U.S. v. Taylor

• Citation: 162 F.3d 12
• Decision Date: 04 November 1998
• Docket Number: No. 98-1536,98-1536
• Parties: UNITED STATES, Appellee, v. Roderick L. TAYLOR, Defendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 12

162 F.3d 12

UNITED STATES, Appellee, v. Roderick L. TAYLOR, Defendant, Appellant.

No. 98-1536.

United States Court of Appeals, First Circuit.

Heard Nov. 4, 1998.

Decided Dec. 4, 1998.

John M. Thompson for appellant.

Ariane D. Vuono, Assistant United States Attorney, with whom Donald K. Stern, United States Attorney and Dina Michael Chaitowitz were on brief for appellee.

Before SELYA, Circuit Judge, COFFIN and CAMPBELL, Senior Circuit Judges.

CAMPBELL, Senior Circuit Judge.

Taylor appeals from his conviction on one count of possession with intent to distribute cocaine pursuant to 21 U.S.C. § 841 and one count of using or carrying a firearm during and in relation to a drug trafficking crime pursuant to 18 U.S.C. § 924(c). Prior to trial, Taylor filed a motion to suppress drugs and firearms seized from the car he was driving on the ground that the initial stop of the car was not justified. The district court denied the motion. On appeal, Taylor challenges the denial of the motion to suppress. He also contends that the jury instructions pertaining to the firearms offense were erroneous. We affirm.

I.

On February 1, 1996, at approximately 1:00 p.m., Officer Kevin Lee of the Springfield Police Department, while working his shift in the Narcotics Division, received a telephone call from a confidential informant. During the course of their conversation, which lasted approximately five minutes, the informant told Officer Lee that he had observed a brown Acura with tinted windows and Massachusetts registration number 977-YMS in the area of Cambridge Street in Springfield. The informant stated that the Acura was occupied by two black males, one approximately six feet seven inches tall and wearing a Dallas Cowboys jacket and the other approximately six feet tall with braided hair and wearing a black leather jacket. The informant also told Officer Lee that he had observed the two men in possession of a large quantity of crack cocaine and two nine millimeter handguns. He informed Officer Lee that the men were making "drops" (delivering narcotics to street-level dealers) in the Mason Square area of Springfield.

During the hearing on Taylor's motion to suppress, Officer Lee testified that it was standard procedure in the Narcotics Division of the Springfield Police Department to assign each informant to an individual officer for handling. This was done, according to Lee, in part to ensure that the identities of confidential informants remained secret. The informant who called Officer Lee on February 1, 1996 was assigned to Officer Talbot, another officer in the Narcotics Division who was not on duty that day. Although the informant was assigned to Officer Talbot, Officer Lee testified that he had worked personally with the informant for approximately one year prior to receiving the telephone call. He testified that he knew the informant by name and recognized his voice immediately. Officer Lee testified that he had worked with the informant on approximately five occasions prior to February 1, 1996. Officer Lee recalled that he had participated in "raids" and "lookouts" based upon information provided by the informant and that the informant had participated in controlled purchases of narcotics on behalf of the police. Officer Lee could not recall whether the information provided by the informant on these five prior occasions had led to any arrests or convictions. At the time he received the call, Officer Lee was aware, however, that on at least five occasions in the past the informant had provided Officer Talbot with information that led to arrests and convictions. Based upon his own experience and upon his knowledge of Officer Talbot's experience with the informant, Officer Lee characterized the informant as "one of the better informants that we have."

Immediately after his conversation with the informant, Officer Lee made a general radio broadcast to all Springfield police units. He told all units to be "on the lookout" for a brown Acura with tinted windows bearing Massachusetts registration number 977-YMS, last seen on Cambridge Street in Springfield. Officer Lee conveyed the description of the two occupants of the car that had been provided by the informant. He also alerted all units that the occupants of the Acura had two nine millimeter handguns and a large quantity of crack cocaine.

