U.S. v. Camacho, Criminal No. 08-10112-RGS.

Decision Date16 April 2009
Docket NumberCriminal No. 08-10112-RGS.
PartiesUNITED STATES of America v. Angel CAMACHO.
CourtU.S. District Court — District of Massachusetts

Aloke Chakravarty, United States Attorney's Office, Boston, MA, for Plaintiff.

William W. Fick, Federal Defender's Office, District of Massachusetts, Boston, MA, for Defendant.


STEARNS, District Judge.

Based on the credible testimony, I make the following findings of fact.

1. At 5:37 p.m., on January 11, 2008, New Bedford police received a series of 911 calls reporting a fight in progress at the intersection of Nye and Brook Streets in New Bedford's North End. The Brook Street area is plagued by drug dealing, violent crime, and gang activity, much of it involving the Latin Kings, a violent Hispanic street gang with tentacles in many urban communities. One of the 911 callers identified "most" of those taking part in the fight as Latin Kings.

2. Sgt. Scott Carola, a fourteen-year police veteran and a member of the department's Gang Unit, was the first officer to arrive at Nye and Brook. He observed twelve to fifteen persons, male and female, scattering in small groups from what appeared to have been a street brawl. Among those retreating was a young man wearing a t-shirt despite the cold and wet weather. His face was ruddy and bruised. Sgt. Carola ordered the man and his female companions to stop, but only the women complied. The man continued to walk south on Brook Street. Sgt. Carola then observed Pedro Cruz, who he knew to be a member of the Latin Kings, preparing to drive away in a Lexus.1 Sgt. Carola radioed in the license number of the Lexus and pulled the car over. Sgt. Carola caught a glimpse of two Hispanic men who he did not recognize (one was defendant Angel Camacho) walking up Nye Street.

3. Officers Adelino Sousa and David Conceicao, both nine-year police veterans and members of the Gang Unit, were on nearby patrol in a Crown Victoria, easily recognizable as a police vehicle. They arrived at the intersection of Brook and Nye within a minute of Sgt. Carola. Sousa observed several individuals in the dispersing crowd who he knew to be affiliated with the Latin Kings. Seeing Sgt. Carola questioning Cruz, Sousa and Conceicao pulled their vehicle alongside. Sgt. Carola directed the officers to intercept and question the two men he had observed earlier on Nye Street. Conceicao saw the men, who were walking at a normal pace, turn the corner onto Bullard Street.

4. Sousa and Conceicao followed. As they entered Bullard Street, the only civilians they observed were Camacho and a companion, Louis Osario-Melendez. They pulled ahead into the cut of a driveway, partially blocking the sidewalk. Sousa stepped out of the Crown Victoria and approached Camacho. Sousa was wearing a police jacket emblazoned "New Bedford Police Gang Unit" and bearing an image of a police badge. Conceicao, who was wearing an identical jacket, confronted Melendez and ordered him to place his hands on the hood of the cruiser. Melendez complied. Neither officer knew Camacho or Melendez nor had reason to believe that they were members of the Latin Kings.

5. Sousa observed that Camacho's clothes were wet and that his breathing was labored. Sousa asked Camacho where he was coming from. Camacho replied "Nye Street." When asked if he had been involved in a fight, Camacho said "no," although he said that he had witnessed one. Camacho's speech was normal. He was wearing a hooded sweatshirt, which Sousa considered normal garb for the neighborhood. Camacho's hands were thrust in the front pockets of the sweatshirt. Sousa asked Camacho to remove his hands. Camacho complied in a deliberate and studied manner, keeping his hands clasped at the front of his waistband, as if to protect his midriff. The unusual positioning of Camacho's hands led Sousa to tap Camacho's waist with his open palm. He immediately felt the butt of a gun. Sousa yelled "gun." Camacho then shoved him. On hearing Sousa's shout, Conceicao drew his service revolver and trained it on Melendez. Sousa began fighting with Camacho. Conceicao intervened, hitting Camacho over the head with a flashlight, knocking him to the ground. Once Camacho was subdued, a .40 caliber Glock revolver with a live round in the chamber and eight rounds in the magazine was seized from beneath his belt.


1. Not every encounter between police and citizens rises to the level of a stop or seizure. "Only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a `seizure' has occurred." Terry v. Ohio, 392 U.S. 1, 19 n. 16, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Whether a citizen's liberty has been "restrained" by police for Fourth Amendment purposes depends on whether a reasonable person in similar circumstances would feel free to leave or to otherwise "disregard the police presence and go about his business." Michigan v. Chesternut, 486 U.S. 567, 576, 108 S.Ct. 1975, 100 L.Ed.2d 565 (1988); United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980) (same). Cf. California v. Hodari D., 499 U.S. 621, 628, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991) (the Terry-Mendenhall test "states a necessary, but not a sufficient, condition for seizure"—there must also be a physical restraint or a submission to an assertion of authority).

2. "The Fourth Amendment does not require a policeman who lacks the precise level of information necessary for probable cause to arrest to simply shrug his shoulders and allow a crime to occur or a criminal to escape.... A brief stop of a suspicious individual, in order to determine his identity or to maintain the status quo momentarily while obtaining more information may be most reasonable in light of the facts known to the officer at the time." Adams v. Williams, 407 U.S. 143, 145-146, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972). See also Terry, 392 U.S. at 24, 88 S.Ct. 1868.

