United States v. Dapolito

141 may grant courts Cir.2000). that [f]ederal is stressed (1st The issue 392, 405 F.3d '56 on con- under Rule summary judgment id.; Muñiz v. Rovi also see waived. re- jury could no reasonable cluding that Cir.2004) (1st (holding as ra, F.3d 8 373 nonmoving party, for the turn a verdict” “to us presented argument waived require the law “would if’ state “even any perti form, citation without skeletal case to an identical judge to submit authority”). nent (7th Cir.1990); see F.2d jury.” 919 (d) N.Y. v. Title Ins. Co. Fid. Nat’l also of Co., 412 F.3d Nat’l Title Ins. Intercounty Parting Shot A J.) (declar- Cir.2005) (7th (Posner, 745, 750 Puerto Rico Discussing thing. last One Pro- of Civil Federal Rules ing “[t]he that tells us Medina Civil Procedure Rule of rules, govern cedure, procedural state not only grant can courts Commonwealth “in suits federal federal-question” in ... cases—a in clear-cut judgment summary diversity courts,” they do in just as must courts insists, federal she policy, Energy Res. suits); Equitable Hayes v. ultimate building to the too. And follow Cir.2001) (6th Co., F.3d judge for crescendo, she faults al., Moore et (same); 12 Wm. James unpersuaded. are doing that here. We 59.03, § at 59-9 Practice Federal Moore’s 2012) (ditto). (3d starters, offers us ed. Medina For this preserved properly that she assurance it, then, Medina’s way we look at Any her And nowhere below. point policy by Puer- “bound” judge was claim ob summary judgment or opposing papers policy is not summary-judgment Rico’s report judge’s magistrate to the jecting that. And that is one.- winning theory actually, policy float this does she — applying caselaw Final Words cited she federal This is no standard. summary-judgment over, judgment affirm the we Our work squarely matter, theories since small Also, think it respects. all below in be ad cannot typically below presented their own costs parties bear fitting Colegio de v. here. See Brown vanced appeal. (1st P.R., F.3d de Abogados So Ordered. Teamsters, Cir.2010); Chauffeurs, Ware- Union, Local No. Helpers & housemen Co., F.2d Transp. Superline Cir.1992). problem, ignoring

But even precedent. into headlong runs her thesis STATES, Appellant, UNITED diversity rests on not a case “Whether ago, “the years we wrote jurisdiction,” Defendant, DAPOLITO, Anthony a matter is judgment summary standard Appellee. that, broadly law, settled federal law federal court 12-2023. in a No. federal speaking, trial roles of respective determines Appeals, States Court reviewing court.” Villari jury, judge, Circuit. First Inc., Maestro, Del Hosp. ni-Garcia April Cir.1993). Villarini-Gar F.3d cases, including a number cited cia Lines, Inc., which v. Delta Air

McEwen LYNCH, Judge, Chief

Before CASPER,* HOWARD, Judge, and Circuit Judge. District LYNCH, Judge.. Chief by the appeal This is an grant of defendant court’s district from the evi- suppress motion Anthony Dapolito’s firearm) (a of an uncon- the fruits dence v. Da- States United detention. stitutional 2:12-cr-00045-NT, 2012 WL polito, No. 2012). 21, (D.Me. Aug. challenge on does prosecution his- findings of court’s district appeal Rather, argues fact. torical errors, legal three court committed (1) failed court: the district in a consensu- test for when the correct apply stop under into matured al encounter Ohio, Terry v. 392 U.S. (2) (1968); to consider failed

L.Ed.2d its in circumstances totality of the (3) sub- and analysis; suspicion offi- of the for that judgment its stituted errors, the U.S. These this case. cers in court erred asserts, the district mean that cir- totality of the concluding that a reasonable provide cumstances con- support defendant’s search, time at the tinuing detention firearm. produced the The court affirm. find no error We reached conclu- analyses employed law, in- the relevant with consistent sions Arvizu, States Terry, United cluding L.Ed.2d 266, 122 S.Ct. 534 U.S. Sokolow, States (2002), and United L.Ed.2d Assistant MeGaughey, D. Margaret (1989). E. Delahan- Thomas Attorney, with whom Attorney, was II, ty I. brief, appellant. for tempera- Friday, March On bicycle pa- for enough Defender, warm tures Beneman, Federal David Richard Knight trols, Dan appellee. * Massachusetts, designation. sitting by Of District of Ray cycled past Square, Monument a pub- reported these downtown burglaries had pedestrian

lic square, in the heart of down- been. The “downtown area” is a large Portland, town Maine. At a.m., about 2:39 area, and includes the Old Port section of they defendant, saw the Anthony Dapolito, Portland, of which Square Monument is a appearing to inbe his thirties and wearing part. Ray did not know whether bur- jacket, standing alone an alcove at glaries had occurred in Monument Square Monument Square. past month. As Knight testified, the officers saw no evidence court,

The district which viewed the was or had been involved in scene, a burglary and described the alcove: he did appear not to have any of a bur- From the [looking sidewalk toward the glar’s usual tools. alcove], there are two doorways within the alcove. The doorway, first which Neither recognized officer the defen- roughly in the center alcove, of the is dant. Ray asked the defendant for identi- the entryway [Shay’s for Grill Pub]. To fication. Dapolito replied that he did not right Shay’s entrance is a any have identification on his person, but second door allowing access to condo- voluntarily provided name, his and accu- miniums on the upper floors. To the rately gave his date of birth and said he right of the condominium entrance is a was from Saugus, Massachusetts. He also small machine, ATM which is shielded provided a middle initial “M.” The police by a canvas enclosure. The defendant report filed added that Dapolito said he was standing in the area directly in front had a Massachusetts driver’s license. of the door to the condominiums. There is no evidence Dapolito hesitat- Dapolito, 2012 WL at *1.1 ed paused before giving this informa- tion.

