United States v. Camacho

661 F.3d 718, 2011 WL 5865650
CourtCourt of Appeals for the First Circuit
DecidedNovember 23, 2011
Docket09-2415
StatusPublished
Cited by98 cases

This text of 661 F.3d 718 (United States v. Camacho) is published on Counsel Stack Legal Research, covering Court of Appeals for the First Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Camacho, 661 F.3d 718, 2011 WL 5865650 (1st Cir. 2011).

Opinions

TORRUELLA, Circuit Judge.

Appellant Ángel Camacho was charged with one count of unlawful possession of a firearm and ammunition despite having a prior felony conviction, in violation of 18 U.S.C. § 922(g)(1), and one count of possession of a firearm with an obliterated serial number, in violation of 18 U.S.C. § 922(k). Camacho moved to suppress the firearm and ammunition, arguing that they were obtained through an illegal search and seizure in violation of the Fourth Amendment. The trial judge denied that motion. United States v. Camacho, 608 F.Supp.2d 178, 185 (D.Mass.2009). Camacho then entered conditional guilty pleas on both counts, reserving his right to challenge the trial judge’s suppression ruling on appeal. He now exercises that right. We agree with Camacho that his motion to suppress should have been granted. Accordingly, we reverse.

I. Background and Procedural History

We summarize the facts as found by the district court in its denial of Camacho’s motion to suppress. See Camacho, 608 F.Supp.2d at 180-81. Those findings of fact are consistent with the record and are not clearly erroneous. See United States v. Dancy, 640 F.3d 455, 458 (1st Cir.2011).

A. A Rumble in New Bedford

At 5:37 p.m., on January 11, 2008, a series of 911 calls reported a fight in progress in the North End neighborhood of New Bedford, Massachusetts, at the intersection of Nye and Brook Streets. One of the callers identified “most” of the combatants as members of the Latin Kings, a prominent national street gang. Sergeant Scott Carola of the New Bedford Police Department’s Gang Unit was the first officer to arrive at the scene. Within a minute, two other Gang Unit members — Officers Adelino Sousa and David Conceicao— also arrived, driving an unmarked, police-issued Ford Crown Victoria1 and wearing jackets adorned with the image of a police [722]*722badge and the words “New Bedford Police” on the front and the words “Gang Unit” on the back.

Sergeant Carola saw twelve to fifteen people scattering from what appeared to have been a street brawl; Officer Sousa recognized several of them as affiliates of the Latin Kings. Sergeant Carola also noticed two men he did not recognize walking down the street; he directed Officers Sousa and Conceicao to intercept and question the two men. Those two men were Camacho and Louis Osario-Meléndez.

B. The Confrontation

Still driving in the Crown Victoria, Officers Sousa, and Conceicao followed the two men as they walked around the corner, then pulled ahead of them into a driveway, partially blocking their path. Officer Sousa stepped out of the car and approached Camacho, while Officer Conceicao ordered Osario-Meléndez to put his hands on the hood of the ear. Sousa and Conceicao did not recognize the two men, and neither officer had reason to believe that either Camacho or Osario-Meléndez was a member of the Latin Kings.

Officer Sousa did notice, however, that Camacho’s clothes were wet and his breathing was labored. Sousa asked Camacho where he was coming from, and Camacho replied, “Nye Street.” Camacho said that he had seen the Nye Street fight, but denied having been involved in it. Camacho’s speech was normal, and he was wearing a hooded sweatshirt, which Officer Sousa did not consider unusual. During their colloquy, Camacho held his hands in the front pockets of the sweatshirt. When Officer Sousa told him to remove his hands, Camacho did so slowly and deliberately, clasping his hands in front of his waistband, seeming to protect his midriff.

Finding Camacho’s studied movement and hand placement unusual, Officer Sousa tapped Camacho’s waist with his open palm. Sousa immediately felt the butt of a gun, and yelled, “Gun!” Camacho then “automatically” shoved Sousa, and Officer Conceicao drew his service revolver and aimed it at Osario-Meléndez. Sousa and Camacho began struggling, which Officer Conceicao ended “within thirty seconds” by hitting Camacho over the head with his flashlight, knocking him to the ground. With Camacho now subdued, Officer Sousa seized a .40 caliber Glock revolver — with a live round in the chamber and eight rounds in the magazine — from beneath Camacho’s belt.

C. Legal Proceedings

1. The Indictment and Camacho’s Motion to Suppress

A federal grand jury charged Camacho with two counts: one count of unlawful possession of a firearm and ammunition by a prior felon, in violation of 18 U.S.C. § 922(g)(1), and one count of possession of a firearm with an obliterated serial number, in violation of 18 U.S.C. § 922(k). Challenging both counts, Camacho moved to suppress the firearm and ammunition, arguing that they were obtained through an illegal search and seizure. The trial judge conducted an evidentiary hearing on the motion, at which Sergeant Carola, Officer Sousa, and Officer Conceicao testified.

2. The District Court’s Ruling on the Motion to Suppress

The trial judge denied Camacho’s motion to suppress. Camacho, 608 F.Supp.2d at 185. As a preliminary matter, the judge ruled that Camacho was seized for Fourth Amendment purposes when Officer Sousa began questioning him, noting that Officer Conceicao ordered Osario-Meléndez to place his hands on the

[723]*723hood of officers’ car while just a few feet away Officer Sousa was asking Camacho “questions that were accusatory in tone and content.” Id. at 184. The judge agreed with Camacho that the police officers lacked the reasonable suspicion necessary for a Terry stop, explaining that “[t]he most that can be said is that the two men were observed in a high crime area walking away from the vicinity of a street fight that one caller reported as involving Latin Kings.” Id. For the judge, this was not enough to raise a reasonable suspicion. See Illinois v. Wardlow, 528 U.S. 119, 124, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000) (“An individual’s presence in an area of expected criminal activity, standing alone, is not enough to support a reasonable, particularized suspicion that the person is committing a crime.”). Nonetheless, the judge concluded that suppression of the gun was “neither called for nor appropriate.” Camacho, 608 F.Supp.2d at 185. The trial judge found it material that “[t]he gun was seized only after Camacho shoved Sousa and only after the officers succeeded in wrestling Camacho to the ground and placing him under arrest.” Id. Therefore, the judge reasoned, “[t]he acts of shoving Officer Sousa and resisting arrest were intervening crimes giving the officers independent grounds to arrest Camacho,” id. (citing United States v. Bailey, 691 F.2d 1009, 1013 (11th Cir.1983) (en banc) (noting that resistance to even an unlawful arrest is a sufficient and independent ground for a second arrest for a new, distinct crime)), and the seizure of the gun was justified under the search incident to arrest exception to the Fourth Amendment. See United States v. Robinson,

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Bluebook (online)
661 F.3d 718, 2011 WL 5865650, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-camacho-ca1-2011.