U.S. v. Am

• Decision Date: 21 April 2009
• Docket Number: No. 07-2794.,07-2794.
• Citation: 564 F.3d 25
• Parties: UNITED STATES of America, Appellee, v. Samnang AM, a/k/a Sammang Am Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

564 F.3d 25

UNITED STATES of America, Appellee, v. Samnang AM, a/k/a Sammang Am Defendant, Appellant.

No. 07-2794.

United States Court of Appeals, First Circuit.

Heard February 4, 2009.

Decided April 21, 2009.

Walter H. Underhill, by Appointment of the Court, for appellant.

Samnang Am on brief pro se.

Lisa M. Asiaf, Assistant U.S. Attorney, with whom Michael J. Sullivan, United States Attorney, was on brief for appellee.

Before BOUDIN, STAHL, and LIPEZ, Circuit Judges.

STAHL, Circuit Judge.

Defendant-appellant Samnang Am appeals both his conviction and sentence under the felon-in-possession statute, 18 U.S.C. § 922(g)(1). Am's primary argument is that the district court erred in denying his motion to suppress a firearm and ammunition seized incident to a Terry stop.¹ He additionally claims that the court was in error when it found that one of his prior convictions qualified as a predicate under the Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e)(1). Finding no error, we affirm both the conviction and subsequent sentence.

I.

We relate the facts "as the trial court found them, consistent with record support." United States v. Ruidiaz, 529 F.3d 25, 27 (1st Cir.2008) (quoting United States v. Lee, 317 F.3d 26, 30 (1st Cir. 2003)). On May 26, 2005, Sergeant Michael Vail and Officer Michael Kmiec of the Lynn Police Department were patrolling in a marked police cruiser a high-crime area of Lynn, Massachusetts, where there were frequent shootings and where the Department was conducting increased patrols as part of its ongoing gang suppression strategy. At approximately 7:00 p.m., the uniformed officers observed Am, who Vail recognized, walking alone down Essex Street. Am then on probation, a fact Vail knew, was on his way to a mandatory anger management course, a term of his probation. Upon seeing Am, Vail turned the cruiser around and without using the take down lights or siren, pulled up behind Am.

Just minutes before the officers observed Am, Detective Robert Hogan of the Lynn Police Gang Unit had informed Vail that Am was a suspect in a recent shooting. Vail had previously interacted with Am roughly twenty to thirty times, the encounters varying in nature with twenty percent resulting in a pat-frisk. Although none of Vail's prior searches had yielded a weapon, Vail had interviewed Am in 2003 after Am was arrested with a rifle on his person, and Vail knew that Am had been a suspect in several prior shootings. Vail also was aware that Am was a leader of the Oriental Street Boys, a Massachusetts gang affiliate of the Los Angeles-based Crypts. Further, Vail was familiar with Am's reputation for carrying a weapon and knew that Am was prohibited from doing so by the terms of his probation. Importantly, Vail never before had seen Am walking alone and surmised that he would not do so, in rival gang territory, without being armed.²

After pulling approximately five to fifteen feet behind Am, both officers exited the vehicle. Am did an "about face," began walking toward the officers, and in a quick motion, put his right hand into his right-hand pants pocket. Vail immediately ordered Am to take his hand out of his pocket, and Am complied.³ Vail and Kmiec put Am against the hood of the police cruiser, pat-frisked him, found a gun in his left front pocket, and then arrested him. Am filed a motion to suppress evidence seized from the Terry stop on the basis that the stop was not supported by reasonable suspicion and thus violated the Fourth Amendment. After the district court denied Am's motion, Am filed a conditional guilty plea.

Prior to and during the sentencing hearing, Am objected to his Presentence Report which concluded that he was an armed career criminal because he had been convicted for a violation of 18 U.S.C. § 922(g) and because he had at least three prior convictions for violent felonies. See 18 U.S.C. § 924(e)(1); U.S.S.G. § 4B1.4. Specifically, Am argued that a 1997 juvenile conviction for assault with a dangerous weapon, a knife, did not qualify as an ACCA predicate because the court documents from the 1997 conviction did not make clear whether Am had pled guilty to assault by means of a dangerous weapon or, more specifically, to assault by means of a dangerous weapon, a knife. The court rejected Am's argument and sentenced him to fifteen years imprisonment with three years of supervised release.

II.