Ray spoke to Dapolito, Dapolito and re- sponded that “everything’s okay,” but Da- The officers said the spelled defendant polito was also grimacing, squinting, and his name for them as “D-A-P-L-I-T-O,” making strange expressions. facial The with the middle “0” missing. The district got off their bikes and walked over court found that “the Defendant either to Dapolito. The officers observed that unintentionally misspelled his name ... or Dapolito appeared to be intoxicated or oth- Ray Officer misheard him.” Ray then erwise impaired. His face sweaty was and contacted dispatch and requested that dis- he was fidgeting with his hands. patch search for a record of the defendant. The officers testified that they pa- were Dispatch responded that no record was trolling the “downtown area” because found for that name in Maine or Massa- there had been “recent” burglaries of busi- chusetts.2 Ray told Dapolito that nesses graffiti and incidents, though they name was not on file and asked if he had had no information about recent bur- the name right. Dapolito spelled his last glaries or criminal activity in this particu- name as “D-A-P-O-L-I-T-O,” which is location, lar and did not say how recent the correct spelling. Ray asked dispatch 1. The record Shay's indicates that was closed Ray did not know what records Massachu- hour, at that but does not kept, reveal whether setts but understood that dispatch other businesses in the open. area search were checks for both motor vehicle records However, Ray and testified that National he did Crime not see Information Center (NCIC) data, anyone else square. in the outstanding includes war- rants, conditions, bail prior felony convic- tions. Despite identification. a photo dispatch not search; again, once to do another Dapolito’s confirmed the card the fact that system. computer in its record found Massachu- his association name and Dapolito he believed Ray testified interroga- setts, continued the officers first given the identity about his lying was tion.3 inability dispatch and the misspelling (correct) He spelling. the second confirm during ques- point fact, at some people practice common it thought having Dyer, Christopher tioning, Officer want- they are when their names lie about the two radio about his car heard over Dapolito wanted ed, suspected so encounter, thinking bicycle officers’ if Dapolito then Ray asked a warrant. lasted fifteen encounter that the odd identification; down for him pat he could traffic, radio decid- more minutes without com- and said refused own, his cruiser ed, to drive on his touched. being fortable vehicles where Square, onto Monument He arrived what ordinarily permitted. asked The officers are out, Dapolito a.m., and lived. got he and where 2:54 doing approximately there some friends. Da- waiting Dapolito. for he and Ray was the officers told approached him, Monument at 18 facing he lived that officers said three He also had polito now a not have However, Dapolito scene, in the he stood Square. on and a cruiser condominiums, and could paving the the key alcove, to where point the sup- of his numbers phone to the the stones provide the alcove’s from changed phone his cell because roommates posed brick sidewalk. rambling made also He was dead.

