United States v. Belin

• Decision Date: 22 August 2017
• Docket Number: No. 15-2192,15-2192
• Citation: 868 F.3d 43
• Parties: UNITED STATES of America, Appellee, v. King BELIN, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

868 F.3d 43

UNITED STATES of America, Appellee,

v.King BELIN, Defendant, Appellant.

No. 15-2192

United States Court of Appeals, First Circuit.

August 22, 2017

Paul J. Garrity, Boston, MA, for appellant.

Kunal Pasricha, Assistant United States Attorney, with whom William D. Weinreb, Acting United States Attorney, was on brief, for appellee.

Before Lynch, Selya, and Kayatta, Circuit Judges.

KAYATTA, Circuit Judge.

King Belin was convicted at trial of being a felon in possession of a firearm and sentenced to seventy-one months' imprisonment. He raises two issues on appeal: whether there was reasonable suspicion for the stop-and-frisk that resulted in the discovery of the firearm, and whether the district court erred by allowing him to direct his attorney not to pursue certain factual lines of defense at trial. We conclude that the stop-and-frisk was lawful and that the district court did not err in the way it resolved Belin's dispute with his attorney.

I.

A.

As is customary when reviewing the denial of a motion to suppress, we recount the facts as found by the district court, consistent with record support. See United States v. Romain , 393 F.3d 63, 66 (1st Cir. 2004).

At 6:45 P.M. on September 17, 2012, the Boston Police Department radio broadcast a call that a fight involving either kids or girls had broken out at the intersection of Norfolk Street and Fessenden Street near Norfolk Park in Mattapan, a Boston neighborhood. Norfolk Park had been the site of multiple recent firearms arrests and incidents. Two Boston Police Department officers, Officer Bissonnette and Officer Finn, responded to the call. They drove to the location and saw a group of five men walking down the sidewalk of Norfolk Street toward Fessenden Street and Norfolk Park. They pulled over in front of the group of men where the sidewalk dips to allow pedestrians to cross the street, so that their car blocked the crosswalk. As the officers got out of the car, one of the men, Belin, peeled off from the others and hurried away from the officers, crossing the street toward Norfolk Park.

Bissonnette recognized Belin. He had arrested Belin in 2009 about half a mile away from Norfolk Park for having a firearm in his car without a license. He also knew that Belin was listed in a police database as a member of a local gang, the Norfolk Street Bulls. Belin was wearing a heavy black hooded sweatshirt that was "not tight-fitting." The temperature that evening hovered just below seventy degrees Fahrenheit. One person in the park at the time was wearing a "light parka"; another was wearing a t-shirt. Bissonnette also wore a t-shirt.

Bissonnette followed Belin and said, "Yo, King, what's going on?" Belin looked at him, half-smiled, and continued walking. Bissonnette caught up to Belin, who stopped and turned around.¹ Bissonnette asked if Belin had anything on him. Belin became unusually nervous, his demeanor and facial expression changed, he took a deep breath, and then his breathing became quick and shallow. He looked around "as if searching for a means of escape."

Bissonnette grabbed one of Belin's arms with one hand and reached toward Belin's waist with the other to frisk his waistband. Both of Belin's hands moved toward his waist, and Bissonnette grabbed them. A struggle ensued, other officers came to help, and they took Belin to the ground. After Belin was handcuffed, the officers searched him and discovered a gun, marijuana, and five rounds of ammunition. Belin moved to suppress the results of the search, arguing that the stop-and-frisk occurred without reasonable suspicion that he was armed and dangerous. The district court denied the motion, and Belin appeals that denial.

B.

Although we have summarized the facts as found by the district court and as supported by the record viewed "in the light most favorable to the district court's ruling," United States v. Camacho , 661 F.3d 718, 723 (1st Cir. 2011) (quoting United States v. Soares , 521 F.3d 117, 118 (1st Cir. 2008) ), "we review de novo the district court's conclusions of law, including its application of the law to the facts, its probable cause and reasonable suspicion determinations, and the district court's ultimate legal decision to grant or deny the motion to suppress," id. at 724 (emphasis omitted). We also review de novo the court's legal conclusion about at what point the facts amounted to a seizure. See United States v. Taylor , 511 F.3d 87, 91 (1st Cir. 2007).

