United States v. Hart, No. 11–1156.

CourtUnited States Courts of Appeals. United States Court of Appeals (1st Circuit)
Writing for the CourtSMITH
Citation674 F.3d 33
PartiesUNITED STATES of America, Appellee, v. Michael HART, Defendant, Appellant.
Decision Date16 March 2012
Docket NumberNo. 11–1156.

674 F.3d 33

UNITED STATES of America, Appellee,
v.
Michael HART, Defendant, Appellant.

No. 11–1156.

United States Court of Appeals, First Circuit.

Heard Nov. 7, 2011.Decided March 16, 2012.


[674 F.3d 36]

Mark W. Shea, with whom Jean LaRoque, were on brief, for appellant.

Mark T. Quinlivan, Assistant United States Attorney, with whom Carmen M. Ortiz, United States Attorney, was on brief, for appellee.

Before BOUDIN and LIPEZ, Circuit Judges, and SMITH,* District Judge.SMITH, District Judge.

Michael Hart was convicted of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1), and now appeals from his conviction and sentence under the Armed Career Criminal Act, 18 U.S.C. § 924(e) ( “ACCA”). Hart argues that the district court erred in denying his motion to suppress all evidence seized incident to a Terry stop, including a firearm. He additionally claims that the district court erred in concluding that his prior conviction for assault and battery with a dangerous weapon (“ABDW”) qualified as a predicate offense under ACCA. For the reasons set forth below, we affirm both the conviction and sentence.

I.

We begin by outlining the facts, reciting them “as the trial court found them, consistent with record support.” United States v. Am, 564 F.3d 25, 27 (1st Cir.2009)

[674 F.3d 37]

(quoting United States v. Ruidíaz, 529 F.3d 25, 27 (1st Cir.2008)) (internal quotation marks omitted). The district court held a two-day evidentiary hearing on Hart's motion to suppress at which Trooper Marc Lavoie, Trooper Jimi Grasso, and Ms. Tiffany Gomes testified.

On July 7, 2009, five Massachusetts State Police troopers assigned to the Southeastern Massachusetts Gang Task Force, including Lavoie and Grasso, were dispatched to the area of 102 Griffin Court in New Bedford. Three males had escaped from a Massachusetts Department of Youth Services detention center, and the officers were investigating their whereabouts.

Trooper Lavoie testified that the troopers had been provided with photographs and physical descriptions of the three escapees, including information on height, weight, and race, though Grasso testified that he was only briefed on racial information. Troopers Grasso and Lavoie saw Hart speaking with a woman at the rear of 102 Griffin Court, and both troopers testified that, from a distance, they believed Hart might have been one of the escapees. Hart, however, was at least six inches taller, more than ten years older, and one-hundred pounds heavier than any of the fugitives. His race was the only characteristic he shared with any of the escapees.

Though the troopers were not in uniform, they were wearing jackets with gang task force insignia. The troopers proceeded in Hart's direction, and Hart appeared startled to see them. Also noting the troopers, the woman with whom he was speaking yelled into the house that the police were approaching.

At that point, Hart walked briskly away from the troopers and toward a gray vehicle parked in a nearby alley, bending over slightly and clutching at his waist as he went. Based on their training and experience, the troopers believed Hart was carrying a concealed weapon.

Trooper Lavoie followed Hart and observed him turn, or “blade,” his body so as to shield his movement from the troopers' view as he entered the passenger side of the vehicle. Despite Hart's best efforts, Lavoie observed him reach his hand under his shirt and remove an object from his belt area. Sitting down, Hart deposited the object between his seat and the door.

Behind the wheel was Tiffany Gomes, a woman with whom Hart had an intimate relationship, who had been waiting for him while he visited friends at 102 Griffin Court. Trooper Lavoie moved to the driver's side of the vehicle and told Gomes to put the car in park and turn off the engine.

At Trooper Lavoie's request, Hart produced identification, and the trooper recognized Hart as a member of the Montes Park street gang. Hart rocked back and forth in his seat, not meeting the trooper's eyes, and then placed his hands on the dashboard without being asked, behavior Lavoie found peculiar.

Trooper Grasso joined Lavoie and, both moving to the passenger side, ordered Hart out of the car. Hart appeared very nervous to both troopers; when asked if he had anything on him Hart responded, “Who me? I don't think so,” before looking at the area between the seat and the door. Trooper Lavoie followed Hart's gaze and saw plainly the handle of a handgun.