battery be- Dapolito question to Ray continued statements, including that incoherent and view, to the cause, according in his gets one from if one subtracts was the defendant information the report, Monument to the reference apparent an up” adding “wasn’t the providing the buzz- Knight pressed address. Square necessary to detain it “deemed and he re- condominiums, no one but the for er his identi- to discover in order [Dapolito] sponded. report the next sentence of The ty.” if time, Ray Dapolito asked aFor second to discover” officers’ “need the moved from him identification. for search he could statement, “I be- identity to the Dapolito’s he was said and refused Dapolito Again, burglar or be a possibly could he lieved However, Ray that. not comfortable to evade name using a false wanted credit of a the like outline looked what saw last- had now, the encounter By capture.” front Dapolito’s left a license card or minutes. ed at least it what Dapolito asked and pocket, pants further, at this and step Ray went and pocket of his took it out Dapolito was. he, Dapolito, Dapolito told point, govern- was a The card Ray. it to showed to going deceitful, Dapolito being Electronic Massachusetts ment-issued detained, specifically, more be (EBT) card card. Transfer Benefit the brought to to be going Dapolito-was the it, spelled name on Dapolito’s had Dapolito told Ray also county jail.'4 spelling the second way as same identification. for be searched would officers, it did but the given he had name finger- There, used have police could the much how clear about record is 3. The at- tattoos to or a record point, print machine by but occurred elapsed this had time encounter, upwards identify defendant. tempt lasted to well into twenty minutes. response being to told he was going defendant moved suppress on gun to be jail, taken and after he had twice ground that the search that resulted in refused requests that he agree to be discovery gun derived from an searched, Dapolito took what the officers unlawful seizure in violation of the Fourth identified aas “fight-or-flight” stance. At government Amendment. The argued the point Dyer moved closer Ray, encounter was consensual and only became Knight, and Dapolito. Dapolito said “I stop when the defendant was told that,” don’t want if asked he could he was going to be detained. At that permission to take steps three back. point, argued, the officers Ray said no and told place his that criminal ac- head, hands on his the first step of pat tivity was afoot pat-frisk and the justi- down process. Ray’s contemporaneous po- fied objective concern officer report lice never mentioned safety officer safety. as a factor in conducting pat down, The district court held an only evidentiary need find identification. But hearing July 18, 2012, on hearing testified, he later testimo- as did the other two ny Ray, from Knight, officers, Dyer. granted It pat down was initiated for the motion to suppress officer on safety August 21, 2012. reasons. The district court found that the consensu- When did not initially comply, al encounter had become a Terry stop by Knight his drew placed Taser and red the time Dapolito had produced the EBT dot the defendant’s chest. In response, card containing the name he had already Dapolito complied with the command to provided to the officers. Dapolito, 2012 place his head; hands on his his shirt and WL at *7. The court then deter- jacket lifted, and Dyer saw handgun mined that at the inception of the Terry waistband, defendant’s which Dyer stop, the officers lacked reasonable suspi- grabbed. then cion permit to the detention. The court Dyer took county jail. reasoned that totality of the circum- There, the provided defendant the same stances provide did not a particular and name and of date birth he given objective basis to suspect that the defen- earlier, officers as well a social security dant was engaged in a burglary, wanted on number. Dispatch searched for the defen- an outstanding warrant, or in- otherwise dant in the Interstate Index, Identification volved in criminal activity. Id. at *7-8. which confirmed his identity5 and indicat- Rather, “[w]hat the officers had was an ed that he felon; convicted it odd, grimacing, impaired man, who was information that Dapolito was unknown to them and who was not making wanted for a crime. much sense. The Defendant was acting not unlike many other members of the II. indigent transient population and/or of March On grand federal jury Portland.” Id. at *7. indicted Dapolito on one count of being a felon in possession of a firearm violation government’s The timely appeal fol- of 18 §§ U.S.C. 924(e). 922(g)(1) and The lowed. post-arrest 5. The Ray records reviewed did have thrown dispatch's off earlier searches to not contain the middle initial Dapol- "M” that matching find a record. There is no claim given ito had when asked in Monument that it is not his accurate middle initial. Square. That one-letter discrepancy may ” Ornelas, 517 (quoting Id. judges.’ dent III. 1657). 698, 116 S.Ct. at U.S. States, v. United Ornelas Under issues what clear about wish be We L.Ed.2d 690, 116 S.Ct. U.S. The appeal. on presented are not are and must Appeals (1996), of the Courts that, regard- argue does government review appellate independent undertake suspicion, reasonable less of mixed on the decision court’s a district safety their feared for independently whether the fact of and of law question put they told when point standpoint from the facts, viewed historical head, the Taser pointed on his hands his officer, objectively his light on the red Taser him, placed and or to suspicion a reasonable amount frame- accepts the government The chest. 696-97, 116 S.Ct. Id. at cause. probable suspi- was no that if there work to a challenge reviewing a Dapolito. search cion, 1657. When no basis to there was suppression began what decision contends district court’s fac permit- court’s into a motion, stop evolved review a consensual was reason- there credibility stop because determinations and ted findings tual activity afoot criminal Ca States able United clear error. only for search. (1st Cir.2011); time of at the it was so macho, F.3d 699, 116 S.Ct. Ornelas, see protects Amendment The Fourth reviewed fact (findings of historical secure people be right “[t]he error). the court’s We review clear effects, houses, papers, persons, their States novo. de United legal conclusions sei searches against unreasonable Cir.2012). Robbia, F.3d Const, IV. The amend. zures.” that we said, is also true being That those only searches prohibits Amendment from drawn inferences weight to “give due “unreasonable.” are and seizures judges and by resident facts] Pontoo, [historical Ornelas, officers.”6 law enforcement stop local and Cir.2011). may (1st police The ex As 699, 1657. S.Ct. investiga at 116 517 U.S. an individual detain briefly Townsend, 305 a reason United States plained police the if purposes tive court, (6th Cir.2002), is activity the district criminal F.3d 537 suspicion able 7, 109 S.Ct. testimony Sokolow, of wit at 490 U.S. which observes afoot. 1868; conditions, 30, is 88 S.Ct. at 1581; local U.S. Terry, understands 392 nesses and is An individual making Pontoo, advantage 666 F.3d an institutional would a reasonable “Accord when at 542. detained Id. this determination. police to answer refuse free to not feel given be weight’ should ingly, ‘due way.7 his along proceed and questions by the facts ‘resi- drawn from inferences began Da- when began. Whether see tention does not Justice Supreme Court 6. One card, as the the EBT provided polito factual Court’s deferring to the District "how fact) or, determined, says, at the findings U.S. (as of as the its opposed to court inferences be United would told he de novo review.” defendant compatible time 266, 278, Arvizu, 122 S.Ct. our U.S. county jail, 534 not control does to the taken J., (2002) (Scalia, 744, con L.Ed.2d 740 rea- 151 officers had whether the of determination States, 517 (citing v. United curring) Ornelas the defendant. suspicion to detain sonable 1657, 705, 690, 134 L.Ed.2d S.Ct. 116 U.S. Dapolito was detained say that it to Suffice (1996)). being he was told he was of the time least jail. Whatever being taken and detained challenges the district 7. The stance, it "fight-or-flight” relevance exactly the de- of when determination court’s Bostick, 429, Florida 439, 501 U.S. 111 into a ‘Terry’ Second, stop.” the U.S. 2382,115 S.Ct. (1991); L.Ed.2d 389 United asserts that the court erred in its reason- 1, States v. Young, 105 F.3d Cir. suspicion able determination because “the 1997). court conducted a ‘divide-and-conquer’ analysis that assessed each ... fact out of suspicion Reasonable requires context assigned and those individual there be facts particularized both a and an ob innocent interpretations.” Third, jective basis for “the low- suspecting the individual er stopped court[ ] ... criminal activity. substituted] its own inter- Cortez, pretations States v. 411, 417-18, U.S. historical facts for the S.Ct. (1981). judgment L.Ed.2d 621 of two The trained experienced particularity requirement demands that officers.” Recall that govern- the finding “grounded be specific and ment’s rationale for the detention is that articulable facts.” United States v. Hens there was suspicion of burglary ley, 221, 229, 105 S.Ct. hiding his identity as (1985). L.Ed.2d 604 objective The re a wanted fugitive. quirement dictates that we view cir As to all three challenges, the district through cumstances the lens of a reason court correctly requirements stated the set able Pontoo, officer. 666 F.3d at 28. by law, and more particularly set out standard “defies in Terry, Arvizu, Sokolow, precise definition,” stated and “must be deter that was the law that being mined applied. case case.” United States v. go Chhien, through We Terry issue Cir.2001). after dis- It is cussing commonsense, other two. nontechnical conception. Ornelas, 517 U.S. at 116 S.Ct. 1657. Arvizu, In determining whether reason the Supreme rejected Court a “divide-and- able suspicion existed, must courts look conquer” analysis under which the rele- the totality of the circumstances. See Cor vance of individual factors are considered tez, 449 U.S. at (“[T]he 101 S.Ct. 690 in isolation from one another in making a essence of all that has been written is that reasonable suspicion determination. Id. at circumstances&emdash;the the totality of the 744; Sokolow, see also picture&emdash;must whole be taken into ac 7-8, U.S. at 109 S.Ct. 1581 (finding lower count.”). result, As a no individual factor court in erred dividing evidence rather or fact should be in considered isolation. than simply considering the picture). whole Arvizu, See 534 274-75, U.S. at 122 S.Ct. government The argues the district court committed such error here. Not so.

IV. The district court was acutely aware of the totality We deal of the with the government’s approach circumstances three required. claims of that is legal error The before court expressly its chal said lenge to the results of that its the task was district to court’s consider the totality of totality of the the circumstances circumstances. inquiry. Dapolito, 2012 WL First, the argues U.S. that “the court at *4. It engaged in careful con- failed to apply the correct test for deciding sideration facts, of all the opinion its when the consensual encounter matured shows. later,

occurred and was a response direct that announcement.

