United States District Court, D. Maine
ORDER ON DEFENDANT'S MOTION TO SUPPRESS
LEVY DISTRICT JUDGE
Moses Okot is charged with being a felon in possession of a
firearm, in violation of 18 U.S.C.A. § 922(g)(1) (2016).
Okot has moved to suppress all evidence obtained as a result
of his arrest, the search of his person, and the search of
the vehicle he is alleged to have operated. ECF No. 34. For
the reasons stated below, I deny the motion.
November 16, 2015, at approximately 12:20 a.m., an officer
with the Portland Police Department heard a number of
gunshots while driving near the intersection of Fore Street
and Pearl Street in Portlands Old Port district. The officer
then observed a dark blue car driving away from the area at a
high rate of speed. The officer followed the car in his
patrol car, and noted that it failed to stop at a number of
stop signs and was traveling at excessive speeds. The officer
followed the car to Oxford Street, where it parked in the
driveway at 136 Oxford Street. The driver, who was alone in
the car, got out of the car and ran toward the back of the
house, despite the police officer's command that he stop.
The officer identified the driver as a black male,
approximately 5'10" to 6' tall and weighing
between 175 and 200 pounds. The officer further noted that
the man had short hair and was wearing a white t-shirt and
light blue jeans.
officer called for assistance, and more police officers soon
arrived on the scene. The officers obtained consent to search
136 Oxford Street from a woman occupying the house, but did
not locate the driver. The police then set a perimeter around
the block. Two officers stationed on Cumberland Avenue, the
street abutting the rear of 136 Oxford Street, climbed an
exterior wooden porch or fire escape on a nearby building to
obtain a better view of the area. On the third story of the
wooden structure, the officers encountered a man fitting the
driver's description. He was lying on his back, in an
apparent effort to avoid detection. The officers handcuffed
the suspect and performed a pat-down search for weapons,
finding none. The officers then led him down the stairs to
the ground level.
as the officers had the suspect in custody on the third-story
porch, they notified dispatch, which in turn relayed the
information to the other officers on the scene. Other
officers then secured the car in the driveway, and observed
shell casings on the car's front windshield, on the
ground next to the driver's side door, and inside the car
on the floor near the driver's seat. Approximately 30
minutes later, officers observed a handgun inside the car
that was partially under the front passenger seat.
the suspect was bleeding from a cut above his eye, the
officers called for an ambulance. As the suspect was led to
the ambulance, one of the officers present, Sergeant Farris,
the senior officer on the scene, recognized the suspect as
Moses Okot and addressed him by name. In response to a
question from Farris, Okot Sstated that he was currently on
probation stemming from a conviction for felony murder.
Farris called Okot's probation officer to request a
probation hold. Okot was then taken to the hospital in the
ambulance, accompanied by police officers. While Okot was at
the hospital, an evidence technician performed a gunshot
residue test on his hands, using a swab to search for traces
of gunpowder. After his injury had been treated, Okot was
taken to the police department, and then transferred to jail.
argues that he was illegally arrested without probable cause
and that all evidence obtained as a result of the arrest must
be suppressed. ECF No. 34 at 1. He also contends that the
impoundment and search of the car he is alleged to have
driven was unlawful. Id. at 2. The government argues
that probable cause to arrest existed at the time Okot was
detained, or at the latest arose when the officers discovered
the shell casings near the car, shortly after Okot was
detained. The government also argues that Okot lacks standing
to challenge the impoundment of the car, and that the seizure
and search of the car was nonetheless lawful under the
automobile exception to the Fourth Amendment's warrant
requirement. ECF No. 39 at 5-6.
Probable Cause for Arrest
argues that he was, in effect, placed under arrest at the
time that he was handcuffed on the third-story porch, or at
the latest when he was taken to the hospital. The police must
have probable cause in order to arrest a defendant. See
Glik v. Cunniffe, 655 F.3d 78, 85 (1st Cir. 2011).
“Probable cause exists when police officers, relying on
reasonably trustworthy facts and circumstances, have
information upon which a reasonably prudent person would
believe the suspect had committed or was committing a
crime." United States v. Pontoo, 666 F.3d 20,
31 (1st Cir. 2011) (quoting United States v. Young,
105 F.3d 1, 6 (1st Cir. 1997)). Under the Terry
doctrine, police may also conduct a brief investigatory stop
based on a reasonable suspicion of criminal activity,
"even in the absence of probable cause."
Id. at 27.
information available to the police at the time Okot was
handcuffed on the third-story porch was as follows: a car was
observed speeding away near the scene of a suspected
shooting; a police officer followed the car and witnessed it
drive through stop signs at an excessive speed; the driver of
the car fled from the officer after parking near 136 Oxford
Street, and failed to halt when ordered to do so by the
officer; soon thereafter a man matching the description of
the driver was found hiding on the third-story porch of a
nearby building at approximately 1:00 a.m.; and the man was
bleeding from an injury above his eye. I need not decide
whether the police had probable cause to arrest Okot at that
time; it is clear that they had enough information to support
a reasonable suspicion of criminal activity sufficient to
justify an investigatory stop. See Pontoo, 666 F.3d
at 27. Under the circumstances, it was reasonable for the
police to handcuff Okot and take him off the third-story
porch. See United States v. Weikert, 504 F.3d 1, 6
(1st Cir. 2007) (noting that "reasonableness in all the
circumstances" is "the touchstone of our
analysis") (quotation omitted).
Okot was taken to the street level, Farris recognized him and
Okot identified himself, and the officers learned that Okot
was on probation for a violent felony. A call was placed to
his probation officer, requesting a probation hold. Due to
the injury to his head, Okot was taken to the hospital. At
this point, based on the officers' knowledge of the
totality of the circumstances, the police had probable cause
to arrest Okot. See United States v. Burhoe, 409
F.3d 5, 8-9 (1st Cir. 2005).
Burhoe, the First Circuit found that the police had
probable cause to arrest a defendant who was observed near
the place where the getaway car from a bank robbery had been
abandoned. Id. at 10. The defendant, like the
suspected robbers, was a white male, and the police noticed
an abnormal bulge at his waist. Id. He looked out of
place, acted strangely, attempted to remain hidden from the
police, and attempted to flee from one of the officers.
Id. The circumstances surrounding Okot's
discovery, detention, and arrest are substantially similar.
Okot fled by car from the scene of a shooting. He failed to
halt when ordered to do so, and shortly thereafter he was
found hiding on an exterior, third-story porch, bleeding from
an injury to his head. Further, the police knew that Okot was
on probation for a violent felony. ...