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09-2556-cr United States of America v. Brockington



### UNITE D STATES C OURT OF AP PEALS FOR T HE SE COND CIRCU IT



# SUM MARY ORDER

R ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT

. C ITATION TO A SUMMARY ORDER FILED
ON O RA F T ER J

ANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL R ULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT ’ S LOCAL R ULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
DOCUMENT FILED WITH THIS COURT , A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE ( WITH THE NOTATION “ SUMMARY ORDER ”). A PARTY CITING A SUMMARY ORDER MUST
SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL

.



### 1 At a stated term of the United States Court of Appeals 

### 2 for the Second Circuit, held at the Daniel Patrick Moynihan 

### 3 United States Courthouse, 500 Pearl Street, in the City of 

### 4 New York, on the 25 day of May, two thousand ten. th 

### 5 PRESENT: DENNIS JACOBS, 

### 6 7 Chief Judge, 

### 8 ROGER J. MINER, 

### 9 RICHARD C. WESLEY, 

### 10 Circuit Judges. 

### 11 12 13 - - - - - - - - - - - - - - - - - - - -X UNITED STATES OF AMERICA, 

### 14 15 Appellee, 

### 16 17 18 -v.- 09-2556-cr 

### 19 20 KQUAN P. BROCKINGTON, 

### 21 22 Defendant-Appellant. 

### 23 - - - - - - - - - - - - - - - - - - - -X 

### 24
APPEARING FOR APPELLANT: Molly K. Corbett, Research & 

### 25 26 Writing Attorney (Paul 

### 27 Evangelista and Timothy Austin,2 

### 1 Assistant Federal Public 

### 2 Defenders, on the brief), for 

### 3 Alexander Bunin, Federal Public 

### 4 Defender, Federal Public 

### 5 Defender Office for the Northern 

### 6 District of New York, Albany, 

### 7 NY. 

### 8 9 APPEARING FOR APPELLEE: Gwendolyn Carroll, Assistant 

### 10 United States Attorney (Robert 

### 11 A. Sharpe, Assistant United 

### 12 States Attorney, on the brief), 

### 13 for Richard S. Hartunian, United 

### 14 States Attorney, United States 

### 15 Attorney’s Office for the 

### 16 Northern District of New York, 

### 17 Syracuse, NY. 

### 18 19 Appeal from a judgment of the United States District 

### 20 Court for the Northern District of New York (McAvoy, J.). 

### 21 22 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED 

### 23 AND DECREED that the judgment of the district court be 

### 24 AFFIRMED

. 