149 Cir.2007) (collect- (1st 45, 53-54 F.3d 485 of exam- a list compiles government The cases). considered properly The court ing of a “divide- are instances argues it ples thereof) (or burglaries of lack including history the dis- the analysis, and-conquer” during prior the three facts: Square of in consideration Monument court’s trict any of aware were that month. the night Square Monument

burglaries the properly also considered court The no month, they saw past in the or factors it the of other or absence presence Dapoli- or of burglary aof evidence visible See, e.g., Hens opinion. in its discussed burglary, to commit of tools possession to’s (flyer 675 at ley, of an knowledge they had and that indicating department by another issued Dapolito. as to warrant outstanding Robbia, at 89-90 wanted); F.3d that com- so, government it is the doing transaction); Pon (officers drug observed court district accuses the it error mits the report of too, (responding F.3d making. of (re Camacho, murder); reason legitimate was both It v. call); States to 911 sponding whether, aas to consider the court able for (1st n. Jones, 40-42 & F.3d the actually matter, area was factual Cir.2005) type of (considering as relevant See, e.g., United crimes. of recent scene useful to wearing, as defendant gloves ' n. 1 Hart, F.3d v. States clothing more fingerprints, conceal Cir.2012) (character area in which of the imposing broadly). The court issue best factual was seized defendant certain factors requirements per se court). The character the district left exist, claims.8 government as the had to is a an area crimes in of and occurrence es argument Moreover, government’s the circum totality of factor in relevant sweep those consider sentially seeks City Schubert inquiry. stances of a sort of side, be which would to the ations 496, 501-02 Cir. F.3d Springfield, that would approach “divide-and-conquer” 2009) (reasonable where officer gov to the helpful facts only those isolate high-crime area gun carrying saw man of error fails. ground This case. ernment’s We have building). walking public toward also asserts (1) type between the nexus looked “readiness in its court erred district in the common prevalent most crime that of two judgment its own substitute suspected crime type area and Again, police officers.” [experienced] (2) geographic case; the limited this legal correct articulated court (3) area; tempo of the boundaries standard, considered stating evidence ral between proximity “through totality of the circumstances activity and date criminal heightened Da- officer.” lens of Wright, stop. See United detection. Arizona to avoid false name argument presents an Cf. government also 8. The . 1185, 17-18, Evans, question the required the court J., (O’Connor, concurring) (1995) sophistication of and the data records L.Ed.2d ad- by dispatch. The district ("In have engine years, we witnessed used search recent rule, explain- recordkeep- but was imposed such computer-based court powerful, vent how the about information ing ways that without in arrests ing systems that facilitate operated' system dispatch search police, possible. The —such been never before be to must searched close the name how course, enjoy the substantial are entitled system to failure of on file—the name They technology confers. advantages this weight provided less a record back come not, however, blindly.”). rely on it may giving a Dapolito was any suspicion that potito, *8; 2012 WL see Pon argument ernment’s that the court too, 666 F.3d at 28. To the extent use the correct standard. government argues the district court need Ultimately, government’s ar toed specific defer these police officers’ gument comes down to whether the dis situation, view of the and cast its aside court, trict having correctly articulated judgment individual about objec what an and understood legal the relevant stan be, tive officer’s view would that is not the dards, nonetheless erred its reasonable law. suspicion determination. The appellant, government, here the bears the burden of The takes issue with the establishing error. See United States v. district court’s ruling that it “cannot infer Randazzo, (1st Cir.1996) F.3d [Dapolito] deliberately misspelled his (“In all events, it is appellant’s respon name to shield his identity, true particular- sibility to make some showing that an er since, ly when time, asked a second he ror has committed.”); been United States spelled his name correctly and he turned Mala, 7 F.3d Cir.1993); over an EBT card in the name of Anthony see also Murphy v. St. Paul Fire & Marine Dapolito.” Dapolito, 2012 WL Co., In (5th Cir. s. *8. Since the government has re- said 1963); United States v. Rogers, 120 F.2d peatedly that it is not attacking the factual (9th Cir.1941). findings (and of the district court could government, oral argument, show clear error any event), pro- pur- vided a list of said, facts it pose of this taken argument together, is unclear. The so established reasonable suspicion say court did not that there nowas criminal activity that we room for must objectively an reverse. officer, These facts included: even time of Ray, night; Officer initially, to wonder the recent rash of burglaries downtown; about the reasons for the wrong spelling. Dapolito’s standing near a Rather, closed business the court only said that after the ATM; his behavior; odd correct fact spelling given, and then veri- gave two different spellings fied of his card, EBT the fact of the mis- name they verified; could not be spelling his light of the ambiguity over —in possession lack of of a key to the building whether Dapolito, who appeared to be in- where he lived; said he and the fact that toxicated or impaired, otherwise acciden- phone his cell dead, preventing tally him name, misspelled his or the officer from contacting his supposed roommates. misheard what an apparently intoxicated Exercising independent review and looking or otherwise impaired man said—did not at the totality of the circumstances, permit an objectively reasonable inference say cannot that the district court commit- had deliberately misspelled ted error. the name to hide his identity because he

was wanted for a crime. The district The district court focused on the offi- court datum, considered that among the suspicions cers’ that Dapolito was engaged totality of the including the fact that in or about to be engaged in a burglary data — the officers did not know whether the sec- that Dapolito and/or was wanted on an ond spelling correct, and the lack of a outstanding warrant, the only two suspi- photo on the EBT card—in reaching its cions of crime the government has of- conclusion. We see no basis for gov- fered.9 The district court’s reasoning, 9. There argument Dapolito that was suspected adding graffiti of buildings.

151 was meant what as conclusion, no evidence does its supports fully which just here. We “recent.” repeated to be not need observations. a few

