29TH ANNUAL METROPOLITAN
ENTOR
MOOT COURT COMPETITION
2013
Justice Resource Center
122 Amsterdam Avenue
New York, NY 10023
Fordham University School of Law
Moot Court Board
140 West 62nd Street
New York, NY 10023
RULES
and
PROBLEM
TWENTY-NINTH ANNUAL (2013)
NEW YORK METROPOLITAN MENTOR MOOT COURT COMPETITION
I.
INTRODUCTION
This packet contains all of the materials necessary to participate in the Twenty-Ninth
Annual New York Metropolitan MENTOR Moot Court Competition. Participants may not
utilize any materials not contained in this packet or referenced in Appendix I in preparing for and
presenting their arguments.
The MENTOR Program focuses on student advocates’ abilities to organize and present
their arguments persuasively. Judges will question advocates as they normally would in
appellate court proceedings. Participants should refrain from memorizing prepared texts. Rather,
they should focus on understanding the legal issues, structuring coherent arguments, effectively
responding to judges’ questions, thinking extemporaneously, and being persuasive. Some
participants may be called upon to advance unpopular positions with which they disagree. This
is often a characteristic of the legal process and should not diminish the student’s enthusiasm or
the quality of presentation.
This year’s imaginary lawsuit is entitled Tania Carcetti v. United States of America. The
issues are: (1) Whether an investigatory stop is valid when it is based on a tip from a retired
police officer stating only that the suspect is acting suspiciously; and (2) whether a court should
defer to a federal agent’s belief that the suspect was armed and dangerous and that the scope of
the Agent’s search was proper.
This packet contains the fictitious majority opinion of Judge Bell, and dissent opinion of
Judge Stanfield of the Court of Appeals for the Fourteenth Circuit. Set forth in the District
Court’s opinion is the Statement of Facts. In addition, this packet contains the Order granting the
Petition for a Writ of Certiorari to the United States Supreme Court, which includes the two
questions certified for review.
TWENTY-NINTH ANNUAL (2013)
NEW YORK METROPOLITAN MENTOR MOOT COURT COMPETITION
II.
RULES OF THE COMPETITION
Preliminary rounds are scheduled for Monday, November 18; Tuesday, November 19;
Wednesday, November 20; and Thursday, November 21.* Each participating school will
compete on one day of the preliminary rounds, which will be held at Fordham University School
of Law, 140 West 62nd Street, New York, NY 10023. All teams must register by 8:45 a.m. on
the morning of their round. Rounds will begin promptly at 9:15 a.m. Failure to register on time
may result in disqualification.
Upon completion of the preliminary rounds, the two top-scoring teams from each of the
first four days will advance to the quarterfinals. *The next ten overall top-scoring teams from all
the preliminary rounds will have another chance to try to advance during the “Wild Card” round
on Monday, November 25, 2013. During the Wild Card round, these ten teams will compete
again and the four top-scoring teams will advance to the quarterfinals.
The twelve quarterfinalist teams will compete in the quarterfinal rounds on Tuesday,
November 26, 2013. The four top-scoring teams will then advance to the semifinal rounds on
Monday, December 2, 2013. The two top-scoring teams will advance to the final round on
Thursday, December 5, 2013. Scores will not be disclosed during the competition, but will be
available for review after the competition ends. Schools will be notified of advancement by
telephone. Advancement results will be available at the end of each day after all rounds are
completed.
Competition conflicts must be submitted in writing by Friday, October 11, 2013. The
last day to withdraw from the competition is also Friday, October 11, 2013. Untimely
withdrawals may result in disqualification from the 2014 MENTOR Moot Court Competition.
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TWENTY-NINTH ANNUAL (2013)
NEW YORK METROPOLITAN MENTOR MOOT COURT COMPETITION
III.
TEAMS
Each school will field two teams, and each team will have four students. Team I will
represent Petitioner Tania Carcetti on both issues. Team II will represent Respondent United
States of America on both issues. Only two students from each team may participate in each
round of oral argument.
Whether the semifinalist teams will represent Petitioner or Respondent depends on the
teams’ scores and whether the teams have faced each other in a prior round. For the semifinal
round, each participating school may select any four representatives of the eight students from
their school who participated in the competition’s preliminary rounds. As in the preliminary
rounds, however, only two students can serve as oralists.
The two finalist schools will be announced after the semifinal rounds at the closing
luncheon to be held at Fordham Law School on December 2, 2013. The two finalist teams will
reach a mutual agreement as to which team will represent Petitioner and Respondent,
respectively. If no agreement can be reached, assignment of representation will be determined
by a coin toss.
IV.
PREPARATION
Teachers and attorneys from MENTOR law firms may coach the teams. Each teams will
determine practice round meetings. Visits to the appellate courts to observe the nature of
appellate oral advocacy are also encouraged.
Teams may not utilize any legal precedent or research aids not listed in Appendix I.
Moreover, participating attorneys may not use any outside materials in coaching student
advocates. The facts contained in the record are inclusive; students may not invent facts or
present data that conflict with these materials. However, in drawing inferences about the
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TWENTY-NINTH ANNUAL (2013)
NEW YORK METROPOLITAN MENTOR MOOT COURT COMPETITION
strength of given arguments, students may draw upon personal knowledge, such as general
knowledge about crime and crime prevention.
Teams may photocopy the cases and statutes cited in the fictitious opinions. If a team has
trouble accessing the cases, please contact the Fordham Moot Court office at (212) 636-6882 or
at mentormc@law.fordham.edu for assistance. The list of cases and statutes used in the two
opinions are set forth in the Appendix.
V.
FORMAT OF THE COMPETITION
The order of arguments at each round will be as follows: (1) counsel for the Petitioner on
the Investigatory Stop issue (“Issue I”); (2) counsel for the Petitioner on the Protective Pat-Down
issue (“Issue II”); (3) counsel for the Respondent on Issue I; and (4) counsel for the Respondent
on Issue II. Each student advocate will have ten minutes to argue his or her client’s position.
Time periods will be strictly enforced. No rebuttal time will be permitted.
During the competition, only two team members may argue for each side—i.e. one
student advocate per issue. All four team members may, however, be seated at the counsel table
in the courtroom. Students may not pass notes once the oral arguments begin.