3. "Based upon [the] whole picture the detaining officers must have a particularized and objective basis for suspecting the particular person stopped of criminal activity." United States v. Cortez, 449 U.S. 411, 417-418, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981). Conduct that might be perceived as innocent by a civilian onlooker may reasonably appear suspicious to an experienced police officer accustomed to the ferreting out of crime. United States v. Arvizu, 534 U.S. 266, 273, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002).

4. The stop and inquiry is not limited to ongoing or imminent crimes. Although a stop to investigate a completed felony may not involve the same exigencies as a stop undertaken to prevent a crime in progress, the ability to briefly detain a person believed to have been involved in a crime in order to "ask questions, or check identification ... promotes the strong government interest in solving crimes and bringing offenders to justice." United States v. Hensley, 469 U.S. 221, 229, 105 S.Ct. 675, 83 L.Ed.2d 604 (1985).

5. A combination of suggestive circumstances, largely innocent in and of themselves, may constitute the "reasonable suspicion" necessary to justify a Terry stop. United States v. Sokolow, 490 U.S. 1, 9, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989); Arvizu, 534 U.S. at 273-274, 122 S.Ct. 744. Factors that courts have considered in assessing the validity of a Terry stop include: (1) a report of a recent and serious crime, United States v. Raino, 980 F.2d 1148, 1150 (8th Cir.1992); (2) furtive conduct suggesting consciousness of guilt, Illinois v. Wardlow, 528 U.S. 119, 124, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000); (3) furtive gestures, Florida v. Rodriguez, 469 U.S. 1, 6, 105 S.Ct. 308, 83 L.Ed.2d 165 (1984); (4) nervous apprehension at the approach of police, United States v. Brignoni-Ponce, 422 U.S. 873, 885, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975); (5) suspicious presence in a "high crime" area, United States v. Atlas, 94 F.3d 447, 450 (8th Cir.1996); (6) proximity to the scene of a reported crime, United States v. Aldridge, 719 F.2d 368, 371 (11th Cir.1983); (7) an officer's experience and specialized knowledge, Arvizu, 534 U.S. at 276, 122 S.Ct. 744; (8) an officer's knowledge of a suspect's reputation, United States v. Kimball, 25 F.3d 1, 7 (1st Cir.1994); (9) information from a reliable informant, Adams, 407 U.S. at 146-147, 92 S.Ct. 1921; (10) resemblance to a witness's or victim's description, United States v. Martin, 28 F.3d 742, 744-745 (8th Cir.1994); and (11) evasive answers to police questions. Devenpeck v. Alford, 543 U.S. 146, 155-156, 125 S.Ct. 588, 160 L.Ed.2d 537 (2004).

6. Police "do not violate the Fourth Amendment by merely approaching an individual on the street or in another public place, by asking him if he is willing to answer some questions, by putting questions to him if the person is willing to listen, or by offering in evidence in a criminal prosecution his voluntary answers to such questions." Florida v. Royer, 460 U.S. 491, 497, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983) (plurality opinion). See United States v. Young, 105 F.3d 1, 6 (1st Cir. 1997) ("got a minute?"); United States v. Adegbite, 846 F.2d 834, 838 (2d Cir.1988) (plainclothes agents waved down defendants' truck to ask if they would answer questions); State v. Gerrish, 311 Or. 506, 815 P.2d 1244, 1248 (1991) (officer flagged down motorists who, might have witnessed a crime). Cf. United States v. Garcia, 866 F.2d 147, 151 (6th Cir.1989) ("[T]he one occurrence which seems to distinguish `seizures' from casual contacts between police and citizens is when the defendant is asked to accompany the police or agents to a place which the defendant had not planned to go"); Sokolow, 490 U.S. at 7, 109 S.Ct. 1581 (defendant was forced back onto the sidewalk).

7. If there is a reasonable basis for believing that a suspect poses a danger to police or to others, he may be "...

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4 cases
  • United States v. Camacho
    • United States
    • U.S. Court of Appeals — First Circuit
    • November 23, 2011
    ...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 su......
  • United States v. Smith
    • United States
    • U.S. District Court — District of Massachusetts
    • January 16, 2015
    ...with the district court that the initial stop of Camacho ‘cannot be justified under the principles of Terry. ’ [United States v. Camacho, 608 F.Supp.2d 178, 184 (D.Mass.2009) ]. The police officers lacked an objectively reasonable, particularized basis for suspecting Camacho of criminal act......
  • U.S. v. Marcelino
    • United States
    • U.S. District Court — Northern District of Georgia
    • August 23, 2010
    ...answers to police questions, Devenpeck v. Alford, 543 U.S. 146, 155-56, 125 S.Ct. 588, 160 L.Ed.2d 537 (2004). United States v. Camacho, 608 F.Supp.2d 178, 182 (D.Mass.2009). The first factor the Government relies upon to support the stop is the defendant's presence in a high crime gang are......
  • United States v. Hayes
    • United States
    • U.S. District Court — Northern District of Georgia
    • October 6, 2016
    ...543 U.S. 146, 155-56 (2004). See United States v. Marcelino, 736 F. Supp. 2d 1343, 1348-49 (N.D. Ga. 2010); United States v. Camacho, 608 F. Supp. 2d 178, 182 (D. Mass. 2009). Thus, for example, the Supreme Court has "recognized that nervous, evasive behavior is another pertinent factor in ......

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