U.S. v. Young, 95-2178

CourtUnited States Courts of Appeals. United States Court of Appeals (1st Circuit)
Citation105 F.3d 1
Docket NumberNo. 95-2178,95-2178
Parties46 Fed. R. Evid. Serv. 307 UNITED STATES, Appellee, v. Dwayne YOUNG, Defendant, Appellant. . Heard
Decision Date10 October 1996

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105 F.3d 1
46 Fed. R. Evid. Serv. 307
Dwayne YOUNG, Defendant, Appellant.
No. 95-2178.
United States Court of Appeals,
First Circuit.
Heard Oct. 10, 1996.
Decided Jan. 23, 1997.

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Karl R.D. Suchecki with whom Jennifer Petersen and Petersen & Suchecki were on brief, Boston, for appellant.

Andrea Nervi Ward, Assistant United States Attorney, with whom Donald K. Stern, United States Attorney, was on brief, for appellee.

Before CYR, BOUDIN and STAHL, Circuit Judges.

STAHL, Circuit Judge.

In May 1995, a jury convicted defendant Dwayne Young on a single count of unlawful possession of a firearm by a felon, 18 U.S.C. § 922(g)(1). During trial, and after denying Young's motion to suppress, the district court admitted the firearm and ammunition into evidence. The district court also admitted a so-called "turret tape," a recording of radio transmissions between a police officer and his dispatcher, made during the officer's foot pursuit of Young. 1 Finally, the district court allowed the jury to use a government-prepared transcript as an aid in listening to the tape while it was being played during trial. Finding no error, we affirm.


On April 7, 1994, Officers James Fee and Robert Twitchell of the Boston Police Department, while patrolling the Roxbury section of Boston, received a radio broadcast describing three individuals suspected of armed robbery. Several blocks from the last reported location of the suspects, the officers noticed a group of three men standing together. Upon seeing the unmarked cruiser, the group dispersed. One of the three, Young, walked in one direction by himself while the other two departed together in another direction.

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The officers, noting that Young's short height and black clothing appeared to match the description of one of the robbery suspects, pulled their cruiser to the curb alongside Young. From the passenger seat, Officer Twitchell rolled down his window and announced "Boston Police, you got a minute?" to which Young responded "Sure." Young then "angled" toward the rear of the cruiser. As Young approached the car, the officers noticed the handle of a handgun protruding from his waistband. Officer Twitchell lunged at Young through the window of the cruiser, made fleeting contact with his jacket or belt, but failed to either grab the gun or detain him. Young turned and ran from the cruiser, with Twitchell, now on foot, in pursuit.

During the pursuit, Officer Twitchell saw Young remove the gun from his waistband and throw it into the basement stairwell of a building on Elm Street. Although Young successfully eluded Twitchell, he was ultimately apprehended by a back-up police officer who found him hiding in a nearby garage. Officer Twitchell then returned to the stairwell and recovered the gun. While these events were unfolding, Officer Twitchell and other officers continuously transmitted information to the dispatcher at the Boston Police headquarters. These transmissions comprise the turret tape.

Prior to trial, Young moved to suppress the gun and the turret tape. Young asserted that the police recovered the gun through a violation of his Fourth Amendment rights, and argued that the tape constituted inadmissible hearsay. The district court denied Young's motion to suppress the gun, but granted his motion with respect to the turret tape, with the caveat that defense counsel's cross examination might subsequently render it admissible. During trial and after defense counsel's cross examination of Officer Twitchell, the district court admitted the turret tape as a prior consistent statement, and allowed the jury to use a transcript prepared by the government, as an aid in listening to the turret tape. Young appeals admission of the gun and tape, as well as use of the transcript.


A. Suppression of the Gun

We employ a dual standard in reviewing motions to suppress. We review the district court's findings of fact for clear error. See United States v. Bartelho, 71 F.3d 436, 441 (1st Cir.1995). "A clear error exists only if, after considering all of the evidence, we are left with a definite and firm conviction that a mistake has been made." United States v. McCarthy, 77 F.3d 522, 529 (1st Cir.), cert. denied, --- U.S. ----, 117 S.Ct. 479, 136 L.Ed.2d 374 (1996). Deference to the district court's findings of fact reflects our awareness that the trial judge, who hears the testimony, observes the witnesses' demeanor and evaluates the facts first hand, sits in the best position to determine what actually happened. See United States v. Zapata, 18 F.3d 971, 975 (1st Cir.1994). By contrast, we review conclusions of law de novo and subject the trial court's constitutional conclusions to plenary review. See id.; see also Ornelas v. United States, --- U.S. ----, ----, 116 S.Ct. 1657, 1663, 134 L.Ed.2d 911 (1996). Determinations of probable cause and reasonable suspicion, relevant to the constitutionality of law enforcement seizures and arrests under the Fourth Amendment, present mixed questions of law and fact which we review de novo. See Ornelas, --- U.S. at ----, 116 S.Ct. at 1663.

