     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 th day of May, two thousand ten.
 5
 6       PRESENT: DENNIS JACOBS,
 7                         Chief Judge,
 8                ROGER J. MINER,
 9                RICHARD C. WESLEY,
10                         Circuit Judges.
11
12
13       - - - - - - - - - - - - - - - - - - - -X
14       UNITED STATES OF AMERICA,
15
16                    Appellee,
17
18                    -v.-                                         09-2556-cr
19
20       KQUAN P. BROCKINGTON,
21
22                Defendant-Appellant.
23       - - - - - - - - - - - - - - - - - - - -X
24
25       APPEARING FOR APPELLANT:               Molly K. Corbett, Research &
26                                              Writing Attorney (Paul
27                                              Evangelista and Timothy Austin,


                                                  1
 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

                                  2
 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

                                  3
 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




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