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United States v. Brown

Procedural entryThis page is a short order in United States v. Brown. Read the opinion of the Court — 235 F.3d 2 →
Court of Appeals for the First Circuit·Decided March 4, 1999·No. 98-1707·Published

Opinion

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<pre>                  United States Court of Appeals <br>                      For the First Circuit <br>                       ____________________ <br> <br>No. 98-1707 <br> <br>                          UNITED STATES, <br> <br>                            Appellee, <br> <br>                                v. <br> <br>                           ADAM BROWN, <br> <br>                      Defendant, Appellant. <br> <br>                       ____________________ <br> <br>           APPEAL FROM THE UNITED STATES DISTRICT COURT <br> <br>                FOR THE DISTRICT OF MASSACHUSETTS <br> <br>         [Hon. Reginald C. Lindsay, U.S. District Judge] <br>         [Hon. Edward F. Harrington, U.S. District Judge] <br> <br>                       ____________________ <br> <br>                              Before <br> <br>                     Torruella, Chief Judge, <br> <br>                  Coffin, Senior Circuit Judge, <br> <br>                    and Boudin, Circuit Judge. <br> <br>                      _____________________ <br> <br>    Paul F. Markham, by appointment of the Court, for appellant. <br>    Donald L. Cabell, Assistant United States Attorney, with whom <br>Donald K. Stern, United States Attorney, was on brief, for <br>appellee. <br> <br> <br>                       ____________________ <br> <br>                         March 3, 1999 <br>                       ____________________

         TORRUELLA, Chief Judge.  Before the Court is Defendant- <br>appellant Adam Brown's appeal of: (1) the denial of his motion to <br>suppress evidence found during his arrest, and (2) his sentence of <br>100 months imprisonment for possession of a stolen firearm.  We <br>affirm the judgment of the district court in both respects. <br>                            BACKGROUND <br>          On May 3, 1996, plainclothes Boston police officers Brian <br>Black, Joseph Freeman, and Susan Antonucci were on patrol in an <br>unmarked police car in the Roxbury area of Boston, Massachusetts.  <br>As they approached the apartment building located at 150 Walnut <br>Avenue, they observed Brown and another male leaving the building.  <br>The officers decided to speak with the two individuals, so they <br>stopped the car.  Officer Black claims that he said to them, <br>"Boston Police.  May I have a word with you?"  When the men turned <br>around and began to walk back toward the apartment building, <br>Officer Black got out of the car and again said, "Boston Police.  <br>May I speak with you?"  Brown then walked back inside the apartment <br>building, and the other individual walked around the side of the <br>building.  Officer Black followed Brown into the building and saw <br>Brown walking up a stairwell.  Officer Black started up the stairs <br>and again said, "Boston Police.  May I have a word with you?"  At <br>this point, Brown pushed Officer Black and tried to flee up the <br>stairs.  Officer Black then tackled Brown, and Officers Antonucci, <br>Freeman, and William O'Hara, who was already in the building lobby <br>on an unrelated matter, assisted in arresting Brown.  During <br>Brown's arrest, the officers found a .357 caliber revolver -- later <br>found to be stolen -- on Brown's person. <br>          On July 17, 1996, Brown was charged with possession of a <br>firearm by a felon in violation of 18 U.S.C.  922(g)(1).  Brown <br>moved to suppress the firearm and other evidence recovered at his <br>arrest.  He denied pushing Officer Black and argued that the <br>officers possessed neither probable cause to arrest nor reasonable <br>suspicion to warrant an investigative stop.  After hearing <br>testimony from Officers Black, Antonucci, and O'Hara, the district <br>court denied Brown's motion to suppress.  The court found that, <br>while the events that occurred prior to the altercation on the <br>stairwell would not have been sufficient to justify an arrest or <br>investigative stop, once Brown pushed Officer Black on the <br>stairwell, Officer Black had probable cause to arrest Brown for <br>assault and battery on a police officer. <br>     After the government filed a superseding information, <br>Brown waived indictment and entered a conditional guilty plea to <br>one count of possession of a stolen firearm in violation of 18 <br>U.S.C.  922(j), reserving the right to appeal the denial of his <br>motion to suppress and his sentence.  At sentencing, Brown's base <br>offense level was set at 24, pursuant to U.S.S.G.  2K2.1(a)(2), <br>because Brown had at least two prior felony convictions of either <br>a crime of violence or a drug offense.  Over Brown's objection, the <br>district court also applied a two-level enhancement under <br> 2K2.1(b)(4) because the firearm was stolen.  After applying a <br>two-level reduction for acceptance of responsibility and <br>determining that Brown qualified for Criminal History Category VI, <br>the court found the applicable sentencing range to be 100-125 <br>months.  Brown was sentenced to 100 months imprisonment.  On <br>June 10, 1998, Brown filed a timely notice of appeal. <br>                            DISCUSSION <br>I.  The District Court's Denial of Brown's Motion to Suppress <br>     Brown first argues that his arrest was made in violation <br>of the Fourth Amendment, requiring suppression of the firearm <br>seized from him at the time of his arrest.  In his motion to <br>suppress below, Brown argued that he did not push Officer Black and <br>that the officers did not have probable cause or reasonable <br>suspicion to stop him based solely on the fact that he walked away <br>from officers in plain clothes.  On appeal, Brown does not dispute <br>that he pushed Officer Black.  Rather, he now argues that he acted <br>reasonably in pushing Officer Black and therefore that there was <br>not probable cause to arrest him even after he did so.  This is the <br>first time Brown has advanced this argument. <br>     We review the denial of a motion to suppress under a <br>bifurcated standard.  See United States v. Cardoza, 129 F.3d 6, 13 <br>(1st Cir. 1997).  We review the district court's findings of fact <br>for clear error and review the district court's conclusions of law <br>de novo.  See id.  However, where a defendant has not first raised <br>an issue below, we review for plain error only.  See United Statesv. Shea, 150 F.3d 44, 48 (1st Cir.), cert. denied, 119 S. Ct. 568 <br>(1998).

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