United States v. Dapolito , 713 F.3d 141 ( 2013 )

United States Court of Appeals
For the First Circuit
No. 12-2023
UNITED STATES,
Appellant,
v.
ANTHONY DAPOLITO,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Nancy Torresen, U.S. District Judge]
Before
Lynch, Chief Judge,
Howard, Circuit Judge,
and Casper,* District Judge.
Margaret D. McGaughey, Assistant U.S. Attorney, with whom
Thomas E. Delahanty II, United States Attorney, was on brief, for
appellant.
David Beneman, Federal Defender, for appellee.
April 11, 2013
*
Of the District of Massachusetts, sitting by designation.
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. Dapolito, 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(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 (2002), and United
States v. Sokolow, 490 U.S. 1 (1989).
I.
On Friday, March 9, 2012, with temperatures warm enough
for police bicycle patrols, officers Dan Knight and Richard Ray
-2-
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 Dapolito 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.
1
The record indicates that Shay's was closed at that hour,
but does not reveal whether other businesses in the area were open.
However, Ray testified that he did not see anyone else in the
square.
-3-
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 "O" missing. The district
court found that "the Defendant either unintentionally misspelled
his name . . . or that Officer Ray misheard him." Ray then
-4-
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 to 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
2
Ray did not know what records Massachusetts kept, but
understood that a dispatch search checks for both motor vehicle
records and National Crime Information Center (NCIC) data, which
includes outstanding warrants, bail conditions, and prior felony
convictions.
-5-
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.
3
The record is not clear about how much time had elapsed by
this point, but it occurred well into the encounter, which lasted
upwards of twenty minutes.
-6-
Dapolito 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.
Ray continued to question Dapolito because, in his view,
according to the police report, the information the defendant was
providing the officers "wasn't adding up" and he "deemed it
necessary to detain [Dapolito] in order to discover his identity."
The next sentence of the report moved from the officers' "need to
discover" Dapolito's identity to the statement, "I believed he
could possibly be a burglar or a wanted person using a false name
to evade capture." By now, the encounter had lasted at least 20
minutes.
Ray went a step further, and at this point, told Dapolito
that he, Dapolito, was being deceitful, that Dapolito was going to
be detained, and more specifically, that Dapolito was going to be
brought to the county jail.4 Ray also told Dapolito he would be
searched for identification.
In response to being told he was going to be taken to
jail, and after he had twice refused requests that he agree to be
searched, Dapolito took what the officers identified as a
"fight-or-flight" stance. At that point Dyer moved closer to Ray,
Knight, and Dapolito. Dapolito said "I don't want that," and asked
4
There, the police could have used a fingerprint machine or
a record of tattoos to attempt to identify the defendant.
-7-
if he could have permission to take three steps back. Ray said no
and told Dapolito to place his hands on his head, the first step of
the pat down process. Ray's contemporaneous police report never
mentioned officer safety as a factor in conducting the pat down,
only the need to find identification. But he later testified, as
did the other two officers, that the pat down was initiated for
officer safety reasons.
When Dapolito did not initially comply, Knight drew his
Taser and placed the red dot on the defendant's chest. In
response, Dapolito complied with the command to place his hands on
his head; his shirt and jacket lifted, and Dyer saw a handgun in
the defendant's waistband, which Dyer then grabbed.
Dyer took Dapolito to the county jail. There, the
defendant provided the same name and date of birth he had given the
officers earlier, as well a social security number. Dispatch
searched for the defendant in the Interstate Identification Index,
which confirmed his identity5 and indicated that he was a convicted
felon; it did not have any information that Dapolito was wanted for
a crime.
II.
5
The post-arrest records Ray reviewed did not contain the
middle initial "M" that Dapolito had given when asked in Monument
Square. That one-letter discrepancy may have thrown off dispatch's
earlier searches to find a matching record. There is no claim that
it is not his accurate middle initial.
-8-
On March 27, 2012, a federal grand jury indicted Dapolito
on one count of being a felon in possession of a firearm in
violation of 18 U.S.C. §§ 922(g)(1) and 924(e). The defendant
moved to suppress the gun on the ground that the search that
resulted in the discovery of the gun derived from an unlawful
seizure in violation of the Fourth Amendment. The government
argued the encounter was consensual and only became a Terry stop
when the defendant was told he was going to be detained. At that
point, the government argued, the officers had reasonable suspicion
that criminal activity was afoot and the pat-frisk was justified by
an objective concern for officer safety.
The district court held an evidentiary hearing on July
18, 2012, hearing testimony from Ray, Knight, and Dyer. It granted
the motion to suppress on August 21, 2012. The district court
found that the consensual encounter had become a Terry stop by the
time Dapolito had produced the EBT card containing the name he had
already provided to the officers. Dapolito, 2012 WL 3612602, at
*7. The court then determined that at the inception of the Terry
stop, the officers lacked reasonable suspicion to permit the
detention. The court reasoned that the totality of the
circumstances did not provide a particular and objective basis to
suspect that the defendant was engaged in a burglary, wanted on an
outstanding warrant, or otherwise involved in criminal activity.
Id. at *7-8. Rather, "[w]hat the officers had was an odd,
-9-
grimacing, impaired man, who was unknown to them and who was not
making much sense. The Defendant was acting not unlike many other
members of the indigent and/or transient population of Portland."
Id. at *7.
The government's timely appeal followed.
III.
