U.S. v. Rivera
| Decision Date | 09 July 2001 |
| Docket Number | No. 00-CR-10288-PBS.,00-CR-10288-PBS. |
| Citation | 152 F.Supp.2d 61 |
| Parties | UNITED STATES of America, v. Hector RIVERA, Defendant. |
| Court | U.S. District Court — District of Massachusetts |
John W. Laymon, Boston, MA, for defendant.
MEMORANDUM AND ORDER ON DEFENDANT'S MOTION TO SUPPRESS
The Defendant has moved to suppress evidence of a firearm and certain statements made by another individual present at the time of arrest. For the reasons stated below, the motion to suppress is DENIED.
On August 10, 2000, the Defendant Hector Rivera ("Rivera") was indicted by a federal grand jury on one charge of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). The Defendant moved this Court to suppress evidence of the firearm, a 9 millimeter pistol, recovered from an automobile occupied by the Defendant and to suppress statements made to law enforcement officials by another individual present at the time of Rivera's arrest.
A hearing was held on February 12, 2001, at which both sides examined witnesses and presented arguments. At the close of the hearing, the Court ruled from the bench denying Defendant's motion to suppress. After a jury trial, Defendant was convicted. The basis for the denial of Defendant's motion is set forth in the factual findings and legal analysis of this opinion.
At 9:30 p.m. on April 27, 2000, Massachusetts State Troopers Mario Millett and Effron Montanez, members of the North Shore Gang Unit, were patrolling a high-crime area in the Erving Street area of Lawrence, Massachusetts in plain clothes and an unmarked police vehicle. They were in the immediate vicinity of a club which was a normal hang out for gang members. As they passed Myrtle Court in Lawrence, the officers noticed a car, a green Ford Taurus, parked illegally in the middle of the street. They also noticed two Hispanic men, one of whom, Jose Acosta, was urinating as he stood near the driver's side door of the car. The second man, Rivera, was leaning against the passenger side of the vehicle. The passenger door was open. The officers decided to back up their vehicle and proceed onto Myrtle Court to investigate.
As the officers approached, they activated the blue and white police lights on their vehicle. The officers pulled within a car's length behind the Taurus and exited their vehicle. As they exited, Officer Millett noticed Rivera make a movement toward his waistband with his right hand, turn his back to the police officer, duck into the car, sit inside the passenger's side of the Taurus, and lean over toward the operator's side of the car out of the trooper's view. Approaching Rivera and Acosta on foot, the officers announced themselves as State Police and immediately became aware of the distinct odor of marijuana emanating from the vehicle. Rivera exited the Taurus when Officer Millett was a few steps away and threw what Officer Millett perceived to be a glowing marijuana cigar, or "blunt," to the ground.
Officer Millett approached Rivera and asked him if he had just discarded a blunt. Recognizing Rivera but unable to identify him, Millett asked if they knew each other. At that point, Rivera pushed Officer Millett back and attempted to flee. Officer Millett caught up with Rivera within a few steps, brought him to the ground, handcuffed him, and placed him under arrest. He asked Rivera why he would push him back and try to flee just because of a marijuana blunt.
Officer Millett called for backup and two additional officers arrived on the scene. Once Rivera was cuffed and seated on a nearby curb, Officer Millett approached the open door on the driver's side of the Taurus. The interior of the car smelled strongly of marijuana. With his flashlight, Officer Millett peered inside the car and noticed a bulge underneath the driver's side floor mat, just below the gas pedal. Beneath the mat Officer Millett discovered a 9 millimeter pistol. In a loud voice, he proclaimed he had found a gun. The driver of the car, Jose Acosta (who had been urinating) exclaimed immediately, "It's not my gun, it's not mine." An open container of alcohol was found wedged between the seat and console. As Officer Millett was conducting the search of the Taurus, Officer Montanez retrieved the blunt that had been tossed aside earlier by Rivera. Acosta was also placed under arrest as he had no license. Acosta admitted that they had been smoking marijuana.
