US v. Wright

Filing 920090923

Opinion

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var WPFootnote1 = 'The court added the phrase in quotation marks to the recitation\
of the facts in our prior decision, which stated that Wright "put\
one hand on the right side of his sweatshirt, grabbing or holding\
onto the sweatshirt pocket." Id. at 47.\
'

var WPFootnote2 = 'The district court concluded its reading of our factual summary\
at this point, noting that it did not need to make further findings\
because the officers "had already seized him prior to this finding\
about resisting. So, there must be an adequate constitutional\
basis to chase after him and seize him under the Fourth Amendment."\
'

var WPFootnote3 = 'Wright challenges the district court\'s finding, after reciting\
the statement of facts from the prior opinion, that "Now, going\
beyond what I\'m reciting from the Appeals Court decision, I do find\
that he grabbed toward the front of his sweatshirt in the vicinity\
of his waist." (emphasis added). Because the location of the\
clutching is not material, we will give Wright the benefit of the\
doubt and rely upon the fact recited in our earlier opinion that\
Wright clutched the side of his sweatshirt.\
'

var WPFootnote4 = 'Officer Brown testified that "[t]hat area of Blue Hill Avenue,\
as well as that corridor, is a very high crime area consisting of\
firearm violence, drug activity, street robberies, breaking and\
enterings, all type of street crimes actually." Officer Celester\
testified that the area is "a trouble spot. There\'s been shootings\
there, there\'s been a lot of crime there. It\'s a high crime area." \
Officer Bordley testified that "[t]he level of criminal activity\
would be considered high for that area. Numerous arrests for drug\
offenses, violent crimes, violent assaults, assaults and batteries,\
firearms arrests, things of that nature." To counter this\
testimony, Wright offered into evidence incident reports for August\
2004 (the most recent prior to the stop) that showed that the area\
where the stop occurred was not designated a "hot spot" by the\
Boston Police Department. We discussed this testimony and the\
incident reports in some detail in our prior opinion. See Wright,\
485 F.3d at 49.\
'

var WPFootnote5 = 'On appeal, the government also points out that the recognition\
of Omar Edwards by Officer Brown should be considered in\
determining reasonable suspicion. The government contends that\
Edwards was a recent shooting victim and, thus, contributes to a\
reasonable suspicion that Wright was engaged in unlawful activity. \
See United States v. Martins, 413 F.3d 139, 150 (1st Cir. 2005)\
(upholding inference that "victims in gang-area shootings often\
were gang members themselves and tended to congregate with other\
gang members"). However, there was no evidence that Wright was\
connected to the Edwards shooting to permit an inference that\
Wright (and not Edwards) may be involved in similar activity. \
Moreover, Officer Brown, the officer who recognized Edwards,\
testified that he did not attribute anything unusual to Omar\
Edwards\' presence, stating "it didn\'t strike me as odd" that he was\
there, as "he lived in the area," "[h]e had a girlfriend or\
something that I thought that lived there," and "I know he had\
friends that lived in one of those gray houses." Because of the\
lack of any connection of Edwards\'s shooting to Wright and the fact\
that there were no other particularized facts suggesting that\
Edwards\'s presence was suspicious, we conclude that a reasonable\
officer would not infer from the presence of Edwards that Wright\
was acting suspiciously.\
\
This is not to say that Edwards\'s presence at the scene is\
entirely irrelevant. A reasonable officer might not find a\
shooting victim\'s presence unusual, but nevertheless could still\
have a heightened interest in the vehicle in part because of the\
victim\'s presence. Although Brown\'s presence does not by itself\
suggest suspicious conduct by Wright, it is part of the melange of\
background facts explaining why an officer would reasonably focus\
on the activities of the vehicle\'s occupants.\
'