Under Ornelas v. United States, 517 U.S. 690 (1996), the
Courts of Appeals must undertake independent appellate review of a
district court's decision on the mixed question of law and fact of
whether the historical facts, viewed from the standpoint of an
objectively reasonable officer, amount to a reasonable suspicion or
to probable cause. Id. at 696-97. When reviewing a challenge to
a district court's decision on a suppression motion, we review the
district court's factual findings and credibility determinations
only for clear error. United States v. Camacho, 661 F.3d 718, 723
(1st Cir. 2011); see Ornelas, 517 U.S. at 699 (findings of
historical fact reviewed for clear error). We review the court's
legal conclusions de novo. United States v. Rabbia, 699 F.3d 85,
89 (1st Cir. 2012). That being said, it is also true that we "give
due weight to inferences drawn from [historical facts] by resident
judges and local law enforcement officers."6 Ornelas, 517 U.S. at
6
One Supreme Court Justice does not see "how deferring to the
District Court's factual inferences (as opposed to its findings of
fact) is compatible with de novo review." United States v. Arvizu,
534 U.S. 266, 278 (2002) (Scalia, J., concurring) (citing Ornelas
v. United States, 517 U.S. 690, 705 (1996)).
-10-
699. As explained in United States v. Townsend, 305 F.3d 537 (6th
Cir. 2002), the district court, which observes the testimony of the
witnesses and understands local conditions, is at an institutional
advantage in making this determination. Id. at 542. "Accordingly,
'due weight' should be given to the inferences drawn from the facts
by 'resident judges.'" Id. (quoting Ornelas, 517 U.S. at 698).
We wish to be clear about what issues are and are not
presented on appeal. The government does not argue that,
regardless of reasonable suspicion, the officers independently
feared for their safety at the point when they told Dapolito to put
his hands on his head, pointed the Taser at him, and placed the red
Taser light on his chest. The government accepts the framework
that if there was no reasonable suspicion, there was no basis to
search Dapolito. The government contends that what began as a
consensual stop evolved into a permitted Terry stop because there
was reasonable suspicion of criminal activity afoot and it was so
at the time of the search.
The Fourth Amendment protects "[t]he right of the people
to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures." U.S. Const. amend. IV. The
Amendment prohibits only those searches and seizures that are
"unreasonable." United States v. Pontoo, 666 F.3d 20, 27 (1st Cir.
2011). The police may stop and briefly detain an individual for
investigative purposes if the police have a reasonable suspicion
-11-
that criminal activity is afoot. Sokolow, 490 U.S. at 7; Terry,
392 U.S. at 30; Pontoo, 666 F.3d at 27. An individual is detained
when a reasonable person would not feel free to refuse to answer
police questions and proceed along his way.7 See Florida v.
Bostick, 501 U.S. 429, 439 (1991); United States v. Young, 105 F.3d
1, 6 (1st Cir. 1997).
Reasonable suspicion requires there be both a
particularized and an objective basis for suspecting the individual
stopped of criminal activity. United States v. Cortez, 449 U.S.
411, 417-18 (1981). The particularity requirement demands that the
finding be "grounded in specific and articulable facts." United
States v. Hensley, 469 U.S. 221, 229 (1985). The objective
requirement dictates that we view the circumstances through the
lens of a reasonable police officer. Pontoo, 666 F.3d at 28. The
reasonable suspicion standard "defies precise definition," and
"must be determined case by case." United States v. Chhien, 266
F.3d 1, 6 (1st Cir. 2001). It is a commonsense, nontechnical
conception. Ornelas, 517 U.S. at 695.
7
The government challenges the district court's determination
of when exactly the detention began. Whether it began when
Dapolito provided the EBT card, as the district court determined,
or, as the U.S. says, at the time the defendant was told he would
be taken to the county jail, does not control our determination of
whether the officers had reasonable suspicion to detain the
defendant. Suffice it to say that Dapolito was detained at least
as of the time he was told he was being detained and being taken to
jail. Whatever the relevance of the "fight-or-flight" stance, it
occurred later, and was a direct response to that announcement.
-12-
In determining whether reasonable suspicion existed,
courts must look to the totality of the circumstances. See Cortez,
449 U.S. at 417 ("[T]he essence of all that has been written is
that the totality of the circumstances -- the whole picture -- must
be taken into account."). As a result, no individual factor or
fact should be considered in isolation. See Arvizu, 534 U.S. at
274-75.
IV.
We deal with the government's three claims of legal error
before its challenge to the results of the district court's
totality of the circumstances inquiry. First, the U.S. argues that
"the court failed to apply the correct test for deciding when the
consensual encounter matured into a 'Terry' stop." Second, the
U.S. asserts that the court erred in its reasonable suspicion
determination because "the court conducted a 'divide-and-conquer'
analysis that assessed each fact . . . out of context and assigned
those individual facts innocent interpretations." Third, "the
lower court[] substitut[ed] . . . its own interpretations of the
historical facts for the judgment of two trained and experienced
police officers." Recall that the government's rationale for the
detention is that there was reasonable suspicion of burglary or
that Dapolito was hiding his identity as a wanted fugitive.
As to all three challenges, the district court correctly
stated the requirements set by the law, and more particularly set
-13-
out in Terry, Arvizu, and Sokolow, and stated that was the law that
was being applied. We go through the Terry issue after discussing
the other two.
In Arvizu, 534 U.S. 266, the Supreme Court rejected a
"divide-and-conquer" analysis under which the relevance of
individual factors are considered in isolation from one another in
making a reasonable suspicion determination. Id. at 274; see also
Sokolow, 490 U.S. at 7-8 (finding lower court erred in dividing
evidence rather than simply considering the whole picture). The
government argues the district court committed such error here.
Not so.
The district court was acutely aware of the totality of
the circumstances approach that is required. The court expressly
said that its task was to consider the totality of the
circumstances. Dapolito, 2012 WL 3612602, at *4. It engaged in
careful consideration of all the facts, as its opinion shows.
The government compiles a list of examples it argues are
instances of a "divide-and-conquer" analysis, including the
district court's consideration of three facts: that the officers
were not aware of any burglaries in Monument Square that night or
in the past month, that they saw no visible evidence of a burglary
or of Dapolito's possession of tools to commit burglary, and that
they had no knowledge of an outstanding warrant as to Dapolito. In
-14-
doing so, it is the government that commits the error it accuses
the district court of making.
