STEARNS, District Judge.
On October 28, 2007, as the Morabeza Night Club on Main Street in Brockton, Massachusetts, approached its 2:00 a.m. closing, defendant Manelenho Fernandes arrived on the fringe of the departing crowd. After greeting a friend in the Club's parking lot, Fernandes walked across the street, talking on his cell phone. He was grabbed by two Brockton police detectives who seized a loaded handgun hidden inside his waistband. Fernandes had no permit for the firearm.
On September 23, 2009, Fernandes was indicted by a federal grand jury as a felon in possession of a firearm and ammunition, in violation of 18 U.S.C. § 922(g). Following the indictment, Fernandes moved to suppress the gun and ammunition, arguing that police had seized him without the requisite level of suspicion. The court heard testimony, including that of Fernandes, on January 22, 2010. At the parties' request, the matter was adjourned to
Based on the credible evidence offered at the hearing, I make the following findings of fact.
1. Patrolman Francis Czarnowski regularly worked Saturday night details at the Morabeza Night Club (Club). The Club is frequented by a mostly Cape Verdean clientele. The area around the Club, and particularly the parking lot of the auto repair shop across the street, was considered by Czarnowski to be a "hot spot" for criminal activity, including shootings, stabbings, and fist fights. Czarnowski had been involved in a potentially lethal shooting incident in March of 2007 when a gun fight erupted on Main Street near the Club. Czarnowski had made a number of arrests in the vicinity of the Club, including ten for illegal possession of firearms.
2. At around 2:00 a.m. on the morning of October 28, 2007, Detectives James Smith and Eric Hilliard, who were dressed in plain clothes, arrived at the Club as was their custom to monitor the closing. The detectives observed "hundreds" of patrons streaming out of the Club's entrance towards Main Street, disrupting traffic. Both officers were aware of the reputation of the neighborhood for violent crime, some of which they had personally witnessed. Fearing trouble from the crowd, Hilliard summoned three other Brockton detectives (Carde, Paul, and Almeida) to act as backup, "for our safety and public safety." Shortly after 2:00 a.m., Smith and Hilliard observed a black Nissan Pathfinder pull into the parking lot of the repair shop.
3. The detectives believed—mistakenly—that one of the men who had exited the Pathfinder was defendant Manelenho Fernandes.
4. Hilliard formed the belief that he had encountered Fernandes two weeks earlier when he and Smith had been called to the Club by Czarnowski. When they arrived, Czarnowski warned them that the defendant and his friends were "CVOs out of Boston . . . here every week causing problems."
5. Fernandes was greeted from a distance by an exiting patron. Fernandes walked towards him and the two men briefly embraced. Fernandes then touched his waist, as if to adjust his clothing, and walked in the direction of the Pathfinder. Smith and Hilliard had earlier attended a Department of Alcohol, Tobacco, Firearms and Explosives (ATF)-sponsored video training lecture in which a retired Maryland police lieutenant had warned them to watch peoples' hands in a crowd and to be suspicious of "touch and turn" movements and "security checks."
6. As the detectives kept watch on the three men, Smith and Hilliard did not observe them fighting or engaged in boisterous or inappropriate behavior. They observed one of the men, later identified as John Fernandes, reach into the back seat of the Pathfinder and retrieve a rolled-up sweatshirt.
7. Carde and Almeida crossed the street and confronted John Fernandes. He was frisked, as was the sweatshirt. They also searched the Pathfinder. No weapons were found. Paul frisked Barbosa who also proved to be unarmed.
8. As Manelenho Fernandes approached the repair shop parking lot, Smith and Hilliard ran up and grabbed his arms.
"The Fourth Amendment does not require a policeman who lacks the precise level of information necessary for probable cause to arrest to simply shrug his shoulders and allow a crime to occur or a criminal to escape. . . . A brief stop of a suspicious individual, in order to determine his identity or to maintain the status quo momentarily while obtaining more information, may be most reasonable in light of the facts known to the officer at the time." Adams v. Williams, 407 U.S. 143, 145-146, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972). See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).
"[T]he police officer's action [must] be based on specific and articulable facts and the specific reasonable inferences which follow from such facts in light of the officer's experience." Commonwealth v. Silva, 366 Mass. 402, 406, 318 N.E.2d 895 (1974). "Based upon [the] whole picture the detaining officers must have a particularized and objective basis for suspecting the particular person stopped of criminal activity." United States v. Cortez, 449 U.S. 411, 417-418, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981). A combination of suggestive circumstances, largely innocent in and of themselves, when considered in their totality, may constitute the "reasonable suspicion" necessary to justify a Terry stop, United States v. Sokolow, 490 U.S. 1, 9, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989), particularly when viewed by an experienced police officer. United States v. Arvizu, 534 U.S. 266, 273, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002). As in the case of an arrest, facts must be assessed in light of the collective knowledge of the officers involved. United States v. Hensley, 469 U.S. 221, 232, 105 S.Ct. 675, 83 L.Ed.2d 604 (1985); United States v. Cook, 277 F.3d 82, 86 (1st Cir.2002). The test is an objective one, "view[ing] the circumstances as a whole." Whren v. United States, 517 U.S. 806, 812-813, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996).
