U.S. v. Paleo
| Decision Date | 18 August 1992 |
| Docket Number | 90-1774,Nos. 90-1598,s. 90-1598 |
| Citation | 967 F.2d 7 |
| Parties | UNITED STATES, Appellee, v. Robert PALEO, Defendant, Appellant. UNITED STATES, Appellant, v. Robert P. PALEO, Defendant, Appellee. |
| Court | U.S. Court of Appeals — First Circuit |
Mark G. Miliotis, by appointment of the Court, with whom Miliotis & McQuade, Boston, Mass., was on brief for defendant-appellant.
Carole S. Schwartz, Sp. Asst. U.S. Atty., with whom Wayne A. Budd, U.S. Atty., Boston, Mass., was on brief for appellee.
Before BREYER, Chief Judge, ALDRICH, Senior Circuit Judge, and SELYA, Circuit Judge.
Robert Paleo entered a guilty plea to a charge of unlawful gun possession. 18 U.S.C. § 922(g)(1) (). The district court sentenced him to a prison term of twenty-one months, 738 F.Supp. 611. Both sides appeal.
Paleo claims that the court should have granted his motion to suppress (on constitutional grounds) the government's most important evidence, the gun itself. We find Paleo's arguments unconvincing, and we affirm his conviction.
The government claims that the district court should have counted, for purposes of a sentence-enhancement statute, several prior convictions that Paleo argued were constitutionally invalid. 18 U.S.C. § 924(e) (). The government's primary argument is that an offender, at the time of federal sentencing, normally cannot attack a prior conviction (offered to enhance a present sentence) as constitutionally invalid--at least, not where other, "unexhausted," remedies remain available. We reject this argument. Nonetheless, because we agree with several of the government's
subsidiary arguments, we remand this case for resentencing.
Paleo pled guilty to the gun-possession charge under a plea agreement that reserved his right to bring this appeal. He asks us to find that the police unconstitutionally seized his gun, and that the district court therefore should have granted his motion to suppress the gun as evidence. After reviewing the record, however, we are convinced that the district court's refusal to suppress the evidence was legally proper.
The record of the suppression hearing indicates that, on the evening of February 8, 1989, two Massachusetts state police officers, present in an area of suspected drug activity, observed a speeding car and signaled the car to stop. The car did not stop. The officers chased the car. The car ran a red light. After a several-block chase, the officers succeeded in stopping the car, facing into traffic. As the officers approached the car, one of them noticed the car's passenger, Paleo, put something in his mouth. Suspecting that the "something" was narcotics, the officer told Paleo to "spit it out." At the same time, the officer opened the passenger door and reached towards Paleo's mouth, perhaps touching him. Paleo then said, "Don't shoot; I have a gun." The officer patted Paleo's jacket, noticed a hard object, removed it, discovered it was a gun with the serial number filed off, ordered Paleo out of the car, and arrested him.
We can find nothing unconstitutional in this course of events. The law allows officers to stop a speeding vehicle and to approach such a vehicle, once stopped, for investigation. Pennsylvania v. Mimms, 434 U.S. 106, 109-11, 98 S.Ct. 330, 332-34, 54 L.Ed.2d 331 (1977) (per curiam) (); United States v. Lott, 870 F.2d 778, 784 (1st Cir.1989) (). The law also permits an officer, in the course of such investigation, to take actions that a " 'reasonable and cautious police officer on the scene, guided by his experience and training,' " United States v. Trullo, 809 F.2d 108, 112 (1st Cir.) (quoting United States v. Hall, 525 F.2d 857, 859 (D.C.Cir.1976)), cert. denied, 482 U.S. 916, 107 S.Ct. 3191, 96 L.Ed.2d 679 (1987), in light of the "facts available to the officer at the moment," would consider "appropriate." Terry v. Ohio, 392 U.S. 1, 21-22, 88 S.Ct. 1868, 1879-1880, 20 L.Ed.2d 889 (1968); Michigan v. Long, 463 U.S. 1032, 1045-52, 103 S.Ct. 3469, 3479-82, 77 L.Ed.2d 1201 (1983); United States v. Jackson, 918 F.2d 236, 238 (1st Cir.1990) (). Given the suspected drug trade in the area, the car's flight from the police, Paleo's placing something in his mouth, the officer's ten years' experience with narcotics investigations, and the officer's testimony that, in his experience, "it is quite common for a person stopped on the street to dispose" of narcotics by trying to swallow them, it was "appropriate" for the officer to open the car door, order Paleo to "spit it out," and to reach for his mouth. Trullo, 809 F.2d at 111-12 (); United States v. Stanley, 915 F.2d 54, 56-57 (1st Cir.1990) (similar); United States v. Gilliard, 847 F.2d 21, 24-25 (1st Cir.1988) (similar), cert. denied, 488 U.S. 1033, 109 S.Ct. 846, 102 L.Ed.2d 978 (1989). In these circumstances, the officers could have ordered Paleo and the driver from the car, see, e.g., Stanley, 915 F.2d at 55; Gilliard, 847 F.2d at 22; Trullo, 809 F.2d at 109-10; and we can find no significant difference between such an order and the officer's reaching into the car and telling the passenger to "spit out" what the officer suspected was narcotics.