It was both legitimate and reasonable for the court to
consider whether, as a factual matter, the area was actually the
scene of recent crimes. See, e.g., United States v. Hart, 674 F.3d
33, 39 n.1 (1st Cir. 2012) (character of the area in which
defendant was seized is a factual issue best left to the district
court). The character and occurrence of crimes in an area is a
relevant factor in a totality of the circumstances inquiry. See
Schubert v. City of Springfield, 589 F.3d 496, 501-02 (1st Cir.
2009) (reasonable suspicion where officer saw man carrying gun in
high-crime area walking toward public building). We have looked at
(1) the nexus between the type of crime most prevalent or common in
the area and the type of crime suspected in this case; (2) the
limited geographic boundaries of the area; and (3) the temporal
proximity between the evidence of heightened criminal activity and
the date of the stop. See United States v. Wright, 485 F.3d 45,
53-54 (1st Cir. 2007) (collecting cases). The court properly
considered the history (or lack thereof) of burglaries in Monument
Square during the prior month.
The court also properly considered the presence or
absence of the other factors it discussed in its opinion. See,
e.g., Hensley, 469 U.S. at 229 (flyer issued by another department
indicating person wanted); Rabbia, 699 F.3d at 89-90 (officers
-15-
observed drug transaction); Pontoo, 666 F.3d at 28 (responding to
report of murder); Camacho, 661 F.3d at 729 (responding to 911
call); United States v. Jones, 432 F.3d 34, 40-42 & n.1 (1st Cir.
2005) (considering as relevant type of gloves defendant was
wearing, as useful to conceal fingerprints, and clothing more
broadly). The court was not imposing any per se requirements that
certain factors had to exist, as the government claims.8 Moreover,
the government's argument essentially seeks to sweep those
considerations to the side, which would be a sort of "divide-and-
conquer" approach that would isolate only those facts helpful to
the government's case. This ground of error fails.
The government also asserts that the district court erred
in its "readiness to substitute its own judgment for that of two
[experienced] police officers." Again, the district court
articulated the correct legal standard, stating that it considered
the totality of the circumstances "through the lens of a reasonable
8
The government also presents an argument that the court
required the officers to question the data records and the
sophistication of the search engine used by dispatch. The district
court imposed no such rule, but was explaining that without
information about how the dispatch search system operated -- such
as how close the name searched must be to the name on file -- the
failure of the system to come back with a record provided less
weight to any suspicion that Dapolito was giving a false name to
avoid detection. Cf. Arizona v. Evans, 514 U.S. 1, 17-18 (1995)
(O'Connor, J., concurring) ("In recent years, we have witnessed the
advent of powerful, computer-based recordkeeping systems that
facilitate arrests in ways that have never before been possible.
The police, of course, are entitled to enjoy the substantial
advantages this technology confers. They may not, however, rely on
it blindly.").
-16-
police officer." Dapolito, 2012 WL 3612602, at *8; see Pontoo, 666
F.3d at 28. To the extent the government argues the district court
needed to defer to these specific police officers' view of the
situation, and cast aside its individual judgment about what an
objective officer's view would be, that is not the law.
The government takes issue with the district court's
ruling that it "cannot infer that [Dapolito] deliberately
misspelled his name to shield his true identity, particularly
since, when asked a second time, he spelled his name correctly and
he turned over an EBT card in the name of Anthony Dapolito."
Dapolito, 2012 WL 3612602, at *8. Since the government has said
repeatedly that it is not attacking the factual findings of the
district court (and could not show clear error in any event), the
purpose of this argument is unclear. The district court did not
say that there was no room for an objectively reasonable officer,
or even Officer Ray, initially, to wonder about the reasons for the
wrong spelling. Rather, the court said only that after the correct
spelling was given, and then verified by the EBT card, the fact of
the misspelling -- in light of the ambiguity over whether Dapolito,
who appeared to be intoxicated or otherwise impaired, accidentally
misspelled his name, or the officer misheard what an apparently
intoxicated or otherwise impaired man said -- did not permit an
objectively reasonable inference that Dapolito had deliberately
misspelled the name to hide his identity because he was wanted for
-17-
a crime. The district court considered that datum, among the
totality of the data -- including the fact that the officers did
not know whether the second spelling was correct, and the lack of
a photo on the EBT card -- in reaching its conclusion. We see no
basis for the government's argument that the court did not use the
correct standard.
Ultimately, the government's Terry argument comes down to
whether the district court, having correctly articulated and
understood the relevant legal standards, nonetheless erred in its
reasonable suspicion determination. The appellant, here the
government, bears the burden of establishing error. See United
States v. Randazzo, 80 F.3d 623, 633 (1st Cir. 1996) ("In all
events, it is the appellant's responsibility to make some showing
that an error has been committed."); United States v. Mala, 7 F.3d
1058, 1061 (1st Cir. 1993); see also Murphy v. St. Paul Fire &
Marine Ins. Co., 314 F.2d 30, 31 (5th Cir. 1963); United States v.
Rogers, 120 F.2d 244, 248 (9th Cir. 1941).
The government, at oral argument, provided a list of
facts it said, taken together, so established reasonable suspicion
of criminal activity that we must reverse. These facts included:
the time of night; the recent rash of burglaries in downtown;
Dapolito's standing near a closed business and an ATM; his odd
behavior; the fact that he gave two different spellings of his name
and they could not be verified; his lack of possession of a key to
-18-
the building where he said he lived; and the fact that his cell
phone was dead, preventing him from contacting his supposed
roommates. Exercising independent review and looking at the
totality of the circumstances, we cannot say that the district
court committed error.
