U.S. v. Ferreira

• Decision Date: 03 June 1987
• Docket Number: No. 86-1603,86-1603
• Citation: 821 F.2d 1
• Parties: 23 Fed. R. Evid. Serv. 198 UNITED STATES of America, Appellee, v. William FERREIRA, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

Page 1

821 F.2d 1

23 Fed. R. Evid. Serv. 198

UNITED STATES of America, Appellee, v. William FERREIRA, Defendant, Appellant.

No. 86-1603.

United States Court of Appeals, First Circuit.

Argued Dec. 2, 1986.

Decided June 3, 1987.

Joan Lieberman with whom John Wall, Boston, Mass., were on brief for appellant.

Gary S. Katzmann, Asst. U.S. Atty., Boston, Mass., with whom Mark E. Robinson, Asst. U.S. Atty., and Robert S. Mueller, III, U.S. Atty., were on brief for appellee.

Before COFFIN, BOWNES and TORRUELLA, Circuit Judges.

TORRUELLA, Circuit Judge.

Appellant William Ferreira stands convicted of unarmed bank robbery of a federally insured bank, 18 U.S.C. Sec. 2113(a). ¹ The issues on appeal are (1) whether the district court erred in refusing to suppress, inter alia, two firearms, $1,958 in cash (including about $150 in "bait money"), and coin rolls seized from Ferreira after an allegedly unconstitutional "stop and frisk," (2) whether the testimony of an expert witness for the prosecution unfairly prejudiced Ferreira, and (3) whether the introduction of weapons in evidence was reversible error. We conclude that a reasonable view of the evidence supports the suppression ruling. But finding an abuse of discretion as to the third issue, we vacate the judgment of conviction and remand to the district court for a new trial.

Background

The testimony of witnesses at the suppression hearing establishes the following. William Cassano, an F.B.I. agent with 13 years of experience, testified that on November 16, 1982 at about 10:25 AM he received a radio dispatch that the Boston Five Cents Savings Bank had just been robbed by at least two white men. One man (whom the government believes is Ferreira) was described to Cassano as slim and 5'10" tall with brown or black curly hair. The dispatcher told Cassano that Ferreira was seen carrying an orange-colored jacket, and wearing dark trousers with a ski mask over his face. Witnesses described the other man (Edwin F. McDonald) as "stocky," 5'7" tall, and wearing sunglasses and a red/white baseball cap. ²

Cassano knew that several bank robberies had been committed by residents of Charlestown, Massachusetts. While he lacked specific information that the robbers hailed from Charlestown, both Cassano and the officer accompanying him nevertheless decided to investigate. The officers arrived at Charlestown from 10 to 15 minutes after the crime. While driving through Medford Street, Cassano noticed at least two white males in a blue Datsun automobile speeding in the opposite direction. This piqued Cassano's curiosity. The officers chased the car as it fled into the Charlestown public housing project in Medford Street. Cassano testified that he saw, from a distance of 40-50 feet, one of three men exiting the car carrying "some sort of bundle covered by an orange jacket or sweater." The suspects did not obey orders to stop as they escaped into a building with some vacant apartments. The officers entered the building, and proceeded to the rooftop. From there, Cassano noticed that the blue Datsun had disappeared. The agents went back again to search the surroundings for abandoned evidence. This search was unsuccessful. The suspects were nowhere to be found at the time.

About five minutes later (35-40 minutes after the robbery), the officers renewed their investigation of the building, which contained many vacant apartments. As they walked down the stairs, Cassano saw Ferreira come out of Room 725. Cassano testified that Ferreira's physical appearance (tall, slim, with dark hair, and wearing dark clothing) matched the description of one of the bank robbers. ³

The following is the testimony as to what happened next.

[The prosecutor]

Q. This individual comes out the door and what happens next?

[The witness]

A. We [Cassano and state police officer Frank LaSheen] stopped him. I told him, "Hold it. Who are you?" At that point I believe he said, "My name is Joe." ⁴ At that instance the door opened again and I was distracted by the door opening again.

Q. The door to apartment 725?

A. Yes, sir.

Q. What happened when that door opened?

A. At that point this individual leaped down the stairs and I yelled at him to hold it. I knew there was an agent, a trooper down at the bottom or standing outside the building, and I yelled to him to stop him.

Q. Did he stop him?

A. No, sir, he kept going. ⁵

As Ferreira ran past another agent, state police officer James O'Connor--who was standing in the parking lot of 50 Medford Street at that time--heard and recognized Cassano's command to stop Ferreira. O'Connor testified he then issued a similar order to Ferreira, but to no avail. O'Connor chased the suspect, finally stopping and frisking him. This stop and frisk produced the evidence appellant sought to suppress.

