U.S. v. Lott

• Decision Date: 10 January 1989
• Docket Number: No. 88-1739,88-1739
• Citation: 870 F.2d 778
• Parties: UNITED STATES of America, Appellant, v. George E. LOTT and Edward Turner, Defendants, Appellees. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 778

870 F.2d 778

UNITED STATES of America, Appellant, v. George E. LOTT and Edward Turner, Defendants, Appellees.

No. 88-1739.

United States Court of Appeals, First Circuit.

Heard Jan. 10, 1989.

Decided March 22, 1989.

As Amended March 28, 1989.

Paul V. Kelly, Asst. U.S. Atty., with whom Frank L. McNamara, Jr., U.S. Atty., Boston, Mass., was on brief, for U.S.

Sharon Beckman with whom Andrew H. Good, by Appointment of the Court, Ann L. Strayer, Silverglate, Gertner, Fine & Good, David L. Kelston, by Appointment of the Court, and Geller & Kelston, Boston, Mass., were on brief, for appellees.

Before COFFIN, BOWNES and SELYA, Circuit Judges.

BOWNES, Circuit Judge.

The United States appeals the district court's suppression of evidence prior to the trial of defendants, George Lott and Edward Turner. Both defendants were indicted on two counts: (1) possession of firearms by a felon, 18 U.S.C. Sec. 922(g)(1); and (2) interstate transportation of stolen firearms, 18 U.S.C. Sec. 922(i). The district court suppressed evidence, including the weapons, discovered at a roadside search because the search violated the fourth amendment and the teachings of Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and its progeny. We affirm.

I. FACTS

The facts are derived mainly from the district court's findings of fact which a review of the record shows are not clearly erroneous. Pelham, New Hampshire is a town in southern New Hampshire just over the Massachusetts border. At approximately 3:00 a.m. on March 9, 1987, Officer Andrew McNally and Special Officer Shawn Casey ¹ of the Pelham Police Department noticed a car which failed to stop for a stop sign. The car was not speeding or otherwise driving erratically. Upon further inspection, the officers noticed that a rear tail light was broken, the license plate was hanging off slightly and the trunk was flapping. A check of the license plate revealed that the car was not stolen. When the car slowed down but did not stop for a second stop sign, the officers signaled for the car to pull over; the driver, defendant George Lott, complied.

Once the cars were stopped, Lott exited the car and approached the police cruiser. McNally put the cruiser in reverse and told Lott to return to his car. Lott said "everything is all right," returned to his car and started to drive away. McNally then radioed to another car and took off after Lott. Lott was not speeding or otherwise attempting to evade the police. When he saw the two cruisers following him and signalling for him to stop, he did so.

Officer Evan Haglund, the sole officer in the second car, shouted to Lott and his passenger, defendant Edward Turner, to place their hands on the dashboard. They complied, and McNally approached the driver's side while Casey went to the passenger's side. While passing the open trunk, McNally looked in but saw nothing. On the back seat of the car he noticed a pair of bolt cutters. At some point a glass cutter was also seen. Upon reaching the driver's side of the car, McNally observed "blood pouring out of [Lott's] arm." McNally asked Lott for his license and registration. These were produced and were in order. McNally then asked Lott the cause of the injury. Lott stated that Turner's "bitching sister" had stabbed him with a fork. Turner then stated ² that it was not his sister but rather a "whore" who stabbed Lott.

Lott was ordered out of the car. McNally then removed, over Lott's protests, a bandana covering one of his wounds ³. The removal of the bandana was not for the purpose of looking for hidden weapons. Over Lott's further protests, an ambulance was called. While they waited, the officers placed bandages on Lott's wounds. Turner, who was still sitting in the car, was asked for identification. He produced a Massachusetts learner's permit and a social security card which were also in order. McNally, still in possession of both men's identifications, went back to his cruiser to check for outstanding arrest warrants.

