U.S. v. McFarlane

• Decision Date: 12 July 2007
• Docket Number: No. 06-1779.,06-1779.
• Citation: 491 F.3d 53
• Parties: UNITED STATES of America, Appellee, v. Clive McFARLANE, a/k/a Clive McFarland, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

491 F.3d 53

UNITED STATES of America, Appellee, v. Clive McFARLANE, a/k/a Clive McFarland, Defendant, Appellant.

No. 06-1779.

United States Court of Appeals, First Circuit.

Heard May 8, 2007.

Decided July 12, 2007.

Roger Witkin, for appellant.

Paul R. Moore, Assistant United States Attorney, with whom Michael J. Sullivan, United States Attorney, and Cynthia A. Young, Assistant United States Attorney, were on brief, for appellee.

Before LYNCH, Circuit Judge, CYR, Senior Circuit Judge, and HOWARD, Circuit Judge.

HOWARD, Circuit Judge.

Clive McFarlane was convicted of one count of being a felon in possession of ammunition in violation of 18 U.S.C. § 922(g)(1) and was sentenced to 180 months of imprisonment. McFarlane appeals, claiming that the district court erroneously denied his motion to suppress and committed several trial errors. We affirm.

I.

The government presented the following evidence at trial. Just before 7 p.m. on April 25, 2005, David Delehoy, a detective with the Brockton, Massachusetts Police Department, was traveling through a high-crime section of Brockton on his way to work. While stopped at a traffic light, Detective Delehoy, who was dressed in plain clothes and driving an unmarked car, saw a group of people standing in an abandoned parking lot and heard three loud explosions, which he thought were gun shots.

Detective Delehoy turned in the direction from which he thought the gun shots originated and saw a man sprinting away from the group in the parking lot. He followed the man, later identified as Antwone Moore, before losing sight of him behind several buildings. After a few seconds, Delehoy again spotted Moore, this time walking rapidly. At the same time, Delehoy also saw a second male, later identified as Clive McFarlane, following approximately 100 feet behind Moore.

Delehoy observed Moore looking repeatedly over his shoulder at McFarlane. Soon, Moore began running across another vacant lot. Delehoy sped ahead, stopped his car at the end of the lot, and asked Moore if he needed help or a ride. Delehoy left his car, identified himself as a police officer, showed his badge to Moore, and ordered him to show his hands. Moore, who appeared relieved by Delehoy's presence, said that McFarlane was trying to shoot him.

Delehoy then saw McFarlane approach a set of trash cans along the path Moore had traveled. Delehoy, who had an unobstructed view of McFarlane, saw him remove a liner from the trash can, lean into the can with both arms, and stand up to replace the liner. This led Delehoy to believe that McFarlane might have put something in the can. Delehoy, with his gun drawn and badge displayed, moved toward McFarlane and ordered him to raise his hands and get down on the ground. McFarlane shouted profanity at Delehoy but complied with the order. Delehoy called for help and remained several feet from McFarlane until another officer arrived.

Seconds later, Officer Robert Smith arrived on the scene and, at Delehoy's command, handcuffed McFarlane. After McFarlane was handcuffed, Delehoy went to the trash can into which McFarlane had reached. He removed the liner and found a revolver containing six spent ammunition cases.

At trial, McFarlane testified in his own defense. He stated that he and Moore had a physical altercation in the abandoned parking lot, during which Moore attempted to shoot him with the revolver that was later found in the trash can. McFarlane explained that Moore then fled, but McFarlane followed, stopping to look in the trash can out of curiosity.

II.

A. Motion to Suppress

Prior to trial, McFarlane filed a motion to suppress, claiming that his detention and arrest violated the Fourth Amendment to the Constitution because there was neither probable cause for the arrest nor reasonable suspicion for the detention. After an evidentiary hearing,¹ the district court denied the motion, concluding that there was reasonable suspicion to detain McFarlane for an investigative stop under Terry v. Ohio, 389 U.S. 950, 88 S.Ct. 313, 19 L.Ed.2d 358 (1967), and that Delehoy permissibly ordered McFarlane to the ground because he may have been dangerous.

