U.S. v. Walker, 90-1575

• Decision Date: 03 October 1990
• Docket Number: No. 90-1575,90-1575
• Citation: 924 F.2d 1
• Parties: UNITED STATES, Appellee, v. Stephen Joseph WALKER, Defendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 1

924 F.2d 1

UNITED STATES, Appellee, v. Stephen Joseph WALKER, Defendant, Appellant.

No. 90-1575.

United States Court of Appeals First Circuit.

Heard Oct. 3, 1990.

Decided Jan. 10, 1991.

Robert A. Levine, Portland, Me., by appointment of the Court, for defendant, appellant.

Margaret D. McGaughey, Asst. U.S. Atty., with whom Richard S. Cohen, U.S. Atty., and Paula D. Silsby, Portland, Me., Asst. U.S. Atty., were on brief for appellee.

Before SELYA, Circuit Judge, BOWNES, Senior Circuit Judge, and ATKINS, ^* Senior District Judge.

ATKINS, Senior District Judge.

Defendant Walker appeals from his conviction in the district court. Walker entered a conditional plea of guilty to a single-count indictment charging him with being a convicted felon in possession of a firearm, in violation of 18 U.S.C. Secs. 922(g)(1) and 924(a)(1). Walker's conditional plea of guilty was entered under an agreement with the government that Walker reserved the right to appeal the denial of his motions to suppress and dismiss. We affirm the denial of Walker's motion to suppress finding that the district court correctly applied the standards set forth in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) and its progeny. We also affirm the denial of Walker's motion to dismiss finding that there was no violation of the Interstate Agreement on Detainers Act (hereinafter "IAD"). We affirm the conviction.

I. FACTS AND PROCEDURAL HISTORY

A. Facts

Early in the morning of August 19, 1987, Detective Sergeant Stephen Lyons (hereinafter "Officer Lyons"), a seven-year veteran of the Westbrook Police Department, was on patrol alone in a marked police cruiser on the north side of Westbrook, Maine. At approximately 2:30 a.m., Officer Lyons drove past C.R. Wood, a lumber and construction materials business and noticed a trailer and a cab detached from the trailer, in the C.R. Wood parking lot. The trailer appeared to be loaded with lumber and was parked near the back of the building in a dimly lit and wooded area. He became curious and decided to get a closer look, knowing there had been early morning break-ins in this area in the past, and also realizing that never in his four years patrolling this area had he ever seen an early morning delivery made at C.R. Wood.

As he drove closer to the C.R. Wood parking lot, Officer Lyons first saw a very tall heavyset man in blue jeans with a rather scruffy appearance sitting down facing the fence of the parking lot. Officer Lyons then noticed another man approximately five-feet nine inches tall moving in the cab. Knowing that burglars often operated in pairs with one diverting attention away from the area while the other perpetrates the crime, Officer Lyons became more apprehensive and decided to investigate. The presence of out-of-state license plates on the tractor-trailer heightened his suspicions and Officer Lyons sent a radio message to police headquarters communicating his intentions to stop two dubious men at C.R. Wood at this early hour of the morning.

When Officer Lyons pulled up and parked in front of the cab, the large man, later identified as Walker, approached the police cruiser. The other man, later identified as Chrispman, climbed down from the cab and also approached. In response to Officer Lyons' questions as to what they were doing, one of the two men explained that they were delivering wood to C.R. Wood and since they arrived after closing time, they had to wait until the next morning to deliver the lumber. The two men had planned to sleep in their trailer cab which was equipped with a sleeping compartment.

Initially, Officer Lyons remained in his police cruiser as he questioned the two men. In response to Officer Lyons' request for documented proof of their purpose and identification, Walker produced his identification, while Chrispman told the Officer that he would get his, as he simultaneously began walking toward the cab. At this point Officer Lyons thought Chrispman was acting evasively by asking to return to the cab. The large size and unkempt appearance of Walker also increased the officer's concern for his safety and he told the two men that he was getting somewhat uneasy and was going to perform a frisk.

As the frisk was beginning, another officer arrived on the scene. During the frisk, a gun was found in Walker's right front shirt pocket. When it was later learned that Walker had prior felony convictions for armed robbery, he was charged with possession of a firearm by a convicted felon.

B. Procedural History

The indictment against Walker was returned on February 15, 1989. On October 17, 1989, on the Government's petition, a writ of habeas corpus ad prosequendum was issued. On November 17, 1989, Walker appeared for arraignment before a Magistrate and he consented to be detained pending trial and was remanded to the Marshal's custody. On December 11, 1989, Walker filed a motion to extend the time for filing motions.