In a bench ruling, the district judge found that the agents' "prior information," coupled with the area's reputation for criminal activity, constitutionally justified the two detentions.

The Fourth Amendment issue

The fourth amendment guarantees against unreasonable searches and seizures of a person. There is a seizure "only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave." United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 1877, 64 L.Ed.2d 497 (1979) (Stewart, J., plurality op.). See United States v. Streifel, 781 F.2d 953, 960 (1st Cir.1986).

A fourth amendment "stop" is a temporary "seizure" which, because of the governmental interests in crime prevention, Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and in crime resolution, United States v. Hensley, 469 U.S. 221, 228, 105 S.Ct. 675, 681, 83 L.Ed.2d 604 (1985), is valid even in the absence of probable cause. See United States v. Berryman, 717 F.2d 650, 660 (1st Cir.1983) (en banc), cert. denied, 465 U.S. 1100, 104 S.Ct. 1594, 80 L.Ed.2d 125 (1984); see also United States v. Quinn, 815 F.2d 153, 156 (1st Cir.1987) (stating that officers may make brief investigatory stops or seizures upon reasonable suspicion that a person may have committed, is committing, or is about to commit a crime).

In Terry, the Court adopted a two-pronged test for evaluating the reasonableness of a stop. A court must examine:

whether the officer's action was justified at its inception, and whether it was reasonably related in scope to the circumstances which justified the interference in the first place.

United States v. Sharpe, 470 U.S. 675, 682, 105 S.Ct. 1568, 1573, 84 L.Ed.2d 605 (1985) (quoting Terry, 392 U.S. at 20, 88 S.Ct. at 1879).

The suppression issue in this case relates only to whether, considering the totality of the circumstances, the officers had reasonable suspicion of criminal activity for making the stop in the first place. See United States v. Cortez, 449 U.S. 411, 418-19, 101 S.Ct. 690, 695-96, 66 L.Ed.2d 621 (1981); United States v. Manchester, 711 F.2d 458, 461 (1st Cir.1983). While objective factors, such as general observations by the officer or an area's reputation for criminal activity can be considered in combination with specific facts about the crime, the objective factors standing alone are insufficient for a stop. See United States v. Trullo, 809 F.2d 108, 111 (1st Cir.1987). The key is whether the officers had a particularized suspicion of criminal activity. Cortez, 449 U.S. at 418, 101 S.Ct. at 695.

A. The "Cassano stop" ⁶

In Trullo, 809 F.2d at 111-12, we upheld a Terry stop on the basis of two brief conversations between the driver of a parked automobile and another man, which occurred in an area known for drug activity and prostitution. In this case, the inference of criminal behavior that reasonably can be drawn by an experienced officer from the evidence is stronger than in Trullo.

Ten to fifteen minutes after the robbery, armed with specific descriptions of the suspects, Cassano witnessed a speeding Datsun go by. He followed it and later saw one of three men flee into a partially abandoned building. One of the suspects was concealing an object with an orange jacket or sweater. The radio dispatcher had told Cassano that a bank robber was seen wearing such a jacket. Knowing the area's bad reputation, agent Cassano could, at this point, reasonably infer, based on his 13 years of experience, that a bank robbery suspect was hiding somewhere in the building. The fact that five minutes later agent Cassano saw Ferreira, who fit the description of one of the robbers, emerge from an apartment in the building provided the necessary "articulable" basis for reasonable suspicion justifying the Terry-Hensley stop. Cf. United States v. Jones, 619 F.2d 494, 496, 498 (5th Cir.1980) (incomplete and stale description of a bank robbery suspect did not suffice).

B. Ferreira's Flight

Appellant claims that Cassano initiated a second stop after Ferreira fled the scene. This allegedly happened by Cassano's yell, "stop him." Ferreira submits, and we agree, that flight from an unidentified police officer, as here, is ambiguous conduct that could be interpreted as a natural reaction to circumstances and not as a reflection upon defendant's guilt. United States v. Amuny, 767 F.2d 1113, 1124-25 (5th Cir.1985); Jones, 619 F.2d at 498; cf. United States v. Bowles, 625 F.2d 526, 535 n. 12 (5th Cir.1980) (flight has been factored into the reasonable suspicion calculus in cases in which the authority of the pursuer is not "readily ascertainable."); United States v. Pope, 561 F.2d 663, 669 (6th Cir.1977) (flight from a clearly identified agent may warrant an investigatory stop).

In Jones, a suspect's flight from an unidentified police officer patrolling an area in an unmarked car triggered a stop. The court found that the police had no facts on which to base a reasonable suspicion other than the inconclusive evidence of flight. Accordingly, the stop was illegal. Not so in this case. As stated earlier, Cassano stopped...