Where "a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous
"The purpose of this limited [Terry] search is not to discover evidence of crime, but to allow the officer to pursue his investigation without fear of violence." Adams, 407 U.S. at 146, 92 S.Ct. 1921. "Nothing in Terry can be understood to allow a generalized `cursory search for weapons' or, indeed, any search whatever for anything but weapons." Ybarra v. Illinois, 444 U.S. 85, 93-94, 100 S.Ct. 338, 62 L.Ed.2d 238 (1979).
In applying the "totality of the circumstances" test, courts have developed specific categories of indicia of suspicion, which when considered alone or in combination, may amount to the quantum of suspicion necessary to justify a Terry stop. In reviewing these categories in the context of Fernandes's case, it is easier to begin with those that are absent. The detectives were not responding to a report of a serious and ongoing crime. Compare United States v. Raino, 980 F.2d 1148, 1150 (8th Cir.1992) (officers responding to reports of gunfire). If Fernandes did recognize Hilliard as a police officer, he made no attempt to flee. Compare Illinois v. Wardlow, 528 U.S. 119, 124, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000) (suspect fled after looking at police). He displayed no signs of apprehension or nervousness. Compare United States v. Atlas, 94 F.3d 447, 451 (8th Cir.1996) (suspect's eyes grew wide with surprise upon seeing police). But cf. United States v. Chavez-Valenzuela, 268 F.3d 719, 725-726 (9th Cir.2001) (nervousness by itself is not a basis for a reasonable belief that a person is engaged in criminal activity). Nor was there anything innately suspicious about Fernandes's presence in the proximity of the Club. Compare United States v. Sears, 663 F.2d 896, 903 (9th Cir.1981) ("The Riverside officers observed individuals in a vehicle with out-of-state license plates looking at a bank through binoculars for about ten minutes. These facts are sufficient to justify the stop.").
Also significant is the fact that the officers had no prior knowledge of Fernandes or of his reputation for criminal activity. Compare United States v. Kimball, 25 F.3d 1, 7 (1st Cir.1994) ("A third articulable factor was that Deputy Word recognized the vehicle as belonging to Huertas, and he knew that Huertas had a criminal history involving burglaries."). Nor did the officers possess any credible information that Fernandes was a member or associate of the CVOs or another street gang. Compare United States v. Am, 564 F.3d 25, 30 (1st Cir.2009) ("The stop occurred in a location of known gang violence based on suspicion that [defendant] was engaged in criminal activity related to his gang membership, namely carrying a weapon for protection from rival gangs."). The officers had not received a tip from a known informant that Fernandes possessed a gun. Compare Adams, 407 U.S. at 145, 146-147, 92 S.Ct. 1921 (officer warned by a reliable informant that defendant had a gun tucked inside his waistband). Nor had they received an anonymous report suggesting a need for emergency action. See United
Shorn of these often cited indicia, there are only two possible bases for a finding of reasonable suspicion: (1) Fernandes's presence in a high-crime area, see United States v. Trullo, 809 F.2d 108, 111-112 (1st Cir.1987); and (2) his arguably ambiguous touching or patting of his waist area as he walked. See Florida v. Rodriguez, 469 U.S. 1, 6, 105 S.Ct. 308, 83 L.Ed.2d 165 (1984) (strange movements justified aroused suspicion). As for the first factor, the cases are consistent in holding that mere presence in a high-crime area is insufficient to justify a Terry stop, for the reason that were it otherwise, large groups of citizens would be subject to random police searches based solely on the character of the neighborhoods in which they live (by choice or by constraint). See Wardlow, 528 U.S. at 124, 120 S.Ct. 673 ("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.").
The second factor has a bit more heft. A gesture (like a touching of the body) that might appear perfectly innocent to a casual onlooker (scratching oneself or feeling for a wallet, for example), depending on the setting and circumstances, may nonetheless appear suspect to an experienced officer. Arvizu, 534 U.S. at 275-276, 122 S.Ct. 744 (driver's slowing down, stiffening of posture, and failure to acknowledge a law enforcement officer in rural area combined with "methodical" waving to the officer by child passengers raised reasonable suspicion for an experienced border patrol agent). See also United States v. Padilla, 548 F.3d 179, 187-188 (2d Cir.2008) (two men walking single-file behind a third off a sidewalk onto a dark wooded path at night appeared to be readying themselves for potential robbery or drug deal). But cf. United States v. McKoy, 428 F.3d 38, 41 (1st Cir.2005) ("It is simply not reasonable to infer that a driver is armed and dangerous because the officers believe that he appears nervous and reaches toward the car's console when approached by police, even in a high-crime neighborhood."). Weighing against this factor (apart from the ambiguity of the gesture) is that its significance was not something gleaned by Smith and Hilliard from their extensive street experience, but was rather a suggestion put forward in an ATF-training video.
On balance, what the officers had was a hunch—a good one as it turned out—and
For the foregoing reasons, defendant's motion to suppress the gun and ammunition is ALLOWED.
SO ORDERED.
Irvine v. California, 347 U.S. 128, 136, 74 S.Ct. 381, 98 L.Ed. 561 (1954) (Jackson, J.).