All teams, coaches, teachers, and guests are invited to attend their school’s rounds.
Unfortunately, some rooms may not be large enough to accommodate all spectators. Therefore,
we will contact each school to determine the number of spectators expected to attend the
competition. If we are unable to accommodate your school’s request, the teacher-coach will be
informed as such, and the number of spectators will be limited. While MENTOR attorneys
and teachers may be present during oral arguments, they may not coach the students while
the round is in progress. Additionally, all persons affiliated with a school participating in the
competition are prohibited from previewing the arguments of other participants.
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TWENTY-NINTH ANNUAL (2013)
NEW YORK METROPOLITAN MENTOR MOOT COURT COMPETITION
VI.
SCORING
All rounds will be scored by a panel of judges. No attorney may judge his or her
MENTOR high school in any round. Judges will evaluate students on the following criteria: (1)
overall persuasiveness; (2) ability to respond effectively to questions; (3) knowledge of the case
law; (4) clarity of arguments; and (5) poise and appearance. Scoring in each category will range
from one to ten, with ten being the highest score. After both teams have presented their
arguments, the bench will give comments to the individual oralists. The bench will not announce
a ruling on the merits of the case nor will the bench reveal the specific scores of the teams. The
bench may, however, provide group or individual feedback to the oralists as time permits.
VII.
AWARDS
All team members will receive a “Certificate of Participation.” The finalists will receive
a gift commemorating their participation in the competition. The name of the overall winner will
be engraved on the MENTOR trophy.
VIII. CONTACT INFORMATION
Please address all inquiries regarding the New York Metropolitan MENTOR
Moot Court Competition to:
Daniel H. Lewkowicz
MENTOR Editor
Fordham University School of Law
Moot Court Board, Room 305
140 West 62nd Street
New York, New York 10023
Phone: (212) 636-6882
Fax: (212) 636-7934
Email: mentormc@law.fordham.edu
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FREQUENTLY USED TERMS AND ABBREVIATIONS
Southeast Fordham City (“Southeast”)
Northeast Fordham City (“Northeast”)
Fordham City Police Department (“FCPD”)
Wire Housing Development (the “Wire”)
vi
United States Court of Appeals
for the Fourteenth Circuit
________________
Argued July 6, 2013
Decided August, 16, 2013
No. 10-0620
TANIA CARCETTI,
Appellant,
v.
UNITED STATES OF AMERICA,
Appellee.
________________
On Appeal from the U.S. District Court for the
Southern District of Fordham
________________
Before the Fourteenth Circuit, sitting en banc.
Opinion for the Court by Chief Judge BELL;
Dissent by Circuit Judge STANFIELD
BELL, Chief Judge:
Petitioner Tania Carcetti appeals, pursuant to 27 U.S.C. § 1291, her conviction for
possession of crack cocaine under 21 U.S.C § 844 and possession with intent to sell crack
cocaine under 21 U.S.C § 841.
On an appeal of a district court’s denial of a motion to suppress, an appellate court
reviews the district court’s factual findings for clear error and its conclusions of law de novo.
United States v. Charles, 469 F.3d 402, 405 (5th Cir. 2006).
I.
FACTUAL BACKGROUND
Southeast Fordham City (“Southeast”), a neighborhood in Fordham City, Fordham, is
plagued by widespread poverty. In recent years, the neighborhood has seen a dramatic increase
in the number of all-female gangs. According to Fordham City Police Department (“FCPD”)
crime statistics for Southeast, the number of Petit Larcenies has increased by 56%; Grand Theft
Auto by 35%; drug trafficking by 33%; and burglaries by nearly 23%. While the increased
crime activity has remained generally nonviolent, theft of private property has skyrocketed.
Northeast Fordham City (“Northeast”) is a wealthy neighborhood bordering Southeast.
Northeast has not experienced any major increase in crime, although there have been four home
burglaries in the last year and a half. FCPD believes the burglaries might be related to the
dramatic increase in the number of female gangs in Southeast. Northeast residents, fearing that
the crime from Southeast may spill into their neighborhood, have held several community
meetings to discuss Southeast’s rising crime rate. In response to Southeast’s crime rate, residents
of Northeast have decided to hire private security firms to patrol their neighborhood.
Additionally, FCPD has partnered with the Federal Bureau of Investigation (“FBI”) to combat
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the increase in female gang activity and more effectively monitor and prosecute interstate gang
cartels.
Bunk Moreland (“Moreland”) was hired by the residents of the Wire Housing
Development (the “Wire”), located in Northeast, to serve as the head of neighborhood safety and
to patrol the streets. The residents chose Moreland because he is a retired FCPD Lieutenant, who
served for over 15 years as a commanding officer in the FCPD’s Community Affairs Bureau,
Crime Prevention Division.1 Moreland worked his way up the ranks of the Crime Prevention
Division and was repeatedly acknowledged for his outstanding work as a police security liaison
to private venues and civic/government groups throughout Fordham City.
On October 1, 2013, at approximately 11:00 AM, FBI Agent Jimmy McNulty (“Agent
McNulty”) responded to a personal request for assistance from Moreland. Moreland reported
observing a young woman, later identified as Tania Carcetti (“Carcetti”), engaging in suspicious
behavior as she walked around the Wire. Moreland initiated his surveillance of Carcetti after a
local resident called Moreland’s personal cell phone and stated, “Hey, we got another one, keep
an eye on her.”
On the day in question, Moreland observed Carcetti for over 30 minutes as she walked
around the Wire. Carcetti was wearing a bulky black hooded sweatshirt, black jeans, and red
Converse sneakers. Although Carcetti’s hood was up, Moreland could see that her hair was
blond. According to Moreland’s testimony, Carcetti appeared nervous while walking around the
neighborhood; continuously looked around in an anxious manner; looked into backyards; and
1
The Crime Prevention Division is a sub-unit of the Community Affairs Bureau and provides crime deterrent
services and programs to the citizens and businesses within Fordham City. Services such as informative lectures,
crime reduction programs, and outreach initiatives assist in the suppression of crime and minimize the fear and
negative perception associated with crime by creating a working partnership between the police and the community.
Officers attend various crime strategy meetings and assist commanding officers with developing crime prevention
strategies at the precinct level.
