On July 15, 2013, the First Circuit Court of Appeals decided the United States v. Mouscardy [i], which serves as an excellent review of the law related to reasonable suspicion and frisks. The facts of Mouscardy are as follows:
On March 11, 2010, at approximately 12:30 p.m., an individual called 911 to report an assault at the corner of Belmont and Ferry Streets on the boundary of Everett and Malden, Massachusetts. The call was routed to the Everett Police Department. The caller reported that he saw a “man beating up his girlfriend or his wife,” adding that the man was “giving it to her pretty good.” The caller also provided descriptions of the man and the woman.
The 911 dispatcher relayed the information to police officers, describing the incident as a “possible domestic assault in progress” on the corner of Belmont and Ferry Streets. Everett Police Officer Matthew Cunningham and Sergeant Robert Zaino were the first to respond. When the officers arrived, they found a man and a woman who fit the descriptions given by the 911 caller. The man was later determined to be Reginald Mouscardy. Because the officers believed that the alleged assault may have occurred on the Malden side of Belmont Street, Officer Cunningham had Everett dispatch contact Malden Police and request that they respond to the scene.
Due to the nature of the 911 call, the Everett officers separated Mouscardy and the woman in order to see whether they would provide consistent accounts of the alleged incident. Officer Cunningham took Mouscardy around the corner to the Malden side of Belmont Street, where Mouscardy offered that nothing had happened and that there was no problem. Officer Cunningham did not question Mouscardy at this point.
After a brief period — Officer Cunningham testified that it was two to three minutes after his initial contact with Mouscardy and the woman — Malden Police Officer Robert Selfridge arrived on the scene. Officer Selfridge first spoke with Sergeant Zaino and the woman, who gave her name as Shannon Agnew. Agnew, who appeared upset, told Officer Selfridge that nothing had happened and that there had been no assault. She indicated that she knew Mouscardy and that she had been in a relationship with him for about three months, but she did not provide his name to the officers. Officer Selfridge testified that his interaction with Sergeant Zaino and Agnew lasted about thirty-five to forty seconds.
Officer Selfridge then went around the corner to interview Mouscardy. Mouscardy had his back against the wall of a building, and Officer Cunningham was to Mouscardy’s left. Officer Selfridge first asked Officer Cunningham if Mouscardy had identified himself; Officer Cunningham informed him that Mouscardy refused to give his name. Officer Selfridge then asked Mouscardy for his name or any form of identification numerous times, but Mouscardy refused to comply, simply repeating that nothing had happened.
Mouscardy had grown visibly “agitated and fidgety” by this point, and he had begun “eye-balling” the area. Keeping his right hand in his right jacket pocket, Mouscardy began to circle away from the wall of the building until he was almost standing on the street. Mouscardy’s actions and demeanor made Officer Selfridge uncomfortable, and he asked Officer Cunningham if Mouscardy had been patted down. After Officer Cunningham told Officer Selfridge that he had not performed a pat-down, Officer Selfridge informed Mouscardy that he was going to search him for weapons, and asked him to take his right hand out of his jacket pocket. Mouscardy did not comply. Officer Selfridge initiated the pat-down. When his left hand reached Mouscardy’s right jacket pocket, Mouscardy removed his right hand from the pocket and struck Officer Selfridge’s left hand with enough force to throw it above Officer Selfridge’s shoulder. Officer Selfridge then attempted to return his left hand to Mouscardy’s right jacket pocket, and Mouscardy attempted to slap it away again. Officer Selfridge managed to grab the pocket, but Mouscardy then turned away and started to flee. Although the stitching tore slightly, the contents of the pocket remained enclosed and therefore unknown to the officers.
Officers Cunningham and Selfridge gave chase as Mouscardy fled on foot. Officer Selfridge estimated that he was within ten to twelve feet of Mouscardy throughout the pursuit, while Officer Cunningham followed slightly behind. As Mouscardy ran up the driveway of a residence on Rich Street in Everett, Officer Cunningham ran to the right side of the house in an apparent attempt to block Mouscardy’s path of escape while Officer Selfridge remained on Mouscardy’s heels.
During the chase, Officer Selfridge noticed that Mouscardy was struggling to remove something from his right pocket. Mouscardy managed to successfully remove the object, which he then transferred from his right hand to his left hand. Officer Selfridge observed that the object was a small handgun. In order to alert Officer Cunningham, Officer Selfridge screamed “he’s got a gun” as he continued his pursuit. Mouscardy disappeared behind the Rich Street residence, and Officer Selfridge, now knowing that Mouscardy was armed, drew his weapon and maneuvered carefully around the corner of the house, where he observed Mouscardy attempting to scale a chain-link fence with the pistol still in hand. Officer Cunningham joined Officer Selfridge in the back yard of the residence.
After several commands from police to drop the gun, Mouscardy finally placed the pistol on top of a green plastic container and walked toward the officers. A struggle ensued when the officers attempted to handcuff Mouscardy pursuant to an arrest, but he was eventually restrained near the basement door of the residence. Officers retrieved the gun, which was determined to be a .32 caliber Beretta. Mouscardy’s true identity was discovered when he was booked at the police station. [ii]
Mouscardy was subsequently indicted for federal firearms violations. He filed a motion to suppress the evidence which was denied, and he was convicted by a jury. He then filed a timely appeal to the denial of his motion to suppress.
