United States v. Dapolito

713 F.3d 141, 2013 WL 1458733, 2013 U.S. App. LEXIS 7309
CourtCourt of Appeals for the First Circuit
DecidedApril 11, 2013
Docket12-2023
StatusPublished
Cited by20 cases

This text of 713 F.3d 141 (United States v. Dapolito) 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. Dapolito, 713 F.3d 141, 2013 WL 1458733, 2013 U.S. App. LEXIS 7309 (1st Cir. 2013).

Opinions

LYNCH, Chief Judge..

This is an appeal by the government from the district court’s grant of defendant Anthony Dapolito’s motion to suppress evidence (a firearm) as the fruits of an unconstitutional detention. United States v. Da-polito, No. 2:12-cr-00045-NT, 2012 WL 3612602 (D.Me. Aug. 21, 2012).

The prosecution does not challenge on appeal the district court’s findings of historical fact. Rather, it argues that the district court committed three legal errors, in that the district court: (1) failed to apply the correct test for when a consensual encounter matured into a stop under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); (2) failed to consider the totality of the circumstances in its reasonable suspicion analysis; and (3) substituted its judgment for that of the officers in this case. These errors, the U.S. asserts, mean that the district court erred in concluding that the totality of the circumstances did not provide a reasonable suspicion to support the defendant’s continuing detention at the time of the search, which produced the firearm.

We find no error and affirm. The court employed analyses and reached conclusions consistent with the relevant law, including Terry, United States v. Arvizu, 534 U.S. 266, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002), and United States v. Sokolow, 490 U.S. 1, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989).

I.

On Friday, March 9, 2012, with temperatures warm enough for police bicycle patrols, officers Dan Knight and Richard [144]*144Ray cycled past Monument Square, a public pedestrian square, in the heart of downtown Portland, Maine. At about 2:39 a.m., they saw the defendant, Anthony Dapolito, appearing to be in his thirties and wearing a jacket, standing alone in an alcove at 18 Monument Square.

The district court, which viewed the scene, described the alcove:

From the sidewalk [looking toward the alcove], there are two doorways within the alcove. The first doorway, which is roughly in the center of the alcove, is the entryway for [Shay’s Grill Pub]. To the right of the Shay’s entrance is a second door allowing access to condominiums on the upper floors. To the right of the condominium entrance is a small ATM machine, which is shielded by a canvas enclosure. The defendant was standing in the area directly in front of the door to the condominiums.

Dapolito, 2012 WL 3612602, at *1.1

Ray spoke to Dapolito, and Dapolito responded that “everything’s okay,” but Da-polito was also grimacing, squinting, and making strange facial expressions. The officers got off their bikes and walked over to Dapolito. The officers observed that Dapolito appeared to be intoxicated or otherwise impaired. His face was sweaty and he was fidgeting with his hands.

The officers testified that they were patrolling the “downtown area” because there had been “recent” burglaries of businesses and graffiti incidents, though they had no information about any recent burglaries or criminal activity in this particular location, and did not say how recent these reported downtown burglaries had been. The “downtown area” is a large area, and includes the Old Port section of Portland, of which Monument Square is a part. Ray did not know whether any burglaries had occurred in Monument Square in the past month. As Knight testified, the officers saw no evidence that Dapolito was or had been involved in a burglary and he did not appear to have any of a burglar’s usual tools.

Neither officer recognized the defendant. Ray asked the defendant for identification. Dapolito replied that he did not have any identification on his person, but voluntarily provided his name, and accurately gave his date of birth and said he was from Saugus, Massachusetts. He also provided a middle initial “M.” The police report filed added that Dapolito said he had a Massachusetts driver’s license. There is no evidence that Dapolito hesitated or paused before giving this information.