3
evaded pedestrians. Based on his past police experience, Moreland understood this behavior to
be the telltale signs of an individual preparing to burglarize a home. Acting upon this belief,
Moreland began to approach Carcetti. Carcetti immediately noticed Moreland and began
walking away. Moreland saw a rectangular bulge near Carcetti’s midriff and called out for
Carcetti to stop. Instead, Carcetti quickened her pace and made a right turn onto Hamsterdam
Avenue, the main thoroughfare separating Northeast from Southeast.
Having lost sight of Carcetti, who had officially left the Wire, Moreland called his former
colleague and partner in the FBI, Agent McNulty, for assistance. According to Agent McNulty,
Moreland said: “Hey buddy, I got this suspicious looking girl walking through my neighborhood,
she made a right turn on Hamsterdam Avenue. Check her out. She’s wearing a black hooded
sweatshirt, black jeans, red converse sneakers, and has blond hair.” Moreland did not say that he
actually witnessed Carcetti engaging in illegal activity, only that her behavior appeared
suspicious. Relying on this information, Agent McNulty began searching for Carcetti.
Agent McNulty spotted a girl several blocks away who fit Moreland’s description and
surveilled her from his unmarked police car as she walked down Hamsterdam Avenue, away
from the Wire. Agent McNulty decided to stop Carcetti after watching her walk down
Hamsterdam Avenue for several minutes.
As Carcetti neared the vehicle, Agent McNulty jumped out and yelled for Carcetti to stop.
Carcetti’s posture immediately stiffened, she threw her hands up in the air, and simultaneously
began walking backwards. According to Agent McNulty, Carcetti’s hood had fallen down and
Agent McNulty could clearly see Carcetti’s blond hair as well as several tattoos. Agent McNulty
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testified that Carcetti fit many of the characteristics for FCPD’s gang member profile: a) female,
b) wearing a large hooded sweatshirt,2 c) tattoos, and d) converse sneakers.
Agent McNulty made note of two tattoos, one on either side of Carcetti’s neck, that he
believed further indicated possible gang affiliation. The first tattoo had the letters “R.G.,” which
Agent McNulty believed indicated that Carcetti was affiliated with one of the most notorious girl
gangs in Southeast, the Ratchet Girl Gang Squad (“RGGS”). Members of RGGS often refer to
themselves as “Ratchet Girls.” The second tattoo was a depiction of a dead pig with “Xs” for
eyes and what Agent McNulty assumed were bleeding bullet holes in the pig’s body. Based on
his experience, Agent McNulty knew that gang members often use the word “Pig” when
referring to law enforcement. Additionally, because of Agent McNulty’s gang training, he knew
that RGGS was the largest and most aggressive of Fordham City’s female gangs. Though no
member of RGGS has ever been arrested for possession of a weapon, the gang has a reputation
for starting fistfights and street brawls with other girl gangs.
After seeing Carcetti’s posture and exposed tattoos, Agent McNulty quickly closed the
gap and proceeded to frisk Carcetti. He went directly for the front pocket of Carcetti’s hooded
sweatshirt. Feeling the contours of a square box measuring approximately six inches by six
inches, Agent McNulty removed the box, opened it, and discovered a pound of crack cocaine.
Agent McNulty arrested Carcetti for possession of crack cocaine with intent to distribute.
At her indictment, Tania Carcetti was charged with possession of crack cocaine under 21
U.S.C. § 844 and possession with intent to sell crack cocaine under 21 U.S.C. § 841.
2
FCPD’s gang profile identifies hooded sweatshirts as the preferred attire for female gang members.
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II.
PROCEDURAL BACKGROUND
Prior to trial, Tania Carcetti challenged her stop as an illegal violation of her Fourth
Amendment rights and moved to suppress the evidence retrieved during her frisk.
The government argued that Agent McNulty conducted a valid Terry stop under Terry v.
Ohio, 392 U.S. 1, 21-22 (1968). Agent McNulty testified that he responded to a request for
assistance from an experienced retired police officer who had observed a young girl, fitting
Tania Carcetti’s description, engaging in suspicious behavior in a residential community
bordering a high crime area. Agent McNulty did not stop Tania Carcetti immediately, but rather
waited to make sure she matched Moreland’s description.
The government further argued that the large quantity of crack cocaine discovered on
Tania Carcetti’s person was admissible pursuant to a valid Terry frisk. Agent McNulty testified
that his decision to frisk Tania Carcetti was based on several factors: (1) potential affiliation with
a violent gang; (2) tattoos indicating Tania Carcetti’s animus towards law enforcement; and (3)
Carcetti’s retreating movement.
District Judge Barksdale denied Carcetti’s motion to suppress, ruling that both the Terry
stop and frisk were valid. At trial, the evidence from the Terry frisk was admitted and Carcetti
was convicted of possession of crack cocaine under 21 U.S.C. § 844 and possession with intent
to sell crack cocaine under 21 U.S.C. § 841. She was sentenced to 10 years in federal prison.
Carcetti appeals to this Court on the grounds that the district court erred in denying her
motion to suppress.
III.
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INVESTIGATORY STOPS
The Court must first address whether Agent McNulty initiated a legal investigatory stop.
For the reasons set forth below, we hold that the district court was correct in finding that Agent
McNulty initiated a valid investigatory stop.
A.
BACKGROUND
The Fourth Amendment guarantees the right of all individuals to be secure in their
“persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const.
amend. IV.
Typically, a search requires a judicially sanctioned warrant that is supported by probable
cause. Mincey v. Arizona, 437 U.S. 385, 390 (1978). A warrantless search and seizure is
presumptively unreasonable unless the circumstances of the search bring it within one of the
“established and well-delineated exceptions” to the warrant requirement of the Fourth
Amendment. Katz v. United States, 389 U.S. 347, 357 (1967). One such example is a Terry
stop, a limited investigatory stop based on a reasonable suspicion that criminality is afoot. See
Terry, 392 U.S. at 22.
In Terry, a police officer initiated an investigatory stop and protective pat down search of
three suspects that he observed casing a department store for an extended period of time. Id. at 57. The Supreme Court “recognized that police officers may in appropriate circumstances and in
an appropriate manner approach a person for purposes of investigating possibly criminal
behavior even though there is no probable cause to make an arrest.” Id. at 22. The Court
acknowledged that if the facts known to the officer at the time rise to the level of a reasonable
suspicion, the officer is justified in briefly stopping a suspicious individual “to determine his
7
identity or to maintain the status quo momentarily while obtaining more information.” Adams v.
