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09-2556-cr

United States of America v. Brockington

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED

ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE

PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 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

6 PRESENT: DENNIS JACOBS,

7 Chief Judge,

8 ROGER J. MINER,

9 RICHARD C. WESLEY,

10 Circuit Judges.

11

12

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14 UNITED STATES OF AMERICA, 

15

16 Appellee,

17

18 -v.- 09-2556-cr

19

20 KQUAN P. BROCKINGTON,

21

22 Defendant-Appellant.

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24

25 APPEARING FOR APPELLANT: Molly K. Corbett, Research &

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 Defendant-appellant Kquan P. Brockington 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 a
3

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 the
4

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

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