U.S. v. Allen

• Decision Date: 22 July 2009
• Docket Number: No. 08-1451.,08-1451.
• Citation: 573 F.3d 42
• Parties: UNITED STATES of America, Appellee, v. Darrell D. ALLEN, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

573 F.3d 42

UNITED STATES of America, Appellee, v. Darrell D. ALLEN, Defendant, Appellant.

No. 08-1451.

United States Court of Appeals, First Circuit.

Heard December 1, 2008.

Decided July 22, 2009.

Neil S. Tassel, with whom Gary G. Pelletier and Denner Pellegrino, 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 appellee.

Before LYNCH, Chief Judge, BOUDIN and LIPEZ, Circuit Judges.

LIPEZ, Circuit Judge.

Pursuant to a conditional guilty plea which preserved his right to challenge the district court's suppression rulings, appellant Darrell D. Allen was sentenced to 180 months in prison for being a felon in possession of a firearm. In his sole argument on appeal, citing disputed material facts, he claims that the court erred by failing to hold an evidentiary hearing before denying his motion to suppress certain statements and physical evidence. Unfortunately for appellant, he did not generate the supposedly disputed material facts until he submitted material in support of a motion for reconsideration. We conclude, therefore, that the district court did not abuse its discretion in ruling on appellant's motion to suppress without a hearing and in denying his motion for reconsideration of that order.

I.

A. Procedural Background

On June 7, 2006, a federal grand jury in the District of Massachusetts returned an indictment charging appellant with being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). On November 3, 2006, appellant filed a motion to suppress the firearm and ammunition seized by Boston police officers on May 28, 2005, the night of his arrest, as well as certain statements he made to Officer John Coyne that evening. The government filed its opposition to the motion on November 16, 2006. On February 8, 2007, without holding an evidentiary hearing, the district court granted in part and denied in part the motion to suppress, prompting appellant to file, on February 27, 2007, a motion for reconsideration, with a supplemental affidavit and exhibits. The district court was unpersuaded and denied the motion for reconsideration on May 10, 2007.

Appellant entered his guilty plea on June 7, 2007. Under the terms of the plea agreement, Allen retained the right, which he now exercises, to appeal the district court's suppression ruling. He was sentenced on March 5, 2008, to 180 months (15 years) in prison, the mandatory minimum sentence for the charged offense, and three years of supervised release.

B. Factual Background

We begin by describing the record before the district court at the time of defendant's original motion to suppress, noting purportedly disputed facts where relevant.

On May 28, 2005, Lieutenant Luis Cruz, Sergeant Felipe Colon, and Officer Ivan Bermejo, all of the Boston Police Department, were on patrol in an unmarked police cruiser in the Roxbury neighborhood of Boston, Massachusetts. At approximately 1:00 a.m., while driving down Blue Hill Avenue, they saw two men, later identified as appellant and Balgene Samuels, drinking from a clear bottle of beer. The officers turned their car around and returned to the location where they had seen the two men. The officers observed two cars parked nearby on Maywood Street; a Mercedes Benz CLK 320 Sedan, and a Ford Expedition sports utility vehicle. According to Lieutenant Cruz's affidavit, as the police approached the men, Lieutenant Cruz noticed a half-full bottle of Corona brand beer sticking out of Allen's jacket pocket. The two men identified themselves to the police; appellant stated that the Mercedes belonged to his aunt and Samuels told the officers that the Expedition was his brother's. Sergeant Colon informed the men that because of the high gun activity in the area, they were going to be pat frisked. After the frisk, Sergeant Colon removed the bottle of Corona from appellant's right jacket pocket and a small silver knife from his left pant pocket. Samuels, for his part, admitted that there were several bags of marijuana in his pocket and gave them to Sergeant Colon, along with a knife he removed from his back pocket. According to the police report, when Colon then asked Samuels about the contents of the Ford, Samuels became nervous. Sergeant Colon opened the driver's side door of the Expedition and found a firearm — a loaded Ruger 9mm handgun-on the floor. Both Samuels and Allen were then placed under arrest; Samuels for unlawful possession of a handgun and marijuana, and appellant for drinking in public (which is an arrestable offense under City of Boston Ordinance 16-5.1).