When the ambulance arrived, Lott again stated that he did not want treatment--he wanted to see his own doctor. He signed a release to that effect and no treatment was administered--they merely rebandaged the wounds. While Lott was being examined by the ambulance personnel, Casey signaled to Haglund, the senior officer at the scene, and told him that he thought Turner was attempting to hide something behind his back. Haglund ordered Turner out of the car. A brown paper bag fell to the seat. Haglund opened the bag and found it contained an unopened full bottle of gin. After the bag with the gin was put back in the car, Turner moved to get back in but was prevented from doing so by Haglund. Haglund continued his search by looking under the car seats. He found a handgun and shouted to McNally that he had found a gun. The defendants were asked if they had permits. Receiving no satisfactory answer, the defendants were arrested for firearms violations. They were both handcuffed and read the Miranda warnings. Haglund then continued his search of the car and found three more handguns. The guns were not loaded and no ammunition was found. It was later ascertained that all four guns had been stolen that evening from a gun shop in northern Massachusetts.

After their arrest, the defendants were frisked for weapons and none were found. At no time prior to their arrest had they been frisked. At all times Lott was able to walk and talk normally and respond to requests appropriately. At no time prior to the arrest for firearms violations was a traffic citation given or an arrest for traffic violations made. ⁴ The total time that elapsed from the second stop to the arrest was approximately 10-12 minutes.

Prior to trial, Lott and Turner moved to suppress all evidence and statements made during the stop including: the four weapons; glass and bolt cutters and other tools; blood samples and bandages; glass particles; and written and verbal statements. At a hearing on the motions, the government presented Officers McNally and Haglund as witnesses; the defendants called no witnesses.

The district court held that the initial stop of the car was justified and that the defendants were not subject to a de facto arrest requiring that the Miranda warnings should have been given earlier. It nonetheless held that the search of Lott's body (removing the bandana from his arm) and of the car violated the fourth amendment rights of the defendants because the police did not fear for their safety and thus, had no right to make the searches, relying on Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, and Michigan v. Long, 463 U.S. 1032, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983). The district court entered the following order:

I hereby ORDER that:

(a) any evidence or observations of Lott's wound arising from Officer McNally's removal of the bandanna be suppressed at trial;

(b) any statements or information elicited after the search of Lott's wrist and deriving therefrom be suppressed as fruit of the poisonous tree; and

(c) that the four handguns seized beneath the passenger seat be suppressed.

II. STANDING

Before we reach the merits, we must first address a preliminary issue. As the district court noted, "[t]he government stipulated that both defendants have standing to move for suppression." ⁵ In its brief before this court, the government seeks to limit its stipulation; to what extent, however, is unclear. Basically, it contends that because fourth amendment rights are personal, standing cannot be stipulated.

The government may not limit its stipulation for two reasons. First, when the government has stipulated to standing, thereby obviating the need for a defendant to present facts relevant to standing, it may not thereafter claim the defendant lacked standing. See United States v. Hernandez, 668 F.2d 824, 826 (5th Cir. Unit B 1982); but see United States v. Blanco, 844 F.2d 344, 349 n. 4 (6th Cir.), cert. denied, --- U.S. ----, 108 S.Ct. 2042, 100 L.Ed.2d 626 (1988). Second, the government never asked the district court for a modification or rescission of the stipulation. The government may not raise this issue for the first time on appeal. It is bound by its stipulation.

III. THE SEARCH OF LOTT'S WRIST

In an apparent concession that the search of the cuts on Lott's wrist was not permissible under Terry, 392 U.S. at 1, 88 S.Ct. at 1868, ⁶ the government on appeal relies on the "community caretaker" exception to the fourth amendment in contesting the district court's ruling on this point. This exception recognizes that police officers are often called to investigate situations "in which there is no claim of criminal liability," and such investigations begin "totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute." Cady v. Dombrowski, 413 U.S. 433, 441, 93 S.Ct. 2523, 2528, 37 L.Ed.2d 706 (1973). If in the course of such an investigation, evidence of a crime is discovered, the "better view" is that the evidence is admissible. See W. LaFave, Search and Seizure Sec. 5.4(c) (2d ed. 1987). The government's reliance on this exception fails for two reasons.

First, this basis for upholding the search was not raised below. "In the absence of extraordinary circumstances, none of which are apparent here, we have regularly declined to consider points which were not seasonably advanced below." Clauson v. Smith, 823 F.2d 660, 666 (1st Cir.1987) (collecting cases). The government claims that it was not aware that Lott was challenging the search of his body and that the judge sua sponte made this an issue. This claim is not borne out by the record. In his motion to suppress, Lott specifically stated that "the search and seizure of his person and effects was illegal, unreasonable, and unconstitutional,...." (Emphasis supplied). If this is not a clear statement that the search of Lott's wrist was contested, the list of specific items to be...