United States v. Brake

• Decision Date: 30 December 2011
• Docket Number: No. 11–1215.,11–1215.
• Citation: 666 F.3d 800
• Parties: UNITED STATES of America, Appellee, v. Adam BRAKE, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

666 F.3d 800

UNITED STATES of America, Appellee,

v.Adam BRAKE, Defendant, Appellant.

No. 11–1215.

United States Court of Appeals, First Circuit.

Heard Nov. 8, 2011.Decided Dec. 30, 2011.

Bjorn Lang, Assistant Federal Public Defender, for appellant.

Seth R. Aframe, Assistant United States Attorney, with whom John P. Kacavas, United States Attorney, was on brief, for appellee.

Before LIPEZ, SELYA and HOWARD, Circuit Judges.

HOWARD, Circuit Judge.

The defendant Adam Brake was charged with one count of possession with an intent to distribute a controlled substance in violation of 21 U.S.C. § 841(a)(1). He moved to suppress the drugs as evidence, arguing that they were obtained from him in violation of the Fourth Amendment through an unlawful Terry stop, an illegal frisk, and an involuntary consent to search. The district court conducted an evidentiary hearing at which Brake did not testify. After crediting the police account, the court denied the suppression motion. Brake pleaded guilty but preserved his right to appeal the constitutional issues, which he now exercises. Discerning no error, we affirm the conviction.

I. Background

One afternoon in January 2010, the Somersworth, New Hampshire police department received a 911 call from a residence reporting a man with a handgun making threats at that home; a fight was possibly ensuing. Several police officers responded, arriving at the scene within two minutes. The officers began walking toward the site of the call, a duplex residence on Franklin Street. As Detective Thomas Phelan approached within about 30 yards, he saw two men walking toward the street, in the short driveway next to the target residence. They were dressed in baggy jeans and bulky, hooded sweatshirts.

The police officers watched the men turn onto the sidewalk and continue walking toward a parked red minivan. Phelan saw the men stop at the van, where one slid open the side door and the other bent inside of the vehicle. The two momentarily concluded their business at the van—the nature of which the officers could not discern—then resumed travel on foot in a direction away from the police officers. The officers were not certain whether the men were aware of their presence. Concerned that the pair may have been involved with the reported disturbance and might be armed, Detective Phelan directed two patrol officers to stop and identify the men. Patrolman Larry Mondene and his partner ran after them, trying to get their attention by shouting “hey.” When the men did not immediately respond, the officers continued their pursuit, commanding them to “stop.” The duo did so and turned to face the officers.

One of the men provided his identification at the officers' request. Brake indicated that he did not have physical identification on him, but he did give his name and date of birth. The patrolmen informed them of the nature of the reported complaint and explained their intent to pat them down to check “for any weapons or anything.” While performing the pat-down search, Mondene felt a bulky, “squishy” object that “felt like a bag” in the front pocket of Brake's sweatshirt. Mondene described it as “[r]oughly the size of a quart size bag” which was “full of something.” Discerning that the bag was not a weapon, Mondene asked Brake what “he had in his pocket.” During a brief colloquy between them, Brake indicated that the item was a plastic bag that he had found in the bushes near the duplex. He explained that he normally picked up trash from the ground, because on a prior occasion he had discovered money by doing so. Patrolman Mondene expressed disbelief about Brake's purported habit of garnering garbage, and Brake told the patrolman that he intended to bring the item to his friend's house and open it there. The colloquy continued.

Officer Mondene asked Brake, “would [he] mind just taking it out” of his pocket, and Brake replied “sure” and did so without hesitation. It was a dark trash bag that had been cut and knotted. Mondene asked Brake whether he was curious about its contents, to which Brake responded by opening the bag. ¹ After looking into it, Brake threw the bag down and said “those aren't mine.” Officer Mondene picked it up and saw several hundred pills inside.

By all accounts, Brake was entirely cooperative during the encounter, which lasted a few minutes, and the tone between Brake and Mondene remained cordial throughout. The two patrolmen never drew their weapons, threatened to use handcuffs, or placed their hands on Brake other than to conduct the brief pat-down. Neither did they inform Brake that he was free to leave after the pat-down search or that he need not cooperate with Mondene's inquiries about the bag.

