United States District Court, D. Massachusetts
Dwayne Leaston-Brown ("Leaston-Brown") is charged
in one count with being a felon in possession of a firearm
and ammunition in violation of 18 U.S.C. § 922(g)(1). He
has moved to suppress the firearm and ammunition that was
recovered during a police stop on September 8, 2018. After an
evidentiary hearing, at which Boston Police Officer Kimber
Taylor and Boston Police Detective Leslie Joseph-Greene
testified and the government offered several exhibits, I find
the following facts.
Findings of Fact
late afternoon of September 8, 2018, Officer Taylor
(hereafter "Taylor") was driving outbound on
Cummins Highway across from the American Food Basket
supermarket in the Mattapan Square area. He observed a
black male, later identified as defendant, Dwayne
Leaston-Brown (hereafter "Leaston-Brown" or
"defendant"), run up River Street, take a left on
Cummins Highway and continue running inbound towards him. As
he was running, Leaston-Brown kept his hand in his sweatshirt
pocket and looked back over his shoulder. He appeared to be
in fear. Taylor became concerned that defendant had
a gun in his pocket. As defendant ran past the entrance to
America's Food Basket, he knocked into a
pedestrian before turning right and bolting across
the supermarket parking lot towards Fairway Street. At this
point, Taylor shifted his car into reverse, made a u-turn and
followed the defendant onto Fairway Street. As he approached
Leaston-Brown, Taylor observed a silver item in his hand.
When he turned on his cruiser lights, he noticed
Leaston-Brown look back at the cruiser and put his hand back
in his pocket. Taylor pulled up next to him and called out
"Yo, can I talk to you?" While he was stopped next
to defendant, Taylor again noticed the silver object.
Leaston-Brown ignored Taylor's request to talk, and
instead continued running up Fairway Street, rounded the
corner and cut across Blue Hill Avenue, which was at that
time busy with stop-and-go traffic.
followed defendant in his cruiser, continuing straight on
Fairway and then turned left on Blue Hill Avenue. Defendant
crossed the Blue Hill Avenue median and tripped, bracing his
fall with his hand. At this point, Taylor stopped, got out of
his cruiser and commanded "Boston Police, stop
running!" Defendant continued to run, and reversed
course, back across Blue Hill Avenue toward
Santander Bank. Taylor gave chase and caught up to defendant
right outside the bank. As Taylor approached, defendant
tripped and fell again, at which point, according to his
testimony, Taylor saw, and heard, a firearm fall to the
ground. He then put his hands on defendant's back and
tried to drag him away from the loose firearm. Video footage
is inconclusive about the precise sequence of these events,
i.e., whether the gun dislodged before or after Taylor made
these events transpired, an off-duty Boston Police Detective,
Leslie Joseph-Greene (hereafter "Joseph-Greene"),
was in the area by happenstance, a passenger in a car stopped
at a traffic light on the outbound side of Blue Hill Avenue
outside Santander Bank. He observed defendant run around the
corner clutching his side, cross Blue Hill Avenue and trip
over the median, and saw Taylor's cruiser turn left on
Blue Hill Avenue and pull up beside defendant. Joseph-Greene
stated that he, too, believed that defendant may be carrying
a gun, and asked the driver to pull over after crossing
through the intersection. Craning his neck to watch,
Joseph-Greene explained that he saw defendant run back across
Blue Hill Avenue with Taylor in pursuit on foot. He observed
defendant stumble a second time and Taylor tackle him. At
this point, Joseph-Greene left his car and ran over to help
Taylor. As he approached, he saw a gun on the sidewalk next
to defendant's right side. After identifying himself to
Taylor, Joseph-Greene picked up the firearm, pointed it
downward, and secured it while Taylor subdued defendant.
Taylor did not obtain a warrant prior to his confrontation
with defendant, the government bears the burden of
establishing that its search and seizure falls within an
exception to the Fourth Amendment search warrant requirement.