As one of the troopers handcuffed Hart, he yelled out, “It's all mine, [Gomes] has nothing to do with it.” The troopers retrieved the firearm, a .40 caliber Baretta loaded with ten rounds of ammunition. Hart was read his Miranda rights, and he admitted possession of the gun and described it in accurate detail.

[674 F.3d 38]

A federal grand jury returned a one-count indictment on December 2, 2009, charging Hart with being a felon in possession of a firearm and ammunition in violation of 18 U.S.C. § 922(g)(1). After an unsuccessful attempt to suppress the evidence, Hart entered a conditional plea of guilty, the district court concluded that his criminal record contained three ACCA predicate offenses, and Hart was sentenced to 180 months' imprisonment, the statutory minimum under ACCA.

II.
A. The Motion to Suppress

On appeal, Hart challenges the denial of his motion to suppress the evidence seized during his encounter with Troopers Lavoie and Grasso. First, Hart argues the troopers lacked reasonable suspicion to conduct a Terry stop. See Terry v. Ohio, 392 U.S. 1, 19–20, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Hart next takes issue with the propriety of the troopers' actions after they initiated the stop. Finally, Hart argues that the district court committed clear error in finding that the firearm was in plain view.

We review findings of historical fact—and inferences drawn from those facts—for clear error, which exists when we are left with a “definite and firm conviction that a mistake has been committed.” United States v. Wright, 582 F.3d 199, 205 (1st Cir.2009) (“ Wright II ”) (quoting United States v. Espinoza, 490 F.3d 41, 46 n. 2 (1st Cir.2007)) (internal quotation marks omitted). We review legal conclusions made on the denial of a suppression motion de novo. United States v. McGregor, 650 F.3d 813, 819–20 (1st Cir.2011). This Court “will uphold a denial of a motion to suppress if any reasonable view of the evidence supports it.” Wright II, 582 F.3d at 205–06 (quoting United States v. Coccia, 446 F.3d 233, 237 (1st Cir.2006)) (internal quotation marks omitted).

A temporary police detention constitutes a seizure and, therefore, must be reasonable. Ruidíaz, 529 F.3d at 28 (citing Terry, 392 U.S. at 19, 88 S.Ct. 1868; United States v. Chhien, 266 F.3d 1, 5–6 (1st Cir.2001)). Officers must have reasonable suspicion, that is, “a particularized and objective basis for suspecting the particular person stopped of criminal activity.” United States v. Cortez, 449 U.S. 411, 417–18, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981). The officer's suspicion must be both particular, in that it is “grounded in specific and articulable facts,” United States v. Hensley, 469 U.S. 221, 229, 105 S.Ct. 675, 83 L.Ed.2d 604 (1985), and objective, such that a reasonable officer in similar circumstances also would harbor suspicion. See Espinoza, 490 F.3d at 47 (citing United States v. Romain, 393 F.3d 63, 74 (1st Cir.2004)). An inquiry into reasonableness requires a reviewing court to consider the totality of the surrounding circumstances, “tak[ing] care not to evaluate facts in splendid isolation” but “apprais[ing] [them] in the context in which they occurred.” United States v. Pontoo, 666 F.3d 20, 29 (1st Cir.2011); see also Ruidíaz, 529 F.3d at 29 (stating that a reasonableness determination requires a reviewing court to evaluate the totality of the circumstances (citing Romain, 393 F.3d at 71)).

The Supreme Court has held that a defendant's apprehensive, evasive behavior may further heighten reasonable suspicion and that flight from law enforcement is a clear act of evasion. Illinois v. Wardlow, 528 U.S. 119, 124, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000) (citations omitted). We have described flight as unprovoked running upon recognizing the police, Wright II, 582 F.3d at 210, and have concluded that acts like warily looking over

[674 F.3d 39]

one's shoulder contribute to an officer's reasonable suspicion. United States v. Aitoro, 446 F.3d 246, 252 (1st Cir.2006). An officer may stop an individual in order to “resolve the ambiguity” in conduct that is lawful but oblique and unusual. Wardlow, 528 U.S. at 125, 120 S.Ct. 673.