The parties disagree on four points, each of which we must resolve to decide this appeal: (1) when the stop occurred; (2) whether there was reasonable suspicion for the stop; (3) when the frisk occurred; and (4) whether there was reasonable suspicion for the frisk. For the following reasons, we agree with the district court that the stop occurred when Bissonnette put his hand on Belin's arm, that the stop and the frisk occurred simultaneously, and that there was reasonable suspicion sufficient to justify the frisk (and thus, in this case, the stop as well).

1.

This case involves a seizure short of a formal arrest known as a " Terrystop," after Terry v. Ohio , 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). See id. at 16, 88 S.Ct. 1868 (holding that a Fourth Amendment seizure occurs "whenever a police officer accosts an individual and restrains his freedom to walk away"). "The police need not have taken physical custody of a person in order to be deemed to have effected a Terry stop for which at least reasonable suspicion is required." United States v. Fields , 823 F.3d 20, 25 (1st Cir. 2016). "Such a stop instead may occur merely upon law enforcement making what the Supreme Court has termed a ‘show of authority.’ " Id. (quoting United States v. Mendenhall , 446 U.S. 544, 553–54, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980) (opinion of Stewart, J.)). "Such a ‘show of authority’ occurs, however, only when ‘in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.’ " Id. (quoting Mendenhall , 446 U.S. at 554, 100 S.Ct. 1870 (opinion of Stewart, J.)).

Examples of circumstances that might indicate a seizure, even where the person did not attempt to leave, would be the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer's request might be compelled.

Mendenhall , 446 U.S. at 554, 100 S.Ct. 1870 (opinion of Stewart, J.)² ; see also Fields , 823 F.3d at 25 (relying on these examples); United States v. Ford , 548 F.3d 1, 5 (1st Cir. 2008) (adopting and supplementing the list in Mendenhall ). "[W]ith respect to a seizure based upon an officer's show of authority, no seizure occurs until the suspect has submitted to that authority." United States v. Sealey , 30 F.3d 7, 9 (1st Cir. 1994) (citing California v. Hodari D. , 499 U.S. 621, 626, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991) ).

We observe, initially, that Bissonnette testified that he resolved to "search" Belin immediately upon recognizing him. The applicable test, however, focuses not on the officer's intent, but rather on the objective manifestations of authority as discerned by a reasonable person in the position of the defendant.³ See Fields , 823 F.3d at 25. Bissonnette's intent thus does not control, although it certainly could have been considered by the district court in resolving any factual disputes concerning exactly what Bissonnette did and how he came across to Belin.

Properly focusing on what the district court found that Belin saw, heard, and felt, Belin argues that the show of authority manifesting a Terry stop occurred when Bissonnette approached him, which caused him to stop and answer Bissonnette's questions. We have little doubt that many reasonable people would feel it appropriate to stop and answer an officer's questions in such a situation. The police, however, are entitled to approach people and ask questions without always being deemed to have ordered a stop. See Mendenhall , 446 U.S. at 553, 100 S.Ct. 1870 (opinion of Stewart, J.) ("Police officers enjoy ‘the liberty (again, possessed by every citizen) to address questions to other persons,’ although ‘ordinarily the person addressed has an equal right to ignore his interrogator and walk away.’ " (quoting Terry , 392 U.S. at 31, 32–33, 88 S.Ct. 1868(Harlan, J., concurring))). "The ‘free to leave’ test thus focuses on whether the conduct of law enforcement ‘objectively communicate[s] that [law enforcement] is exercising [its] official authority to restrain the individual's liberty of movement.’ " Fields , 823 F.3d at 25 (alterations in original) (emphasis omitted) (quoting United States v. Cardoza , 129 F.3d 6, 16 (1st Cir. 1997) ); see also Hodari D. , 499 U.S. at 628, 111 S.Ct. 1547 (" Mendenhall establishes that the test for existence of a ‘show of authority’ is an objective one: not whether the citizen perceived that he was being ordered to restrict his movement, but whether the officer's words and actions would have conveyed that to a reasonable person.").

This court has concluded that no seizure occurred in situations with greater shows of authority than were manifest here before Bissonnette touched Belin. See, e.g. , Fields , 823 F.3d at 27 (holding no seizure occurred where, after asking defendant investigatory questions, the police officer called for backup and four other police officers arrived); United States v. Smith , 423 F.3d 25, 30 (1st Cir. 2005) (holding no seizure occurred where police officers approached and stood on either side of defendant, who was sitting on a wall, as they questioned him). Based on this controlling precedent and the district court's factual findings concerning the events in question, we cannot conclude that Bissonnette had objectively communicated the use of his official authority to restrain Belin until he grabbed Belin's arm. See United States v. Zapata , 18...