var WPFootnote6 = 'In Aitoro, we noted in a footnote that the officers "stood out\
like a sore thumb in the area" and that "[o]ne wore a BPD baseball\
shirt, while the other two were visibly equipped with handcuffs,\
flashlights, and police identification." Id. at 249 n.2. We\
similarly note here that, although in plain clothes and in unmarked\
police cars, the officers\' presence was not opaque. Officer\
Celester testified that "[s]ometimes we wear shirts that say Boston\
Police Youth Violence Strike Force on them," and further testified\
that the officers "always have our badges on us displayed like a\
chain like I have now. We always have it out." We further note\
that Officer Brown recognized Omar Edwards in the car, and it would\
have been reasonable for the officers to conclude that Edwards\
similarly recognized Officer Brown as a police officer and\
communicated that information to the rest of the occupants in the\
car, including Wright.\
'

var WPFootnote7 = 'In the alternative, we conclude that, to the extent that the\
district court found that there was not flight, such a finding was\
clearly erroneous, since we have a "\'definite and firm conviction\
that a mistake has been committed.\'" See Espinoza, 490 F.3d at 46\
& n.1 (quoting Gypsum, 333 U.S. at 395).\
'

var WPFootnote8 = 'In stating that it relies upon the officers\' expertise in "that\
area of Boston," the district court, at first glance, seems to\
factor in the character of the area in support of its inference\
that Wright was clutching at a weapon. Any such indication is\
negated by the district court\'s later finding that the area was not\
a high-crime area. Moreover, in context, the reference is better\
read as an appeal to the expertise of the officers, rather than any\
characteristics of the area.\
'

var WPFootnote9 = 'In the original hearing, the court had stated that, when Wright\
leaned forward, "he saw that it was an unmarked police\
officer[sic], he knowledgeably recognized it as such." During the\
remand hearing, the court did not explicitly attribute this\
knowledge to Wright, instead referring only to the inference drawn\
by Bordley. The court also did not repeat the common-knowledge\
explanation to support its finding on Bordley\'s inference. I think\
it is a fair assumption that it relied on the same rationale,\
however, because the record contained no new evidence.\
'

var WPFootnote10 = 'The majority ignores the lack of factual support for the court\'s\
conclusion that Wright identified the Crown Victoria as a police\
cruiser. Instead, it offers its own flawed speculation, concluding\
that a reasonable officer could have inferred that Wright "made"\
the car based on his quickly exiting the vehicle in which he was\
riding. But the critical factual question that makes Wright\'s\
identification of the police car relevant is whether Wright quickly\
exited and ran because he saw the police officers – making his\
quick exit from the car and his run down the street suspicious. \
His running, then, cannot be the basis for the conclusion that he\
recognized the car as a police vehicle. Such reasoning is circular\
and unsupportable. In addition, I do not understand how the\
majority can equate the quick exit from the car – conduct that\
itself reflects no state of mind – with the revealing exclamation\
"oh shit" in supporting an inference that Wright was running from\
the police.\
\
The majority\'s strained suggestion that Wright could have\
recognized the officers because they always wore badges or police\
department shirts is also unpersuasive. Wright was sitting in the\
back seat of a car that was behind the car he leaned forward to\
see. It was 7:45 p.m. in November – undoubtedly after dark. Even\
if the officers were wearing badges any inference that Wright saw\
them is unsupported and unreasonable on this record.\
\
Finally, the majority creatively speculates not only that the\
officers reasonably could have believed that Omar Edwards\
recognized Officer Brown as a police officer, but also that he\
communicated that information to Wright. Many scenarios are\
possible, of course, but there is no factual support for such\
speculation. An appeals court cannot simply make up inferences to\
fill in the gaps in the record. Moreover, none of these arguments\
was made by the government.\
'

var WPFootnote11 = 'The district court explained its inference that the officers who\
saw Wright run down Blue Hill Avenue believed he might have a gun\
as follows:\
\
              The Court infers, and again the testimony is what it is,\
it\'s not explicit, I infer that the officers ascribed\
some significance as they are competent and experienced\
police officers in that area of Boston to the fact that\
Mr. Wright grabbed his side, clutched at something in his\
sweatshirt. The Court infers that the officers did in\
that split second draw the inference that he might well\
possess a weapon.\
'