Young argues that the district court erred by concluding that recovery of the firearm did not occur through conduct that violated his Fourth Amendment rights. Specifically, Young contends that Officers Twitchell and Fee lacked either the reasonable suspicion needed to stop him, or the probable cause required for an arrest. We disagree.

Interaction between law enforcement officials and citizens generally falls within three tiers of Fourth Amendment analysis, depending on the level of police intrusion into a person's privacy. The first or lowest tier encompasses interaction of such minimally intrusive nature that it does not trigger the protections of the Fourth Amendment. The Supreme Court has repeatedly emphasized that not all personal intercourse between the police and citizens rises to the level of a stop or seizure. See

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Florida v. Bostick, 501 U.S. 429, 434, 111 S.Ct. 2382, 2386, 115 L.Ed.2d 389 (1991) (citing cases). Police may approach citizens in public spaces and ask them questions without triggering the protections of the Fourth Amendment. See id.; United States v. Manchester, 711 F.2d 458, 460 (1st Cir.1983). Such police engagements need not find a basis in any articulable suspicion. See Bostick, 501 U.S. at 435, 111 S.Ct. at 2386-87. Police conduct falls short of triggering Fourth Amendment protections when, from the totality of the circumstances, we determine that the subject of any police interaction would have felt free to terminate the conversation and proceed along his way. See Bostick, 501 U.S. at 439, 111 S.Ct. at 2388-89; United States v. Sealey, 30 F.3d 7, 9 (1st Cir.1994).

The totality of the circumstances in this case establishes that any interaction between the officers and Young prior to Officer Twitchell's lunge falls well within the first tier of police-citizen interaction, and therefore, fails to trigger the protections of the Fourth Amendment. As they pulled alongside Young, the officers identified themselves as Boston Police officers, and asked "got a minute" to which Young replied "sure." The district court credited the officers' testimony, and we detect no clear error. We recently determined that conduct virtually identical to what occurred in this case did not trigger the protections of the Fourth Amendment, and concluded that in the absence of an officer's exertion of physical force or an individual's submission to a show of authority, no seizure occurs. See Sealey, 30 F.3d at 10 (finding no Fourth Amendment seizure where police officers in a cruiser approached defendant and yelled "Hey Steven, what's up?") (citing California v. Hodari D., 499 U.S. 621, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991)). We reiterate that conclusion with respect to the officers' conduct toward Young prior to Officer Twitchell's lunge.

The remaining two tiers of Fourth Amendment analysis comprise de facto arrests requiring probable cause, and lesser seizures generally known as investigative or Terry stops, which require a lesser reasonable suspicion. An arrest occurs when an officer, acting on probable cause that an individual has committed a crime, detains that individual as a suspect. 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. See United States v. Maguire, 918 F.2d 254, 258 (1st Cir.1990), cert. denied, Kavanagh v. United States, 501 U.S. 1234, 111 S.Ct. 2861, 115 L.Ed.2d 1027 (1991). An investigative stop, also known as a Terry stop, see Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), occurs when a police officer, acting on reasonable and articulable suspicion of criminal activity, briefly detains an individual to confirm or dispel his suspicion. See McCarthy, 77 F.3d at 529; United States v. Schiavo, 29 F.3d 6, 8 (1st Cir.1994).

The government concedes, for purposes of this appeal, that when Officer Twitchell made contact with Young, he seized him for Fourth Amendment purposes. See, e.g., Zapata, 18 F.3d at 977 (indicating that officer's touching of citizen during ongoing investigative stop establishes that seizure occurred). In the absence of further argument on this point, we proceed under the assumption that a seizure occurred in this case. Young contends that the officers either seized him without the requisite reasonable suspicion, or arrested him without the requisite probable cause. We conclude that to the extent the officers, through fleeting physical contact, seized Young, they did so well within the parameters of an investigative stop, and that the officers' actions do not rise to the level of an arrest requiring probable cause.

With respect to investigative stops, the relevant question "is not whether the...

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