add Moreover, behavior did the defendant’s by the offered justification burglary There was no burglary.10 to a tie him not that the fact from comes government fiddling with was evidence covering at area large area” —a “downtown in the ATM the with or doorways even Street, Street, Ex- Fore least Commercial any tools not see did The officers alcove. Street —had Congress Street, and change bar, on pry or a trade, pliers as such bur- commercial recent some experienced be used would near defendant or no evidence But there glaries. Terry, And, in 392 unlike burglary. ain hot particular awas Square Monument 1868, 6-7, the officers S.Ct. U.S. at 88 any recent had even had or that spot, behavior, like suspicious any observe of no evidence There burglaries. building.11 a casing area, there was and in burglaries ATM wrapped tightly wearing hooded sweatshirts cases distinguish some of pause to 10. We themselves, heads, disguising their says require us find around which thin, for gloves more suited latex error, particularized a and white which show all of but keeping individ- suspecting fingerprints than for concealing for objective basis and not ad- neighborhood We need activity. criminal at 40-42. The of warm. Id. uals case, just a few. highlight every but we abnormal experienced an question dress had also United suspicion in We found break-ins. robberies of recent number (1st Cir.1991), Walker, F.2d 1 924 v. event, Supreme States Court Id. 41. conclude could officer a reasonable where noted, its own turns on each case has since burglary was a his observations from helpful. facts, may be precedent resort to There, individu- observed an officer progress. Ornelas, 1657 517 See a.m., with loaded near a trailer at 2:30 als be useful ("[O]ne seldom will determination wood, materials and construction aat lumber (quoting Illinois another ....” 'precedent' for burgla- recent had seen several business Gates, 103 n. v. delivery a noticed had never officer ries. The (internal (1983)) quota 76 L.Ed.2d patrolling years of in four hour at that omitted)). marks tion a area, parked in con- trailer and the attempt is no at There Id. manner. cealed cases other are in contrast facts 11. These had rea- argue that the officers to even here Brake, 666 F.3d v. States ours. United progress. suspicion of a crime sonable (officer Cir.2011) stopped (1st 800, 804-05 significantly from differs case also This spatial connec temporal and men with two (1st Kimball, Cir. 25 F.3d v. States United report call a 911 a to residence tion a reasonable 1994), had the officer where handgun); United awith ed an individual vehicle was burglary where a (1st Pontoo, Cir. v. States midnight, lot after parking parked in school facts, murder, other 2011) (report of had been of schools a number where Jones, 432 suspicion); established Moreover, the offi Id. at 7. recently robbed. wearing (individuals n. 1& at 40-42 F.3d knew car and recognized the defendant's cer appropriate for con form-fitting gloves, more history bur criminal the defendant keeping hands cealing fingerprints than no such here had The officers glaries. Id. warm, finding of reasonable contributed apparently presence of an knowledge, Romain, 393 F.3d States United suspicion); impaired individual otherwise intoxicated (911 suspect’s Cir.2004) call and night is not square at public urban in an in reason belligerence resulted agitation and unusual. Spoerke, States suspicion); able materially cf. from Finally, facts differ these Cir.2009) (officer (11th F.3d Jones, F.3d those in United activity upon criminal reasonably suspected a.m., rainy Cir.2005), where at mask, and goggles, face observing gloves, two individ observed night, an officer winter flashlight). They were street. down a sprinting uals Further, Dapolito readily offered his name, find the given by a person, in a name, his birth, date of that he was from government database. Ironically, had Da- Massachusetts, asked, and when gave polito’s found, name been the information officers the EBT card. When officers would not have shown he was wanted on a him, wanted to talk to responded. he Not warrant.

only does this pattern not fit the of some- The dissent contends that “the situation one trying to police attention, avoid but it was ambiguous” and that a Terry stop was also does not add credence the alterna- justified even if there was an innocent tive theory Dapolito was wanted on a explanation. But the dissent overstates warrant. whatever ambiguity remained after Dapoli-

Unlike a situation police where the to produced the EBT card from Massachu- given been information setts, individual’s the state with which he claimed an status, see, wanted e.g., Hensley, 469 U.S. association, name, in his which comported 675 (police had wanted with the name provided he the officers and flyer); Nelson, United States v. Fed. which was spelled exactly as spelled he (3d Appx. Cir.2012) (reasonable to the officers the second By time. suspicion where officer knew of point, outstand the officers some corroboration warrant), ing such information was lacking that the defendant had identification in the Rather, here. the officers became suspi name that provided and, he had although cious because dispatch could not find Da- Dapolito’s behavior may still have seemed polito on record and because pro odd, the lesser, officers had a great- anot vided, or at least the officers er, he thought basis to believe that he being did, different spellings of his name. untruthful. fact, Dapolito produced government A person in Dapolito’s posi- benefits card from the state where he said tion would not have felt free to disregard he from, which confirmed his name. the police go See, about his business. not, That however, cause e.g., United States v. Espinoza, 490 F.3d terminate encounter, but to escalate it. Cir.2007). He was told he was being taken jail, despite his having coop- As the noted, district court the mere erated and answered the ques- fact officers’ that dispatch did get an affirma- tions. He was told he would be tive searched match from whatever rec- despite the fact that he had ord twice said he system it not, consulted does standing did not searched, want to be alone, or even create reasonable suspicion of a touched. He felt he needed permis- crime, either time, the first or the second sion even step back steps; three time. A simple mishearing or mistake as when he so, asked to do name, to a was told no. or the use or omission of an There were officers, three initial, patrol may alter results search, ready car to remove him. likely, Most record system itself, even assuming reasonable person would not have felt accuracy of free input, only is as complete as to leave even earlier than the moment at systems which feed into it. We do not was told he was say being tak- that the failure to find a corresponding jail, en to but need not decide that. irrelevant, match is but that it does carry the weight government, in this The district court determined the en- context, gives it. It simply cannot be counter became a Terry stop prior to this being a point, and the dissent takes issue with the fugitive wanted created the failure to district court’s consideration of the dura- activity or if criminal assistance he needed making that deter- encounter tion that the party disputes afoot. Neither con- was length of a mination, “the stating that police began between the encounter cannot transform alone” encounter sensual defendant was consensual and the stop. But the into the encounter where, for the reasons we But proper. rely solely on the not court did district explained, did previously have find that to of the encounter length suspicion to believe not have reasonable Rather, the district occurred. Terry stop going had been or was that the defendant the intensification considered court also crime, consensual in a engaged to be question- accusatory nature of and the (with complied) Dapolito inquiry that he was to the statement ing, investigatory into an cannot be converted EBT card did fact that the lying, and the requires this result. stop. The law suspicions. alleviate the officers’ not (“While 3612602, at *7 2012 WL Dapolito, Affirmed. casual, the inter- initial encounter HOWARD, Judge, dissenting. Circuit had after the Defendant intensified