The district court focused on the officers' suspicions
that Dapolito was engaged in or about to be engaged in a burglary
and/or that Dapolito was wanted on an outstanding warrant, the only
two suspicions of crime the government has offered.9 The district
court's reasoning, which fully supports its conclusion, does not
need to be repeated here. We just add a few observations.
The burglary justification offered by the government
comes from the fact that the "downtown area" -- a large area
covering at least Commercial Street, Fore Street, Exchange Street,
and Congress Street -- had experienced some recent commercial
burglaries. But there was no evidence that Monument Square was a
particular hot spot, or that it had even had any recent burglaries.
There was no evidence of ATM burglaries in the area, and there was
no evidence as to what was meant by "recent."
Moreover, the defendant's behavior did not tie him to a
burglary.10 There was no evidence that Dapolito was fiddling with
9
There is no argument that Dapolito was suspected of adding
graffiti to buildings.
10
We pause to distinguish some of the cases which the
government says require us to find error, but all of which show a
-19-
doorways or even with the ATM in the alcove. The officers did not
see any tools of the trade, such as pliers or a pry bar, on or near
the defendant that would be used in a burglary. And, unlike in
particularized and objective basis for suspecting the individuals
of criminal activity. We need not address every case, but we
highlight just a few. We found reasonable suspicion in United
States v. Walker, 924 F.2d 1 (1st Cir. 1991), where a reasonable
officer could conclude from his observations that a burglary was in
progress. There, an officer observed individuals at 2:30 a.m.,
near a trailer loaded with wood, at a lumber and construction
materials business that had seen several recent burglaries. The
officer had never noticed a delivery at that hour in four years of
patrolling the area, and the trailer was parked in a concealed
manner. Id. at 4. There is no attempt here to even argue that the
officers had reasonable suspicion of a crime in progress.
This case also differs significantly from United States v.
Kimball, 25 F.3d 1 (1st Cir. 1994), where the officer had a
reasonable suspicion of a burglary where a vehicle was parked in a
school parking lot after midnight, and where a number of schools
had been recently robbed. Id. at 7. Moreover, the officer
recognized the defendant's car and knew the defendant had a
criminal history of burglaries. Id. The officers here had no such
knowledge, and the presence of an apparently intoxicated or
otherwise impaired individual in an urban public square at night is
not unusual.
Finally, these facts differ materially from those in United
States v. Jones, 432 F.3d 34 (1st Cir. 2005), where at 4 a.m., on
a rainy winter night, an officer observed two individuals sprinting
down a street. They were wearing hooded sweatshirts tightly
wrapped around their heads, disguising themselves, and thin, white
latex gloves more suited for concealing fingerprints than for
keeping warm. Id. at 40-42. The neighborhood in question had also
experienced an abnormal number of recent robberies and break-ins.
Id. at 41. In any event, as the Supreme Court has noted, since
each case turns on its own facts, resort to precedent may not be
helpful. See Ornelas, 517 U.S. at 698 ("[O]ne determination will
seldom be useful 'precedent' for another . . . ." (quoting Illinois
v. Gates, 462 U.S. 213, 238 n.11 (1983)) (internal quotation marks
omitted)).
-20-
Terry, 392 U.S. at 6-7, the officers did not observe any suspicious
behavior, like Dapolito casing a building.11
Further, Dapolito readily offered his name, his date of
birth, that he was from Massachusetts, and when asked, gave the
officers the EBT card. When the officers wanted to talk to him, he
responded. Not only does this not fit the pattern of someone
trying to avoid police attention, but it also does not add credence
to the alternative theory that Dapolito was wanted on a warrant.
Unlike a situation where the police have been given
information on an individual's wanted status, see, e.g., Hensley,
469 U.S. at 229 (police had wanted flyer); United States v. Nelson,
483 F. App'x 677, 682 (3d Cir. 2012) (reasonable suspicion where
officer knew of outstanding warrant), such information was lacking
here. Rather, the officers became suspicious because dispatch
could not find Dapolito on record and because Dapolito provided, or
11
These facts are in contrast to other cases of ours. See
United States v. Brake, 666 F.3d 800, 804-05 (1st Cir. 2011)
(officer stopped two men with temporal and spatial connection to a
residence at which a 911 call reported an individual with a
handgun); United States v. Pontoo, 666 F.3d 20, 28 (1st Cir. 2011)
(report of murder, with other facts, established reasonable
suspicion); Jones, 432 F.3d at 40-42 & n.1 (individuals wearing
form-fitting gloves, more appropriate for concealing fingerprints
than for keeping hands warm, contributed to finding of reasonable
suspicion); United States v. Romain, 393 F.3d 63, 72 (1st Cir.
2004) (911 call and suspect's agitation and belligerence resulted
in reasonable suspicion); cf. United States v. Spoerke, 568 F.3d
1236, 1249 (11th Cir. 2009) (officer reasonably suspected criminal
activity upon observing gloves, goggles, face mask, and
flashlight).
-21-
at least the officers thought he did, different spellings of his
name.
In fact, Dapolito produced a government benefits card
from the state where he said he was from, which confirmed his name.
That did not, however, cause the police to terminate the encounter,
but to escalate it.
As the district court noted, the mere fact that dispatch
did not get an affirmative match from whatever government record
system it consulted does not, standing alone, create reasonable
suspicion of a crime, either the first time, or the second time.
A simple mishearing or mistake as to a name, or the use or omission
of an initial, may alter results of the search, and the record
system itself, even assuming accuracy of input, is only as complete
as the systems which feed into it. We do not say that the failure
to find a corresponding match is irrelevant, but that it does not
carry the weight the government, in this context, gives it. It
simply cannot be that reasonable suspicion of a person being a
wanted fugitive is created by the failure to find the name, given
by a person, in a government database. Ironically, had Dapolito's
name been found, the information would not have shown he was wanted
on a warrant.
