United States v. Mcgregor

• Decision Date: 27 May 2011
• Docket Number: No. 09–2650.,09–2650.
• Parties: UNITED STATES, Appellee,v.Melvin McGREGOR, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

650 F.3d 813

UNITED STATES, Appellee,

v.Melvin McGREGOR, Defendant, Appellant.

No. 09–2650.

United States Court of Appeals, First Circuit.

Heard Feb. 10, 2011.Decided May 27, 2011.

William W. Fick, Assistant Federal Defender, Federal Public Defender Office, for appellant.Mark T. Quinlivan, Assistant United States Attorney, with whom Carmen M. Ortiz, United States Attorney, was on brief, for appellee.Before LYNCH, Chief Judge, BOUDIN and THOMPSON, Circuit Judges.THOMPSON, Circuit Judge.

Indicted as a felon in possession of a firearm and ammunition, Melvin McGregor moved to suppress evidence taken from a warrantless car search. After the district judge denied the motion, McGregor conditionally pled guilty, reserving his right to challenge the ruling on appeal. This is that appeal. We affirm, though our reasoning differs from the judge's on one issue.

FACTS

Consistent with our usual practice, we take the facts from the judge's decision and from the hearing on the motion, presenting them in the light most compatible with his ruling. See, e.g., United States v. Dancy, 640 F.3d 455, 457–58, 460–61 (1st Cir.2011).

A Shooting in Dorchester

Just before midnight, on July 12, 2007, Officer Brian Smigielski and Sergeant Detective John Fitzgerald of the Boston Police's Youth Violence Strike Force (a specialized unit tasked with monitoring gang activity) heard about a shooting at a housing development in the Dorchester section of Boston. After driving to the scene in an unmarked car, Smigielski spotted two men riddled with bullets slumped in a parked auto—still alive, but not for long. He knew both men were members of the notoriously violent Magnolia Street Gang—actually, he recognized one of them as a founding member. He helped emergency medical personnel put the two in an ambulance, which then took off for Boston Medical Center with the officers in tow.

Suspicious Activities

It was now around 1 a.m. on July 13. Smigielski and Fitzgerald parked in a driveway near a lot across from the hospital's emergency-room entrance. Staking out a hospital after a shooting is a great way to collect intelligence about gangs, Smigielski later said. And Smigielski was not disappointed on this night. Two men soon got out of a newish-looking “silver sedan.” Smigielski recognized one of them as Antonio Duncan, a Magnolia Street Gang member who had been arrested on gun charges in the past. The men made a beeline for a group of people hanging out near the emergency-room entrance. Within seconds, the duo left with two other men, one of whom was McGregor. They all piled into a “gray” Honda Accord with tinted windows and sped off. ¹ McGregor was no stranger to the criminal justice system. Based on reports and talks with colleagues, Smigielski knew that McGregor was a Magnolia Street Gang founder and that he was out on parole after serving time for firearms offenses. Smigielski also knew that McGregor had had a couple of run-ins with the police since his release. The first involved his fleeing the scene when stopped for a traffic infraction. The second also involved a traffic stop with a twist. Pulled over by Boston police, McGregor was chauffeuring another Magnolia Street Gang member, Christian Miranda, who gave officers a fake name when arrested for disorderly conduct during the encounter. And, it turned out, Miranda was wanted for murder in North Carolina.

Fearing that the foursome might try to avenge the shooting of their comrades in crime, Smigielski and Fitzgerald tailed the Honda. Smigielski radioed for backup. Boston Police Officer Mark Freire and his partner quickly joined in, driving an unmarked car equipped with flashing blue lights—something Smigielski and Fitzgerald's car lacked. Smigielski determined that the Honda was going at least 50 m.p.h. in a 30 m.p.h. zone. Freire also saw the Honda run a flashing red light, and he radioed that news to Smigielski.

Acting on Smigielski's order, Freire turned his car's blue lights on and pulled the Honda over. Freire approached the car with his gun holstered. Smigielski and Fitzgerald parked farther back and converged on the Honda too. Smigielski saw McGregor in the Honda's driver's seat, Duncan in the front passenger's seat, and Antwan Green—a known Magnolia Street Gang member out on bail pending trial on a firearms charge—in the seat directly behind McGregor's. Smigielski did not recognize the fourth person (later identified as Dominique Jean–Pierre) in the Honda.

