U.S. v. Andrade

• Citation: 551 F.3d 103
• Decision Date: 31 December 2008
• Docket Number: No. 08-1175.,08-1175.
• Parties: UNITED STATES of America, Appellee, v. Clarence ANDRADE, Defendant, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

551 F.3d 103

UNITED STATES of America, Appellee, v. Clarence ANDRADE, Defendant, Appellant.

No. 08-1175.

United States Court of Appeals, First Circuit.

Heard December 3, 2008.

Decided December 31, 2008.

Mark T. Quinlivan, Assistant United States Attorney, with whom Michael J.

Sullivan, United States Attorney, was on brief, for appellee.

Martin J. Vogelbaum, Assistant Federal Public Defender, for appellant.

Before LYNCH, Chief Judge, HOWARD, Circuit Judge, and GARCIA-GREGORY,^* District Judge.

GARCIA-GREGORY, District Judge.

Defendant-appellant Clarence Andrade ("Andrade") was charged in the United States District Court for the District of Massachusetts with being a felon in possession of a firearm and ammunition in violation of 18 U.S.C. § 922(g)(1). On January 23, 2007, Andrade filed a motion to suppress the firearms and ammunition seized by Officer Gary Sarmento ("Sarmento") of the New Bedford, Massachusetts Police Department (the "Department"). After holding a suppression hearing, the district court upheld the legality of a stop and frisk performed by Sarmento, which revealed that Andrade had two weapons and ammunition with him. Accordingly, the district court denied Andrade's motion. United States v. Andrade, 502 F.Supp.2d 173 (D.Mass. 2007). The defendant thereafter entered a guilty plea, reserving the right to challenge the denial of his suppression request. Following the imposition of sentence,¹ the defendant, acting on the reservation, instituted this appeal.

FACTUAL AND PROCEDURAL BACKGROUND

"We recount the relevant facts as the trial court found them, consistent with record support." United States v. Ngai Man Lee, 317 F.3d 26, 30 (1st Cir.2003). Shortly after midnight on January 22, 2006, New Bedford police received numerous reports of shots being fired. The New Bedford police members that responded to these reports recovered numerous shell casings from the area of Purchase Street and Madison Street. About an hour later, two men that confessed to being in the area were admitted into St. Luke's Hospital with non-life threatening gunshot wounds.²

On that same date, at 2:25 pm, a 911 caller reported a shooting threat to a New Bedford, Massachusetts police operator. After being told by the operator that he was on a recorded line, the caller reported that "[t]hree guys [are] looking to start with some other guy outside on the street here" and confirmed that he was calling from 37 Madison Street. The caller further stated that each of the three men were wearing a hooded sweatshirt-one white, one gray, and one black. The caller told the operator that one of the three men threatened the man who lived in the third floor of 37 Madison Street, telling him that "I'll come back and shoot you or kill you or whatever." In addition, the caller stated that the three men were "walking south on [what] looks like Pleasant Street." The operator, who had a caller ID display showing the name and address associated with the calling telephone number, took notes of the caller's statements.

Sergeant John T. Catterall ("Catterall"), the Department's patrol supervisor at the time, received a textual report of the call on a mobile data computer in his cruiser. The report indicated that the caller was the first floor tenant at 37 Madison Street and that the potential victim was the third floor tenant. After reading the report, Catterall radioed the Department's dispatcher to send other officers to the Madison Street area, telling her that he would go there as well. The dispatcher then broadcasted over the police radio system:

12 and 13, can you make your way [to] 37 Madison Street? There's a complainant on the first floor saying, uh, guess some males were arguing with a party that lives on the third floor here, and they threatened to come back and shoot the party. Uh, they are going to be three males, all had hooded sweatshirts, uh, black, gray and white in color. Left south on Pleasant Street on foot.

Several officers notified Catterall that they were headed to the Madison Street area, among them was Sarmento. Catterall proceeded to 37 Madison Street and interviewed the first floor tenant. Before he began his interview, Catterall heard over his walkie-talkie that Sarmento had stopped several males at Russell and Purchase Streets that matched the description of the caller.

