FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
MASSACHUSETTS Hon. F. Dennis Saylor, IV, U.S. District Judge
J. Garrity for appellant.
Pasricha, Assistant United States Attorney, with whom William
D. Weinreb, Acting United States Attorney, was on brief, for
Lynch, Selya, and Kayatta, Circuit Judges.
KAYATTA, Circuit Judge.
Belin was convicted at trial of being a felon in possession
of a firearm and sentenced to seventy-one months'
imprisonment. He raises two issues on appeal: whether there
was reasonable suspicion for the stop-and-frisk that resulted
in the discovery of the firearm, and whether the district
court erred by allowing him to direct his attorney not to
pursue certain factual lines of defense at trial. We conclude
that the stop-and-frisk was lawful and that the district
court did not err in the way it resolved Belin's dispute
with his attorney.
customary when reviewing the denial of a motion to suppress,
we recount the facts as found by the district court,
consistent with record support. See United States v.
Romain, 393 F.3d 63, 66 (1st Cir. 2004).
P.M. on September 17, 2012, the Boston Police Department
radio broadcast a call that a fight involving either kids or
girls had broken out at the intersection of Norfolk Street
and Fessenden Street near Norfolk Park in Mattapan, a Boston
neighborhood. Norfolk Park had been the site of multiple
recent firearms arrests and incidents. Two Boston Police
Department officers, Officer Bissonnette and Officer Finn,
responded to the call. They drove to the location and saw a
group of five men walking down the sidewalk of Norfolk Street
toward Fessenden Street and Norfolk Park. They pulled over in
front of the group of men where the sidewalk dips to allow
pedestrians to cross the street, so that their car blocked
the crosswalk. As the officers got out of the car, one of the
men, Belin, peeled off from the others and hurried away from
the officers, crossing the street toward Norfolk Park.
recognized Belin. He had arrested Belin in 2009 about half a
mile away from Norfolk Park for having a firearm in his car
without a license. He also knew that Belin was listed in a
police database as a member of a local gang, the Norfolk
Street Bulls. Belin was wearing a heavy black hooded
sweatshirt that was "not tight-fitting." The
temperature that evening hovered just below seventy degrees
Fahrenheit. One person in the park at the time was wearing a
"light parka"; another was wearing a t-shirt.
Bissonnette also wore a t-shirt.
followed Belin and said, "Yo, King, what's going
on?" Belin looked at him, half-smiled, and continued
walking. Bissonnette caught up to Belin, who stopped and
turned around. Bissonnette asked if Belin had anything on
him. Belin became unusually nervous, his demeanor and facial
expression changed, he took a deep breath, and then his
breathing became quick and shallow. He looked around "as
if searching for a means of escape."
grabbed one of Belin's arms with one hand and reached
toward Belin's waist with the other to frisk his
waistband. Both of Belin's hands moved toward his waist,
and Bissonnette grabbed them. A struggle ensued, other
officers came to help, and they took Belin to the ground.
After Belin was handcuffed, the officers searched him and
discovered a gun, marijuana, and five rounds of ammunition.
Belin moved to suppress the results of the search, arguing
that the stop-and-frisk occurred without reasonable suspicion
that he was armed and dangerous. The district court denied
the motion, and Belin appeals that denial.
we have summarized the facts as found by the district court
and as supported by the record viewed "in the light most
favorable to the district court's ruling, "
United States v. Camacho, 661 F.3d 718, 723 (1st
Cir. 2011) (quoting United States v. Soares, 521
F.3d 117, 118 (1st Cir. 2008)), "we review de novo the
district court's conclusions of law, including its
application of the law to the facts, its probable cause and
reasonable suspicion determinations, and the district
court's ultimate legal decision to grant or deny the
motion to suppress, " id. at 724 (emphasis
omitted). We also review de novo the court's legal
conclusion about at what point the facts amounted to a
seizure. See United States v. Taylor, 511 F.3d 87,
91 (1st Cir. 2007).
parties disagree on four points, each of which we must
resolve to decide this appeal: (1) when the stop occurred;
(2) whether there was reasonable suspicion for the stop; (3)
when the frisk occurred; and (4) whether there was reasonable
suspicion for the frisk. For the following reasons, we agree
with the district court that the stop occurred when
Bissonnette put his hand on Belin's arm, that the stop
and the frisk occurred simultaneously, and that there was
reasonable suspicion sufficient to justify the frisk (and
thus, in this case, the stop as well).
case involves a seizure short of a formal arrest known as a
"Terry stop, " after Terry v.
Ohio, 392 U.S. 1 (1968). See id. at 16 (holding that
a Fourth Amendment seizure occurs "whenever a police
officer accosts an individual and restrains his freedom to
walk away"). "The police need not have taken
physical custody of a person in order to be deemed to have
effected a Terry stop for which at least reasonable
suspicion is required." United States v.
Fields, 823 F.3d 20, 25 (1st Cir. 2016). "Such a
stop instead may occur merely upon law enforcement making
what the Supreme Court has termed a 'show of
authority.'" Id. (quoting United States
v. Mendenhall, 446 U.S. 544, 553-54 (1980) (opinion of
Stewart, J.)). "Such a 'show of authority'
occurs, however, only when 'in view of all of the
circumstances surrounding the incident, a reasonable person
would have believed that he was not free to leave.'"
Id. (quoting Mendenhall, 446 U.S. at 554
(opinion of Stewart, J.)).
Examples of circumstances that might indicate a seizure, even
where the person did not attempt to leave, would be the
threatening presence of several officers, the display of a
weapon by an officer, some physical touching of the person of
the citizen, or the use of language or tone of voice