The dissent contends that "the situation was ambiguous"
and that a Terry stop was justified even if there was an innocent
explanation. But the dissent overstates whatever ambiguity
-22-
remained after Dapolito produced the EBT card from Massachusetts,
the state with which he claimed an association, in his name, which
comported with the name he provided the officers and which was
spelled exactly as he spelled it to the officers the second time.
By that point, the officers had some corroboration that the
defendant had identification in the name that he had provided and,
although Dapolito's behavior may still have seemed odd, the
officers had a lesser, not a greater, basis to believe that he was
being untruthful.
A reasonable person in Dapolito's position would not have
felt free to disregard the police and go about his business. See,
e.g., United States v. Espinoza, 490 F.3d 41, 49 (1st Cir. 2007).
He was told he was being taken to jail, despite his having
cooperated and answered the officers' questions. He was told he
would be searched despite the fact that he had twice said he did
not want to be searched, or even touched. He felt he needed police
permission even to step back three steps; and when he asked to do
so, he was told no. There were three officers, with a patrol car
ready to remove him. Most likely, a reasonable person would not
have felt free to leave even earlier than the moment at which
Dapolito was told he was being taken to jail, but we need not
decide that.
The district court determined the encounter became a
Terry stop prior to this point, and the dissent takes issue with
-23-
the district court's consideration of the duration of the encounter
in making that determination, stating that "the length of a
consensual encounter alone" cannot transform the encounter into a
Terry stop. But the district court did not rely solely on the
length of the encounter to find that a Terry stop occurred.
Rather, the district court also considered the intensification and
the accusatory nature of the questioning, the statement to Dapolito
that he was lying, and the fact that the EBT card did not alleviate
the officers' suspicions. See Dapolito, 2012 WL 3612602, at *7
("While the initial encounter was casual, the interaction
intensified after the Defendant had correctly spelled his name and
the dispatcher had relayed the information that there was no record
found. At that point, Officer Ray's questioning became accusatory,
and Officer Ray told the Defendant that he believed the Defendant
was lying. After about fifteen minutes of questioning, and after
the production of the EBT card did not dispel the officers'
suspicions, it would have been obvious to any reasonable person
that the police were not going to let him go."). In any event, the
officers did not have reasonable suspicion of a crime at the time
they told Dapolito they were taking him to the county jail.12
12
On these facts, the question also arises as to whether, at
that time, this was a de facto arrest. It is a question the
district court did not address, nor do we. We do note that, if it
was an arrest, we think it clear that there was no probable cause
for an arrest, there not being even reasonable suspicion.
-24-
It was certainly reasonable for the officers here to
approach Dapolito. They were on patrol in the early morning hours
when they encountered a man, unknown to them, who appeared to be
intoxicated or otherwise impaired, whose identity they could not
readily verify, and whose behavior and facial gestures they could
have reasonably viewed as bizarre. Certainly, as a matter of law
enforcement and public protection, it was reasonable for them to
speak with the defendant to determine if he needed assistance or if
criminal activity was afoot. Neither party disputes that the
encounter that began between the police and the defendant was
consensual and proper. But where, for the reasons we have
previously explained, the police did not have reasonable suspicion
to believe that the defendant had been or was going to be engaged
in a crime, the consensual inquiry (with which Dapolito complied)
cannot be converted into an investigatory stop. The law requires
this result.
Affirmed.
-Dissenting Opinion Follows-
-25-
HOWARD, Circuit Judge, dissenting. In my view, the
government correctly identified three critical errors of law in the
district court's order to suppress the handgun found on Dapolito's
person. Rather than correct these errors, the panel majority
sidesteps the first and repeats the second and third. With great
respect, I must dissent from the majority's opinion.
Although it is our practice to defer to the district
court's factual findings and review them only for clear error, we
are also obligated to perform an "independent appellate review" of
the district court's "ultimate determination[] of reasonable
suspicion." Ornelas v. United States, 517 U.S. 690, 697 (1996);
United States v. Battle, 637 F.3d 44, 48-49 (1st Cir. 2011). The
Supreme Court has emphasized the importance of de novo review in
cases like this one for at least three reasons. First, if we
deferred to the district court's decision on reasonable suspicion--
a mixed question of law and fact--we would permit the scope and
force of the Fourth Amendment to vary between identical factual
situations, depending on which district judge heard the motion to
suppress. See Ornelas, 517 U.S. at 697 (citing Brinegar v. United
States, 338 U.S. 160, 171 (1949)). Second, reasonable suspicion is
a "commonsense, nontechnical" concept that gains form "only through
application," and so de novo review is "necessary if appellate
courts are to maintain control of, and to clarify, the legal
principles" that define the law in this area. Id. at 695, 697
-26-
(citing Miller v. Fenton, 474 U.S. 104, 114 (1985)). Finally, de
novo review serves to unify and rationalize past precedent, so that
our Fourth Amendment jurisprudence will "provid[e] law enforcement
officers with a defined 'set of rules which, in most instances,
makes it possible to reach a correct determination beforehand as to
whether an invasion of privacy is justified in the interest of law
enforcement.'" Id. at 697-98 (quoting New York v. Belton, 453 U.S.
454, 458 (1981)). Therefore, while we should defer to the district
court's description of the historical record, we owe no deference
to its view of the law. Instead, we have a duty to apply the law
anew.
The first error in the district court's suppression order
is its conclusion that a Terry stop occurred at the moment that
Dapolito produced his EBT card and still failed to allay the
officers' suspicions. United States v. Dapolito, No. 2:12-cr-
00045-NT, 2012 WL 3612602 at *7 (D. Me. Aug. 21, 2012). The
majority avoids this issue by assuming arguendo that no stop
occurred until later, when the officers told Dapolito that they
intended to take him to jail in order to identify him. But the
majority opinion leaves the actual timing of the stop an open
question. See ante at 12 n.7. I believe that we can and should
state with confidence that no stop occurred until later, when the
officers actually attempted to arrest Dapolito.
