United States v. Dapolito

713 F.3d 141

UNITED STATES, Appellant,

v.Anthony DAPOLITO, Defendant, Appellee.

No. 12–2023.

United States Court of Appeals, First Circuit.

April 11, 2013.

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.

Before LYNCH, Chief Judge, HOWARD, Circuit Judge, and CASPER, ^* District Judge.

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, 88 S.Ct. 1868, 20 L.Ed.2d 889 (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, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002), and United States v. Sokolow, 490 U.S. 1, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989).

I.

On Friday, March 9, 2012, with temperatures warm enough for police bicycle patrols, officers Dan Knight and Richard Ray 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.

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 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 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. 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 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 identity ⁵ and indicated that he was a convicted felon; it did not have any information that Dapolito was wanted for a crime.

II.

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...