The district court concluded that the stop was justified based on officer safety, reasoning that officers securing an area to conduct an investigation could stop an individual present at the scene whom they reasonably suspected of concealing a weapon. Hart counters that officer safety only becomes relevant after officers have executed a legitimate Terry stop. We may affirm the district court's decision on any ground made manifest in the record, Spencer v. Roche, 659 F.3d 142, 145 (1st Cir.2011), and we do not reach Hart's contention as to the district court's rationale because, based on the totality of the circumstances, we hold that the troopers had reasonable suspicion to stop Hart.

Here, Hart's reaction to the police revealed a “series of acts, each of them perhaps innocent in itself, but which taken together warranted further investigation.” Terry, 392 U.S. at 22, 88 S.Ct. 1868. The record reveals that Hart appeared startled to see the police and almost immediately stepped quickly away from them. He hunched over while he walked; his hand never left his waistband. Entering the vehicle, Hart attempted to shield his movement from the troopers' view, but Lavoie saw him pull an object from his waistband and place it beside his seat. Observing this factual medley, Trooper Lavoie reasonably suspected that Hart was...

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75 practice notes
  • United States v. Fish, No. 12–1791.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • February 26, 2014
    ...to the same phrase in section 16(a). And since ABDW may be accomplished by a mere “touching, however slight,” see United States v. Hart, 674 F.3d 33, 42 (1st Cir.2012), it does not have “as an element the use” of physical force.3 As a result, it is overbroad. The government therefore focuse......
  • Lassend v. United States, No. 17-1900
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • August 2, 2018
    ...in 18 U.S.C. § 16(a) inform the construction of the term "violent felony" in the ACCA. See Fish, 758 F.3d at 9 ; United States v. Hart, 674 F.3d 33, 41 n.5 (1st Cir. 2012).6 There are narrow exceptions to the law of the circuit rule, including (1) "when the holding of the prior panel is ‘co......
  • United States v. Ramirez, Nos. 11–2416
    • United States
    • U.S. Court of Appeals — First Circuit
    • February 27, 2013
    ...clause is unconstitutionally vague, recognizing that we have rejected vagueness challenges to the residual clause. United States v. Hart, 674 F.3d 33, 41 n. 3 (1st Cir.2012) (citing James, 550 U.S. at 210 n. 6, 127 S.Ct. 1586). As we have before, we reject his challenge here. 14. If the enh......
  • United States v. Dapolito, No. 12–2023.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • April 11, 2013
    ...the court to consider whether, as a factual matter, the area was actually the scene of recent crimes. See, e.g., United States v. Hart, 674 F.3d 33, 39 n. 1 (1st Cir.2012) (character of the area in which defendant was seized is a factual issue best left to the district court). The character......
  • Request a trial to view additional results
75 cases
  • United States v. Fish, No. 12–1791.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • February 26, 2014
    ...to the same phrase in section 16(a). And since ABDW may be accomplished by a mere “touching, however slight,” see United States v. Hart, 674 F.3d 33, 42 (1st Cir.2012), it does not have “as an element the use” of physical force.3 As a result, it is overbroad. The government therefore focuse......
  • Lassend v. United States, No. 17-1900
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • August 2, 2018
    ...in 18 U.S.C. § 16(a) inform the construction of the term "violent felony" in the ACCA. See Fish, 758 F.3d at 9 ; United States v. Hart, 674 F.3d 33, 41 n.5 (1st Cir. 2012).6 There are narrow exceptions to the law of the circuit rule, including (1) "when the holding of the prior panel is ‘co......
  • United States v. Ramirez, Nos. 11–2416
    • United States
    • U.S. Court of Appeals — First Circuit
    • February 27, 2013
    ...clause is unconstitutionally vague, recognizing that we have rejected vagueness challenges to the residual clause. United States v. Hart, 674 F.3d 33, 41 n. 3 (1st Cir.2012) (citing James, 550 U.S. at 210 n. 6, 127 S.Ct. 1586). As we have before, we reject his challenge here. 14. If the enh......
  • United States v. Dapolito, No. 12–2023.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • April 11, 2013
    ...the court to consider whether, as a factual matter, the area was actually the scene of recent crimes. See, e.g., United States v. Hart, 674 F.3d 33, 39 n. 1 (1st Cir.2012) (character of the area in which defendant was seized is a factual issue best left to the district court). The character......
  • Request a trial to view additional results

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