U.S. v. Henderson, 03-1888.

Decision Date08 September 2006
Docket NumberNo. 03-1888.,03-1888.
PartiesUNITED STATES of America, Appellee, v. Marcel HENDERSON, Defendant, Appellant.
CourtU.S. Court of Appeals — First Circuit

Jane Elizabeth Lee for the appellant.

Mark T. Quinlivan, Assistant United States Attorney, with whom Michael J. Sullivan, United States Attorney, was on brief, for the United States.

Before LIPEZ, Circuit Judge, CYR and STAHL, Senior Judges.

LIPEZ, Circuit Judge.

Marcel Henderson was the passenger in a car stopped by Michael Kominsky, a patrol officer for the West Bridgewater, Massachusetts Police. After demanding Henderson's social security number and date of birth, Kominsky found that a police database listed an old warrant for Henderson's arrest. Acting on the database, which turned out to be wrong about the warrant, Kominsky searched Henderson and found a gun. Before trial, Henderson moved to suppress the gun, arguing that it had been the product of an illegal stop and that Kominsky had no basis for investigating the passenger in a stopped car. The district court denied Henderson's motion to suppress the gun and held a trial. After the government belatedly produced evidence relevant to Henderson's motion to suppress, the district court declared a mistrial and held a second suppression hearing. After the district court again denied Henderson's motion and held a second trial, a jury convicted Henderson of being a felon in possession of a handgun.

Henderson now appeals his conviction and sentence, focusing on the district court's finding that he was not wearing his seatbelt in the stopped car. Henderson argues that the district court clearly erred in believing Kominsky's testimony that he was not wearing a seatbelt. In support of this assertion, Henderson emphasizes that Kominsky's testimony was riddled with proven inaccuracies and contradictions and that the district court explicitly disbelieved important portions of Kominsky's testimony. We agree with Henderson. After a careful review of this unusual record, we are convinced that this is one of those rare cases in which a district court's credibility determination is clearly erroneous.

Anticipating the possibility of this result, the government offers "officer safety" as an alternative basis for investigating Henderson and affirming the conviction. However, Kominsky admitted that he did not have any particularized reason to suspect Henderson of dangerousness or wrongdoing, nor any specific basis apart from a purported seatbelt violation for prolonging the stop in order to investigate Henderson. On these facts, we reject the government's alternative argument as well. Accordingly, we vacate the conviction.

I.

We review here some of the background facts and the procedural history of this case, leaving the details for a discussion of Kominsky's credibility.

A. Background

At about ten P.M. on a May evening in 2001, Henderson and his girlfriend, Patrice Alford, were in Brockton, Massachusetts, attempting to get back to Boston, where they lived, after visiting relatives. The couple — who had stopped dating by the time of the trial — were in a blue Nissan sedan. Henderson was sitting in the front passenger seat. Alford, who was driving, was lost. Looking for the expressway, Alford proceeded down Plain Street in Brockton.

As it turned out, Alford was going in the wrong direction. Rather than towards the expressway to Boston, which is just west of downtown Brockton, Plain Street goes southeast from downtown Brockton to the town of East Bridgewater, where it becomes Pleasant Street. Alford observed a police car pull behind her and, because she was being followed, she drove especially carefully. Between Brockton and East Bridgewater, Plain Street cuts through the extreme northeast corner of the town of West Bridgewater. A car driving from Brockton to East Bridgewater on Plain Street travels through West Bridgewater for approximately three tenths of a mile (about 500 yards). At the 35 mile-per-hour speed limit, the transit takes about 30 seconds. Plain Street cuts a straight line through West Bridgewater, without substantial curves.

Kominsky, assigned to patrol that corner of West Bridgewater, stopped Alford's car. He later gave three reasons for the stop, saying that the car was driving slowly, had crossed over the center line of the short stretch of Plain Street in West Bridgewater between two and five times, and was registered to a woman, Alford, who had a suspended driver's license. During the stop, Kominsky asked for Henderson's license and then, when Henderson said he did not have a license, demanded Henderson's name, date of birth, and social security number. Kominsky later testified that he wanted Handerson's identification in order to cite Henderson for not wearing a seatbelt. By entering Henderson's information into a database he could access from his laptop computer, Kominsky discovered that there was a five-year-old warrant for Henderson's arrest. Kominsky acted on the information in the database to arrest Henderson. As he was searching Henderson pursuant to the arrest, Kominsky found some ammunition. Henderson then told Kominsky that he was carrying a handgun as well. That gun was the basis for this prosecution.