Williams, 407 U.S. 143, 146 (1972) (citing Terry, 392 U.S. at 21-22.). While reasonable
suspicion is a less demanding standard than probable cause, the Fourth Amendment requires that
an officer have a minimal level of objective justification for making the stop. See United States
v. Sokolow, 490 U.S. 1, 7 (1989). The officer must be able to articulate more than an “inchoate
and unparticularized suspicion or ‘hunch’” of criminal activity. Terry, 392 U.S. at 27.
Courts look at the totality of the circumstances to determine whether the detaining
officers had an objective basis for stopping a particular person suspected of criminal activity.
United States v. Arvizu, 543 U.S. 266, 273 (2002). Certain factors used to determine whether
the Terry stop was supported by a reasonable suspicion include, but are not limited to: (1)
whether the suspect engaged in evasive behavior or acted nervously; (2) the nature of the offense
and its inherent threat to public safety; (3) an officer’s experience and specialized knowledge;
and (4) an officer’s knowledge of a suspect’s reputation. Id. at 273-77. Further, the Court
evaluates reasonable suspicion from the viewpoint of a reasonably well-trained officer, and gives
due weight to an officer’s experience in inferring criminal activity from conduct that may seem
innocent to lay observers. Id. Although certain facts in isolation may seem innocent, together
these facts may amount to reasonable suspicion. Sokolow, 490 U.S. at 9-10.
Additionally, courts balance two competing dynamics when determining if officers had a
“reasonable suspicion” to detain or search a person. On the one hand, courts consider the nature
and extent of the governmental interest—effective crime detection and prevention and the safety
of law enforcement and the public. Courts balance this against the nature and quality of the
intrusion on an individual’s rights. Terry, 392 U.S. at 20. Because a Terry stop does not require
probable cause, the court must examine whether the police diligently pursued a means of
8
investigation that was likely to confirm or dispel their suspicions quickly. United States v.
Sharpe, 470 U.S. 675, 686 (1985).
While the officer in Terry based his reasonable suspicion on facts that he directly
observed, the Supreme Court has expanded the scope of facts justifying an investigatory stop to
those provided in whole or in part by a police informant.
In Adams v. Williams, a known informant told a police officer patrolling a high crime
area that an individual seated in a nearby car was carrying narcotics and had a gun at his waist.
407 U.S. at 144-45. Based on this information, the officer approached the individual, tapped on
the car window and asked the suspect to open the car door. Id. The suspect rolled down the
window instead. Id. Immediately, the officer reached into the car and removed from the
suspect’s waistband a loaded revolver that was not visible from the outside of the car. Id.
Because the officer personally knew the informant, who had previously provided tips, the Court
held that the officer was justified in relying on the tip. Id. at 146. Additionally, the Court noted
that the officer could immediately verify the tip. Id.
In Alabama v. White, an anonymous caller informed the police that a person, possessing
approximately one ounce of cocaine in a brown attaché case, would be leaving an apartment
complex at a specific time. 496 U.S. 325, 306-07 (1990). The anonymous informant specified
the suspect’s destination, described the suspect’s vehicle, and gave a specific time for the
suspect’s departure. Id. Reversing the lower court’s decision to suppress the evidence, the
Supreme Court held that when significant aspects of an anonymous informant’s predictions are
verified, there is reason to believe that the informant was honest and well-informed. Id. at 330.
The White Court emphasized the need to perform a totality of the circumstances analysis when
considering the value of an anonymous informant’s tip. Following the holding of Illinois v.
9
Gates, the Court stressed two factors: (1) the reliability of the informant, and (2) the quantity and
quality of the information provided by the informant. White, 496 U.S. at 330-31 (citing Gates,
462 U.S. 213 (1983)).
Today we find ourselves at the nexus of Adams and White and must determine whether a
tip solely referencing suspicious behavior can amount to a reasonable suspicion when the tip is
produced by a highly reliable informant. We affirm and hold that it does.
B.
DISCUSSION
In light of this precedent, this Court finds several factors relevant to our holding that
Agent McNulty conducted a valid Terry stop: (1) Moreland was a known informant; (2)
Moreland had extensive experience as a former police officer; (3) Tania Carcetti fit the profile
for a local gang member; and (4) Agent McNulty knew that crime in an adjoining neighborhood
was largely a result of the local female gangs.
1.
KNOWN INFORMANTS
A tip from a known informant is reliable and requires minimal corroborating information
to provide an officer with reasonable suspicion for an investigatory stop. The more credible an
informant is, the less corroborating information the officer needs to justify a subsequent
investigatory stop. See White, 496 U.S. at 330-31. Here, Moreland was a known informant and
had personally worked with Agent McNulty in the past. (R. at 4). Moreland called Agent
McNulty directly and his description of Carcetti was immediately verifiable. Id.
Other circuit courts have similarly held that a known informant’s tip of suspicious
behavior is enough to provide an officer with reasonable suspicion for initiating an investigatory
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stop. In United States v. Hendricks, the Seventh Circuit held an officer’s investigatory stop valid
when it was based on a known informant’s tip of “suspicious activity.” 319 F.3d 993, 996 (7th
Cir. 2003). The informant provided law enforcement with her name and occupation, making her
identity verifiable, and clearly established her reasons for closely observing the suspect. Id. at
1003. The Hendricks court distinguished its decision from its prior ruling in United States v.
Packer, 15 F.3d 654 (7th Cir. 1994), where an anonymous tip from a local citizen was held
insufficient. Here, Agent McNulty not only knew Moreland, but Agent McNulty also knew that
Moreland was a security guard, tasked with preventing crime in the Wire. (R. at 3-4).
Accordingly, Moreland’s status as a known informant ensures that his tip is sufficiently reliable
for Agent McNulty to have a reasonable suspicion that criminality was afoot.
2.