In considering the denial of a motion to suppress, we review questions of law de novo and factual findings for clear error, see United States v. Vongkaysone, 434 F.3d 68, 73 (1st Cir.2006), and will affirm the district court's decision if any reasonable view of the evidence supports it, see United States v. Garcia, 983 F.2d 1160, 1167 (1st Cir.1993). In resolving McFarlane's challenge, we bypass the district court's Terry stop analysis because we conclude, in accord with the government's alternative position, that Delehoy had probable cause to arrest McFarlane at the moment he ordered him to the ground.²

An arrest does not contravene the Fourth Amendment's prohibition on unreasonable seizures so long as the arrest is supported by probable cause. See United States v. Fiasconaro, 315 F.3d 28, 35 (1st Cir.2002). "Probable cause exists when police officers, relying on reasonably trustworthy facts and circumstances, have information upon which a reasonably prudent person would believe the suspect committed or was committing a crime." United States v. Burhoe, 409 F.3d 5, 10 (1st Cir.2005). The inquiry into probable cause to support an arrest focuses on what the officer knew at the time of the arrest, and should evaluate the totality of the circumstances. See United States v. Jones, 432 F.3d 34, 41 (1st Cir.2005).

McFarlane contends that there was no basis for his arrest when Delehoy ordered him to the ground because at that point the only information available to Delehoy was Moore's uncorroborated statement that McFarlane had tried to shoot him. We disagree.

When Delehoy made the arrest, he had substantially more information than Moore's word that a crime had taken place. Before the arrest, Delehoy heard several gun shots from a close distance and then observed McFarlane following Moore in what appeared to be a chase. He saw Moore sprinting away from McFarlane and looking back over his shoulder several times to check on McFarlane's distance. He also saw what he thought was McFarlane's attempt to hide an object in a trash can by removing a liner, placing both hands in the can, and then replacing the liner. See United States v. Meade, 110 F.3d 190, 198-99 (1st Cir.1997) (noting that suspicious maneuvers are relevant to the probable cause inquiry).

After watching the chase, Delehoy stopped Moore and identified himself as a police officer. Moore appeared relieved by the presence of a police officer and informed Delehoy that McFarlane had tried to shoot him.

A statement from a source can constitute the basis for probable cause, even if the source is previously unknown to the officer, so long as there is a sufficient basis for crediting the source's reliability. See Vongkaysone, 434 F.3d at 71. Here, there was a sufficient basis for Delehoy to credit Moore's statement. Moore made the statement to Delehoy face-to-face, which supports the statement's reliability because the face-to-face nature of the encounter permitted Delehoy to observe Moore's apparent relief when he realized that a police officer was present. This conduct was consistent with Moore's claim that someone was trying to shoot him. See United States v. Romain, 393 F.3d 63, 73 (1st Cir.2004) ("A face-to-face encounter provides police officers the opportunity to perceive and evaluate personally an informant's mannerisms, expressions and tone of voice and, thus, to assess the informant's veracity more readily . . . ."). The nature of the encounter also allowed Delehoy to learn Moore's identity and appearance so he could hold him responsible if the information provided later turned out to be false. See Florida v. J.L., 529 U.S. 266, 270-71, 120 S.Ct. 1375, 146 L.Ed.2d 254 (2000). Furthermore, after Moore made the statement, Delehoy saw McFarlane appear to hide something in the trash can, which was consistent with Moore's assertion that McFarlane had tried to shoot him. See United States v. Greenburg, 410 F.3d 63, 68 (1st Cir.2005) (stating that an officer's observation of conduct consistent with the informant's tip supports the tip's veracity).

In sum, Delehoy saw a chase between two men after hearing gun shots and then learned from one participant of the chase that the other had tried to shoot him. The circumstances under which Moore made this statement to Delehoy supported its veracity, as did McFarlane's peculiar conduct in going to the trash can. "[P]robable cause is a `common sense, nontechnical conception[] that deal[s] with the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.'" United States v. Meade, 110 F.3d 190, 198 n. 11 (1st Cir.1997) (quoting Ornelas v. United States, 517 U.S. 690, 695, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996) (alterations in original; internal quotation marks and additional citation omitted)). Under this standard, we conclude that Delehoy had probable cause to arrest McFarlane after he saw him go into the trash can. The motion to suppress was correctly denied.

B. Jury Instructions

McFarlane also challenges two aspects of the district court's jury instructions. First, he claims that the court did not adequately explain the concept of constructive possession as applied to this case, and second, he challenges the district court's instruction concerning the significance of his indictment in the jury deliberations.

We discern no abuse of discretion in the form of the constructive possession instruction. After determining that the facts could permit a guilty verdict under either an actual or constructive possession theory, the district court provided the following instruction concerning constructive possession:

[C]onstructive possession means power — the power and intention at any given time to exercise control or dominion of the object. Let me give you an example. If my son...