USCA1 Opinion

[NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS

No. 96-2124

UNITED STATES,

Appellee,

v.

OMAR GREENE,

Defendant, Appellant.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Joseph L. Tauro, U.S. District Judge]

____________________

Before

Torruella, Chief Judge,

____________________

Diana L. Maldonado on brief for appellant.

United

States

Attorney,

and

Christopher
___________

Bator, Assistant United States Attorney, on brief for appellee.

_____

____________________

October 14, 1997

Per Curiam.
___________

Pursuant to

Fed.

R. Crim.

P. 11(a)(2),

appellant

Omar Greene entered

a conditional guilty

the charge of being a felon in

18

U.S.C.

possession of a firearm.

See
___

922(g)(1). He now appeals the denial of his pre-

plea motion to suppress.

affirm

plea to

the

order

For the reasons discussed below, we

denying

the

motion

to

suppress

and

appellant's conviction.

I.

The following facts are

July

evening of

and James Freeman, members of the Anti-Gang Violence

were together

approximately 10:50

down

On the

10, 1994, Boston police officers Charles Byrne, Michael

Linsky,

Unit,

undisputed.

Blue Hill

in a

police

p.m., a

Avenue.

vehicle in

taxicab sped

The officers

Roxbury.

by them

pursued the

At

and went

cab and

activated their lights

it.

and siren once they had

The cab pulled over

3/4 of a

caught up to

near an intersection that was about

mile from the place

the police had first

seen it.

Officers Linsky and Freeman then approached the driver's side

of the

cab while officer

Byrne proceeded to its

right rear

passenger's

side. Appellant was the sole passenger seated in

the rear of

the cab.

Officer

Byrne saw appellant

turn and

look at the approaching officers.

When

window,

officer

he

heard

Byrne

arrived

appellant

Appellant appeared nervous.

at the

exclaim,

open

"What

passenger's

did

Byrne responded, "Who

-2-

do?"

said you

did anything?"

and shined

Byrne then observed a large

pocket.

Although he did

not even heard of him

that

the bulge

necessary

might

his flashlight

appellant.

bulge in appellant's right pants

not know appellant and

indeed had

before that day, officer Byrne thought

be

a gun

to check to preserve

opened the door

in at

of the cab, put

and

decided

that it

the officers' safety.

his hand on the

felt what he thought was a firearm.

was

Byrne

bulge, and

He announced this to his

colleagues and held

appellant's arms

while officer

Freeman

removed from appellant's pocket a fully loaded semi-automatic

handgun with one round in the chamber and seven rounds in the

clip.1
1

During the course

movements, save

Byrne

perhaps for

initially shined

arrested

and

of these events, appellant made no

charged

Ultimately, the state

his

with

turning his

light on

two

state

charges were

at

his

the transcript of

pretrial

detention

him.

officer

Appellant

firearm

dismissed and

was charged with violating 18 U.S.C.

Relying on

head when

was

offenses.2
2

appellant

922(g).

officer Byrne's testimony

hearing,

appellant

moved

to

suppress the gun and ammunition on the ground that the police

____________________

1The gun bore an

to

obliterated serial number and

be stolen.

The

record

does not

was later

suggest

that

appellant was the thief.

2The cab driver was given a verbal warning and sent on his
2
way.

-3-

lacked reasonable suspicion

the

government

entered a

filed

an

one-sentence

motion without

to stop and search him.3

opposition,

order that

the

denied

stating its reasons.

After

district

the

court

appellant's

Ten months

later, the

appellant entered a conditional guilty plea and was sentenced

to

30-months'

release.

He

imprisonment

and

now challenges

two

the

years

of

denial of

supervised

his motion

to

suppress.

II.

Ordinarily,

in

suppress, we scan

clear

error,

conclusions

the denial

of

the district court's findings

while

of

reviewing

law,

affording

plenary

motion to

of fact for

review

including determinations

of

to

its

probable

cause and reasonable suspicion.

States, 116
______

Young,
_____

S. Ct.

105 F.3d 1,

See, e.g., Ornelas v. United

1657, 1659-63

5 (1st Cir.

(1996); United States

1997).

Our

review here is

somewhat hampered because the district court's

appellant's

motion

to

suppress

gave

v.

order denying

no

reasons.