Walker's motion to suppress the gun was filed December 19, 1989 and a hearing before the Magistrate was held on January 16, 1990. The Magistrate issued a report on February 15, 1990 recommending that the motion to suppress be denied. The Magistrate found that the weapon was discovered as a result of a stop and frisk based on articulable suspicion. On February 23, 1990, Walker filed objections to the Magistrate's proposed recommendation. The district court entered an order on March 30, 1990 adopting the Magistrate's recommendation after making a de novo determination. The district court denied the motion to suppress finding no further proceedings necessary.

On March 15, 1990, Walker filed a motion to dismiss the indictment. He claimed that more than 120 days had elapsed since November 9, 1989, when he was brought from Maine to Maryland, where he was serving a sentence for violation of probation. In essence, he argued that his rights under the IAD enacted by the State of Maine had been violated. The government took the position that any delay which is lawful under the Speedy Trial Act also operates to stop the clock for IAD purposes. Therefore, in view of the various motions that Walker filed, only 30 days had run toward the 120 day limit. The district court entered its order on March 30, 1990 denying the Motion to Dismiss finding that only 30 chargeable days under the IAD had expired due to motions filed by the defendant.

On April 4, 1990, Walker entered a conditional plea of guilty to the indictment under an agreement with the Government. Walker reserved the right to appeal the denial of his motion to suppress and motion to dismiss. Both parties reserved the right to recommend any lawful sentence authorized by law. The plea, and later the plea agreement, were accepted.

II. DISCUSSION

A. Walker's Motion to Suppress

Walker argues that there was lack of articulable suspicion to perform the stop and lack of reasonable belief that Walker was in possession of a weapon. We review the district court's finding as to the inferences reasonably drawn from the facts and circumstances presented at the suppression hearing under the clearly erroneous standard. See, e.g., United States v. Stanley, 915 F.2d 54, 57 (1st Cir.1990); United States v. Figueroa, 818 F.2d 1020, 1024 (1st Cir.1987); United States v. Wiseman, 814 F.2d 826, 827-828 (1st Cir.1987).

The question of whether an officer has reasonable grounds to "stop" and to "frisk" falls directly within the Fourth Amendment's proscription against unreasonable searches and seizures. Terry v. Ohio, 392 U.S. 1, 16, 20, 88 S.Ct. 1868, 1877, 1879, 20 L.Ed.2d 889 (1968). The Supreme Court stated that "in justifying the particular intrusion the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion." Terry, 392 U.S. at 21, 88 S.Ct. at 1880.

In determining the reasonableness of a Terry stop, "the court must first consider whether the officer's action was justified at its inception; and, second, whether the action taken was reasonably related in scope to the circumstances which justified the interference in the first place." Stanley, 915 F.2d at 55 (citations omitted). When applying this familiar two-prong test, the court must view the circumstances relating to the stop and frisk as a whole. Id.

First, we turn to the determination of whether the police action was justified at its inception. We continue to recognize that this determination depends on the totality of the circumstances confronting the officer, United States v. Trullo, 809 F.2d 108, 111 (1st Cir.), cert. denied, 482 U.S. 916, 107 S.Ct. 3191, 96 L.Ed.2d 679 (1987), and that "due weight must be given, not to his inchoate and unparticularized suspicion or 'hunch', but to the specific reasonable inferences which he is entitled to draw from the facts in light of his experience." Stanley, 915 F.2d at 56 (quoting Terry, 392 U.S. at 27, 88 S.Ct. at 1883).

The circumstances in this case clearly support that Officer Lyons had reasonable suspicion that a crime was afoot. The magistrate's report, later endorsed by the district court, found that the area had a history of crime. The magistrate's report found that:

[i]t was entirely reasonable for Officer Lyons to have approached the defendant and Chrispman in connection with his investigation of possible criminal behavior. Their presence at 2:30 a.m. near a trailer rig loaded with wood and a detached cab was clearly suspicious, especially so in light of Officer Lyons' knowledge of previous burglaries at this same site and elsewhere in the area.

Recommended Decision on Motion to Suppress (February 15, 1990), at 5. We agree. The type of area in question is clearly a consideration officers use in deciding to make a "Terry" stop. See Stanley, 915 F.2d at 56; Trullo, 809 F.2d at 111. Officer Lyons testified that he knew there had been early morning break-ins in this area in the past.

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