A second police officer, Carlos Oliveira of the East Bridgewater Police, arrived on the scene in time to see and hear the end of Kominsky's initial encounter with Alford and Henderson. However, Alford and Kominsky both testified that Oliveira did not approach the car until Henderson was arrested.

As it turned out, the warrant Kominsky relied on in arresting Henderson had long since been revoked. However, Henderson accepts for the purpose of this appeal that Kominsky could rely in "good faith" on the computer system. Henderson's theory throughout this case has been that Kominsky never should have obtained from him the personal identification information that led to the computer error and then to his arrest.

B. Procedural History

In October 2002, the district court held a two-day evidentiary hearing on Henderson's motion to suppress. Henderson contested both the legality of the vehicle stop and the legality of Kominsky's demand for his identifying information. Kominsky, Alford, and an investigator for Henderson testified for the defense. Concerned about the discrepancy between Kominsky's testimony that Alford's car did not have automatic seatbelts and Alford's testimony that it did, the district court took a view of Alford's car and determined that it did indeed have automatic seatbelts. Nonetheless, the district court denied Henderson's motion in a published opinion. United States v. Henderson, 229 F.Supp.2d 35 (D.Mass.2002) (Henderson I).

The case then proceeded to trial. Kominsky was the first witness. After his direct examination, the government belatedly produced documents indicating that Kominsky had been the subject of complaints for subjecting drivers to baseless and harassing stops, along the same stretch of road where he stopped Alford and Henderson. Henderson asked that the trial be stayed and the motion to suppress reopened. The district court conducted a voir dire of Kominsky and then allowed the trial to continue while it considered Henderson's motion.

During a break in Alford's testimony, an Assistant United States Attorney told defense counsel, while Alford was sitting nearby, that Alford was "going to jail for perjury." Alford heard the remark and, according to the defense, became nervous about returning to the stand. The district court examined Alford and determined that there was no impediment to her continued testimony. The next day, however, citing the government's delayed disclosure and the other "appellate issues" that had arisen, the district court declared a mistrial and announced that it would consider whether to dismiss the case with prejudice, in light of prosecutorial misconduct.

Ultimately, the district court decided not to dismiss the indictment. It did, however, reopen the suppression hearing. At the reopened hearing, the district court heard testimony from Kominsky, Oliveira, other officers who worked with Kominsky, and a young man, Christopher Bellas, who previously had complained of improper vehicle stops by Kominsky. The district court credited Bellas's testimony that Kominsky had twice stopped his car without cause and had acted improperly during the stops. (Kominsky had denied any such misconduct.) Nonetheless, the district court again denied Henderson's motion to suppress in another published order. United States v. Henderson, 265 F.Supp.2d 115 (D.Mass.2002) (Henderson II). The district court acknowledged that its decision to credit Bellas's testimony over Kominsky's "lends weight to the contention that Kominsky's testimony relating to Henderson should not be believed." Id. at 116. The district court then stated: "Other credible evidence, however, tends to support Kominsky's testimony" that Henderson was not wearing his seatbelt during the vehicle stop. Id.

The district court briefly reopened the suppression hearing a third time shortly before the second trial, when the government produced two recent complaints about vehicle stops by Kominsky and a statement by Oliveira that contradicted Kominsky's previous testimony about the language he used while arresting Henderson. The district court declined to reconsider its ruling on the motion to suppress, reasoning that the additional evidence was "cumulative" and that "I don't need to hear any more to have a low regard for Officer Kominsky as a law enforcement officer."'

Henderson was convicted at a second trial. At sentencing, the district court stated:

I two times found by a preponderance of the credible evidence that Mr. Henderson was not wearing a seat belt. That much of Officer Kominsky I credited. But, in candor, I'm not close to sure about that.1

II.

The government argues that Kominsky could demand that Henderson write down his...

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