OBSERVATIONS BASED ON FORMER EXPERIENCE
Moreland’s assertions of “suspicious behavior,” although seemingly conclusory, should
be afforded greater weight due to his lifetime career as a police officer. A limited stop is
presumed reasonable if the officer observes behavior that, based on the officer’s experience,
indicates potential criminal activity. Terry, 392 U.S. at 30; see also United States v. Briggman,
931 F.2d 705, 709 (11th Cir. 1991) (giving weight to highly experienced officer’s observations).
Although Moreland is a retired officer, he is still qualified under the Briggman court’s standard.
Moreland served for over 15 years as a Lieutenant in the FCPD’s Community Affairs Bureau,
Crime Prevention Division and was a highly decorated officer. (R. at 3). Moreland also provided
crime deterrent services to local business and civic organizations. (R. at 3 FN 1). Moreland’s
experience as a former police officer means his claims are likely to be based on credible
observation. This greatly increases the reliability of his conclusory statements.
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Additionally, because Moreland was the Wire’s security guard, Agent McNulty has
greater reason to rely on Moreland’s tip. In United States v. Robinson, an officer’s Terry stop
and frisk was valid where a nightclub’s security guard had informed the officers that a man was
carrying a gun. The Eighth Circuit held that:
“[g]iven a security guard’s position and responsibility to his employer, the risk
that he will pursue a private agenda or embarrass an honest patron is smaller than
when a previously unknown citizen provides a tip. And especially in a situation
where police officers work directly with private security guards to keep a location
secure, the police have reasonable grounds to believe a guard.”
670 F.3d 874, 876-77 (8th Cir. 2012). Here, Moreland was hired as a security guard by the
residents of the Wire to thwart and deter criminal activity. (R. at 3). If Moreland’s retired police
status, on its own, does not provide Agent McNulty with a reasonable suspicion to initiate a
Terry stop, then at the very least Moreland’s current role as a security guard should provide
additional weight to his assertions that Carcetti was acting “suspiciously.”
3.
LOCALIZED CRIME
While the factors discussed above should be enough for any court to find a reasonable
suspicion for a Terry stop here, it was McNulty’s knowledge of criminal activity in neighboring
Southeast which was the proverbial straw that broke the camel’s back. Among the relevant
considerations in a Terry analysis is whether the stop occurred in a “high crime area.” Illinois v.
Wardlow, 528 U.S. 119, 124 (2000) (citing Adams, 407 U.S. at 144); see also Hendricks, 319
F.3d at 1003 (stating that the officer’s knowledge of the general level of the neighborhood’s
crime rate was a significant factor in the Court’s Terry analysis). Here, Agent McNulty was part
of a police force tasked with combating the increase in local female gang-related crime in
Fordham City. (R. at 2-3). Agent McNulty’s knowledge of gang-related burglaries and
12
vandalism directly informed his belief that an investigatory stop was warranted. (R. at 2, 4-5).
Additionally, the close proximity of Southeast and Northeast justifies an inference that Southeast
female gangs may be extending their activity into nearby Northeast. (R. at 2). The regional
crime rate contributes to the totality of the circumstances that give Agent McNulty a reasonable
suspicion to initiate a Terry stop.
IV.
PROTECTIVE FRISKS
Having found that the Terry stop was permissible, we must now address whether the
contraband found on Carcetti’s person was lawfully seized by Agent McNulty pursuant to a
protective pat down search known as a Terry frisk. For the reasons set forth below, we hold that
the district court was correct in permitting the evidence from this search to be admitted.
A.
BACKGROUND
In Terry, the Supreme Court first addressed the need for officers to conduct a limited
search of a person in public absent an arrest or warrant if they believe that the individual is
harboring a weapon. 392 U.S. at 24-25. The Court stated that, because police conduct is
“necessarily swift action predicated upon the on-the-spot observations of the officer,” it would be
impractical and dangerous to require officers to obtain a warrant before performing a limited
search in the furtherance of public safety. Id. at 20. As with the Terry stop, the Court established
“reasonable suspicion” as the objective standard needed to conduct a limited warrantless search
in public. Id. at 22. The Terry Court clearly established that a frisk must be “limited to the
discovery of weapons which might be used to assault [the officer].” Id. at 25-26, 30.
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In Minnesota v. Dickerson, the Supreme Court held the continued frisk of a suspect
invalid once the officer had determined that the suspect had no weapons. 508 U.S. 366, 388
(1993). Nevertheless, the Court held that “if a police officer lawfully pats down a suspect’s outer
clothing and feels an object whose contour or mass makes its identity immediately apparent . . .
as contraband, its warrantless seizure would be justified. . . .” Id. at 375-76.
B.
DISCUSSION
In analyzing whether Agent McNulty’s seizure of contraband during a protective pat
down search was valid, this Court must determine (1) whether Agent McNulty was justified in
his belief that Carcetti had a weapon that posed a threat to either his safety or the public’s, and
(2) whether the scope of Agent McNulty’s protective pat down was permissible. Adams, 407
U.S. at 146. Based on the factors discussed below, this Court finds that the decision to frisk and
its scope were valid.
1.
REASONABLE BELIEF THAT SUSPECT WAS HARBORING A WEAPON
i.
Gang Affiliation & Menacing Tattoos
Agent McNulty’s identification of Carcetti’s gender, tattoos, and attire as indicia of gang
affiliation and a predisposition towards violence are factors that can give an officer reason to
believe that a suspect might be armed and dangerous. United States v. Santio, 2007 WL
4270537, *4 (D. Utah 2007) (citing United States v. Jeter, 175 Fed. App’x 261, 265 (10th Cir.
2006). In United States v. Feliciano, Judge Posner, writing for the majority, stated that:
“[k]nowledge of gang association and recent criminal conduct, while of doubtful evidentiary
value in view of the strictures against proving guilt by association or by a predisposition based
14
on past criminal acts, is a permissible component of the articulable suspicion required for” a
frisk. 45 F.3d 1070, 1074 (7th Cir. 1995); see also United States v. Santio, 351 Fed. App’x. 324,
329 (10th Cir. 2009) (“Although gang affiliation or prior criminal conduct cannot, standing
alone, create a reasonable suspicion to support a search or seizure, under certain circumstances, it
may be an appropriate factor in determining if reasonable suspicion exists for a detention or
search.”). Based on Agent McNulty’s training, he identified what he believed to be two gang
related tattoos. The first spelled out the initials of a notorious Fordham City girl gang and the
second depicted a dead pig with bleeding bullet holes in its body. (R. at 5). Gang members often
use the word “Pig” when referring to law enforcement. Id. McNulty also knew that female gangs
in Southeast were largely responsible for the spike in crime. (R. at 2). The dissent’s contention
that Carcetti was not suspicious and that a girl’s decision to wear a hooded sweatshirt would be
tantamount to knowingly forfeiting Fourth Amendment protections reaches “new heights of
hyperbole.” (R. at 23); see also Feliciano, 45 F.3d at 1073. Accordingly, this Court holds that
Agent McNulty’s observations most certainly and justifiably heightened his suspicions that
Carcetti may be armed and dangerous.
ii.
