Christopher G. Machado v. Weare Police Department

Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 11-1147
CHRISTOPHER G. MACHADO,
Plaintiff, Appellant,
v.
WEARE POLICE DEPARTMENT, ET AL.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Steven J. McAuliffe, U.S. District Judge]
Before
Boudin, Howard and Thompson,
Circuit Judges.
Christopher G. Machado on brief pro se.
Charles P. Bauer, Erik G. Moskowitz and Gallagher, Callahan &
Gartrell on brief for appellee.
October 2, 2012

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Per Curiam. Christopher Machado brought a section 1983
action against several officers of the Weare, New Hampshire Police
Department. 42 U.S.C. § 1983 (2006). Because Machado is currently
incarcerated, his complaint was subject to screening under 28
U.S.C. § 1915A (2006); a magistrate judge recommended dismissal and
the district court agreed. Machado now appeals. Because this is
effectively a motion to dismiss, we briefly describe the events
based on the allegations of the complaint as well as the exhibits
incorporated within it. See Cruz v. Melecio, 204 F.3d 14, 21 (1st
Cir. 2000).1
According to Machado's complaint, on April 29, 2009, at
approximately 1:00 am, he and his fiancée, Ashley Fermanis, were
traveling north on South Stark Highway in New Hampshire. Fermanis
drove and Machado sat in the front passenger seat. Their vehicle
caught the attention of Lieutenant James Carney of the Weare Police
Department, who was driving behind them, when Fermanis activated
her left turn signal for ten seconds and then made an abrupt left
turn across two lanes of traffic into the parking lot of the Cold
Springs RV Center, which contained recently purchased RV's and
trailers.
Machado challenges the accuracy of some of the statements of 1
fact in the magistrate judge's report. We rely on the original
record contained in Machado's complaint and not the magistrate
judge's report, so the disagreements are irrelevant.
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The Cold Springs RV Center was closed at the time--it
was, as noted, around 1 am--and the location had been the subject
of investigations for burglary and vandalism once or twice during
the year prior. Fermanis steered her car next to some new
trailers. Carney followed Fermanis into the lot, turned on his blue
lights, and halted near Fermanis' car. As Carney walked toward the
car, he saw Machado toss an object into the back seat area.
With Machado and Fermanis seated in the car, Carney asked
Machado what he had thrown into the back seat. Machado, appearing
nervous, reached into the back of the car and produced a curling
iron. Carney repeatedly asked Machado to keep his hands where he
could see them and then asked him for identification. Machado said
that he had none. Carney requested Machado's name, date of birth,
and social security number. Machado stated that his name was
"Chris," but declined to answer further.
Machado appeared increasingly uncomfortable and began
moving about the vehicle; Carney then noticed a bulge near his
waistband. He instructed Machado to exit the vehicle, frisked him
and discovered that the source of the bulge was a cell phone in a
canvas case. He detained Machado for further identification and a
background check by handcuffing him and placing him in the back of
his police cruiser. Carney then radioed for assistance. At some
point, Fermanis indicated to Carney that Machado was wanted by the
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Londonderry, New Hampshire police regarding a traffic accident,
although when this occurred is unclear.
After placing Machado in the cruiser, Carney returned to
the vehicle to speak to Fermanis. She identified Machado by his
full name and date of birth. Fermanis also told Carney that he
could search her car. When Officer Daniel Aiken and Sargent Robert
Peterson arrived on the scene, Carney reconfirmed with Fermanis
that he had permission to search her vehicle; and again she
assented.
Carney's search turned up a package of cigarettes that
contained a plastic bag of what looked to be heroin. Fermanis
denied any knowledge that the drugs had been in her car, but
indicated that Machado had habitually used heroin as recently as
the previous year. Peterson then read Machado his Miranda rights
and Machado waived his rights and confessed to possessing the
heroin, even volunteering that he had some more hidden in his sock.
In the meantime, Carney's background check confirmed that Machado
had several active warrants issued in Londonderry, New Hampshire.
Fermanis was allowed to leave and Machado was arrested.2
Machado was charged in New Hampshire state court with one
count of possession of a controlled drug with intent to sell. He
It appears from the record that the warrants, relating to a 2
traffic incident involving Machado, were for charges for "conduct
after an[] accident, habitual offender, and false report to law
enforcement"; Machado's present incarceration seemingly grows out
of proceedings relating to one or more of those charges.