At the outset the court of appeals stated:
Our review of a Terry stop involves a two-step analysis. First, we ascertain whether the stop was justified at its inception. United States v. Gates, 709 F.3d 58, 62 (1st Cir. 2013). Second, we determine whether the “actions undertaken during the stop [were] reasonably related in scope to the stop itself ‘unless the police [had] a basis for expanding their investigation.'” Id. (quoting United States v. Henderson, 463 F.3d 27, 45 (1st Cir. 2006)). [iii]
Therefore, the court first set out to determine if the stop was “justified at its inception.” The court noted that a witness called 911 and reported that a man was assaulting a woman. Further, the witness provided the officers with a clothing description and location. Officers received the dispatch and responded to the location where they found a man and woman meeting the description provided to the dispatcher by the witness. The court stated:
When [the officers] arrived they saw two individuals who matched the description.” These facts alone are sufficient to establish that the officers had an objectively reasonable basis for suspecting wrongdoing on the part of Mouscardy. [iv]
Thus, the court held the detention of Mouscardy was justified at its inception.
The court next sought to determine if the officer’s actions during the stop were reasonably related to the facts that justified the stop. In other words, the court had to determine if, although the stop was initially justified, the officer’s actions exceeded the permissible scope of the stop.
Mouscardy argued on appeal that the officers unreasonably prolonged the stop after both he and the alleged victim told the officers that no assault had occurred. The court stated:
When assessing the appropriateness of the duration of an investigatory stop, we ask “whether the length of [the] detention was reasonable, considering ‘the law enforcement purposes to be served by the stop . . . and whether the police diligently pursued a means of investigation that was likely to confirm or dispel their suspicions quickly, during which time it was necessary to detain the defendant.'” United States v. Acosta-Colon, 157 F.3d 9, 20 (1st Cir. 1998) (omission in original) (quoting United States v. McCarthy, 77 F.3d 522, 530 (1st Cir. 1996)) [v]
In Mouscardy’s case, the officers testified that their questions were related to the alleged assault and to identifying Mouscardy. However, Mouscardy refused to identify himself during the investigation. The officers also testified that they asked the parties to identify themselves in order to determine whether arrest warrants or restraining orders exist. Quoting the United States Supreme Court, the court stated:
It is undeniably both appropriate and important for an officer to take steps to identify the parties involved in a domestic dispute. See Hiibel v. Sixth Judicial Dist. Court of Nev., 542 U.S. 177, 186, 124 S. Ct. 2451, 159 L. Ed. 2d 292 (2004) [vi]
It was also noted that the officers asked Mouscardy to identify himself at least six times, to no avail. Regarding Mouscardy’s refusal, the court stated:
We have previously held that in evaluating a claim of unreasonable prolongation of an investigative stop, the fact that a suspect’s responses to the officer’s questions “were evasive and, at times, defiant is relevant in evaluating the scope of the officer[‘s] conduct.” McCarthy, 77 F.3d at 531. Mouscardy’s unresponsiveness to Officer Selfridge’s reasonable inquiries prevented the officers from completing their investigation more quickly. Mouscardy cannot profit from the delay he himself caused. [vii]
As such, the court held that the scope and duration of the stop was reasonable under the Fourth Amendment.
The court then set out to determine whether the officers had a sufficient basis to frisk Mouscardy, particularly a reasonable belief that he was armed and dangerous. The court first noted:
We . . . must keep in mind that police conducting a Terry stop are entitled to take reasonable measures to protect their own safety and taking such measures does not transform a Terry stop into an arrest.” Id; see also United States v. Pontoo, 666 F.3d 20, 30 (1st Cir. 2011)… These reasonable measures include “conducting a pat-frisk if under all the circumstances they have ‘a particularized and objective basis to suspect the individual ha[s] a weapon.'” United States v. Dancy, 640 F.3d 455, 461 (1st Cir. 2011). [viii]
The court then examined facts relevant to this issue. First, the court noted that the dispatch involved a violent crime, particularly that a man was beating a woman. The court stated that it was “highly relevant” that this incident involved the report of a crime of violence. Second, the court noted that Mouscardy refused to identify himself, thereby attempting to conceal his identity. Third, the court noted that Mouscardy became nervous and agitated and began “eye-balling” the area as the officer’s spoke with him. The court then held:
We conclude that, in light of the totality of the circumstances, Officer Selfridge had a reasonable suspicion that Mouscardy might be armed and dangerous, thus justifying his initiation of the frisk. [ix]
As such, the court affirmed the denial of the motion to suppress.
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Note: Court holdings can vary significantly between jurisdictions. As such, it is advisable to seek the advice of a local prosecutor or legal adviser regarding questions on specific cases. This article is not intended to constitute legal advice on a specific case.
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CITATIONS:
[i] No. 11-2356, 2013 U.S. App. LEXIS 14252 (1st Cir. 2013)
[ii] Id. at 1-6
[iii] Id. at 9
[iv] Id. at 10
[v] Id. at 12-13
[vi] Id. at 13
[vii] Id. at 14
[viii] Id. at 15-16
[ix] Id. at 19