The officers said the defendant spelled his name for them as “D-A-P-L-I-T-O,” with the middle “0” missing. The district court found that “the Defendant either unintentionally misspelled his name ... or that Officer Ray misheard him.” Ray then contacted dispatch and requested that dispatch search for a record of the defendant. Dispatch responded that no record was found for that name in Maine or Massachusetts.2 Ray told Dapolito that the name was not on file and asked if he had the name right. Dapolito spelled his last name as “D-A-P-O-L-I-T-O,” which is the correct spelling. Ray asked dispatch [145]*145to do another search; once again, dispatch found no record in its computer system.

Ray testified that he believed Dapolito was lying about his identity given the first misspelling and the inability of dispatch to confirm the second (correct) spelling. He thought it common practice for people to lie about their names when they are wanted, and so suspected Dapolito was wanted on a warrant. Ray then asked Dapolito if he could pat him down for identification; Dapolito refused and said he was not comfortable being touched.

The officers asked what Dapolito was doing there and where he lived. Dapolito told Ray he was waiting for some friends. He also said that he lived at 18 Monument Square. However, Dapolito did not have a key to the condominiums, and could not provide the phone numbers of his supposed roommates because his cell phone battery was dead. He also made rambling and incoherent statements, including that if one subtracts 100 from 118, one gets 18, an apparent reference to the 18 Monument Square address. Knight pressed the buzzer for the condominiums, but no one responded.

For a second time, Ray asked Dapolito if he could search him for identification. Again, Dapolito refused and said he was not comfortable with that. However, Ray saw what looked like the outline of a credit card or a license in Dapolito’s left front pants pocket, and asked Dapolito what it was. Dapolito took it out of his pocket and showed it to Ray. The card was a government-issued Massachusetts Electronic Benefit Transfer (EBT) card. The card had Dapolito’s name on it, spelled the same way as the second spelling of the name he had given the officers, but it did not have a photo identification. Despite the fact that the card confirmed Dapolito’s name and his association with Massachusetts, the officers continued the interrogation.3

In fact, at some point during the questioning, Officer Christopher Dyer, having heard over his car radio about the two bicycle officers’ encounter, and thinking it odd that the encounter had lasted fifteen minutes without more radio traffic, decided, on his own, to drive his police cruiser onto Monument Square, where vehicles are not ordinarily permitted. He arrived at approximately 2:54 a.m., got out, and approached the officers and Dapolito. Da-polito now had three officers facing him, and a cruiser on scene, as he stood in the alcove, at the point where the paving changed from the alcove’s stones to the brick sidewalk.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

United States v. Gonzalez
16 F.4th 37 (First Circuit, 2021)
United States v. Roman
942 F.3d 43 (First Circuit, 2019)
United States v. Cruz-Mercedes
379 F. Supp. 3d 24 (District of Columbia, 2019)
Gunter v. Cicero
D. Massachusetts, 2019
Gunter v. Cicero
364 F. Supp. 3d 124 (District of Columbia, 2019)
Walker v. McGrath
D. Massachusetts, 2018
Walker v. Femino
311 F. Supp. 3d 441 (District of Columbia, 2018)
United States v. Belin
868 F.3d 43 (First Circuit, 2017)
United States v. Sanders
248 F. Supp. 3d 339 (D. Rhode Island, 2017)
United States of America v. Laveneur Jackson
2021 DNH 027 (D. New Hampshire, 2017)
United States v. McDonald
804 F.3d 497 (First Circuit, 2015)
Commonwealth v. Evans
87 Mass. App. Ct. 687 (Massachusetts Appeals Court, 2015)
United States v. Tiru-Plaza
766 F.3d 111 (First Circuit, 2014)
Hernandez v. Montanez
36 F. Supp. 3d 202 (D. Massachusetts, 2014)
United States v. Lyons
First Circuit, 2014
United States v. Lyons
740 F.3d 702 (D.C. Circuit, 2014)
United States v. Allah
994 F. Supp. 2d 148 (D. Massachusetts, 2014)
Price v. State
120 So. 3d 198 (District Court of Appeal of Florida, 2013)

Cite This Page — Counsel Stack

Bluebook (online)
713 F.3d 141, 2013 WL 1458733, 2013 U.S. App. LEXIS 7309, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-dapolito-ca1-2013.