United States v. Mouscardy
722 F.3d 68
1st Cir.2013Background
- Mouscardy was charged with being a felon in possession of a firearm under 18 U.S.C. § 922(g)(1) and moved to suppress the gun as the product of an unlawful search and seizure.
- A 911 call reported a possible domestic assault; Everett and Malden officers located Mouscardy and a woman fitting descriptions and began an investigation.
- Mouscardy refused to identify himself; Officer Selfridge conducted a pat-down after arrestee-identification attempts failed and Mouscardy became agitated.
- During the encounter, Mouscardy struck an officer, fled, and was pursued; the officers observed him remove and transfer a handgun from his pocket to his other hand.
- The gun was recovered after Mouscardy surrendered it; he was later identified and arrested, and the district court denied suppression, ruling the gun was discovered incident to a lawful arrest.
- At trial, Mouscardy was convicted and sentenced to twenty years as an armed career criminal, with additional supervised release, prompting this appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Terry stop and subsequent frisk were permissible | Mouscardy argues stop/frisk exceeded Fourth Amendment limits | Government contends stop/frisk were reasonable under totality of circumstances | Yes; stop and frisk were permissible |
| Whether the pat-down was justified by reasonable suspicion | Frisk initiated without sufficient suspicion Mouscardy was armed | Total circumstances showed reasonable suspicion given violent crime report and behavior | Yes; frisk justified by reasonable suspicion |
| Whether the Armed Career Criminal Act (ACCA) enhancement was proper | ABDW and ABPO predicates may not categorically qualify as violent felonies | Hart and Dancy control; ABDW/ABPO predicates valid under ACCA as circuit precedents | Yes; four predicates including ABDW and ABPO support ACCA enhancement |
| Whether Holloway governs the predicates for Mouscardy’s ACCA status | Holloway undermines certain Massachusetts predicates as categorically violent | Law of the circuit doctrine binds, controlling Holloway’s impact on this case | No; bound by Hart and Dancy under law of the circuit |
Key Cases Cited
- Hiibel v. Sixth Judicial Dist. Court of Nev., 542 U.S. 177 (U.S. 2004) (identity inquiry during domestic disputes aids safety and investigation)
- Terry v. Ohio, 392 U.S. 1 (U.S. 1968) (establishes permissibility of stop-and-frisk with reasonable suspicion)
- United States v. Sokolow, 490 U.S. 1 (U.S. 1989) (stops require more than hunch; articulable basis needed)
- United States v. Arvizu, 534 U.S. 266 (U.S. 2002) (reasonableness of a Terry stop judged by totality of circumstances)
- United States v. Gates, 709 F.3d 58 (1st Cir. 2013) (two-step analysis for Terry stops: inception and scope)
- United States v. Hart, 674 F.3d 33 (1st Cir. 2012) (Massachusetts ABDW predicates categorically qualifying under ACCA)
- United States v. Dancy, 640 F.3d 455 (1st Cir. 2011) (Massachusetts ABPO categorically violent felony under ACCA)
- United States v. Holloway, 630 F.3d 252 (1st Cir. 2011) (relevance of reckless conduct to ACCA predicate analysis)