var WPFootnote12 = 'Rather than confronting these inconsistencies and the district\
court\'s clear reliance on the nature of the area – as well as the\
government\'s argument that the court properly did so – the majority\
chooses to ignore the problem and read the court\'s reference to\
"that area of Boston" as "an appeal to the expertise of the\
officers." In my view, this convenient recasting of the record is\
an unsupportable reading of the court\'s words and a regrettable\
avoidance of one of the most troubling aspects of the district\
court\'s decision.\
'

var WPFootnote13 = 'Officer Bordley stated that the neighborhood around the 1200\
block of Blue Hill Avenue has a "level of criminal activity [that]\
would be considered high for that area," with "[n]umerous arrests\
for drug offenses, violent crimes, violent assaults, assaults and\
batteries, firearms arrests, things of that nature." Officer\
Celester testified that "we were experiencing a lot of crime . . .\
during that period, so we were doing a lot of proactive policing"\
and said the officers would "aggressively patrol areas, targeting\
gangs and things like that." Officer Brown testified that he had\
responded to "several shootings [and] drug investigations in that\
area."\
'

var WPFootnote14 = 'Bordley testified that there was a high volume of drug\
trafficking in that area at the time, but he had no memory of\
whether he or other officers had made any arrests for such crimes\
during October and early November 2004.\
'

var WPFootnote15 = 'The prosecutor asked Bordley if he had made arrests in that area\
"before" – presumably meaning "before" Wright\'s arrest. Bordley\
replied that he had made fifty or sixty arrests in the area for a\
variety of crimes and had "[b]een in that area where there were a\
couple of shootings." Bordley had been with the Boston Police\
Department for eleven years by the time of the suppression hearing,\
and he had been assigned to the Youth Violence Task Force for\
approximately five years. It is a fair inference that he was\
summarizing events that occurred throughout his time on the force.\
'

var WPFootnote16 = 'Of the ten listed incidents for which reports were available,\
the only additional incident clearly involving a firearm stemmed\
from a personal dispute among co-workers at a Home Depot store. \
Two other reports described firearms incidents outside the 1,000-foot range, and the remaining reports described incidents in which\
the original firearm information was not confirmed when the\
officers went to the scene. One of the incidents for which a\
report was unavailable was described as an assault with a dangerous\
weapon.\
'

var WPFootnote17 = 'Bordley explained that "by the map you could tell what crimes\
occurred in what area, and you could tell which area had the more\
crimes . . . by the number of hits that were happening . . . in\
that place."\
'

var WPFootnote18 = 'The majority agrees that the district court improperly drew the\
inference that the officers would have believed that Wright was\
carrying a gun. In yet another revision of the district court\'s\
opinion, the majority nonetheless holds that the court could have\
reasonably concluded that a reasonable officer would have believed\
that Wright was carrying contraband based on the same innocent\
motion of clutching at his pocket while running. It relies solely\
on its own finding of flight to reach that conclusion. The record,\
however, can no more be read to support an inference that Wright\
was carrying contraband than that he was carrying a gun, rather\
than, in the majority\'s words, "something else that is frequently\
kept in pockets, such as keys."\
'