### 25 26 Def end ant -ap pel lan t K qua n P . B roc kin gto n appeals his 

### 27 conviction in the United States District Court for the 

### 28 Northern District of New York (McAvoy, J.), for violation of 

### 29 18 U.S.C. §§ 922(g)(1) and 924(a)(2) (possession of a 

### 30 firearm as a previously convicted felon). Brockington 

### 31 entered a conditional plea of guilty which permitted him to 

### 32 file this appeal challenging the denial of his motion to 

### 33 suppress the firearm. We assume the parties’ familiarity 

### 34 with the underlying facts, the procedural history, and the 

### 35 issues presented for review. 

### 36 37 Reviewing the district court’s factual findings for 

### 38 clear error and legal determinations de novo, see United 

### 39 States v. Padilla, 548 F.3d 179, 186 (2d Cir. 2008), we 

### 40 affirm the denial of Brockington’s motion to suppress the 

### 41 firearm. The district court properly determined that 

### 42 Officer Keough had reasonable suspicion to stop Brockington 

### 43 based on (i) the description of the suspect provided by the 

### 44 police dispatcher, (ii) the description of the suspect 

### 45 provided by the head of mall security, Harold Santos, (iii) 

### 46 Santos’s statement that mall security had tracked the 

### 47 suspect to the Zumiez store, (iv) Santos’s sighting of a3 

### 1 person who matched the two descriptions, and (v) Keough’s 

### 2 personal observation of an individual in the Zumiez store 

### 3 matching the two descriptions. These facts provided “a 

### 4 particularized and objective basis for suspicion of legal 

### 5 wrongdoing under the totality of the circumstances.” United 

### 6 States v. Simmons, 560 F.3d 98, 103 (2d Cir. 2009) (internal 

### 7 quotation marks omitted); see also Arizona v. Johnson, 129 

### 8 S. Ct. 781, 784 (2009) (holding that a “stop” is 

### 9 constitutional if “the police officer reasonably suspects 

### 10 that the person apprehended is committing or has committed a 

### 11 criminal offense”). 

### 12 13 On appeal, Brockington fails to defeat the 

### 14 determination of reasonable suspicion. First, Brockington 

### 15 concedes that the police dispatcher’s description made no 

### 16 mention of the suspect’s companions, Appellant’s Br. 17-18, 

### 17 and the district court found that Santos informed Keough 

### 18 that the suspect was in Zumiez with a woman and small 

### 19 children. Therefore no discrepancy existed between the 

### 20 information known to Keough and his personal observations of 

### 21 the suspect. Second, although the suspect’s physical 

### 22 description was general--a black man wearing a red shirt-- 

### 23 the totality of the circumstances included additional 

### 24 information giving rise to reasonable suspicion. Cf. 

### 25 Simmons, 560 F.3d at 101, 107-08 (finding reasonable 

### 26 suspicion based on a general physical description--black 

### 27 male wearing a gray hooded sweatshirt and a black jacket-- 

### 28 and the additional information included in the totality of 

### 29 the circumstances). Third, Keough reasonably relied on the 

### 30 information provided to him by Santos, a face-to-face 

### 31 informant known to Keough. See, e.g., Unites States v. 

### 32 Elmore, 482 F.3d 172, 180 (2d Cir. 2007) (“Where informants 

### 33 are known . . . a lesser degree of corroboration is 

### 34 required.”); United States v. Salazar, 945 F.2d 47, 50-51 

### 35 (2d Cir. 1991) (“[A] face-to-face informant must, as a 

### 36 general matter, be thought more reliable than an anonymous 

### 37 telephone tipster, for the former runs the greater risk that 

### 38 he may be held accountable if his information proves 

### 39 false.”). As the district court found, “Santos was known to 

### 40 Officer Keough and there’s no indication that Keough had 

### 41 reason not to believe or trust Santos’ account.” 

### 42 43 Brockington argues that the seizure itself was 

### 44 unconstitutionally prolonged and intrusive. “[A]n 

### 45 investigative detention must be temporary and last no longer 

### 46 than is necessary to effectuate the purpose of the stop. 

### 47 Similarly, the investigative methods employed should be the4 

### 1 least intrusive means reasonably available to verify or 

### 2 dispel the officer’s suspicion in a short period of time.” 

### 3 Florida v. Royer, 460 U.S. 491, 500 (1983). But 

### 4 Brockington’s resistance to the soft-hand technique, his 

### 5 non-compliance with Keough’s instructions to show his hands, 

### 6 his increasing agitation, his attempts to make eye contact 

### 7 with his companion, and her approach to or contact with 

### 8 Keough--considered in their totality--support the district 

### 9 court’s characterization of the situation as “escalating.” 

### 10 This escalation justified a longer detention, and, in light 

### 11 of Keough’s “fear for his safety,” more intrusive measures 

### 12 intended to reduce the risk of harm. Cf. United States v. 

### 13 Vasquez, 638 F.2d 507, 523 (2d Cir. 1980) (determining that 

### 14 a suspect’s “fidgeting may have been some cause for alarm, 

### 15 and it was reasonable, in light of these movements, for each 

### 16 officer, in effecting a Terry stop, to place a restraining 

### 17 hand on one of [the suspect’s] arms”); id. at 519 

### 18 (determining that reasonable suspicion may develop into 

### 19 probable cause based on events unfolding during an 

### 20 investigative stop). 

### 21 22 We have considered all of Brockington’s arguments on 

### 23 this appeal and find them to be without merit. Accordingly, 

### 24 the judgment of the district court is hereby AFFIRMED

. 

### 25 26 27 FOR THE COURT: 

### 28 CATHERINE O’HAGAN WOLFE, CLERK 

### 29