Baggy Clothes Possibly Concealing a Weapon
Carcetti’s baggy clothes had the potential to conceal dangerous weapons that could be
used against Agent McNulty during the investigatory stop. Both the Ninth and Tenth Circuits
have noted that baggy clothing can effectively hide weapons such as guns and knives. See United
States v. Maiden, 1992 WL 72902, at *1 (9th Cir. 1992); Santio, 2007 WL 4270537 at *4.
Carcetti’s baggy hooded sweatshirt was in fact large enough to hide a 6” by 6” box within it. (R.
at 5). Therefore, Agent McNulty was correct to view Carcetti’s baggy clothes suspiciously and
take precaution by searching the sweatshirt for potentially dangerous weapons.
15
iii.
Retreating Movement
Carcetti’s retreating steps only added to Agent McNulty’s reasons for believing that
Carcetti might be armed and dangerous. A suspect nervously backing away when approached by
a police officer is a fact that officers may legitimately rely upon in justifying their actions.
United States v. Rideau, 969 F.2d 1572, 1575 (5th Cir. 1992). When Agent McNulty initiated
the investigatory stop, Carcetti’s posture stiffened, indicating nervousness, and she began
walking backwards, away from Agent McNulty. (R. at 4). Agent McNulty closed the gap,
denying Carcetti a chance to possibly draw a weapon in response. (R. at 5). Carcetti’s nervous
steps backward would lead a reasonable officer in Agent McNulty’s position to believe that
Carcetti was armed and dangerous.
2.
SCOPE OF PROTECTIVE PAT-DOWN
Agent McNulty’s search of the box found in Carcetti’s hooded sweatshirt was valid and
did not exceed the scope permitted by a Terry frisk because Agent McNulty was unsure whether
the box contained a weapon. In United States v. Mattarolo, the Ninth Circuit held that the
cautionary squeeze of an unidentified object in the defendant’s pocket was valid because the
officer was uncertain if the unidentified object was a weapon. 209 F.3d 1153, 1158 (9th Cir.
2000). The Ninth Circuit stated that “had the officer continued to manipulate the object beyond
what was necessary to ascertain that it posed no threat, he would have run afoul of the Supreme
Court’s holding in Dickerson.” Id. Here, Agent McNulty found a large box that could contain
any number of weapons, including a loaded handgun. (R. at 5). Since Agent McNulty was alone
and could not have been expected to remove the box completely from Carcetti’s reach, it was
imperative that Agent McNulty ascertain whether the box, and its contents, posed a threat. (R at
16
5). Following, the logic of the Mattarolo court, we are inclined to view the further manipulation
of an item found on a suspect invalid only when an officer has already determined that the item
poses no threat. Accordingly, the petitioner’s conviction is AFFIRMED.
SO ORDERED.
STANFIELD, Circuit Judge, dissenting:
I strongly disagree with every determination the Court has made today and I am deeply
troubled that this Court has taken a giant leap towards eviscerating the basic protections afforded
by the Fourth Amendment. In Terry v. Ohio, the Supreme Court expressly stated that: “No right
is held more sacred, or is more carefully guarded, by the common law, than the right of every
individual to the possession and control of his own person, free from all restraint or interference
of others, unless by clear and unquestionable authority of law.” 392 U.S. 1, 9 (1968). An
unwarranted government intrusion “may inflict great indignity and arouse strong resentment.”
Today, the Majority’s holding prevents the Fourth Amendment from performing its core
function. Moreover, the Majority’s ruling will undoubtedly engender further unreasonable
government intrusions as well as societal animosity toward police officers. It is this resentment
and great indignity, created by unwarranted government intrusion, that the Fourth Amendment
seeks to prevent, and what this Court’s determination will surely yield with greater frequency.
In Terry, the Court held that “an officer may, consistent with the Fourth Amendment,
conduct a brief, investigatory stop when the officer has a reasonable, articulable suspicion that
criminal activity is afoot. Illinois v. Wardlow, 528 U.S. 119, 123 (2000) (citing Terry, supra, at
30.). The Supreme Court specified that an “officer must be able to articulate more than ‘inchoate
and unparticularized suspicion or hunch of criminal activity.’” Wardlow, 528 U.S. at 124.
Unfortunately today, this Court is permitting an officer to do just that.
17
A.
INVESTIGATORY STOP
This Court relied on two factors to find that Agent McNulty had a reasonable suspicion to
initiate a Terry stop of Carcetti: (1) a known informant’s statements that Carcetti was a
“suspicious looking girl walking through” the Wire, and (2) regional crime.
1.
INFORMANT
It is outrageous for this Court to permit Agent McNulty to rely on Moreland’s conclusory
assertions that Carcetti appeared “suspicious” as the basis for establishing a reasonable suspicion
for a Terry stop. Under the reasonable suspicion test, a court looks to the type and reliability of
information the officer possessed prior to initiating a stop. Alabama v. White, 496 U.S. 325, 330
(1990). The less reliable a tip is, the more investigatory work the officer must do “to establish
the requisite quantum of suspicion.” Id. Here, while the known informant is undoubtedly
reliable, his “tip” includes virtually no information regarding his reasons for viewing Carcetti
suspiciously. (R. at 4). Aside from verifying Carcetti’s gender and attire, the informant’s “tip”
specifies (1) no suspected or observed crime, (2) none of the informant’s observations, and (3)
no reasoning for his conclusory assertions. Id. After receiving the “tip,” Agent McNulty is left
with Carcetti’s description, but nothing more.