action name and dis- correctly spelled his view, correctly my In the information relayed patcher errors of law the three critical identified point, At that no record found. there was the hand- suppress order to district court’s accusa- questioning became Ray’s Officer Rather Dapolito’s person. on gun found Defendant Ray told the tory, and Officer errors, major- panel these than correct lying. Defendant was believed repeats the sec- ity sidesteps the first and questioning, minutes of fifteen After about I great respect, must ond and third. With of the EBT card production and after majority’s opinion. dissent from the suspicions, dispel the officers’ did not to defer to practice it is our Although any to reasonable have been obvious would findings factual district court’s going not to let that the were error, clear we are only them review event, the officers go.”). him perform “independent obligated also of a crime suspicion not have district court’s review” of the appellate tak- they were they told the time of reasonable determination[ ] “ultimate county jail.12 him the ing States, 517 v. United suspicion.” Ornelas 134 L.Ed.2d for the -offi- U.S. certainly reasonable It was Battle, (1996); They Dapolito. approach here to cers Cir.2011). The Su- hours F.3d 48-49 early morning in the patrol were on impor- emphasized man, preme Court has unknown to they encountered when like this review cases of de novo them, intoxicated or tance to be appeared who First, if we at least reasons. identity they one for three whose impaired, otherwise court’s decision deferred to the district verify, and whose behav- readily could question mixed gestures they could and facial ior —a scope permit the fact—we would Certainly, law and as bizarre. reasonably viewed Amendment of the Fourth and force public enforcement and a matter of law situations, factual identical vary between for them it was reasonable protection, judge heard depending if on which to determine with the defendant speak arrest, facts, it clear there was an think question also arises as 12. On these arrest, time, whether, there not probable a de facto for an this was cause question court did suspicion. the district being arrest. It is even reasonable that, address, if it We do note nor do we. suppress. Ornelas, the motion to See 517 Law enforcement agents are “ap- free to atU.S. S.Ct. 1657 (citing Brinegar proach!] an individual and ask[] [him] States, v. 160, United 171, 338 U.S. 69 questions” few without implicating any 1302, (1949)). S.Ct. Second, 93 L.Ed. 1879 Fourth protections. Amendment Florida “eommonsense, is Bostick, v. 429, 434, 501 U.S. 111 S.Ct. nontechnical” concept gains that form 2382, (1991). 115 L.Ed.2d 389 Those in- “only through application,” and so de novo teractions “need not find a any basis in review is “necessary if appellate courts are articulable suspicion.” United States v. of, to maintain control and to clarify, the 1, (1st Young, Cir.1997). 105 F.3d Only legal principles” that define the law in this when an encounter escalates into a brief 695, 697, (cit area. Id. at 116 S.Ct. 1657 “investigatory stop,” also known as a “Ter- Fenton, ing Miller v. 104, 114, 474 U.S. ry stop,” Ohio, Terry see 1, v. 392 U.S. 445, (1985)). S.Ct. 88 L.Ed.2d 405 Fi 1868, S.Ct. (1968), 20 L.Ed.2d 889 does the nally, de novo review unify serves to and Fourth Amendment into come play. past rationalize precedent, so that our cases, such the Fourth Amendment re- Fourth jurisprudence Amendment will quires that have “a reasonable “provid[e] law enforcement officers with a suspicion that criminal activity may be which, defined ‘set of rules in most instanc afoot.” Pontoo, United States v. 666 F.3d es, makes it possible to reach a correct 20, Cir.2011). Supreme The Court determination beforehand as to whether an has identified moment at con- privacy invasion of justified in the inter sensual encounter transforms into ” est of law enforcement.’ 697-98, Id. at stop as when “a reasonable person would 116 S.Ct. 1657 (quoting New York v. Bel- ... that believe[ ] leave,” [is] not free to ton, 454, 458, 453 U.S. 2860, 101 S.Ct. I.N.S. v. Delgado, 210, 215, U.S. (1981)). L.Ed.2d Therefore, while we (1984) 80 L.Ed.2d 247 (quoting defer to should the district court’s descrip United Mendenhall, States tion of the record, historical we owe no (1980)), 64 L.Ed.2d 497 deference to its view of Instead, the law. and we use totality of the circumstances we have a duty apply to the law anew. inquiry to conduct analysis, that first The error in the district court’s Smith, 423 F.3d 29-30 suppression order is its conclusion that a Cir.2005). Terry stop occurred at the moment Dapolito produced his EBT card still case, In this the district court found that failed allay to the officers’ suspicions. the interaction Dapolito between and the United States Dapolito, No. 2:12-cr- police began as a consensual encounter but 00045-NT, 2012 (D.Me. WL 3612602 at *7 matured into a Terry stop “[a]fter about 21, 2012). Aug. majority this avoids fifteen minutes of questioning, and after issue assuming arguendo that no stop production of the EBT card did not later, occurred until when the told dispel the officers’ suspicions.” Dapolito, Dapolito they intended take him to 2012 WL at *7. point, At that jail in order identify him. But according to the court, district “it would majority opinion leaves the actual timing been obvious to per- stop question. open ante son that going were not to let 147 n. 7. I believe we can and should go.” him Id. state with confidence that stop occurred later, until when the officers at- actually I find that conclusion difficult square tempted to arrest Dapolito. with the settled law in this area. The 218-19, 104 S.Ct. 1758. explain gado, opinion does court’s Here, they encounter “stood where had length of the the officers why or how Smith, incredulity to,” communicated and the fact the officers’ suddenly not al- that he was at the they opening had to stand to the away. According walk they lowed not mean that the alcove did Court, may circumstances Supreme for Fourth Amendment seized threat- “the Terry stop include a indicate purposes. officers, the dis- of several ening presence length exchange up of the Nor did the officer, physi- an some weapon by aof