As the officers closed in, some of the occupants became noticeably nervous. Watch the person in the back seat, driver's side of the car, Freire told Smigielski. “He's leaning forward,” and his chest is “pounding,” Freire added. McGregor had opened the driver's door, which concerned Smigielski because drivers do not usually do that during traffic stops. But with the door open, Smigielski could see McGregor's left leg shaking, his chest heaving up and down, and his heart pounding through his t-shirt.

Incriminating Evidence

Given what he knew about the shooting, the Magnolia Street Gang, and McGregor, Smigielski feared that the car contained a gun. Concerned about officer safety, he and his colleagues removed the men from the Honda and patted them down for weapons. They came up empty, so they moved the men to the curb and focused their attention on the car. By this time other officers had showed up to help secure the scene. Among those arriving was Scott O'Brien, an officer specially trained in how to detect hidden compartments, commonly called “hides.”

Smigielski got into the car and started looking for easily—accessible weapons. Smigielski asked O'Brien if he recognized any of the men. And O'Brien did—he knew Green from an earlier firearms arrest. “Scotty,” Smigielski then said to O'Brien, “there's got to be a gun in this car.”

From the start, O'Brien saw telltale signs of a hide in the Honda where one could stash a gun. Almost immediately, his eye was caught by an object on the dashboard just below the car stereo. It was only a couple of inches long and looked like a “Lego piece.” ² “Smig, what's that?” O'Brien said to Smigielski. But O'Brien already knew—it was an “alarm magnet,” which he knew from extensive training and experience could be used as a magnetic switch to activate an electronic hide (rubbing the magnet over a specific area will complete a circuit that will open the hide). And, as far as he knew, magnets like this one played no part in the normal workings of a car. His instructors had drilled into him to always be on the lookout for magnets in situations like this. In any event, Smigielski grabbed the magnet and gave it to O'Brien.

His interest piqued, O'Brien looked underneath the Honda to see what he could see. And he saw plenty: an exhaust pipe that had been tinkered with suspiciously (it was off-center and lower than usual); and a piece of metal that had more rust on it than the rest of the undercarriage, with a considerable amount of “Bondo” (a substance used in auto-body work) around the edges to help seal the piece in place—both dead giveaways that the car had a “false bottom.” O'Brien crawled under the Honda and tapped the area with his flashlight, and he heard a hollow rather than a solid sound.

Convinced more than ever that the Honda had a hide, O'Brien got into the car and focused his attention on the center-console area—the very area where he thought the hide would be. He started with the cup holder, which was next to the console. Normally cup holders are removable so people can clean them more easily. But O'Brien could not lift this one. It had been glued down, a sure sign that someone did not want others to get at that area. O'Brien then lifted up the lid to the console and removed the CDs that were there. He wanted to open the access panel (something most cars have so persons can get to and work on the emergency-brake cables that run underneath). But this panel had glue around it, so O'Brien put a knife in the panel's latch and with little effort popped the panel open. Peering inside, O'Brien found a handgun, which turned out to be loaded, and some crack cocaine. Only about five minutes passed between the time the officers sat McGregor and the others on the curb and the time O'Brien found the damning evidence.

The police arrested McGregor and his companions and had the Honda towed to a secure location. The next day Sergeant Detective William Feeney of the Boston Police executed a warrant to search the car. Usually when officers suspect that an auto has a hide, Feeney gets involved. Intimately familiar with automotive systems (mechanical and electrical), Feeney is considered the department's foremost expert on hides. He has studied them for years and has taught other officers (including FBI and DEA personnel) all about them. He had even trained O'Brien. Look for magnets inside cars, he tells his students. See if the center console or dashboard is loose or glued-down in a manner that is out of the norm. Look under the car and see if anything has been modified suspiciously (inspecting the exhaust system is a good place to start).

Feeney knew that O'Brien had found a hide in the Honda's center console. And he knew too that O'Brien had come across a magnet near the dashboard. So he looked there to see if anyone had rejiggered the wiring in a way necessary to run an electric hide. And he saw exactly that. He then figured out how the system worked: put the key in the ignition, fasten a seatbelt, switch on the cruise control, turn on the rear-window defroster, tug on the emergency brake, move the ceiling-light switch to the middle position, move a magnet around a spot on the dashboard (which would trigger a magnetic switch behind the dashboard), and press the sunroof button—doing this activates a series of switches, which starts up a motor under the center console, which opens up the hide so one can reach right through the bottom of the console and into a secret compartment. These steps...