E.g.. United States v. Vargas. 86
F.Supp.3d 38, 42 (D. Mass. 2015). Two such exceptions are
relevant here: the plain view and the stop and frisk
doctrines. "[T]he plain view doctrine permits the
warrantless seizure of an item if the officer is lawfully
present in a position from which the item is clearly visible,
there is probable cause to seize the item, and the officer
has a lawful right of access to the item itself."
United States v. Gamache. 792 F.3d 194, 199 (1st
Cir. 2015). Under the stop and frisk exception, outlined by
Terry v. Ohio. 392 U.S. 1 (1968), and its progeny,
an officer may conduct a brief investigatory stop without a
warrant so long as the officer knows "articulable facts
giving rise to a reasonable suspicion that a suspect may be
involved in criminal activity." Morelli v.
Webster. 552 F.3d 12, 19-20 (1st Cir. 2009).
A seizure occurs, and reasonable suspicion is required, only
if the officer applies physical force or the defendant
submits to the officer's assertion of authority.
California v. Hodari P.. 499 U.S. 621, 626 (1991).
Conclusions of Law
government argues the plain view doctrine dictates the result
here: before Taylor laid hands on him, Leaston-Brown tripped
of his own accord and the firearm fell to the ground in plain
sight. Thus, at the time the stop occurred, the firearm was
in plain view and its seizure was lawful.
stop did not occur until Taylor made physical contact with
Leaston-Brown. Though Taylor attempted to make a stop
earlier-by asking to speak with defendant and then directing
him to stop running-defendant did not heed Taylor's
requests, and thus did not submit to his authority, until
Taylor made physical contact outside Santander Bank. See
Hodari P.. 499 U.S. at 626 ("The word
'seizure'...does not remotely apply, however, to the
prospect of a policeman yelling 'Stop, in the name of the
law!' at a fleeing form that continues to flee.").
the evidence surrounding the ejection of the firearm is not
conclusive. Taylor did testify that he saw and heard the
firearm fall to the ground before he touched the defendant.
But the surveillance video admits of the opposite: the first
time the viewer can make out the gun, it is sitting right
next to Leaston-Brown while Taylor is on top of him. Because
the evidence permits the equally plausible conclusion that
Taylor displaced the firearm when he made physical contact
with the defendant, the plain view doctrine does not avail
even if Taylor caused the gun to fall out of
Leaston-Brown's pocket, reasonable suspicion had
developed well before that point such that the seizure was
within the bounds of the stop and frisk exception. In making
this assessment, "the critical inquiry is whether
reasonable suspicion arose under the totality of the
circumstances." United States v. Andrade. 551
F.3d 103, 110 (1st Cir. 2008). This inquiry
"requires a practical, commonsense determination"
that "entails a measurable degree of deference to the
perceptions of experienced law enforcement officers."
United States v. Ruidiaz. 529 F.3d 25, 29 (1st Cir.
2008). Here, the entirety of the evidence was more than
sufficient to generate a reasonable and articulable basis for
stopping Leaston-Brown. When Taylor first noticed defendant,
he was running up the street, looking over his shoulder and
clutching his side with a look of fear on his face. He kept
running, even when Taylor pulled up beside him and asked to
talk, and later implored him to stop running. He ran
erratically, crashing into a supermarket patron, darting
across stop-and-go traffic and tripping and falling more than
once. These facts and Taylor's further observation of a
silver object peeking out of defendant's pocket, fully
support his reasonable suspicion that defendant was
concealing a firearm.
First Circuit addressed a similar fact pattern in United
States v. Wright, 582 F.3d 199 (1st Cir.
2009). There the defendant, upon noticing an undercover
police car next to him, left his car and began to run down
the street while clutching his sweatshirt in the vicinity of
his waist. The police ordered him to stop running, but
defendant did not comply. Eventually they caught up with him,
patted him down, and recovered a pistol from his sweatshirt
pocket. The court affirmed the finding of reasonable
suspicion, holding that "each event recast each previous
event in a different light, such that, by the time ...