-27-
Law enforcement agents are free to "approach[] an
individual and ask[] [him] a few questions" without implicating any
Fourth Amendment protections. Florida v. Bostick, 501 U.S. 429,
434 (1991). Those interactions "need not find a basis in any
articulable suspicion." United States v. Young, 105 F.3d 1, 5 (1st
Cir. 1997). Only when an encounter escalates into a brief
"investigatory stop," also known as a "Terry stop," see Terry v.
Ohio, 392 U.S. 1 (1968), does the Fourth Amendment come into play.
In such cases, the Fourth Amendment requires that the police have
"a reasonable suspicion that criminal activity may be afoot."
United States v. Pontoo, 666 F.3d 20, 27 (1st Cir. 2011). The
Supreme Court has identified the moment at which a consensual
encounter transforms into Terry stop as when "a reasonable person
would . . . believe[] that he [is] not free to leave," I.N.S. v.
Delgado, 466 U.S. 210, 215 (1984) (quoting United States v.
Mendenhall, 446 U.S. 544, 554 (1980)), and we use a totality of the
circumstances inquiry to conduct that analysis, United States v.
Smith, 423 F.3d 25, 29-30 (1st Cir. 2005)
In this case, the district court found that the
interaction between Dapolito and the police began as a consensual
encounter but matured into a Terry stop "[a]fter about fifteen
minutes of questioning, and after the production of the EBT card
did not dispel the officers' suspicions." Dapolito, 2012 WL
3612602, at *7. At that point, according to the district court,
-28-
"it would have been obvious to any reasonable person that the
police were not going to let him go." Id.I find that conclusion difficult to square with the
settled law in this area. The district court's opinion does not
explain why or how the length of the encounter and the officers'
incredulity communicated to Dapolito that he was suddenly not
allowed to walk away. According to the Supreme Court,
circumstances that may indicate a Terry stop include "the
threatening presence of several officers, the display of a weapon
by an officer, some physical touching of the person of the citizen,
or the use of language or tone of voice indicating that compliance
with the officer's request might be compelled." Mendenhall, 446
U.S. at 554. Here, if no Terry stop had occurred before the
production of the EBT card--and, in fact, up to that moment only
two officers were present, they had not drawn their weapons or
touched Dapolito, and they did nothing to indicate that Dapolito
was compelled to comply with their requests--then it remains a
mystery to me how the encounter became a Terry stop after that
point.
The district court's order emphasizes that Dapolito was
physically confined because "his egress was impaired" by the
position of the two officers in front of the alcove. Dapolito,
2012 WL 3612602, at *7. However, we have urged courts to
"remember[] that mere physical limitations on an individual's
-29-
movement, not created by police, are insufficient to turn an
encounter with police into a restraint of liberty." Smith, 423
F.3d at 30. That adage follows the lead of the Supreme Court,
which has repeatedly declined to find a seizure when law
enforcement agents block a civilian's escape from a confined space.
See Bostick, 501 U.S. at 436; see also Delgado, 466 U.S. at 218-19.
Here, the officers "stood where they had to," Smith, 423 F.3d at
30, and the fact that they had to stand at the opening of the
alcove did not mean that they had seized Dapolito for Fourth
Amendment purposes.
Nor did the length of the exchange up to that point,
which the district court clocked at approximately 15 minutes, see
Dapolito, 2012 WL 3612602, at *7, transform the encounter into a
Terry stop. A totality of the circumstances analysis logically
includes the duration of the encounter,13 but we have emphasized
that the "trigger point for Fourth Amendment purposes is the
presence or absence of some cognizable coercion or constraint,"
United States v. Espinoza, 490 F.3d 41, 48 (1st Cir. 2007)
(emphasis added). That formulation belies the notion that the
length of a consensual encounter alone can transform it into a
Terry stop. Indeed, we rejected exactly that proposition in United
13
Cf. United States v. Woodrum, 202 F.3d 1, 8 (1st Cir. 2000)
("[W]hen an encounter takes some appreciable time . . . the
justification for the detention becomes an issue because the
individual may no longer understand his participation to be
voluntary.").
-30-
States v. Berryman, 717 F.2d 650 (1st Cir. 1983) (en banc), in
which our circuit sitting en banc reversed a prior decision by a
panel majority that had held that the "prolongation" of police
questioning could create "an atmosphere of restraint" that would
constitute a Terry stop.14 United States v. Berryman, 717 F.2d 651,
656 (1st Cir.), rev'd en banc, 717 F.2d 650 (1st Cir. 1983); see
also United States v. Gallego-Zapata, 630 F. Supp. 665, 670 (D.
Mass. 1986). Regardless, in my view, the 15 minutes of questioning
in this case was not so long that it escalated into a Terry stop--
we have previously found that a consensual encounter lasting over
20 minutes did not amount to a restriction on liberty implicating
the Fourth Amendment. See, e.g., United States v. Jodoin, 672 F.2d
232, 234 (1st Cir. 1982), abrogated on other grounds, Bloate v.
United States, 559 U.S. 196 (2010).
In any event, what should be practically decisive in this
case is the fact that Dapolito apparently felt comfortable enough
throughout the encounter that he repeatedly declined the officers'
requests to search him for identification. See Dapolito, 2012 WL
3612602, at *2 ("Officer Ray . . . asked if he could pat [Dapolito]
down to find identification. [Dapolito] refused, telling the
officers that he did not like to be touched."); id. ("Officer Ray
14
Then-Judge Breyer dissented from this conclusion in the
original Berryman opinion, see Berryman, 717 F.2d at 663 (Breyer,
J., dissenting), and his position was vindicated by the subsequent
en banc decision.