Approximately 45 minutes after Officer Lee's broadcast, Officer Komosa, a twenty-nine-year veteran of the Springfield Police Department who was on patrol in his marked police cruiser, saw a gold Acura parked at the curb in front of a variety store near the corner of State Street and Cortland Street. This location is in the Mason Square area of Springfield. Officer Komosa drove past the Acura and called the station to confirm the registration number. The car bore the same plate number as that broadcast by Officer Lee. Officer Komosa testified at the suppression hearing that he recalled Officer Lee's radio broadcast mentioning that this car was involved in the sale of narcotics and that the occupants were believed to have weapons. Officer Komosa further testified that when he first observed the Acura there appeared to be someone in the car and that, as he passed the car, it looked like there were people coming towards it from the store, and perhaps entering it.

After he received confirmation of the plate number, Officer Komosa requested backup from other officers in the area. The Acura pulled from the curb and began heading east on State Street. When the Acura reached a stop light at the corner of State Street and Benton Street (a location that is also in the Mason Square area of Springfield), Officer Komosa positioned his cruiser behind the Acura and activated his overhead lights. Officer Komosa instructed officers in two other police cruisers, which arrived at the intersection within seconds of Officer Komosa's request for backup, to converge on and block in the Acura. When the Acura was blocked in, Officer Komosa got out of his cruiser. He testified at the suppression hearing that he drew his weapon "knowing that there's guns involved in this particular thing." Officer Komosa commanded the driver of the Acura (later revealed to be Taylor) to shut off the car's engine. Using his door as cover, Officer Komosa waited as other officers approached the Acura. Officer Komosa could see through a small, un-tinted portion of the back window that there were two individuals in the front seat and at least one individual in the back seat of the Acura. ¹ Because of the Acura's tinted windows, however, Officer Komosa could not positively match any of the car's occupants with the description provided by the informant, nor could he see what any of the individuals were doing inside the car.

Two officers in plain clothes, at least one of whom had his gun drawn, then approached the driver's side of the Acura. At the same time, other officers also approached the passenger's side of the Acura. As Officer Komosa watched, three occupants were removed from the Acura, placed on the ground, and pat-frisked for weapons. Once the occupants were secured by the other officers, Officer Komosa re-holstered his weapon. Officer Komosa testified that the occupants were on the ground for no longer than three to four minutes. Once they were frisked, the occupants of the car were taken toward the rear of the Acura and interviewed. At that point, none of the officers had their weapons drawn. The occupants were not placed in handcuffs and the record does not indicate that they were told at the time by any officer that they were not free to leave. Officer Komosa testified that in all, a total of ten to twelve officers, some in plain clothes and others in uniform, and a number of cruisers and unmarked vehicles ultimately responded to his request for backup. He testified that twenty-five to thirty minutes elapsed from the time he stopped the car to the time the occupants were placed under arrest and taken to the police station.

Officer Auger and Sergeant Kennedy arrived on the scene in separate vehicles approximately one minute after receiving Officer Komosa's request for backup. Officer Auger testified that there were between three and seven officers on the scene when he arrived. Upon his arrival, Officer Auger observed that the front passenger door of the Acura was open, and that all three individuals were outside the car and were being interviewed by officers near the rear of the Acura. Officer Auger went to the passenger side of the Acura and, after positioning his head and upper torso inside the passenger compartment, immediately detected a "strong odor" of marijuana. Officer Auger testified at the suppression hearing that he recalled that Officer Lee's broadcast had mentioned weapons, and that he was searching the passenger's side floor area for weapons. He testified that immediately after he looked at the floor area, he looked up into the area between the Acura's sunroof and its retractable sunscreen and observed a large, clear plastic bag containing seeds, stems and marijuana. Officer Auger retrieved these items. Officer Auger also retrieved from the sunroof compartment two more plastic bags containing crack cocaine (225 grams) packaged for street sale.

At the same time that Officer Auger was searching the passenger side of the Acura, Sergeant Kennedy was searching the driver's side for weapons that might have been accessible to the occupants of the Acura. When Sergeant Kennedy opened the driver's side door and entered the Acura, he too immediately identified a "strong smell of marijuana." Two to three minutes after they began searching the car for weapons, Sergeant Kennedy saw Officer Auger retrieve a large bag containing marijuana from the sunroof area. Sergeant Kennedy then looked into the driver's side area of the sunroof compartment and found a ski cap wrapped around a loaded .45 caliber automatic pistol with an extra ammunition clip....