U.S. v. Dubose, No. 08-2382.

CourtUnited States Courts of Appeals. United States Court of Appeals (1st Circuit)
Writing for the CourtEbel
Citation579 F.3d 117
PartiesUNITED STATES of America, Appellee, v. Jamont DUBOSE, Defendant, Appellant.
Decision Date31 August 2009
Docket NumberNo. 08-2382.
579 F.3d 117
UNITED STATES of America, Appellee,
v.
Jamont DUBOSE, Defendant, Appellant.
No. 08-2382.
United States Court of Appeals, First Circuit.
Heard June 1, 2009.
Decided August 31, 2009.

[579 F.3d 118]

Daniel J. Cloherty, by appointment of the court, with whom Victoria L. Steinberg and Dwyer & Collora, 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 appellees.

[579 F.3d 119]

Before LYNCH, Chief Judge, TORRUELLA and EBEL,* Circuit Judges.

EBEL, Circuit Judge.


Defendant-Appellant Jamont Dubose challenges the district court's denial of his motion to suppress evidence found when he was stopped and frisked by the police. After the district court denied his motion to suppress, Dubose pled guilty to being a felon in possession of a firearm, but preserved his right to appeal the denial of his motion to suppress. This timely appeal followed.

Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we AFFIRM.

I. Background

"We relate the facts `as the trial court found them, consistent with record support.'" United States v. Am, 564 F.3d 25, 27 (1st Cir.2009) (quoting United States v. Ruidíaz, 529 F.3d 25, 27 (1st Cir.2008)). In the afternoon of February 22, 2007, two Boston Police Officers, Officers Canuto and Ryan, witnessed a Camry double-parked on Fairmount Street, near the corner with Washington Street. Shortly thereafter, the officers observed Jamont Dubose walk down Washington Street, turn on Fairmount Street, and approach the Camry. Dubose then leaned into the front driver's side of the Camry and, with both hands and his upper torso inside the vehicle, had a brief encounter with its occupants. He then turned around and walked back the way he came. Because of the location of the car and the configuration of the streets, Dubose could not have seen the Camry on Fairmount Street from where he was walking on Washington Street. Therefore, Officer Canuto concluded that this was a pre-arranged meeting. Given the brief nature of the meeting, the fact that it appeared to have been pre-arranged, and the fact that this encounter fit the description of drug transactions that had previously occurred in the area1, the officers thought that they may have witnessed a drug transaction.

Their suspicions aroused, Officers Canuto and Ryan decided to question Dubose. They turned their car around, parked at an angle facing the wrong way on the street, and with their badges displayed, began walking towards Dubose. Officer Ryan soon became sidetracked speaking with some pedestrian bystanders, so Officer Canuto approached Dubose alone. Officer Canuto stated that, as he approached Dubose, who was walking away with his right hand in his sweatshirt pocket, he said, "Excuse me, sir, can I talk to you for a second?" (Appx. at 10, 52, 95.) Initially, Dubose ignored him and kept walking. However, after Officer Canuto repeated the question in an increasingly loud voice a few more times, Dubose, with his right hand still in his sweatshirt pocket, turned around and faced Officer Canuto. Concerned that Dubose might have a firearm in his pocket, Officer Canuto told him to remove his hand from his pocket. Dubose initially refused to do so but, after Canuto repeated his order a number of times, Dubose "reluctantly complied" with Officer Canuto's demands. (Appx. at 11.) Because of Dubose's reluctance to remove his hand from his pocket, his nervous demeanor, and Officer Canuto's prior experience with drug dealers who often carry weapons,

579 F.3d 120

Officer Canuto decided to conduct a pat-frisk of Dubose's sweatshirt pockets.

As he patted Dubose's sweatshirt, Officer Canuto immediately noticed a hard object that he suspected might be a firearm and asked, "What is this?" (Id. at 69.) Dubose responded, "It's not mine." (Id.) Officer Canuto then reached into the pocket and retrieved a loaded .22 caliber revolver. Officer Canuto alerted Officer Ryan that he had retrieved a firearm. Dubose then attempted to flee and, after a brief foot chase, the officers subdued him. As the officers were arresting him, Dubose stated, "I just found it and picked it up." (Id. at 11.)

