United States v. Moore

235 F.3d 700, 2000 U.S. App. LEXIS 33845, 2000 WL 1873776
CourtCourt of Appeals for the First Circuit
DecidedDecember 29, 2000
Docket00-1174
StatusPublished
Cited by21 cases

This text of 235 F.3d 700 (United States v. Moore) 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. Moore, 235 F.3d 700, 2000 U.S. App. LEXIS 33845, 2000 WL 1873776 (1st Cir. 2000).

Opinion

BOWNES, Senior Circuit Judge.

The government appeals from the district court’s interlocutory order suppressing evidence of contraband that the police seized from defendant-appellee Jonathan Moore. We reverse and remand for further proceedings consistent with this opinion.

*702 I.

On April 29, 1998, a federal grand jury returned a one-count indictment charging Moore with possession of ammunition by a previously convicted felon, 18 U.S.C. § 922(g)(3). On January 15, 1999, Moore filed a motion to suppress evidence. On November 24, 1999, after an evidentiary hearing, the district court allowed Moore’s motion to suppress and made the following findings and conclusions:

Early in the morning of November 29, 1997, Officers Sean Joyce and Jeffrey Cecil of the Boston Police Department were on patrol near 32 Maple Street, an apartment building in Roxbury, Massachusetts. They suspected that drugs were being distributed from the building. Both officers had made drug-related and other arrests in that area.

At approximately 2:00 a.m., the officers noticed that there was significant foot traffic going into and coming out of 32 Maple Street. The people entering the building stayed only a short time before leaving. The officers recognized some of the visitors as having been arrested for drug and other offenses.

After observing the entrance for a while, Officers Joyce and Cecil approached the building to investigate further. The apartment building was three stories high and contained between nine and twelve units. A light from a unit on the third floor was the only light visible from outside the building. The officers entered the building through the unlocked front door. There were pieces of small plastic bags strewn on the floor of the entryway “consistent with the possibility that drug customers had consumed the contents of the drug packages and then discarded the plastic scraps on the floor.”

As they stood in the common hallway of the building, the officers heard the sounds of a heated argument, including shouting and swearing, coming from one of the upper floors. The officers decided to go up the stairs to investigate. When they reached the second-floor landing, they heard a door slam on the third floor and someone running down the stairs. They then saw a man, later identified as Moore, come running down the stairs. Moore came to a sudden stop on the stairs after almost accidentally colliding with Officer Cecil.

Officer Joyce, who was standing just behind Office Cecil, noticed that Moore’s right hand was clenched at his side as if he was attempting to conceal something in it. 1 Officer Joyce grabbed Moores right wrist and asked Moore what he had in his hand. Moore did not answer. After Officer Joyce repeated the question, Moore opened his hand, revealed its contents, and said, You got me. In his hand Moore held a small plastic bag containing a white powdery substance that Officer Joyce believed to be heroin. Joyce then arrested Moore for possession of an illegal drug. A search of Moore’s person incident to the arrest yielded some packages of crack cocaine and a handgun.

In its rulings, the district court assumed that the officers were justified in entering the hallway of the building. It then stated that the officers were justified in ascending the stairs to investigate the sounds and in detaining Moore in a Terry stop. The court also determined that the officers could justifiably use a modicum of physical force, such as grabbing the defendant by the wrist, in order to hold him in their presence long enough for them to make a [Terry] investigation.

The district court held, however, that because Officer Joyces purpose was to search rather than merely to “stop,” his *703 actions of grabbing Moores wrist and asking him what was in his closed hand constituted a search requiring probable cause. The district court went on to conclude that although police are entitled to.perform a pat-frisk of the subject of a Terry-stop, to assure themselves that he does not have weapons at hand, Officer Joyces actions could not be justified as such a frisk because it is more likely that Joyce thought the defendant was concealing contraband and because there were no objective facts .,. that tended to indicate that the defendant might be armed or ... concealing a weapon in his hand. Moreover, the district court stated that although Moore opened his hand himself, his “consent” to the search was not voluntary because it was effectively compelled by the officer’s grasp and questioning.

Accordingly, the district court held that the compelled disclosure of the contents of Moore’s hand required probable cause. It concluded that there was no probable cause because the drug activity was not necessarily taking place on the third floor and Moore was more readily connected to the argument than to the earlier observed drug traffic. The district court then ordered the suppression of the heroin found in Moores hand and the firearm, ammunition, and crack cocaine found during the subsequent search incident to arrest.

On December 30, 1999, the government filed a motion for reconsideration of the courts rulings, which the district court denied after oral argument. The government appeals from the interlocutory order suppressing evidence.

II.

We review the district court’s factual findings for clear error, but review de novo its conclusions of law and its ultimate rulings on the constitutionality of the government’s conduct. United States v. Taylor, 162 F.3d 12, 17 (1st Cir.1998).

Under Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), police officers may conduct a brief, investigatory stop of an individual based on reasonable suspicion of criminal activity. In determining whether action taken by a police officer is constitutionally permissible as part of a Terry stop, we consider (1) “whether the officer’s action was justified at its inception,” and (2) “whether it was reasonably related in scope to the circumstances which justified the interference in the first place.” Id. at 20, 88 S.Ct. 1868; accord United States v. Trullo, 809 F.2d 108, 111 (1st Cir.1987).

Whether a Terry stop remained related-in scope to the circumstances justifying the interference is measured by an objective reasonableness standard. See Terry, 392 U.S. at 20, 88 S.Ct. 1868. “The court must consider the circumstances as a whole, and must balance the nature of the intrusion with the governmental interests that are served.” United States v. Cruz, 156 F.3d 22, 26 (1st Cir.1998) (quoting United States v. Hensley, 469 U.S. 221, 228, 105 S.Ct. 675, 83 L.Ed.2d 604 (1985)).

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Bluebook (online)
235 F.3d 700, 2000 U.S. App. LEXIS 33845, 2000 WL 1873776, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-moore-ca1-2000.