-31-
asked a second time if he could search [Dapolito] for
identification. [Dapolito] again refused."); see also id. at *3
("Officer Ray told [Dapolito] that they were taking him to the
county jail to identify him . . . [Dapolito] turned slightly away
from the officers and said that he 'didn't want that.'"). When the
suspect's freedom of movement is restricted by factors independent
of police conduct, the Supreme Court has instructed that we should
modify the traditional "free to leave" inquiry and instead ask
"whether a reasonable person would feel free to decline the
officers' requests or otherwise terminate the encounter." Bostick,
501 U.S. at 439 (emphasis added). Here, Dapolito obviously felt
that freedom and exercised it more than once. Indeed, he rebuffed
a request by the officers to search him just moments before he
produced the EBT card--the point at which the district court
concluded that a Terry stop took place. Although the majority
steers around the issue, the law makes clear that no Terry stop had
occurred at the time identified by the district court.
Were I writing the majority opinion, I would stop here,
reverse the district court on this issue, and remand the case for
further proceedings. If there was no Terry stop at the moment
chosen by the district court, then the police were not required to
have reasonable suspicion to engage with Dapolito at that point.
On remand, the district court would then study the remaining
chronology for any subsequent Fourth Amendment violations.
-32-
However, because the majority assumes arguendo that no
Terry stop occurred until the police actually attempted to arrest
Dapolito, its analysis continues onward. The majority observes
that there is a serious question as to whether the detention at
this later moment was merely a Terry stop or if it actually
constituted a de facto arrest, ante at 24 n.12, a greater intrusion
that would have required the correspondingly greater justification
of "probable cause." See Young, 105 F.3d at 6. Nevertheless, the
majority concludes that it need not answer this question because
the officers did not even meet the lower requirement of reasonable
suspicion needed to justify a Terry stop.
Although I expect that the government would find itself
quite far from the end zone on the de facto arrest issue if the
case were remanded, I am compelled to state my disagreement with
the majority's conclusion that the officers did not at least have
a reasonable suspicion of criminal activity that would have
justified a Terry stop. That discussion also brings me to the
government's second and third claims of error, addressed to the
district court's finding that no reasonable suspicion existed to
support the brief detention of Dapolito. I believe that the
government correctly identified two important mistakes, and that
the majority reinscribes these errors in its own analysis. I also
believe that both opinions reach the wrong outcome on the overall
-33-
issue, since our precedent makes clear that the officers had
reasonable suspicion to execute a Terry stop in this case.
I am persuaded by the government's argument that the
order to suppress commits a second error when it engages in an
impermissible "divide-and-conquer" analysis of the facts
surrounding the encounter with Dapolito. United States v. Arvizu,
534 U.S. 266, 274 (2002); see also Pontoo, 666 F.3d at 29. We use
a totality of the circumstances test to determine whether
reasonable suspicion existed to justify a Terry stop. This
analysis requires a "broad-based consideration of all the attendant
circumstances," United States v. Chhien, 266 F.3d 1, 6 (1st Cir.
2001), so that "the whole picture . . . [is] taken into account,"
United States v. Cortez, 449 U.S. 411, 417 (1981). It precludes
courts from dismantling a claim of reasonable suspicion by picking
out the suspicious factors one-by-one and offering an innocent
explanation for each. United States v. McGregor, 650 F.3d 813, 822
(1st Cir. 2011).
Yet that is exactly what happened here. The suppression
order repeatedly excuses Dapolito's behavior merely because it was
lawful, but never considers how his weird manner could still have
seemed suspicious to the police in context. See, e.g., Dapolito,
2012 WL 3612602, at *7 ("What the officers had was an odd,
grimacing, impaired man, who was unknown to them and who was not
making much sense. [Dapolito] was acting not unlike many other
-34-
members of the indigent and/or transient population of Portland.");
id. at *8 ("[Dapolito's] story . . . was not adding up, but . . .
[e]ven if the story was not truthful, the Government made no claim
that such a false statement would be criminal."). That reasoning
is directly contrary to the Supreme Court's clear instruction that
"[a] determination that reasonable suspicion exists . . . need not
rule out the possibility of innocent conduct." Arvizu, 534 U.S. at
277; see also Pontoo, 666 F.3d at 29.
An even more critical mistake, in my view, is that the
court's suppression order isolates and dismisses each of the two
crimes that the police officers suspected Dapolito of committing,
without considering the totality of the circumstances from an
objective point of view. During the encounter with Dapolito, the
officers on the scene suspected either that he may have been
involved in a burglary or that he might be wanted on a warrant.
See Dapolito, 2012 WL 3612602, at *7. We are bound to consider
these two possibilities together, rather than "in splendid
isolation." Pontoo, 666 F.3d at 29. Nor are we limited only to
these two possibilities, since "[w]hether a reasonable suspicion
exists is treated as an objective inquiry: the actual motive or
thought process of the officer is not plumbed." Bolton v. Taylor,
367 F.3d 5, 7 (1st Cir. 2004). Although neither the burglary nor
the warrant theory was invincible on its own, we must consider them
both along with all of the other possible crimes that an objective
-35-
view of the circumstances would have given the police reason to
suspect--for instance, that Dapolito was in possession of a
controlled substance or that he was planning to rob the next person
who exited or entered the apartment building. Viewed through this
holistic lens, a reasonable law enforcement agent at the scene
would have had good reason to believe that "criminal activity may
be afoot." Arvizu, 534 U.S. at 273 (internal quotation marks
omitted).
The third error in the order to suppress is that the
district court substitutes its own judgment for that of the
officers on the scene. We use "an objective inquiry . . . from the
perspective of the searching officers" to evaluate whether a Terry
stop was justified by reasonable suspicion. United States v.
