United States Attorney, with whom Carmen M. Ortiz, United States Attorney, was on brief for appellee.
Judge Panel:Before TORRUELLA, BOUDIN, and LIPEZ, Circuit Judges. BOUDIN, Circuit Judge, dissenting.
Case Date:November 23, 2011
Court:United States Courts of Appeals, Court of Appeals for the First Circuit
 
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661 F.3d 718 (1st Cir. 2011)

UNITED STATES of America, Appellee,

v.

Ángel CAMACHO, a/k/a Aníbal Castro, Defendant, Appellant.

No. 09-2415.

United States Court of Appeals, First Circuit.

November 23, 2011

Heard April 5, 2011.

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William W. Fick, with whom Federal Public Defender Office, was on brief for appellant.

Mark T. Quinlivan, Assistant United States Attorney, with whom Carmen M. Ortiz, United States Attorney, was on brief for appellee.

Before TORRUELLA, BOUDIN, and LIPEZ, Circuit Judges.

TORRUELLA, Circuit Judge.

Appellant Ángel Camacho was charged with one count of unlawful possession of a firearm and ammunition despite having a prior felony conviction, in violation of 18 U.S.C. § 922(g)(1), and one count of possession of a firearm with an obliterated serial number, in violation of 18 U.S.C. § 922(k). Camacho moved to suppress the firearm and ammunition, arguing that they were obtained through an illegal search and seizure in violation of the Fourth Amendment. The trial judge denied that motion. United States v. Camacho, 608 F.Supp.2d 178, 185 (D.Mass.2009). Camacho then entered conditional guilty pleas on both counts, reserving his right to challenge the trial judge's suppression ruling on appeal. He now exercises that right. We agree with Camacho that his motion to suppress should have been granted. Accordingly, we reverse.

I. Background and Procedural History

We summarize the facts as found by the district court in its denial of Camacho's motion to suppress. See Camacho, 608 F.Supp.2d at 180-81. Those findings of fact are consistent with the record and are not clearly erroneous. See United States v. Dancy, 640 F.3d 455, 458 (1st Cir.2011).

A. A Rumble in New Bedford

At 5:37 p.m., on January 11, 2008, a series of 911 calls reported a fight in progress in the North End neighborhood of New Bedford, Massachusetts, at the intersection of Nye and Brook Streets. One of the callers identified " most" of the combatants as members of the Latin Kings, a prominent national street gang. Sergeant Scott Carola of the New Bedford Police Department's Gang Unit was the first officer to arrive at the scene. Within a minute, two other Gang Unit members— Officers Adelino Sousa and David Conceicao— also arrived, driving an unmarked, police-issued Ford Crown Victoria 1 and wearing jackets adorned with the image of a police

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badge and the words " New Bedford Police" on the front and the words " Gang Unit" on the back.

Sergeant Carola saw twelve to fifteen people scattering from what appeared to have been a street brawl; Officer Sousa recognized several of them as affiliates of the Latin Kings. Sergeant Carola also noticed two men he did not recognize walking down the street; he directed Officers Sousa and Conceicao to intercept and question the two men. Those two men were Camacho and Louis Osario-Meléndez.

B. The Confrontation

Still driving in the Crown Victoria, Officers Sousa and Conceicao followed the two men as they walked around the corner, then pulled ahead of them into a driveway, partially blocking their path. Officer Sousa stepped out of the car and approached Camacho, while Officer Conceicao ordered Osario-Melé ndez to put his hands on the hood of the car. Sousa and Conceicao did not recognize the two men, and neither officer had reason to believe that either Camacho or Osario-Meléndez was a member of the Latin Kings.

Officer Sousa did notice, however, that Camacho's clothes were wet and his breathing was labored. Sousa asked Camacho where he was coming from, and Camacho replied, " Nye Street." Camacho said that he had seen the Nye Street fight, but denied having been involved in it. Camacho's speech was normal, and he was wearing a hooded sweatshirt, which Officer Sousa did not consider unusual. During their colloquy, Camacho held his hands in the front pockets of the sweatshirt. When Officer Sousa told him to remove his hands, Camacho did so slowly and deliberately, clasping his hands in front of his waistband, seeming to protect his midriff.

Finding Camacho's studied movement and hand placement unusual, Officer Sousa tapped Camacho's waist with his open palm. Sousa immediately felt the butt of a gun, and yelled, " Gun!" Camacho then " automatically" shoved Sousa, and Officer Conceicao drew his service revolver and aimed it at Osario-Meléndez. Sousa and Camacho began struggling, which Officer Conceicao ended " within thirty seconds" by hitting Camacho over the head with his flashlight, knocking him to the ground. With Camacho now subdued, Officer Sousa seized a .40 caliber Glock revolver— with a live round in the chamber and eight rounds in the magazine— from beneath Camacho's belt.