The Majority relies on the Supreme Court’s ruling in Adams v. Williams, 407 U.S. 143
(1973), to justify using a tip from a known informant as the basis for establishing reasonable
suspicion without significant corroborating observations from the police officer. In Adams, a
known informant told officers that a person located in a nearby car had drugs and a gun at his
waist. 407 U.S. at 145. After the suspect failed to open the door pursuant to the officer’s request,
18
the officer reached through the vehicle’s open window and removed a loaded revolver, which
was not visible from the outside of the car, from the suspect’s waistband. Id. The Court held that
the officer had a reasonable suspicion because the known informant “came forward personally to
give information that was immediately verifiable at the scene.” Id. at 146. While this case would
appear to be helpful in supporting the Majority’s ruling today, the Court unfortunately glosses
over several relevant facts.
First, in Adams, the officer was responding to a tip given at approximately 2:15 A.M. in
which the suspect was in a car. Here, Agent McNulty responded to a tip at 11:00 A.M. on a
public sidewalk, in broad daylight. These incidents are so factually dissimilar that the
comparison carries minimal weight.
Second and more importantly, in Adams, the informant clearly stated that the suspect
possessed narcotics and a gun, clearly indicating illegal activity. Moreland, however, merely
said he saw a “suspicious looking girl.” (R. at 4). The Adams Court stated that its holding was
limited to analogous instances where “a credible informant warns of a specific impending
crime.” 407 U.S. at 147. To view the Adams Court’s holding otherwise would be to permit
officers to base their investigatory stops on nothing more than the hunch of known informants.
For similar reasons, today’s Majority erroneously finds support in the decision of the
Seventh Circuit in United States v. Hendricks, 319 F.3d 993 (7th Cir. 2003). In Hendricks,
although the tip merely identified “suspicious activity,” it nonetheless sufficiently established
reasonable suspicion for a Terry stop. Id. at 1002. The court justified the officer’s reasonable
suspicion because: (1) the officers knew the informant’s name, occupation, and how the
informant came to observe the suspicious vehicle; (2) the vehicle was parked in a commercial
area for a long period of time and at a late hour when the business was closed; (3) the close
19
proximity of the police station permitted the officer to verify the tip; and (4) the officer knew of
recent burglaries in the area.1 Id. at 1002-03. When compared to the facts in this case, it is clear
that the decision in Hendricks has no persuasive value.
Likewise, in United States v. Parker, the Court held that an anonymous tip from a
concerned citizen, reporting that a suspicious vehicle with four men inside had been parked at
1:00 A.M. along a residential street, was insufficient to justify an investigatory Terry stop. 15
F.3d 654, 655-56 (7th Cir. 2003) The Seventh Circuit held that:
“[w]hile the word ‘suspicious’ suggests by itself at least a modicum of
questionable activity, the caller did not describe any definite wrongdoing in
progress. Thus, although the caller’s description of the vehicle and its location
was corroborated by police observation, the police lacked the minimum detail of
information that would point to any arguably particularized suspicion of criminal
conduct.”
Id. at 659. The Hendricks court distinguished itself from Parker by emphasizing that in Parker
the (1) informant was anonymous; (2) there was no indication of how long the men had been
parked (indicating the possibility of the suspects casing the property for a future robbery); (3) the
neighborhood was residential rather than commercial; and (4) the officers were not aware of any
specific and recent criminal activity in the area. Hendricks, 319 F.3d at 1003. Our case may
similarly be distinguished from Hendricks. Although the identity of the informant was known,
Moreland’s tip provided no indication of how long Carcetti was in the area; the neighborhood
was distinctly residential; and Northeast was not a high crime area. (R. at 4).
To justify its conclusion, the Majority permits the government to stretch truth to its
breaking point. While it may be accurate to describe Southeast as a “high-crime” area, it would
be erroneous to describe neighboring Northeast with the same adjective. Northeast has
experienced no marked increase in crime as compared to Southeast. (R. at 2). By describing the
There were only four burglaries in the last year and a half, substantially reducing the majority’s reliance on the
proposition that crime would spread from Southeast to Northeast.
1
20
Northeast as a “high-crime” neighborhood, the Majority has permitted the government to alter
the facts to justify its actions.
B.
PROTECTIVE PAT-DOWN
Although an unreasonable stop prohibits a frisk, I feel compelled to explain the error in
the Majority’s reasoning justifying the frisk. Carcetti gave Agent McNulty no reason to believe
she was armed and dangerous. However, even if the frisk had been valid, searching the box in
Carcetti’s sweatshirt far exceeded the scope of a valid Terry frisk.
1.
ARMED AND DANGEROUS
i.
No Indication of Involvement in Violent Crime
The frisk of Carcetti was invalid because Agent McNulty had no indication: (1) that
Carcetti had engaged in a violent crime; (2) was engaging in illegal activity associated with
violence; or (3) posed a physical threat. See United States v. Hughes, 517 F.3d 1013, 1017-19
(8th Cir. 2008) (finding the frisk of two males who fit the description of individuals accused of
trespassing invalid as there was no indication that they were engaged in a felony or violent
crime); see also State v. Jones, 114 N.M. 147, 151 (N.M. Ct. App. 1992) (holding police officers
did not have reasonable suspicion to stop and frisk defendant where there was no evidence of
furtive dress, gait, or mannerisms prior to stop, and officers had nothing connecting the
defendant to particular crimes except likelihood that he was a gang member). In Hughes, the
Eighth Circuit found that a vague tip from an informant “defeat[ed] rather than support[ed], a
reasonable suspicion that Hughes was armed and dangerous.” 517 F.3d at 1019. The Court
reiterated the long established holding from Terry that a police officer must be able to point to
21
specific facts from which he reasonably inferred that the individual was armed and dangerous.
Id. at 1016. Agent McNulty could have found no support in Moreland’s vague tip to reasonably
believe that Carcetti was armed and dangerous. It is patently ridiculous to permit an officer to
extrapolate from gender, two tattoos, and manner of dress that an individual is armed and
dangerous.
ii.
Profiling and Gang Affiliation
Agent McNulty’s observations of Carcetti’s gender, tattoos, and clothing amount to
nothing more than a hunch that Carcetti may have been affiliated with a gang. “[A]n officer’s
speculation that certain clothing colors [or tattoos] may be affiliated with gang membership
without any other articulable factors” does not justify a protective pat down. United States v.