Nevertheless, an "order denying a motion to suppress is to be

upheld if any

reasonable view of the

United States
______________

v.

Lamela,
______

1991)(internal punctuation

942

F.2d

evidence supports it."

100,

and citations

102

(1st

omitted).

Cir.

As the

____________________

3The
3

motion

unspecified

to

suppress

also

sought

to

exclude

an

amount of marijuana which was found on appellant

after he was arrested.

Appellant has not been charged with a

criminal offense based on this conduct.

-4-

essential facts are undisputed and the district court's legal

conclusions

are subject

decide whether

to de
__

novo review,
____

the stop and search of

we may

simply

appellant were valid.

Cf. United States v. Sepulveda, 102 F.3d 1313, 1315 (1st Cir.
___ _____________
_________

1996)(undertaking

similar

inquiry

where

underpinnings

of

denial of motion to suppress were somewhat unclear).

A reviewing

court evaluating

investigative stop must

the

court must

perform a two-step inquiry.

determine

whether

justified at its inception.

whether the action

the

the reasonableness

the

police

of an

First,

action

was

Second, the court must determine

taken was reasonably related

circumstances which justified the intrusion.

in scope to

See, e.g.,
___ ____

United States v. Young, 105 F.3d 1, 6 (1st Cir. 1997); United

States
______

v.

Kimball,
_______

25

F.3d 1,

(1st

Cir.

1994).

In

assessing the reasonableness of a police officer's actions, a

court

"must consider the totality of the circumstances which

confronted

the officer

at

the time

of

the stop."

United
______

States v. Kimball, 25 F.3d at 6.

It is clear that the stop of the speeding cab was valid,

and

appellant does

United State
_____________

v.

not seriously

Moorefield,
__________

1997)(traffic stop

of traffic

contend

111

F.3d

otherwise.

10,

is lawful where police

regulations).4
4

This

12

(3d

See
___

Cir.

observe violation

case turns

on whether

the

____________________

4Although
4
stopped as a
he was

appellant

concedes

that

he

was

physically

result of the stop of the cab, he suggests that

not legally stopped

because he was only

-5-

a passenger

ensuing pat-down search of

Appellant argues that

appellant's person was justified.

the police were not

justified in

frisking him because they lacked a particularized

suspicion

directed

committed

the traffic violation

his

view,

an

at

him.

"accidental

Since

only

reasonable

the driver

and appellant was

guest"

of

the

cab,

had

only, in

appellant

maintains that the police had no reason to suspect him of any

crime.

Appellant further

asserts

that

where

he

made

no

movements, the

appellant's

suspicion

fact

pants

that

did

to conduct

Pennsylvania
____________

v.

not give

Mimms,
_____

government asserts that

travelling in

violation

believe

officer

that

the

the

saw

officer

bulge

in

a reasonable

frisk.

In contrast,

relying

434 U.S.

106,

111-12

(1977), the

a bulge in the clothing

of a person

a car that

provides

Byrne

is lawfully stopped for

sufficient grounds

person

is

armed

for

and

the

on

a traffic

officer to

dangerous,

thus

justifying a pat-down search.5

____________________

and was not a party to the driver's traffic violation.

"When

a police officer

effects an investigatory stop of a vehicle,

all occupants of
___

that vehicle are subjected to

defined by the Fourth Amendment."

5.

See also

a seizure as

United States v. Kimball,

United States v.

Robeson, 6

F.3d

___ ____

_____________

_______

1088, 1091 (5th Cir. 1993)("a

stop results in the seizure of

the passenger

alike").

and the driver

Thus,

appellant was

lawfully stopped even though he was only a passenger the cab.

5In
5

Pennsylvania v.
____________

Supreme Court
exit

Mimms,
_____

held that the

vehicle

434

U.S. at

11

police may order the

lawfully stopped

for

n. 6,

the

driver to

traffic violation

-6-

Under Terry v. Ohio, 392

U.S. 1, 27 (1968), whether the

pat-down search

"whether

in the belief

was in danger."

15 F.3d 197,

close

appellant was

justified depends

on

a reasonably prudent man in the circumstances would

be warranted

others

of the

that his safety

Accord
______

199 (1st Cir.

or that of

the

United States v. Villanueva,

1994).