play district court clocked point, that which the citizen, or of the touching of the cal minutes, Dapolito, at 15 see approximately indi- or tone of voice language use the 3612602, *7, transform 2012 WL officer’s with the compliance that cating totality A Terry stop. into a encounter Menden- compelled.” might be request in- analysis logically the circumstances 554, hall, 100 1870. S.Ct. 446 U.S. encounter,13 of the but cludes the duration occurred before Here, Terry stop had if no “trigger that emphasized we have and, in of the EBT production card— purposes for Fourth Amendment is point fact, only two officers that moment up to cogniza- or absence of some presence their not drawn they present, were constraint,” United States ble coercion or they Dapolito, touched weapons or (1st Cir.2007) Espinoza, 490 F.3d com- Dapolito was to indicate that nothing added). That formulation (emphasis belies requests with their comply pelled —then length that the of a consensual the notion me how the en- mystery a it remains it into alone can transform encounter after that Terry stop became counter Indeed, rejected exactly stop. we Terry point. Berry- in proposition United emphasizes court’s order The district (1st Cir.1983) (en banc), man, 717 F.2d confined be- physically sitting en banc re- in our which circuit by the impaired” egress “his cause by panel majority a prior versed decision in front of the two officers position “prolongation” that had held 3612602, at *7. Dapolito, 2012 WL alcove. “an atmo- create questioning could However, to “re- have courts urged that would constitute a of restraint” sphere limitations physical that mere member[] Berryman, States v. Terry stop.14 United movement, created an individual’s on banc, (1st 651, Cir.), rev’d en 717 F.2d to turn an en- are insufficient by police, (1st Cir.1983); also see Unit- 717 F.2d 650 of liber- police into a restraint counter F.Supp. Gallego-Zapata, ed States Smith, adage That 423 F.3d at 30. ty.” (D.Mass.1986). my Regardless, Court, Supreme the lead of the follows view, questioning minutes of this the 15 to find a declined repeatedly has long that it escalated into was not so case agents when law enforcement seizure previously found Terry stop from a confined escape a civilian’s block —we lasting over 20 Bostick, that a consensual encounter 501 U.S. space. See to a restriction on 389; did not amount Del- minutes see also L.Ed.2d Woodrum, Then-Judge Breyer from this dissented 202 F.3d United States v. 13. Cf. Cir.2000) ("[W]hen Berryman opinion, original encounter takes conclusion in J., justification for appreciable (Breyer, time ... Berryman, at 663 717 F.2d some see an issue because detention becomes position vindicated dissenting), and his par- may longer his no understand individual by subsequent en banc decision. ticipation voluntary.”). to be liberty implicating the issue, Fourth Amend- on this and remand the case for See, e.g., Jodoin, ment. States v. United further proceedings. If there was no Cir.1982), abrogated Terry stop at the moment chosen grounds, States, other Bloate v. court, then the were not re- 176 L.Ed.2d quired to have to en- (2010). gage with Dapolito at point. On re- mand, the district court would study then event, In any what should be practically the remaining chronology subse- decisive this case the fact that Dapoli- quent Fourth Amendment violations. apparently felt enough comfortable throughout the encounter that he However, re because majority assumes peatedly declined the requests officers’ arguendo stop occurred until search him for identification. Dapoli See the actually attempted to arrest Da- to, (“Officer 2012 WL at *2 Ray polito, analysis its continues onward. The ... asked if pat he could [Dapolito] down majority observes that there ais serious to find [Dapolito] refused, identification. question as to whether the detention at telling the officers that he did not like to this later moment merely a Terry stop (“Officer touched.”); be id. Ray asked a or if it actually constituted a de ar- facto second time if he could [Dapolito] rest, search ante at 153 n. a greater intrusion identification. [Dapolito] again re that would have required the correspond- fused.”); (“Officer see also id. at *3 Ray ingly greater justification of “probable told [Dapolito] they were taking him cause.” Young, 105 F.3d at 6. Never- county jail identify ... theless, him [Da- the majority concludes that it need polito] slightly turned away from the offi not question answer this the offi- because cers ”). and said that he ‘didn’t want that.’ cers did not even meet require- the lower When suspect’s freedom of movement ment of reasonable suspicion needed to by restricted independent factors po of justify Terry stop. conduct, lice Supreme Court has in Although expect I government structed we should modify the tradi would quite find itself far from the end tional “free to inquiry leave” and instead zone on the de facto arrest if issue the case ask “whether a would remanded, were I compelled am to state feel free decline the requests or officers’ my disagreement with the majority’s con- otherwise terminate the encounter.” Bos clusion that the officers least tick, 501 U.S. at 111 S.Ct. 115 have a reasonable suspicion of criminal added). L.Ed.2d 389 (emphasis Here, Da- activity that would justified a Terry polito obviously felt that freedom and exer stop. That brings discussion also me to cised it more than Indeed, once. he re government’s second and third claims buffed request by the officers to search error, of addressed to the district court’s just him moments before he produced the finding that no exist- EBT point card—the at which the district ed to support the brief detention Dapoli- court concluded that a Terry stop took to. I believe that correct- place. Although the majority steers ly identified two important mistakes, and issue, around the law makes clear that that the majority reinscribes these errors no Terry stop had occurred at the time in its analysis. own I also believe that identified the district court. opinions both reach wrong outcome on Were I writing opinion, the majority I issue, the overall precedent since our here, stop would reverse the district court makes clear that the officers had reason- possibility ... not rule out Terry stop exists need suspicion to execute able Arvizu, of innocent 534 U.S. conduct.” case. this 744; Pontoo, see also government’s by the persuaded I am F.3d at 29. com suppress the order to argument mistake, in my An critical in an even more engages when it mits a second error view, court’s order analy suppression is that the “divide-and-conquer” impermissible of the isolates and dismisses each surrounding the encounter two the facts sis of Arvizu, suspected crimes that United States Dapolito. with committing, without 266, 274, consider- Pontoo, totality the circumstances from (2002); ing see also L.Ed.2d 740 objective During of view. point cir totality at 29. We use F.3d the officers on Dapolito, encounter rea test to determine whether cumstances may that he suspected the scene either justify a suspicion existed to sonable burglary in a or that been involved a “broad- have analysis requires This stop. Da- on a warrant. See might attendant be wanted of all the consideration based Chhien, at *7. We are circumstances,” polito, WL (1st Cir.2001), possibilities these two that “the bound to consider so F.3d account,” splendid than “in together, rather iso- ... taken picture [is] into whole Pontoo, Cortez, 411, 417, F.3d at 29. Nor are lation.” States United (1981). only possibilities, to these two It we limited 66 L.Ed.2d suspicion ex- since reasonable dismantling “[w]hether a claim courts from precludes objective inquiry: the as an by picking out the ists treated suspicion of reasonable thought process of the actual one-by-one offering motive factors and suspicious Taylor, plumbed.” officer is not Bolton each. United explanation for an innocent (1st Cir.2004). Although 367 F.3d McGregor, 650 F.3d the warrant 2011). burglary neither the nor theo- Cir. own, its we must ry was invincible on here. exactly happened what Yet that is with all of the along them both consider repeatedly excuses suppression The order objective that an crimes possible other merely it was Dapolito’s behavior because giv- would view of circumstances lawful, his weird but never considers how in- suspect reason to police en the —for suspicious still have seemed manner could stance, in of a possession was See, Dapoli e.g., in context. police to the plan- or that he was controlled substance (‘What to, at *7 2012 WL exited or next who ning to rob the odd, im grimacing, an had was building. Viewed apartment entered the man, to them who was unknown paired lens, a reasonable law through this holistic making sense. who was not much and agent at the scene would have enforcement many oth acting not unlike [Dapolito] was that “criminal to believe good had reason tran indigent er members and/or Arvizu, 534 U.S. activity may be afoot.” Portland.”); at *8 id. population sient (internal quotation adding up, ... was not (“[Dapolito’s] story omitted). marks truthful, story if the was not but ... [e]ven suppress order to third error no claim such made the Government criminal.”). its own court substitutes That is that the district would be false statement officers on the that of the judgment for directly contrary to the Su reasoning is inquiry ... objective “an scene. We use “[a] instruction Court’s clear preme searching offi- of the perspective from the determination that cers” to evaluate Terry stop whether a my reasonable suspicion analysis. The justified by reasonable suspicion. it, way I see police encountered Dapol- Aitoro, ito, States v. a grimacing, apparently intoxicated, Cir.2006). In and adopt man, order to perspec- nervous-looking standing alone tive of objectively officer, an outside 2:39 AM the morning, in an area burglaries must where remember law had recently enforcement “is oc- curred. He required possess stationed in an clarity of vision alcove alongside machine, ATM only Pontoo, waiting with- hindsight.” arises out purpose clear in front of F.3d at the doors to a restaurant and an apartment building. When the district court discusses how mannerisms weird, His were much name, misspelled however, his what he said made no sense. He told the substitutes its own after-the-fact perspec- police that his name “Daplito” tive for what would apparent have been claimed that he had a Massachusetts driv- officers on the scene. Viewing er’s license—he could produce one— through eyes scene officers, yet when searched both the we see a man who claims have a Massa- Massachusetts and Maine motor vehicle license, chusetts driver’s but who gives a databases, no such appeared. name Asked name appear that does not in either the again name, for his spelled it different- Massachusetts or Maine motor vehicle rec- ly, “Dapolito,” but again, no name ords. Dapolito, 2012 WL up turned in the motor vehicle records. *2. again name, Asked for his the man At the officers’ prodding, pulled the man spells it differently from first time he an EBT card from pocket his that bore it, yet offered even this new spelling one of the names that he given but did appear does not in either state’s database. not have identifying other information. Finally, id. we an EBT spot in card The man said he lived in apartment pocket, man’s produced which when building him, behind but he did not have bears the name that gave the man keys to the building, nor did he have a cell second time but includes no other identify- phone with which he could contact his ing information. See id. These facts are roommates. pushed When all police that the known, could have ring buzzer apartment number yet the order to suppress downplays the where the man live, claimed to no one officers’ suspicions grounds on the responded. Dapolito spelled his “correctly” name Certainly, the situation ambiguous. was time, id., second and that “it is likely more But “the Supreme Court has stressed that that [Dapolito] either unintentionally mis- a Terry stop permitted is if even ‘the spelled his name the first time or [the conduct justifying the stop ambiguous was officers] misheard him.” Id. at *8. Of and susceptible of an innocent explana- course, while these facts apparent were ” tion.’ United v. Wright, 582 F.3d specie district court sub aeternitatis, Cir.2009) (quoting Illinois v. they hardly would have been evident to a Wardlow, 119, 125, cop on the beat. We must take the latter (2000)). fact, L.Ed.2d 570 In very “the perspective when we evaluate whether the purpose Terry stop] [a clarify police acted reasonably. ambiguous situations.” (quoting Id. 2 La- I