Rivera contends that the firearm must be suppressed because the police were not justified in initially approaching Rivera and Acosta in the street. In addition, Rivera contends that, even if the initial stop was warranted, the subsequent search of the vehicle that yielded the firearm violated the Fourth Amendment.
According to Rivera, the officers' initial decision to approach Acosta and Rivera was impermissible for two reasons. First, he claims that the officers lacked the requisite level of suspicion to justify the initial approach. Second, he claims that, even if there were objectively suspicious circumstances justifying a brief stop, the officers only stopped him because both he and Acosta are Hispanic.
Generally speaking, police interactions with civilians fall within three categories of analysis under the Fourth Amendment. Under the first category, "[p]olice may approach citizens in public spaces and ask them questions without triggering the protections of the Fourth Amendment." See United States v. Young, 105 F.3d 1, 6 (1st Cir.1997). Under such circumstances, the police are not required to have any articulable suspicion to initiate questioning so long as, based on the totality of the circumstances, the person being questioned would have felt free to terminate the conversation and proceed along his way. See id.; Florida v. Bostick, 501 U.S. 429, 439, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991).
A officer may also effect a brief, limited investigative stop where the officer has a reasonable suspicion, based on articulable facts, that criminal activity may be afoot. See Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). To determine if such a Terry stop was warranted, the First Circuit follows a two-pronged inquiry. First, the court must determine whether the officer's action was justified at its inception; and second, it must determine whether the action was reasonably related in scope to the circumstances which justified the interference in the first place. See United States v. Moore, 235 F.3d 700, 703 (1st Cir.2000).
Finally, an officer may effect an arrest, which occurs when the officer, "acting on probable cause that an individual has committed a crime, detains that individual as a suspect." Young, 105 F.3d at 6. 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 had committed or was committing a crime." Id.
With this rubric as guide, I first turn to Rivera's argument that the officers were not justified in initially approaching Rivera and Acosta. Rivera argues that, at the time the officers initially observed him that evening, he was not committing any crime. However, consistent with the first category of Fourth Amendment analysis, the officers required no particularized level of suspicion merely to approach the duo and ask questions. See id. In addition, as Officers Millett and Montanez passed Rivera and Acosta on Myrtle Court, two infractions were readily apparent: the illegally parked car and Acosta's indecent exposure. Although both officers admit that Rivera appeared from a distance to be doing nothing illegal, this did not require them to refrain from investigating the illegally parked vehicle and indecent exposure.
Moreover, once the officers approached the Taurus, Rivera's behavior under the circumstances gave the officers sufficient cause to investigate further. Rivera first made a suspicious movement by reaching for his waistband and retreating to the interior of the car. In addition, the scene smelled of burning marijuana, and Rivera discarded what appeared to be a blunt as Officer Millett looked on. Based on the totality of these facts, Officer Millett had more than a reasonable suspicion that criminal activity was afoot. See, e.g., United States v. Velez-Saldana, 252 F.3d 49, 53 (1st Cir.2001) (); Illinois v. Wardlow, 528 U.S. 119, 124-25, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000) (). He was therefore justified in approaching, questioning, and stopping Rivera.
As to the second issue, Defendant claims that the questioning was unlawful because it was a pretextual excuse to investigate Acosta and Rivera because they are Hispanic. I find that the police officers were not motivated by Defendant's race or ethnicity when they approached Acosta and Rivera. Rather, they were motivated to investigate by the suspicious activity they observed in a high crime area frequented by gangs. Moreover, the Supreme Court decision in Whren v. United States, 517 U.S. 806, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996), is dispositive here. Whren holds that an officer's subjective motivation does not invalidate objectively justifiable police conduct under the Fourth Amendment. See id. at 809, 116 S.Ct. 1769. There is no evidence here of selective prosecution or racial profiling. But cf. Yick Wo v. Hopkins, 118 U.S. 356, 373-73, 6 S.Ct. 1064, 30 L.Ed. 220 (1886) (...
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