var WPFootnote19 = 'As I describe, the majority has bolstered its reasonable\
suspicion analysis by taking a number of liberties with the record\
and the district court\'s explanation of its decision:\
\
(1) where the district court improperly framed its inferences in\
subjective terms, the majority recasts them as imperfectly\
expressed objective findings, see supra § 1.A.2;\
(2) in addressing the court\'s finding that Wright recognized the\
car in front of him as a police vehicle, the majority ignores the\
district judge\'s reliance on his own background knowledge of Crown\
Victorias and instead supplies multiple other rationales not argued\
by the government and not supported by the record, see supra n.2;\
(3) where the district court specifically said that Wright was not\
fleeing when he first exited the vehicle in which he was riding,\
the majority concludes that the court either did not mean what it\
said or committed clear error, see infra n.14;\
(4) the majority entirely ignores the district court\'s unmistakable\
reliance on the nature of the area as support for its conclusion of\
reasonable suspicion, see supra n.4;\
(5) the majority concludes that the presence of Omar Edwards in the\
vehicle with Wright was both irrelevant and relevant, see infra \
n.12; and\
(6) the majority concludes that the district court clearly erred in\
finding that the officers reasonably could have believed Wright was\
carrying a gun, but goes on – without any support – to find a basis\
for believing that Wright had contraband in his pocket, see supra\
n.10.\
\
Given its unusual approach to the record and the district court\'s\
decision, the majority\'s different outcome is unsurprising.\
'

var WPFootnote20 = 'As the majority points out, the government also cites as a\
relevant fact Officer Brown\'s recognition of Omar Edwards, a recent\
shooting victim, as the front-seat passenger in the car in which\
Wright had been sitting. Like the majority, I fail to see how\
Edwards\' injury at some unspecified time in the past, with no\
connection to Wright, could contribute to a finding of reasonable\
suspicion that Wright was involved in unlawful activity on the\
night he was seized. The majority goes on to make the cryptic\
statement that, despite this irrelevance, Edwards\' presence was not\
entirely irrelevant. I have no idea what that means, and I see no\
way in which the officers\' focus on Brown or the vehicle plays a\
part in the reasonable suspicion inquiry.\
'

var WPFootnote21 = 'The court stated:\
\
              I infer from the testimony that, though things happened\
in split second intervals, Mr. Wright had started to run,\
I do not at this point say flee, he had started to run\
before the officers had started to run after him.\
'

var WPFootnote22 = 'Despite the government\'s failure to challenge the finding, the\
majority concludes that the district court either did not find "no\
flight" or that any such finding was clearly erroneous. The\
majority relies, in part, on the unsupported inference that Wright\
"made" the lead car in the caravan. The district court, however,\
rejected characterizing Wright\'s running as flight despite its\
finding that Wright would have identified the Crown Victoria as a\
police vehicle. As I explain, the court reasonably found that the\
officers could not at this juncture infer that Wright was fleeing,\
and the majority may not reject that finding simply because it\
disagrees with it.\
'

var WPFootnote23 = 'Officer Brown testified that as soon as Wright exited the\
vehicle, he "turned to his right, grabbed onto his hooded\
sweatshirt pocket right about here and began to run up Blue Hill\
Avenue." He later elaborated: "It was real quick. It was just he\
gets out, he looks to his left, grabbed his jacket pocket and he\
proceeds to run up Blue Hill Avenue." Officer Celester testified\
that, as the first car in the four-car caravan either "stopped or\
drove by" Wright\'s vehicle, "the rear passenger jumped out and\
ran." Officer Bordley\'s testimony was similar: "That occupant that\
was in the rear seat ended up getting out of the rear seat, stepped\
out of the motor vehicle, grabbed the right side of his sweater and\
took off running up Blue Hill Avenue in the direction of Clarkwood\
Street."\
'

var WPFootnote24 = 'I agree with the majority that Wright\'s running toward the other\
cars "does not defeat a finding of flight." It diminishes,\
however, the significance of his running away from the lead car.\
'

var WPFootnote25 = 'Officer Bordley testified that Wright ran a total of about fifty\
or sixty feet from the car in which he had been riding to where he\
was stopped.\
'

var WPFootnote26 = 'Although not part of the district court\'s findings of fact,\
Bordley testified that one officer (he thought it was Officer\
Foley) had exited his car and "tried to grab" Wright as he passed,\
and that "it slowed [Wright] up just enough so I was able to catch\
up to him and grab him." This testimony does not tell us whether\
Foley\'s action caused Wright to alter his course or how it "slowed\
him up." Given the short span of the entire episode, it appears\
that Foley\'s action may have occurred almost simultaneously with\
the stop.\
'

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