After receiving the Department's dispatch, Sarmento had confirmed with the dispatcher that the males were "walking south on Pleasant from Madison" and that he was in the area. The officer then proceeded to look for the men matching the caller's description. Sarmento did not see anyone on Pleasant Street. However, three houses down on the next intersection he observed that five individuals were walking south on Purchase Street. The officer noted that three of the individuals were males clad in a black, gray, and white hooded sweatshirts respectively. Sarmento pulled over and ordered the individuals to stop. Four of the individuals stopped. Only one refused to obey Sarmento's order: Andrade. Sarmento then put his arm out to stop Andrade and the defendant continued forward, walking into Sarmento's arm. Andrade refused to make eye contact and looked around as if he was attempting to flee. Additionally, Andrade and another of the males had their hands in their front pockets. Sarmento also recognized one of the other males as having a criminal history and as having been involved in violent gang related activities. Sarmento then grabbed Andrade by his sweatshirt and held him against the trunk of his police cruiser, bent over at the waist. The officer did the same thing to the other male who had his hands in his pocket. Sarmento later testified that he was concerned that the men might be armed and that he felt he was in danger. Another officer arrived at the scene and Sarmento requested that said officer take control of the second male. Sarmento then turned his attention to Andrade to frisk him for weapons. He was able to observe that Andrade had the handle of a firearm sticking from his waistband. Sarmento was able to see the handle of the weapon because Andrade's sweatshirt had bunched up around the back of his neck and had been pulled up above his waist when he was bent at the waist over the police cruiser. Sarmento seized the weapon, placed Andrade on the sidewalk, handcuffed him, and began to frisk him further. This frisk led to his finding a second handgun together with a bag containing ammunition, which the officer seized. Sarmento then arrested Andrade.

While these events were taking place on Purchase Street, Catterall had gone to the building at 37 Madison Street where the 911 caller lived. Catterall interviewed the caller, Jason Alcock ("Alcock"), who shared the last name and the residence with the registered owner of the place from which the 911 call was made. Alcock confirmed that he had made the 911 call. Following his conversation with Alcock, Catterall interviewed Ernie Souza ("Souza"), the third-floor tenant at 37 Madison. The interview with Souza revealed that Alcock had related the facts incorrectly to the 911 operator. Souza told Catterall that while he was lighting firecrackers, three men stopped to admonish him telling him that it was not smart for him to light firecrackers when there had been a shooting nearby earlier that morning. Souza stated that the three men had not threatened to shoot him and that after an unfriendly exchange of words the men had walked off. Sarmento could not have been aware of this information when he stopped and frisked Andrade.

Andrade was charged in the United States District Court for the District of Massachusetts with being a felon in possession of a firearm and ammunition in violation of 18 U.S.C. § 922(g)(1). On January 23, 2007, Andrade filed a motion to suppress the firearms and ammunition seized. After holding a suppression hearing, the district court denied the motion. The district court upheld the legality of Andrade's stop because the totality of circumstances at the time were sufficient for Sarmento to have a reasonable suspicion that Andrade was involved in wrongdoing. Specifically, the district court found that the totality of the following facts provided Sarmento with a reasonable suspicion of criminal activity justifying Andrade's stop: (1) Sarmento was an experienced officer, who was familiar with gang activity in New Bedford; (2) he was aware that the area where Andrade was stopped and frisked was a high-crime area and that two individuals had been shot in that vicinity approximately fourteen (14) hours earlier; (3) no suspects had been identified in that shooting; (4) Sarmento was responding to a radio dispatch warning that, a few minutes earlier, three males wearing black, white, and gray hooded sweatshirts had threatened to shoot another person; (5) Sarmento spotted five individuals walking in the direction described by the dispatch caller; and (6) three of them were wearing hooded sweatshirts that matched the description of the dispatch caller.

The district court also held that Sarmento had a reasonable basis to perform a pat down frisk on Andrade. First, the court noted that Sarmento recognized that one of the individuals had been involved in violent gang activity. Second, Andrade ignored Sarmento's order to stop and walked into the officer's arm. Third, Andrade refused to make eye contact and looked around as if he wanted to flee. Fourth, Sarmento noted that Andrade's hands were in his pocket, possibly concealing a weapon. Finally, the district court noted that Sarmento testified at the suppression hearing that he felt outnumbered and in danger when he decided to secure Andrade against the trunk of his car, in order to check him for weapons.

Andrade argued in the district court that Sarmento's search was more intrusive than a mere frisk because the officer lifted his sweatshirt to find one of the guns when he pushed him against the trunk of the car. The other gun and...