C. Legal Proceedings

1. The Indictment and Camacho's Motion to Suppress

A federal grand jury charged Camacho with two counts: one count of unlawful possession of a firearm and ammunition by a prior felon, in violation of 18 U.S.C. § 922(g)(1), and one count of possession of a firearm with an obliterated serial number, in violation of 18 U.S.C. § 922(k). Challenging both counts, Camacho moved to suppress the firearm and ammunition, arguing that they were obtained through an illegal search and seizure. The trial judge conducted an evidentiary hearing on the motion, at which Sergeant Carola, Officer Sousa, and Officer Conceicao testified.

2. The District Court's Ruling on the Motion to Suppress

The trial judge denied Camacho's motion to suppress. Camacho, 608 F.Supp.2d at 185. As a preliminary matter, the judge ruled that Camacho was seized for Fourth Amendment purposes when Officer Sousa began questioning him, noting that Officer Conceicao ordered Osario-Melé ndez to place his hands on the

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hood of officers' car while just a few feet away Officer Sousa was asking Camacho " questions that were accusatory in tone and content." Id. at 184. The judge agreed with Camacho that the police officers lacked the reasonable suspicion necessary for a Terry stop, explaining that " [t]he most that can be said is that the two men were observed in a high crime area walking away from the vicinity of a street fight that one caller reported as involving Latin Kings." Id. For the judge, this was not enough to raise a reasonable suspicion. See Illinois v. Wardlow, 528 U.S. 119, 124, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000) (" An individual's presence in an area of expected criminal activity, standing alone, is not enough to support a reasonable, particularized suspicion that the person is committing a crime." ). Nonetheless, the judge concluded that suppression of the gun was " neither called for nor appropriate." Camacho, 608 F.Supp.2d at 185. The trial judge found it material that " [t]he gun was seized only after Camacho shoved Sousa and only after the officers succeeded in wrestling Camacho to the ground and placing him under arrest." Id. Therefore, the judge reasoned, " [t]he acts of shoving Officer Sousa and resisting arrest were intervening crimes giving the officers independent grounds to arrest Camacho," id. (citing United States v. Bailey, 691 F.2d 1009, 1013 (11th Cir.1983) (en banc) (noting that resistance to even an unlawful arrest is a sufficient and independent ground for a second arrest for a new, distinct crime)), and the seizure of the gun was justified under the search incident to arrest exception to the Fourth Amendment. See United States v. Robinson, 414 U.S. 218, 236, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973).

3. Sentence and Appeal

After his motion to suppress was denied, Camacho entered conditional guilty pleas on both counts, reserving his right to challenge the district court's suppression ruling on appeal. The district court accepted Camacho's pleas and sentenced him to the mandatory minimum sentence of 15 years of imprisonment on Count One (to be served concurrently with 5 years of imprisonment on Count Two), followed by 5 years of supervised release, and a monetary penalty of $200.

On appeal, Camacho challenges the district court's denial of his motion to suppress the firearm and ammunition. He also argues that the district court erred by sentencing him as an " armed career criminal" based on his two prior felony convictions in Massachusetts. We agree with Camacho regarding the search and seizure, and we reverse on that basis, making his sentencing arguments moot.

II. Discussion

A. Standard of Review

When reviewing a challenge to the district court's denial of a motion to suppress, " [w]e view the facts in the light most favorable to the district court's ruling" on the motion, United States v. Soares, 521 F.3d 117, 118 (1st Cir.2008), and we review the district court's findings of fact and credibility determinations for clear error. Dancy, 640 F.3d at 460. " A clear error exists only if, after considering all the evidence, we are left with a definite and firm conviction that a mistake has been made." United States v. McCarthy, 77 F.3d 522, 529 (1st Cir.1996). Under this clear error standard for findings of fact, we " will uphold a denial of a motion to suppress if any reasonable view of the evidence supports it." United States v. Mendez-de Jesus, 85 F.3d 1, 2 (1st Cir.1996); see also United States v. Reynolds, 646 F.3d 63, 73 (1st Cir.2011);

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United States v. Cruz-Jiménez, 894 F.2d 1, 7 (1st Cir.1990) (" Where there are two competing interpretations of the evidence, the district court's choice of one of them cannot be clearly erroneous." ).

However, we review de novo the district court's conclusions of law, including its application of the law to the facts, its probable cause and...

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