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moved to suppress the evidence derived from the search of his
vehicle as obtained in violation of the New Hampshire and United
States Constitutions. The New Hampshire Superior Court granted his
motion, finding that the initial stop of his vehicle had violated
the New Hampshire Constitution; the charges against Machado were
subsequently dropped and his current incarceration is related
instead to the subject matter of the warrants revealed after the
stop. See note 2, above.
Machado's section 1983 claim targets Carney, Aiken, and
Peterson for their conduct during his arrest, as well as Sergeant
Louis Chatel, Jr., a supervisor in the Weare Police Department who
filed a supporting affidavit explaining the circumstances of
Machado's warrantless arrest, and Chief Gregory Begin of the Weare
Police Department. Machado alleges that the stop, search, and
arrest violated his rights under the Fourth Amendment and the New
Hampshire Constitution. He seeks a declaratory judgment as well as
compensatory and punitive damages for the emotional distress and
collateral legal difficulties he suffered as a result of the
arrest.
Civil complaints filed by prisoners against governmental
entities, officers, or employees are subject to preliminary review,
and dismissed if inter alia they are "frivolous, malicious, or
fail[] to state a claim upon which relief may be granted." 28
U.S.C. § 1915A(b)(1) & (2). To determine if the complaint should
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be dismissed for failing to state a claim, the screener must
determine whether the allegations, construed liberally, "contain
sufficient factual matter, accepted as true, to 'state a claim to
relief that is plausible on its face.'" Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009)(quoting Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007)).
Machado's complaint can be read to assert that (treating
Carney's activation of his blue lights as arguendo a de facto stop)
Carney unlawfully detained Machado at the outset, that Carney
unlawfully frisked Machado and thereafter detained Machado in his
police cruiser, and that Carney unlawfully arrested Machado after
discovering the heroin. We consider each of these potential claims
in order, noting that a damage claim against the officers requires
not only that a constitutional violation be established on the
alleged facts but also that qualified immunity be overcome.
To stop the car in the first instance, Carney had to
possess a "reasonable suspicion to believe that criminal activity
may be afoot," United States v. Arvizu, 534 U.S. 266, 273 (2002);
see also Terry v. Ohio, 392 U.S. 1, 30 (1968), reasonable suspicion
standing somewhere above "a mere hunch" and below "probable cause."
United States v. Ruidíaz, 529 F.3d 25, 29 (1st Cir. 2008). The
suspicion required "specific and articulable facts," United States
v. Hensley, 469 U.S. 221, 229 (1985), but is judged on an objective
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basis. Ornelas v. United States, 517 U.S. 690, 696 (1996) (quoting
United States v. Cortez, 449 U.S. 411, 417-18 (1981)).
In this case, Carney's suspicion was based on the fact
that Fermanis abruptly turned into the parking lot of a closed
business, late at night, stopping alongside some new trailers. The
location had recently been investigated for incidents of burglary
and vandalism. It is arguable that reasonable suspicion was thus
established; but even if Carney judged wrong--he is the only 3
defendant implicated in the initial stop--it was a close call and
he is plainly protected by qualified immunity. Anderson v.
Creighton, 483 U.S. 635, 638 (1987).
The next question is whether Carney's "subsequent actions
were fairly responsive to the emerging tableau--the circumstances
originally warranting the stop, informed by what occurred, and what
the officer learned, as the stop progressed." United States v.
Chhien, 266 F.3d 1, 6 (1st Cir. 2001). As Carney approached the
vehicle, Carney saw Machado toss something into the back of the
car--a common pattern when weapons and contraband are involved.
New Hampshire law authorized Carney to demand Machado's full name
pursuant to a lawful stop, see N.H. Rev. Stat. Ann. § 594:2 (2012);
and Machado enhanced suspicion when he refused to give it.