Aitoro, 446 F.3d 246, 253 (1st Cir. 2006). In order to adopt the
perspective of an objectively reasonable officer, we must remember
that law enforcement "is not required to possess the clarity of
vision that arises only in hindsight." Pontoo, 666 F.3d at 28.
When the district court discusses how Dapolito misspelled
his name, however, it substitutes its own after-the-fact
perspective for what would have been apparent to the police
officers on the scene. Viewing the scene through the eyes of the
officers, we see a man who claims to have a Massachusetts driver's
license, but who gives a name that does not appear in either the
Massachusetts or Maine motor vehicle records. See Dapolito, 2012
-36-
WL 3612602, at *2. Asked again for his name, the man spells it
differently from the first time he offered it, and yet even this
new spelling does not appear in either state's database. See id.Finally, we spot an EBT card in the man's pocket, which when
produced bears the name that the man gave the second time but
includes no other identifying information. See id. These facts
are all that the police could have known, and yet the order to
suppress downplays the officers' suspicions on the grounds that
Dapolito spelled his name "correctly" the second time, id., and
that "it is more likely that [Dapolito] either unintentionally
misspelled his name the first time or that [the officers] misheard
him." Id. at *8. Of course, while these facts were apparent to
the district court sub specie aeternitatis, they would hardly have
been evident to a cop on the beat. We must take the latter
perspective when we evaluate whether the police acted reasonably.
Because I differ from the panel majority on how we should
evaluate the facts of this case, I also reach a different outcome
in my reasonable suspicion analysis. The way I see it, the police
encountered Dapolito, a grimacing, apparently intoxicated, and
nervous-looking man, standing alone outside at 2:39 AM in the
morning, in an area where burglaries had recently occurred. He was
stationed in an alcove alongside an ATM machine, waiting without
any clear purpose in front of the doors to a restaurant and an
apartment building. His mannerisms were weird, and much of what he
-37-
said made no sense. He told the police that his name was "Daplito"
and claimed that he had a Massachusetts driver's license--he could
not produce one--yet when the police searched both the
Massachusetts and Maine motor vehicle databases, no such name
appeared. Asked again for his name, he spelled it differently, as
"Dapolito," but again, no name turned up in the motor vehicle
records. At the officers' prodding, the man pulled an EBT card
from his pocket that bore one of the names that he had given but
did not have any other identifying information. The man said he
lived in the apartment building behind him, but he did not have
keys to the building, nor did he have a cell phone with which he
could contact his roommates. When the officers pushed the buzzer
to ring the apartment number where the man claimed to live, no one
responded.
Certainly, the situation was ambiguous. But "the Supreme
Court has stressed that a Terry stop is permitted even if 'the
conduct justifying the stop was ambiguous and susceptible of an
innocent explanation.'" United States v. Wright, 582 F.3d 199, 213
(1st Cir. 2009) (quoting Illinois v. Wardlow, 528 U.S. 119, 125
(2000)). In fact, "the very purpose of [a Terry stop] is to
clarify ambiguous situations." Id. (quoting 2 LaFave et al.,
Criminal Procedure § 3.8(d), at 327 (3d ed. 2007)). And although
there was nothing directly linking Dapolito to criminal conduct,
"no direct link between the suspect and the suspected criminal
-38-
activity need be forged in order to achieve reasonable suspicion."
Ruidiaz, 529 F.3d at 29; see also Chhien, 266 F.3d at 6.
What matters here is that there was concrete cause for
concern, given that Dapolito was standing by himself at a late hour
in an area where there had been recent burglaries, obviously
impaired, outside an apartment building where he claimed to live
and yet could not access, and unable to give a straight answer on
his own name. He may have been preparing to break into the
building or the nearby ATM, or perhaps he was lying in wait to mug
the next person who tried to enter the apartment building, or maybe
he was under the influence of a controlled substance. Then again,
he may just have been, as the district court suggested, one of the
"many . . . members of the indigent and/or transient population of
Portland." Dapolito, 2012 WL 3612602, at *7. The point is that
officers needed to briefly detain Dapolito in order to find out.
Even if it was more likely than not that Dapolito was merely a
harmless transient, reasonable suspicion "is considerably less than
proof of wrongdoing by a preponderance of the evidence . . . [or]
probable cause." United States v. Sokolow, 490 U.S. 1, 7 (1989).
The officers had a reasonable suspicion here.
Like the majority, I find that the fact patterns
presented in Terry stop cases are so "multifaceted" that "one
determination will seldom be a useful precedent for another."
Ornelas, 517 U.S. at 698 (internal quotation marks omitted). But
-39-
I feel obligated to cite just a few of our past decisions that
presented similar fact patterns, which I believe demonstrate that
the bar for reasonable suspicion has been met in this case. In
Foley v. Kiely, 602 F.3d 28 (1st Cir. 2010), we found that the
police had reasonable suspicion to conduct a Terry stop of a man
whom they encountered in a park late at night, possibly after the
park had closed, in an area where crimes had been reported. Id. at
32. In United States v. Walker, 924 F.2d 1 (1st Cir. 1991), we
held that a Terry stop was justified when, at 2:30 AM, the officers
spotted two people in the dimly lit parking lot of a lumber and
construction business, standing near a trailer rig loaded with wood
and a detached cab, in an area where there had been burglaries in
the past. Id. at 4. Finally, in United States v. Jones, 432 F.3d
34 (1st Cir. 2005), we concluded that there was reasonable
suspicion for a Terry stop when the police saw two men sprinting
down the street at 4:00 AM, wearing hooded sweatshirts and strange
white gloves, in a neighborhood where there had been a number of
robberies and break-ins, and where a third man was walking ahead of
them in the same direction. Id. at 41. The facts of these cases
do not perfectly align with the ones at hand, but in my opinion,
they support a finding of reasonable suspicion in this case.
I respectfully dissent.
-40-