In September 2007, a grand jury indicted Dubose for being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1), and charged that, if convicted, his firearm would be subject to the forfeiture provisions of 18 U.S.C. § 924(d) and 28 U.S.C. § 2461(c). Dubose filed a motion to suppress the evidence found during his encounter with the police, arguing that the search and seizure that led to the recovery of the firearm in his possession were conducted in violation of the Fourth Amendment to the United States Constitution and Article 14 of the Massachusetts Declaration of Rights.2 In March 2008, the district court issued a written opinion denying Dubose's motion to suppress. In June 2008, Dubose notified the court of his intent to enter a conditional plea of guilty to Count I of the indictment, expressly preserving his ability to appeal the district court's denial of his motion to suppress. See Fed.R.Crim.P. 11(a)(2). On October 2, 2008, the court entered judgment against Dubose on Count I of the indictment, and sentenced him to 180 months' imprisonment. This timely appeal, challenging the order denying his motion to suppress as well as the judgment and sentence, was filed on October 8, 2008.

II. Analysis

A. Standard of Review

"This court applies a mixed standard of review for orders granting or denying suppression. [This] court reviews a district court's findings of fact and credibility determinations on a suppression motion for clear error and its conclusions of law de novo." United States v. Andrade, 551 F.3d 103, 109 (1st Cir.2008) (citation omitted). "We recount the facts in the light most favorable to the district court's ruling on the motion to suppress, but only to the extent that they have support in the record and are not clearly erroneous." United States v. Holloway, 499 F.3d 114, 115 (1st Cir.2007); see also United States v. Cook, 277 F.3d 82, 84 (1st Cir.2002) ("We...

To continue reading

Request your trial
28 practice notes
  • U.S. v. Werra, No. 09–1593.
    • United States
    • U.S. Court of Appeals — First Circuit
    • March 22, 2011
    ...561 F.3d at 58. Moreover, our obligation to draw all reasonable inferences in the government's favor, see United States v. Dubose, 579 F.3d 117, 120 (1st Cir.2009), does not require us to ignore facts favorable to the defendant. 14. Of course, this would be a very different case if Cicerano......
  • United States v. Lyons, Nos. 12–1835
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • January 17, 2014
    ...he later signed it, but the evidence amply supports the district court's factual finding to the contrary. Cf. United States v. Dubose, 579 F.3d 117, 120 (1st Cir.2009) (findings of fact on motions to suppress reviewed for clear error). Lyons alternatively claims that the record is defective......
  • United States v. Dancy, No. 09–2628.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • April 13, 2011
    ...WL 2789279 (D.Mass. Sept. 25, 2007), which are consistent with record support and are not clearly erroneous. See United States v. Dubose, 579 F.3d 117, 120 (1st Cir.2009). We supplement that description with testimony from the record. Dancy does not argue that any of the district court's ba......
  • United States v. Camacho, No. 09–2415.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • November 23, 2011
    ...his questions, at which point “his liberty ha[d] been restrained and he [was] seized under the Fourth Amendment.” United States v. Dubose, 579 F.3d 117, 121 (1st Cir.2009) (citing United States v. Sealey, 30 F.3d 7, 9 (1st Cir.1994)); see Hodari D., 499 U.S. at 626, 111 S.Ct. 1547 (holding ......
  • Request a trial to view additional results
28 cases
  • U.S. v. Werra, No. 09–1593.
    • United States
    • U.S. Court of Appeals — First Circuit
    • March 22, 2011
    ...561 F.3d at 58. Moreover, our obligation to draw all reasonable inferences in the government's favor, see United States v. Dubose, 579 F.3d 117, 120 (1st Cir.2009), does not require us to ignore facts favorable to the defendant. 14. Of course, this would be a very different case if Cicerano......
  • United States v. Lyons, Nos. 12–1835
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • January 17, 2014
    ...he later signed it, but the evidence amply supports the district court's factual finding to the contrary. Cf. United States v. Dubose, 579 F.3d 117, 120 (1st Cir.2009) (findings of fact on motions to suppress reviewed for clear error). Lyons alternatively claims that the record is defective......
  • United States v. Dancy, No. 09–2628.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • April 13, 2011
    ...WL 2789279 (D.Mass. Sept. 25, 2007), which are consistent with record support and are not clearly erroneous. See United States v. Dubose, 579 F.3d 117, 120 (1st Cir.2009). We supplement that description with testimony from the record. Dancy does not argue that any of the district court's ba......
  • United States v. Camacho, No. 09–2415.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • November 23, 2011
    ...his questions, at which point “his liberty ha[d] been restrained and he [was] seized under the Fourth Amendment.” United States v. Dubose, 579 F.3d 117, 121 (1st Cir.2009) (citing United States v. Sealey, 30 F.3d 7, 9 (1st Cir.1994)); see Hodari D., 499 U.S. at 626, 111 S.Ct. 1547 (holding ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT