United States v. Pontoo

• Decision Date: 05 December 2011
• Docket Number: No. 10–2455.,10–2455.
• Citation: 666 F.3d 20
• Parties: UNITED STATES of America, Appellee, v. Gregory PONTOO, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

666 F.3d 20

UNITED STATES of America, Appellee,

v.Gregory PONTOO, Defendant, Appellant.

No. 10–2455.

United States Court of Appeals, First Circuit.

Heard Nov. 9, 2011.Decided Dec. 5, 2011.

Henry W. Griffin, by appointment of the court, for appellant.

Margaret D. McGaughey, Assistant United States Attorney (Appellate Chief), with whom Thomas E. Delahanty II, United States Attorney, was on brief, for appellee.

Before BOUDIN, SELYA and HOWARD, Circuit Judges.

SELYA, Circuit Judge.

Defendant-appellant Gregory Pontoo stands convicted as a felon in possession of a firearm. 18 U.S.C. § 922(g)(1). He asserts that the police stopped him on the street without reasonable suspicion and arrested him without probable cause. These infringements, he says, demand suppression of the weapon seized in the incident and dismissal of the charge against him. We think not.

I. BACKGROUND

The events surrounding the appellant's arrest took place in Lewiston, Maine. There are five protagonists: the appellant, Gary Austin, Austin's estranged girlfriend (Sherry Boston), and two Lewiston police officers (Tyler Michaud and Larry Maillet). As is customary when reviewing the denial of a motion to suppress, we rehearse the facts as supportably found by the court below. See, e.g., United States v. Ruidíaz, 529 F.3d 25, 27 (1st Cir.2008).

Officer Michaud began an overnight shift at 11:00 p.m. on August 19, 2009. Colleagues who had worked the previous shift told him that they had responded to 26 Knox Street to deal with a domestic disturbance involving Austin and Boston (neither of whom Michaud knew).

Officer Michaud's assignment obligated him to patrol alone in a squad car. Early in his shift, the police received a report that Austin was on a landing outside Boston's window. Two patrolling officers, including Michaud, repaired to the scene. They were unable to locate Austin.

Around 2:50 a.m., the same two officers responded to a call advising that Austin had returned to 26 Knox Street and was trying to gain access to his ex-girlfriend's apartment. The officers found Austin, visibly agitated, on the sidewalk in front of the apartment complex. They gave him both a disorderly conduct warning and a criminal trespass warning.

About fifteen minutes later, Officer Michaud spotted Austin (still visibly agitated) in a park several blocks from Knox Street. By virtue of a municipal ordinance, the park was closed during the early morning hours. At 3:05 a.m., Officer Michaud issued a civil citation to Austin for violating that ordinance. In this citation, he described Austin as a 33–year–old black male, standing five feet seven inches tall and weighing 190 pounds.

At 3:21 a.m., two squad cars—one driven by Officer Michaud and one by Officer Maillet—responded to an unrelated call on Main Street. Like Officer Michaud, Officer Maillet had been told upon beginning his shift about the ruckus at Knox Street. During his shift, he also overheard radio traffic concerning 26 Knox Street. His curiosity piqued, he questioned Officer Michaud concerning that domestic disturbance. Michaud explained that Austin had appeared to be harassing a former girlfriend. He added that he had given Austin a criminal trespass warning and sent him on his way. Michaud described Austin to Maillet somewhat differently than he had in the criminal trespass citation: as a black male standing about six feet tall and weighing approximately 200 pounds. This description was important because Officer Maillet did not know Austin.

While the two officers were conversing, a police dispatcher reported that a man identifying himself as “Tyrone Miller” had called from a payphone to proclaim that he had killed a woman at 26 Knox Street. Both Officer Michaud and Officer Maillet assumed, based on the chain of events, that “Tyrone Miller” was Gary Austin.¹

As might be expected, the reported slaying galvanized the two officers into action. They traveled in their separate cars to Knox Street—a drive that took approximately one minute. Officer Michaud arrived first and parked at an intersection about 200 feet from 26 Knox Street. While positioning his cruiser, he noticed a man crossing the street. The man appeared to be of average build and about five feet ten inches or six feet tall. Officer Michaud thought that this man might be Austin, but the dim lighting prevented him from making a positive identification. Taking a middle ground, he radioed that he had seen “a subject” walking out of 26 Knox Street.

Officer Maillet heard this broadcast and understood his fellow officer to have said that “the suspect” was on the street. He took this comment as a reference to Austin.

As Officer Maillet proceeded down Knox Street, he spied the lone pedestrian. He noticed that the man fit the general description of Austin that he had been given minutes earlier by Officer Michaud. He did not see anyone else in the vicinity. Concluding that the man was Austin, he braked to a halt, stepped out of his squad car with his gun drawn, and ordered the man to raise his hands, get down on his knees, and then lie flat. The man complied.

Once the man was on his stomach, Officer Maillet handcuffed him and performed a pat-frisk. This protective search revealed a 9mm handgun tucked into the man's waistband. The weapon had not been visible when the officer first confronted the man.

Officer Michaud ran up while Officer Maillet was conducting the pat-down. He observed Officer Maillet remove the gun from the suspect's waistband. Officer Maillet handed the gun to Officer Michaud. It was only after those events had transpired that Officer Michaud realized that the person in handcuffs was not Austin but, rather, the appellant.

The officers arrested the appellant for possession of a concealed weapon. See Me.Rev.Stat. Ann. tit. 25, § 2001–A(1)(B) (2007). Only minutes had elapsed between the time of the “murder” dispatch and the time of the arrest.

Following the encounter, the police transported the appellant to the stationhouse and booked him. In the arrest report, the appellant is described as a 24–year–old black male of medium build, standing six feet tall and weighing 185 pounds.

When the dust settled, it became apparent both that the murder report was a hoax and that the appellant had nothing to do with the domestic dispute at 26 Knox Street. At about the time of the appellant's arrest, other officers stopped Austin some three blocks away and later charged him with making a false report of a crime. That arrest report described him as a 33–year–old black male of medium build, standing five feet eight inches tall and weighing between 160 and 180 pounds.

As matters turned out, Austin had a history of making false calls to the police department; but there is no evidence that either arresting officer knew of this history. Nor did they know, at the time of the stop, either that Austin had been apprehended or that the murder report was false. Based on these circumstances, the district court found that when Officer Maillet frisked the appellant, he believed that he was searching Austin and that Austin may have committed a murder.²

When the authorities discovered that the appellant had a criminal record, a federal grand jury indicted him on a charge of being a felon in possession of a firearm. See 18 U.S.C. § 922(g)(1). The appellant moved to suppress the gun, arguing that the police had learned of it through an unlawful stop and arrest. The government opposed this motion.

The district court referred the matter to a magistrate judge, who conducted an evidentiary hearing. The magistrate judge found both the stop and the arrest lawful and recommended that the district court deny the motion to suppress. On de novo review, the district court adopted the magistrate judge's report and recommendation.

The appellant entered a conditional guilty plea, Fed.R.Crim.P. 11(a)(2), reserving the right to challenge the refusal to suppress. The court sentenced the appellant to a term of 36 months in prison. This timely appeal ensued.

II. ANALYSIS

The appellant's asseverational array is fourfold. First, he maintains that the district court clearly erred in finding that Officer Michaud described Austin to Officer Maillet as a black male, standing six feet tall and weighing 200 pounds. Second, he argues that the stop was not justified at its inception because Officer Maillet lacked a reasonable suspicion that the appellant was involved in criminal activity. Third, he argues that the stop was so intrusive as to constitute a de facto arrest (for which no probable cause existed). Fourth, he posits that even after finding the handgun, there was no probable cause to arrest him. Before addressing these contentions, we pause to erect the legal framework for our analysis.

Judicial review of investigatory stops, familiarly known as Terry stops, see Terry v. Ohio, 392 U.S. 1, 19–20, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), involves a two-step appraisal. To begin, the stop must be justified at its inception. See Ruidíaz, 529 F.3d at 28. In addition, the actions taken must be “reasonably related in scope to the circumstances which justified the interference.” United States v. Acosta–Colon, 157 F.3d 9, 14 (1st Cir.1998).

To be justified at its inception, a Terry stop must be accompanied by reasonable suspicion. Ruidíaz, 529 F.3d at 28. The existence vel non of reasonable suspicion depends upon the totality of the circumstances. United States v. Arvizu, 534 U.S. 266, 273, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002). The inquiry is designed to ascertain “whether the detaining officer ha[d] a particularized and objective basis for suspecting legal wrongdoing.” Id. (internal quotation marks omitted).

This appraisal is made in the first instance by the district court. The district court's findings of fact must be accepted unless they are clearly erroneous. Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996). This is a deferential standard of...