United States v. Young

105 F.3d 1, 46 Fed. R. Serv. 307, 1997 U.S. App. LEXIS 1168, 1997 WL 17954
Court of Appeals for the First Circuit·Decided January 23, 1997·No. 95-2178·Published·Cited by 119 cases

Opinion

STAHL, Circuit Judge.

In May 1995, a jury convicted defendant Dwayne Young on a single count of unlawful possession of a firearm by a felon, 18 U.S.C. § 922(g)(1). During trial, and after denying Young’s motion to suppress, the district court admitted the firearm and ammunition into evidence. The district court also admitted a so-called “turret tape,” a recording of radio transmissions between a police officer and his dispatcher, made during the officer’s foot pursuit of Young. 1 Finally, the district court allowed the jury to use a government-prepared transcript as an aid in listening to the tape while it was being played during trial. Finding no error, we affirm.

Background

On April 7, 1994, Officers James Fee and Robert Twitchell of the Boston Police Department, while patrolling the Roxbury section of Boston, received a radio broadcast describing three individuals suspected of armed robbery. Several blocks from the last reported location of the suspects, the officers noticed a group of three men standing together. Upon seeing the unmarked cruiser, the group dispersed. One of the three, Young, walked in one direction by himself while the other two departed together in another direction.

*5 The officers, noting that Young’s short height and black clothing appeared to match the description of one of the robbery suspects, pulled their cruiser to the curb alongside Young. From the passenger seat, Officer Twitchell rolled down his window and announced “Boston Police, you got a minute?” to which Young responded “Sure.” Young then “angled? toward the rear of the cruiser. As Young approached the car, the officers noticed the handle of a handgun protruding from his waistband. Officer Twitc-hell lunged at Young through the window of the cruiser, made fleeting contact with his jacket or belt, but failed to either grab the' gun or detain him. Young turned and ran from the cruiser, with Twitchell, now on foot, in pursuit.

During the pursuit, Officer Twitchell saw Young remove the gun from his waistband and throw it into the basement stairwell of a building on Elm Street. Although Young successfully eluded Twitchell, he was ultimately apprehended by a back-up police officer who found him hiding in a nearby garage. Officer Twitchell then returned to the stairwell and recovered the gun. While these events were unfolding, Officer Twitchell and other officers continuously transmitted information to the dispatcher at the Boston Police headquarters. These transmissions comprise the turret tape.

Prior to trial, Young moved to suppress the gun and the turret tape. Young asserted that the police recovered the gun through a violation of his Fourth Amendment rights, and argued that the tape constituted inadmissible hearsay. The district court denied Young’s motion to suppress the gun, but granted his motion with respect to the turret tape, with the caveat that defense counsel’s cross examination might subsequently render it admissible. During trial and after defense counsel’s cross examination of Officer Twitc-hell, the district court admitted the turret tape as a prior consistent statement, and allowed the jury to use a transcript prepared by the government, as an aid in listening to the turret tape. Young appeals admission of the gun and tape, as well as use of the transcript.

Discussion

A. Suppression of the Gun

We employ a dual standard in reviewing motions to suppress. We review the district court’s findings of fact for clear error. See United States v. Bartelho, 71 F.3d 436, 441 (1st Cir.1995). “A clear error exists only if, after considering all of the evidence, we are left with a definite and firm conviction that a mistake has been made.” United States v. McCarthy, 77 F.3d 522, 529 (1st Cir.), cert. denied, — U.S. —, 117 S.Ct. 479, 136 L.Ed.2d 374 (1996). Deference to the district court’s findings of fact reflects our awareness that the trial judge, who hears the testimony, observes the witnesses’ demeanor and evaluates the facts first hand, sits in the best position to determine what actually happened. See United States v. Zapata, 18 F.3d 971, 975 (1st Cir.1994). By contrast, we review conclusions of law de novo and subject the trial court’s constitutional conclusions to plenary review. See id.; see also Ornelas v. United States, — U.S. —, —, 116 S.Ct. 1657, 1663, 134 L.Ed.2d 911 (1996). Determinations of probable cause and reasonable suspicion, relevant to the constitutionality of law enforcement seizures and arrests under, the Fourth Amendment, present mixed questions of law and fact which we review de novo. See Ornelas, — U.S. at — 116 S.Ct. at 1663.

Young argues that the district court erred by concluding that recovery of the firearm did not occur through conduct that violated his Fourth Amendment rights. Specifically, Young contends that Officers Twitchell and Fee lacked either the reasonable suspicion needed to stop him, or the probable cause required for an arrest. We disagree.

Interaction between law enforcement officials and citizens generally falls within three tiers of Fourth Amendment analysis, depending on the level of police intrusion into a person’s privacy. The first or lowest tier encompasses interaction of such minimally intrusive nature that it does not trigger the protections of the Fourth Amendment. The Supreme Court has repeatedly emphasized that not all personal intercourse between the police and citizens rises to the level of a stop or seizure. See *6 Florida v. Bostick, 501 U.S. 429, 434, 111 S.Ct. 2382, 2386, 115 L.Ed.2d 389 (1991) (citing eases). Police may approach citizens in public spaces and ask them questions without triggering the protections of the Fourth Amendment. See id.; United States v. Manchester, 711 F.2d 458, 460 (1st Cir.1983). Such police engagements need not find a basis in any articulable suspicion. See Bostick, 501 U.S. at 435, 111 S.Ct. at 2386-87. Police conduct falls short of triggering Fourth Amendment protections when, from the totality of the circumstances, we determine that the subject of any police interaction would have felt free to terminate the conversation and proceed along his way. See Bostick, 501 U.S. at 439, 111 S.Ct. at 2388-89; United States v. Sealey, 30 F.3d 7, 9 (1st Cir.1994).

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United States v. Young, 105 F.3d 1, 46 Fed. R. Serv. 307, 1997 U.S. App. LEXIS 1168, 1997 WL 17954 (1st Cir. 1997).

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