See United States v. Salazar, 609 F.3d 1059, 1069 (10th Cir. 3
2010); Foley v. Kiely, 602 F.3d 28, 32 (1st Cir. 2010); United
States v. Summers, 268 F.3d 683, 687 (9th Cir. 2001); United States
v. Walker, 924 F.2d 1, 4 (1st Cir. 1991); United States v. Landry,
903 F.2d 334, 337 (5th Cir. 1990).
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Thus Carney was justified in making further inquiries
and, in addition, he spotted a bulge near Machado's waistband,
entitling him in asking Machado to step out of the car so that
Carney could pat him down. United States v. Aitoro, 446 F.3d 246,
253 (1st Cir. 2006). In light of the factors that inspired the
initial stop and Machado's subsequent evasive and uncooperative
conduct, we cannot say that Carney was unreasonable in suspecting
that the bulge was a weapon and that a frisk was necessary to
ensure his own safety.
The closest call is Carney's decision to handcuff Machado
in the police cruiser. The use of handcuffs "'substantially
aggravates the intrusiveness' of a putative Terry stop," United
States v. Acosta-Colon, 157 F.3d 9, 18 (1st Cir. 1998)(quoting
United States v. Glenna, 878 F.2d 967, 972 (7th Cir. 1989)), and so
the officer "must be able to point to some specific fact or
circumstance that could have supported a reasonable belief that the
use of such restraints was necessary to carry out the stop without
exposing law enforcement officers, the public, or the suspect
himself to an undue risk of harm." Id. at 19.4
Examples of such circumstances include when the suspect is 4
uncooperative or raises a reasonable possibility of danger or
flight, when the police have information that the suspect is armed,
when the stop closely follows a violent crime, or when the police
have information that a violent crime is about to occur. See
Washington v. Lambert, 98 F.3d 1181, 1189 (9th Cir. 1996).
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Placing a suspect into a cruiser does not necessarily
transcend the limits of a valid Terry stop. See United States v.
Dunbar, 553 F.3d 48, 56 (1st Cir. 2009); Flowers v. Fiore, 359 F.3d
24, 30 (1st Cir. 2004). By the time this occurred in the present
case, a basis for continuing the Terry stop had plainly been
established: the initial unexplained late night turn into a closed
business; the tossing of an object into the back seat; furtive and
uncooperative behavior by Machado; and his hampering of a quick
resolution by refusing to give his full name which would allow a
radio check to see whether he was wanted.
Since Machado would not cooperate, any further useful
steps required Carney to question Fermanis, who was unlikely to
speak freely while Machado was present; and, given the obvious
flight risk, Carney could hardly have allowed Machado to stand
alone at any distance from the car or sit in Carney's cruiser
unrestrained. Carney could have delayed further questioning until
other officers had appeared, but the trade-off between further
delay and briefly incapacitating Machado was the kind of judgment
officers have to make on the spot.
But even if we assume arguendo that the handcuffs and the
detention in the cruiser exceeded the limits of a permissible Terry
stop, compare Acosta-Colon, 157 F.3d at 15, with Flowers, 359 F.3d
at 30, this is a sufficiently debatable case that an objectively
reasonable officer could have believed that his conduct was not
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violating Machado's constitutional rights, Anderson, 483 U.S. at
640, which is enough to create qualified immunity. See Malley v.
Briggs, 475 U.S. 335, 341 (1986).
By the time Machado was formally arrested, Carney and the
other officers had learned that there was a warrant outstanding
against him and had also found heroin in his possession. In the
present civil proceedings, this evidence is not subject to the
exclusionary rule, United States v. Calandra, 414 U.S. 338, 348
(1974); Townes v. City of N.Y., 176 F.3d 138, 145 (2d Cir. 1999),
and amply provides probable cause to justify his arrest. United
States v. Watson, 423 U.S. 411, 423-24 (1976). Accordingly, all of
Carney's actions either did not violate the Fourth Amendment or
were protected by qualified immunity.
This in turn resolves claims against other defendants of
supervisory and municipal liability. See Acosta v. Ames Dep't
Stores, Inc., 386 F.3d 5, 12 (1st Cir. 2004); Evans v. Avery, 100
F.3d 1033, 1040 (1st Cir. 1996). Machado has not argued that New
Hampshire law is more favorable to his claims or that those claims
should have been left undecided and open for him to pursue in state
court so the parallel state claims require no separate discussion.
Affirmed.
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