Because differ panel from the majority al., et Fave § 3.8(d), Criminal Procedure on how we should (3d evaluate the 2007)). facts this at 327 ed. And although there case, I also reach a different in outcome nothing was directly linking Dapolito to (1st Cir.2010), conduct, 602 F.3d 28 we found that “no direct link between criminal suspicion had reasonable to con suspected criminal suspect and the Terry stop they of a man whom in order to achieve duct activity forged need be Ruidiaz, park night, possi in a late at encountered suspicion.” U.S. closed, Cir.2008); in an area bly park also after the see 529 F.3d Chhien, reported. where crimes had been Id. at at 6. 266 F.3d Walker, 32. United States was here is that there What matters (1st Cir.1991), Terry stop we held that a concern, given that Da- concrete cause AM, when, justified at 2:30 the officers by himself at a late polito standing spotted people dimly parking two in the lit in there had been hour an area where business, lot of a and construction lumber obviously impaired, out- burglaries, recent standing rig near a trailer loaded where he apartment building side an cab, wood and detached an area where access, yet claimed to live and could burglaries in past. there had been Id. answer on his give straight and unable to Jones, Finally, United States v. may preparing own name. He have been (1st Cir.2005), F.3d 34 concluded nearby building into the or the to break suspicion there was reasonable for a ATM, lying or he was in wait to perhaps stop sprint when the saw two men mug the next who tried enter AM, ing wearing down the street at 4:00 apartment building, maybe he was strange hooded sweatshirts white the influence of a controlled sub- under gloves, neighborhood in a where there had just again, may Then stance. break-ins, been a number of robberies and been, suggested, as the district court one walking and where a third man was ahead indigent ... members of the “many of them in the same direction. Id. at 41. of Portland.” population transient and/or perfectly The facts of these cases do not Dapolito, 2012 at *7. The WL hand, my but in align with the ones briefly de- point is officers needed they finding opinion, support reason Even if tain order to find out. able in this case. likely than not that it was more transient, merely a reason- harmless I respectfully dissent. than suspicion considerably able “is less by preponderance

proof wrongdoing ... probable

the evidence cause.” [or] Sokolow, 1, 7, States v. 490 U.S. (1989). 104 L.Ed.2d suspicion had a here. majority, I find that the fact

Like the MOLCHATSKY, Phyllis Meder Charles presented Terry stop cases are patterns rick, individually behalf of all and on so “multifaceted” that “one determination similarly situated, persons Alan an those precedent seldom be a useful will Foundation, Goldman, Ornelas, The Litwin other.” omitted). (internal Inc., The Michael and Ruth Slade marks quotation Foundation, Schneider, M.D., Steven obligated just I to cite a few of But feel individually Welling, and on presented similar Judith past our decisions similarly all those behalf of which I believe demonstrate patterns, persons fact Goldman, situated, Blayne Allan H. has that the bar for reasonable the Benefit Applestein, as trustee for Foley Kiely, been met this case.

Case Details

Case Name: United States v. Dapolito

Court Name: Court of Appeals for the First Circuit

Date Published: Apr 11, 2013

Citation: 713 F.3d 141

Docket Number: 12-2023

Court Abbreviation: 1st Cir.