Marcelino, 736 F. Supp. 2d 1343, 1350 (N.D. GA 2010); see also United States v. Camacho, 661
F.3d 718, 726 (1st Cir. 2011) (“[T]he most that can be said is that the two men were observed in
a high crime area walking away from the vicinity of a street fight that one caller reported as
involving Latin Kings.”) Adding gender to this profile checklist, without more, does not bring us
closer to justifying a belief that an individual is armed and dangerous.
Carcetti was not walking away from the scene of a reported violent crime. (R. at 4). She
was not in a high-crime area or accused of a specific crime. (R. at 2, 4). Agent McNulty merely
testified to seeing a girl with several tattoos and wearing certain articles of clothing; he failed,
however, to clearly indicate gang activity or affiliation. (R. at 4). If simply checking boxes on a
suspect profile could serve as the basis for initiating a frisk, officers could assume gang
affiliation merely by identifying genetic traits, such as race, gender, or hair color. Wearing a
hooded sweatshirt would be tantamount to knowingly forfeiting Fourth Amendment protections.
22
The Majority has unfortunately led us down this rabbit hole by choosing to link gender and
generally popular clothing and tattoos with criminality.
C.
SCOPE OF THE PAT-DOWN
Agent McNulty exceeded the permissible scope of a Terry frisk by removing and opening
the box found in Carcetti’s sweatshirt.
In Minnesota v. Dickerson, the Supreme Court extended the plain-view doctrine to those
Terry frisks in which an officer, in the course of conducting a limited pat down search for
weapons, comes in contact with illegal contraband. 508 U.S. 366, 375-76 (1993). The Supreme
Court held:
“[i]f a police officer lawfully pats down a suspect’s outer clothing and feels an
object whose contours or mass makes its identity immediately apparent, there has
been no invasion of the suspect’s privacy beyond that already authorized by the
officer’s search for weapons; if the object is contraband, its warrantless seizure
would be justified by the same practical considerations that inhere in the plainview context.”
Id. The Court, however, held that the frisk in Dickerson exceeded the scope of a permissible
Terry frisk because the “officer determined that the [object] was contraband only after
‘squeezing, sliding and otherwise manipulating the contents of the defendant’s pocket.’” Id. at
378. The search had no bearing on the protection of the police officer or the public. Id. at 378.
Similarly, in United States v. Miles, the Ninth Circuit held that a Terry frisk exceeded the
permissible scope when the officer shook a small box in the defendant’s pocket to reveal that it
contained .22 caliber bullets. 247 F.3d 1009, 1012 (9th Cir. 2001); see also United States v.
Davis, 530 F.3d 1069, 1083-84 (10th Cir. 2008) (holding that “further manipulation” of a tin
container discovered during a frisk was unlawful because there was “nothing inherently
incriminating about a tin container”). The Miles Court held that although the officer’s pat down
23
may have initially been directed at finding weapons, the officer “reached the outer limits of his
pat down authority when it was clear that the object was a small box and could not possibly be a
weapon.” 247 F.3d at 1014. Once Agent McNulty identified the object in Carcetti’s pocket as a
box, and not a weapon, he had no reason to further manipulate the object by opening it. (R. at 5).
Accordingly, there should be no doubt that when Agent McNulty opened the box, he exceeded
the scope of a permissible Terry frisk and violated Carcetti’s Fourth Amendment rights. I
respectfully dissent.
(U.S. SUPREME COURT LIST: 567 U.S.)
24
Monday, October 2, 2013
CERTIORARI GRANTED
NO. 10-0620:
TANIA CARCETTI V. UNITED STATES OF AMERICA
The petition for a writ of certioari is granted. This Court
may consider the following questions raised by the parties:
1. Whether an investigatory stop is valid when it is based
on a tip from a retired police officer stating only that
the suspect is acting suspiciously;
2. Whether a court should defer to a federal agent’s belief
that the suspect was armed and dangerous and that the
scope of the Agent’s search was proper.
25
APPENDIX I
Table of Authorities
BOTH ISSUES
U.S. CONST. amend. IV
ISSUE ONE
Terry v. Ohio, 392 U.S. 1 (1968)
Adams v. Williams, 407 U.S. 143 (1972)
United States v. Sokolow, 490 U.S. 1 (1989)
United States v. Arvizu, 543 U.S. 266 (2002)
United States v. Sharpe, 470 U.S. 675 (1985)
Alabama v. White, 496 U.S. 325 (1990)
Illinois v. Gates, 462 U.S. 213 (1983)
United States v. Hendricks, 319 F.3d 993 (7th Cir. 2003)
United States v. Packer, 15 F.3d 654 (7th Cir. 1994)
United States v. Briggman, 931 F.2d 705 (11th Cir. 1991)
United States v. Robinson, 670 F.3d 874 (8th Cir. 2012)
Illinois v. Wardlow, 528 U.S. 119 (2000)
ISSUE TWO
Terry v. Ohio, 392 U.S. 1 (1968)
Minnesota v. Dickerson, 508 U.S. 366 (1993)
United States v. Santio, 2007 WL 4270537 (D. Utah 2007)
United States v. Jeter, 175 Fed. App’x 261 (10th Cir. 2006)
United States v. Feliciano, 45 F.3d 1070 (7th Cir. 1995)
United States v. Santio, 351 Fed. App’x. 324 (10th Cir. 2009)
United States v. Maiden, 1992 WL 72902 (9th Cir. 1992)
United States v. Rideau, 969 F.2d 1572 (5th Cir. 1992)
United States v. Mattarolo, 209 F.3d 1153 (9th Cir. 2000)
United States v. Hughes, 517 F.3d 1013 (8th Cir. 2008)
State v. Jones, 114 N.M. 147 (N.M. Ct. App. 1992)
United States v. Marcelino, 736 F. Supp. 2d 1343 (N.D. GA 2010)
United States v. Camacho, 661 F.3d 718 (1st Cir. 2011)
United States v. Miles, 247 F.3d 1009 (9th Cir. 2001)
United States v. Davis, 530 F.3d 1069 (10th Cir. 2008)