A. The Motion to Suppress

Am challenges the denial of his motion to suppress the evidence seized during the pat-frisk. Am first argues that the district court's denial was improper because the Lynn officers lacked reasonable suspicion to conduct a Terry stop. Terry v. Ohio, 392 U.S. 1, 19-20, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Alternatively, he contends that the officers exceeded the bounds of a permissible Terry stop, constituting a de facto arrest in the absence of probable cause.

We review the district court's factual findings for clear error and its legal conclusions de novo. Ruidiaz, 529 F.3d at 28. "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. Barnes, 506 F.3d 58, 62 (1st Cir.2007) (quoting United States v. McCarthy, 77 F.3d 522, 529 (1st Cir.1996)). This "[d]eference to the district court's findings of fact reflects our awareness that the trial judge, who hears the testimony, observes the witnesses' demeanor and evaluates the facts first hand, sits in the best position to determine what actually happened." United States v. Young, 105 F.3d 1, 5 (1st Cir.1997).

The Fourth Amendment provides that "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated." U.S. Const., amend. IV. Its primary purpose is to protect against "arbitrary and oppressive interference by enforcement officials with the privacy and personal security of individuals." I.N.S. v. Delgado, 466 U.S. 210, 215, 104 S.Ct. 1758, 80 L.Ed.2d 247 (1984) (quoting United States v. Martinez-Fuerte, 428 U.S. 543, 554, 96 S.Ct. 3074, 49 L.Ed.2d 1116 (1976)).

In Terry v. Ohio, the Supreme Court counseled that "a police officer may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest." 392 U.S. at 21, 88 S.Ct. 1868. Thus, a police officer is permitted to make a brief investigatory stop of an individual if the officer has reasonable suspicion that criminal activity may be afoot, United States v. Arvizu, 534 U.S. 266, 273, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002), and to frisk an individual if the officer has reasonable suspicion that the person is armed and dangerous, Terry, 392 U.S. at 27, 88 S.Ct. 1868. See id. at 30, 88 S.Ct. 1868 (permitting a limited search to discover weapons "where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot."). The so-called Terry stop "lies somewhere between a consensual encounter and a full-blown custodial arrest," United States v. Harris, 218 Fed.Appx. 525, 527 (7th Cir.2007), such that reasonable suspicion "requires more than a mere hunch but less than probable cause," Ruidíaz, 529 F.3d at 29.

Under our "familiar two-pronged inquiry," we evaluate "whether the officer's action was justified at its inception, and whether the action taken was reasonably related in scope to the circumstances which justified the interference in the first place." United States v. Taylor, 162 F.3d 12, 18 (1st Cir.1998) (quoting Terry, 392 U.S. at 20, 88 S.Ct. 1868). To satisfy the first prong, we decide whether the police officer can "point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion." United States v. Kimball, 25 F.3d 1, 6 (1st Cir.1994) (quoting Terry, 392 U.S. at 21, 88 S.Ct. 1868); see also Terry, 392 U.S. at 27, 88 S.Ct. 1868 ("[I]n determining whether the officer acted reasonably in such circumstances due weight must be given, not to his inchoate and unparticularized suspicion or `hunch,' but to the specific reasonable inferences which he is entitled to draw from the facts in light of his experience."). To determine whether a pat-frisk is justified under the second prong of our analysis, we consider the totality of the circumstances. United States v. Cortez, 449 U.S. 411, 417, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981); see United States v. Bayless, 201 F.3d 116, 133 (2d Cir.2000) ("[T]he court must evaluate those circumstances `through the eyes of a reasonable and cautious police officer on the scene, guided by his experience and training.'") (quoting United States v. Oates, 560 F.2d 45, 61 (2d Cir.1977)).

We turn first to the inception of the Lynn officers' stop and note that even innocuous facts, which when taken alone may not be "sufficient to create reasonable suspicion[,] ... may in combination with other innocuous facts take on added significance." Ruidiaz, 529 F.3d at 30 (citation omitted). Here, the officers articulated six factors that led them to believe Am might be engaged in criminal activity. We find that five factors articulated by the officers, even excluding the tip from Hogan, were sufficient to show that the officers possessed the reasonable suspicion necessary to conduct a Terry stop of Am.

Among the factors taken into account by Vail and Kmiec was Am's presence in a high-crime area. While location on its own is insufficient to create reasonable suspicion, it "is clearly a consideration that a police officer may use to decide to make a Terry stop." Kimball, 25 F.3d at 7; see also Illinois v. Wardlow, 528 U.S. 119, 124, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000) ("[O]fficers are not required to ignore the relevant characteristics of a location in determining whether the...