At that point, other law enforcement officers began to arrive to provide assistance, including Officer James Coyne. According to Officer Coyne's affidavit, Sergeant Colon advised him that they had already found a gun in the Expedition, and "handed [appellant] off" to Coyne. In his affidavit, Officer Coyne explained that at this point he assumed, based on his training and experience, that Sergeant Colon wanted to separate the two suspects while he continued to investigate the gun. Officer Coyne did not realize that appellant had already been placed under arrest but had not been given his Miranda warnings.

Officer Coyne walked appellant over to his police cruiser and pat-frisked him again, finding a single Mercedes Benz key (which Allen said belonged to his aunt) and some cash in his front pockets, both of which he returned to Allen. After placing Allen in the rear of the cruiser, Officer Coyne asked him whether there was anything illegal in the Mercedes, stating that if there were, Allen's aunt would be charged with it. Appellant replied "whatever you find, charge me with it." According to his affidavit, Officer Coyne then asked appellant for the key to the Mercedes, but appellant denied having it. Officer Coyne instructed appellant to get out of the cruiser. He then discovered that the key was no longer in the pocket where he had found it just moments before. After unsuccessfully searching the rear compartment of the cruiser and the area outside the vehicle for the key, Officer Coyne told Allen that, if need be, he would break the window to get into the Mercedes. Appellant sat down on the sidewalk and retrieved the key from his sock.

Once Allen was returned to the rear of the cruiser, Officer Coyne walked up to the Mercedes. In his affidavit, Officer Coyne averred that, once he had reached the Mercedes, he began to look inside, shining his flashlight to illuminate the vehicle's interior. Officer Coyne explained that he began his inspection by looking through the rear window and then proceeded to the windows on the driver's side as he walked around the side of the car along the curb. According to his sworn testimony, when Officer Coyne reached the corner of the front windshield, he leaned over the fender and the hood of the vehicle, with both feet planted on the ground, and shone his flashlight into the driver's side area. He specifically denied having to walk or sit on the hood to look inside of the car, although he admitted that he may have made some incidental contact with the fender and the windshield as he moved around the vehicle.

As we discuss further infra, in the memorandum of law accompanying his motion to suppress, Allen presented a different account of this incident. Allen claimed that, "according to the reports provided in discovery, Officer Coyne then began to attempt to examine the interior of the locked Mercedes. Unable to see anything incriminating in the interior . . ., he positioned himself on top of the hood of the Mercedes, and shined his flashlight into the vehicle's interior." The memorandum contained no record citations for this version of events, and Allen's affidavit did not mention Officer Coyne's physical location when he saw the weapon.

Officer Coyne's affidavit recounted how, once he shone his flashlight into the vehicle from the vantage point he had described (i.e., leaning over the fender and the hood), he was able to see the top of a chrome-colored gun. He immediately notified Sergeant Colon, who walked over to the vehicle, took the key from Coyne, and opened up the driver's side door to confirm that the object was indeed a gun. Officer Coyne approached appellant and demanded his license to carry a firearm, which appellant stated he did not have. According to the officer's affidavit, Coyne then removed Allen from the cruiser, placed him in handcuffs, informed him of his Miranda rights, and took him to the police station for booking.

Officer Coyne's affidavit further states that, after they arrived at the station, and appellant had been informed of his Miranda rights for a second time, appellant stated that the "peashooter" was his and that the police "should just slap me off the head with the gun and send me home." Appellant also said that there were "no bullets in the tube but in the clip" and that the gun had a serial number. According to Officer Coyne, this conversation lasted no more than 5-10 minutes. However, in the affidavit Allen submitted in support of his motion to suppress, Allen presented an alternative version of events. He stated generally that he had been "questioned under duress and coercion," and claimed that the statements he had allegedly made "were the result of questioning after being placed under arrest but prior to being informed of my Miranda rights."

After Allen and Samuels had been arrested, Lieutenant Cruz, who remained at the scene, decided to impound the cars and conduct an inventory search of the vehicles.

C. The Motion to Suppress

In the memorandum of law supporting his motion to suppress, Allen argued (1) that Officer Coyne's search of his person and seizure of the key violated the Fourth Amendment; (2) that the search of the Mercedes was illegal and was not justified by any exception to the warrant requirement; and (3) that his questioning by Officer...