It was later determined that the bag contained more than six hundred OxyContin (oxycodone) tablets of varying dosages and nearly one hundred generic oxycodone tablets of another dosage. After Brake was charged with possession with an intent to distribute a controlled substance in violation of 21 U.S.C. § 841(a)(1), he filed a suppression motion challenging the constitutionality of the stop, the frisk, and his consent to the search that disclosed the bag and its contents.

Although Brake did not testify at the suppression hearing, the record reveals that the district court carefully evaluated the credibility of the police witnesses. Crediting their account, the court found both the stop and the frisk lawful, and also found that Brake had opted to cooperate with the police and had consented to reveal the bag and its contents. After his effort to suppress the inculpatory evidence failed, Brake pleaded guilty but appealed as to the preserved suppression issues.

II. Governing Law and Analysis

Brake reprises his claims made in the district court that the police lacked reasonable suspicion justifying either the Terry stop or the pat-down frisk, and that his consent to remove the bag from his pocket and open it was not voluntary.

In reviewing a district court's denial of a motion to suppress, we review the facts “in the light most favorable to the district court's ruling on the motion, and we review the district court's findings of fact and credibility determinations for clear error.” United States v. Camacho, 661 F.3d 718, 723 (1st Cir.2011) (citation, internal quotation marks and brackets omitted). “A clear error exists only if, after considering all the evidence, we are left with a definite and firm conviction that a mistake has been made.” Camacho, 661 F.3d at 723 (internal quotation marks omitted); see also United States v. Jones, 523 F.3d 31, 36 (1st Cir.2008). Under the clear error standard for factual findings, “we will uphold the denial of a motion to suppress as long as any reasonable view of the evidence supports it.” Id. (internal quotation marks and citations omitted).

The district court's determination of “whether consent is free and voluntary is a question of fact” which involves “an examination of the totality of the circumstances surrounding the relevant transaction between law-enforcement authorities and the consenting party.” Jones, 523 F.3d at 37. Its factual findings relating to the validity of the consent are thus reviewed for clear error. Id. We review de novo, however, “the district court's conclusions of law, including its application of the law to the facts, its ... reasonable suspicion determinations, and [its] ultimate legal decision to grant or deny the motion to suppress.” See Camacho, 661 F.3d at 724.

A. The Stop and Frisk

Limited investigatory seizures known as Terry stops and oft-accompanying pat-down frisks are included within the ambit of Fourth Amendment protections against unreasonable searches and seizures. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); see Camacho, 661 F.3d at 724–25. In essence, a Terry stop is a brief detention of an individual for questioning based on a police officer's reasonable suspicion that the person is or has been engaged in criminal activity. See United States v. Pontoo, 666 F.3d 20, 25–26 (1st Cir.2011); Camacho, 661 F.3d at 726. Reasonable suspicion must be more than a hunch but need not amount to probable cause. See Terry, 392 U.S. at 22, 88 S.Ct. 1868; Camacho, 661 F.3d at 726. More definitively, the officer must have a particularized and objective basis for suspecting the person stopped of criminal activity, rooted firmly “in specific and articulable facts.” Pontoo, 666 F.3d at 28 (internal quotation marks omitted); see also United States v. Romain, 393 F.3d 63, 71 (1st Cir.2004) (noting that court also considers a police officer's rational inferences drawn from the specific facts); United States v. Chhien, 266 F.3d 1, 6 (1st Cir.2001) (emphasizing that “reasonable suspicion” must be determined “case by case” with “broad-based consideration of all the attendant circumstances”). Similarly, a pat-down frisk also must be grounded on specific articulable facts giving rise to a suspicion that the individual seized may be armed and dangerous to the officer or to others. See Terry, 392 U.S. at 24, 88 S.Ct. 1868; Camacho, 661 F.3d at 728; Dancy, 640 F.3d at 461.

Here, the facts display reasonable suspicion with respect to both the stop and the pat-down. With respect to the stop, the 911 caller had reported the presence of a man with a handgun at the residence making threats and that a fight seemed imminent. See Romain, 393 F.3d at 73–74 (contrasting reliability of information provided by a 911 caller who is at the site of the reported criminal activity with the holding in Florida v. J.L., 529 U.S. 266, 120 S.Ct. 1375, 146 L.Ed.2d 254 (2000), in which uncorroborated information from an anonymous tip emanating from an “unknown caller” phoning from an “unknown location” was deemed insufficient to warrant a Terry stop). A potentially fatal situation may have been rapidly cresting; indeed, five police officers responded, arriving without delay. The police immediately noticed two men who, given their...