Although

we think it

question, we conclude that officer Byrne was warranted

in his

that he

belief that

the officers' safety

was further

warranted in

was in

danger and

immediately performing

pat-down of appellant.

To be sure, all the

police knew was that: (1) appellant

was a passenger in a speeding cab who (2) had glanced back at

the

officers as they

approached, (3) appeared

asked, "What did I do?" and (5) had a bulge

nervous, (4)

in the pocket of

his pants.

and

was

Appellant made no

not

known

to

sudden or furtive

officer

Byrne

before

movements,

that

day.

Appellant contends that these observations do not support any

suspicion that he was engaged in criminal activity, let alone

crime

where

gun

might

be

present.

We

disagree.

____________________

without violating the

Fourth Amendment.

this rule to

117 S. Ct. 882, 886

passengers.

The

See
___

Court recently

Maryland v. Wilson,
________
______

(1997)("an officer making a traffic stop

may order passengers to get out of the car pending completion

the stop").

While Mimms also

the driver based

bulge,

Because other
need

passenger of a

solely on the police

Wilson
______

did

not

whether the

officer's observation

involve

circumstances were

not decide

upheld a pat-down frisk of

a pat-down

present in

observation

vehicle stopped for a

search.

this case,

of a

bulge on

we
a

traffic violation will

alone justify a pat-down of the passenger.

-7-

Appellant's

construed

nervousness

by

and

seasoned

consciousness of guilt.

The

question could

police

guns

on

the

officer

of

evincing

was surely a factor to be

others given the widespread

streets

as

be

bulge, even if alone not enough

to support a reasonable suspicion,

considered with the

reasonably

Boston.

See
___

presence of

United States
______________

v.

Villanueva, 15 F.3d at 199

carrying, particularly

(recognizing the plethora of

by the young).

might well have conducted a lesser

ordering

the appellant

whether he was

him

to

to exit

And while the officer

intrusion (e.g., by first

the cab,

carrying a gun), it was

simply proceed

with

gun

frisk

or by

asking him

not unreasonable for

where to

have

done

otherwise under the circumstances may have given appellant an

opportunity to use

F.3d 1, 7

lunged

the gun. Cf. United States

(1st Cir. 1997)(holding police

at gun of

armed robbery suspect

v. Young, 105
_____

officer reasonably

where lesser action

may have created risk of harm).6

Other courts have upheld pat-down searches of passengers

who

exhibited

similarly suspicious

behavior.

See,
___

e.g.,
____

United States v. Moorefield,

111 F.3d at

13-14 (collecting

cases); United States v. Hassan El, 5 F.3d 726, 731 (4th Cir.
_____________
_________

1993)(upholding

search in

through open car

which

officer

grabbed at

window and removed handgun);

bulge

United States
_____________

____________________

6The
6

fact

ammunition

that

chambered

the

gun

was

suggests

prepared to use the weapon.

-8-

found

that

with

appellant

round
was

of

quite

v.

Mitchell,
________

951

F.2d

1291,

1294-95

(D.C.

Cir.

1991)(upholding pat-down search of passenger who obeyed order

to

exit

car).

To

be sure,

in

each of

these

cases the

passengers appeared nervous and engaged in furtive

movements

which gave the police cause for suspicion.

such

movements here.

remain

instructive.

Nevertheless,

The

fact

that

Appellant made no

the foregoing

appellant

cases

made

no

movements toward the gun did not eliminate the suspicion that

he drew to himself with his question, particularly in view of

the

"inordinate risk of

during traffic

stops...."

danger to law

United

enforcement officers

States v. Baker,

78 F.3d

______________

125, 137

(4th

driver who

Cir.

1996)(upholding

was subject of

exhibited

bulge

appellant's

that

be

his

pocket,

we

made

by

his assumption

question), that he was the object

in

protective

lawful traffic stop

could

nervousness,

_____

think

the

search

of

where driver

weapon).

Given

(evidenced

by his

of the stop, and the bulge

frisk

was

justified.

Accordingly, the order denying appellant's motion to suppress

and the judgment of conviction are affirmed.

-9-