Moreover, as soon as the officer heard Paleo say he had a gun, he acted reasonably and lawfully in looking for, and taking, the gun. Terry, 392 U.S. at 27-31, 88 S.Ct. at 1883-1885; Stanley, 915 F.2d at 57; Trullo, 809 F.2d at 113-14. Once he Because we find the search and seizure lawful, we affirm Paleo's conviction.
saw the serial number obliterated, he had sufficient grounds to place Paleo under arrest. Mass.Gen.L. ch. 269, § 11C (crime knowingly to possess gun with serial number removed)
The government appeals the district court's sentence of twenty-one months imprisonment. 18 U.S.C. § 3742(b)(1). It points to a sentence-enhancement statute that requires a federal court to sentence, to a prison term of at least fifteen years, an offender convicted of the gun-possession offense to which Paleo pled guilty, 18 U.S.C. § 922(g)(1), if that offender has "three previous convictions ... for a violent felony." 18 U.S.C. § 924(e)(1). The government offered four previous convictions:
1) A June 18, 1980, conviction in Boston Municipal Court for "breaking and entering in the daytime with intent to commit a felony" (# 3343);
2) A different conviction on the same day in the same court for a different incident of the identical kind of crime, namely "breaking and entering in the daytime with intent to commit a felony" (# 5131);
3) A July 1, 1980, conviction in the same court for "breaking and entering a building at night with intent to commit a felony" (# 5634);
4) Two January 17, 1981, convictions in Suffolk Superior Court for "assault and battery with a dangerous weapon" and "armed robbery," both crimes arising out of a single incident.
The district court refused to count the three breaking and entering convictions as predicate offenses for sentence-enhancement purposes for two reasons, either of which would be sufficient. First, the court believed that the "breaking and entering" convictions were not convictions for "violent" felonies. Second, the court found that the convictions suffered from serious constitutional infirmities. We shall consider these two grounds in turn.
The district court accepted Paleo's claim that his first "breaking and entering" conviction involved a confederate who broke into the building while Paleo remained in the car, that the second involved Paleo's walking off with stereo speakers left on the sidewalk, and that the third involved an uncompleted effort to break into a restaurant. The court said it could find nothing "violent" about these activities, and it held that they were not, under the sentence enhancement statute, "violent felonies."
The government correctly points out, however, that the Supreme Court held, shortly before the sentencing hearing, that what matters, for purposes of deciding whether a felony is "violent," is the statutory definition of the crime, not the way in which a particular offender carried out the crime on a particular occasion. Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 2160, 109 L.Ed.2d 607 (1990); see also United States v. Harris, 964 F.2d 1234, 1235-36 (1st Cir.1992); United States v. Doe, 960 F.2d 221, 223-224 (1st Cir.1992). Moreover, for purposes of this same sentence-enhancement statute, the generic crime of breaking and entering a building (with intent to commit a felony) is a "violent felony." Taylor, 110 S.Ct. at 2158.
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