13-810-cr (L)
United States v. Peterson

                            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.

    At a stated Term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, at 40 Foley Square, in the City of New York, on
the 25th day of March, two thousand fourteen.

Present: ROBERT A. KATZMANN,
                     Chief Judge,
         JOSÉ A. CABRANES,
                     Circuit Judge,
         RICHARD M. BERMAN,
                     District Judge.*
________________________________________________

UNITED STATES OF AMERICA,

                            Appellee,

                            v.                                   Nos. 13-810-cr (Lead)
                                                                      13-818-cr (Con)
JAMES PETERSON,

                            Defendant-Appellant,

DEAN SMALLS,

                     Defendant.
________________________________________________

For Appellee:                      ANDREA L. SURRATT, Assistant United States Attorney
                                   (Damian Williams and Justin Anderson, Assistant United
                                   States Attorneys, on the brief), for Preet Bharara, United States

       *
          The Honorable Richard M. Berman, United States District Judge for the Southern
District of New York, sitting by designation.
                                   Attorney for the Southern District of New York,
                                   New York, NY.

For Defendant-Appellant:           JOHN F. KALEY, Doar Rieck Kaley & Mack, New York, NY.


      Appeal from the United States District Court for the Southern District of New York
(Engelmayer, J.).

       ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,

and DECREED that the judgment of the district court be and hereby is AFFIRMED.

       Defendant-Appellant James Peterson appeals from a judgment of criminal conviction and

a judgment revoking his term of supervised release, both entered on February 28, 2013, by the

United States District Court for the Southern District of New York (Engelmayer, J.). After a

bench trial on stipulated facts, the court found Peterson guilty on one count of being a felon in

possession of a firearm in violation of 18 U.S.C. § 922(g)(1), and subsequently found that

Peterson had violated the terms of his supervised release by possessing a firearm. The court

sentenced Peterson principally to fifty-seven months in prison on the criminal conviction, and an

additional twelve months in prison on the supervised release violation (to be served

consecutively). Peterson now appeals, claiming that both judgments should be vacated because

the firearm at issue was discovered in violation of his Fourth Amendment rights. We assume the

parties’ familiarity with the underlying facts, procedural history, and issues on appeal, which we

recount only as necessary to explain our decision.

       Peterson challenges the district court’s denial of his motion to suppress the firearm, a

decision that we review for “clear error as to the district court’s factual findings, viewing the

evidence in the light most favorable to the government, and de novo as to questions of law.”

United States v. Getto, 729 F.3d 221, 227 (2d Cir. 2013) (quoting United States v. Voustianiouk,

685 F.3d 206, 210 (2d Cir. 2012)).

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       The facts are largely undisputed. At about 4:00 AM on February 20, 2012, the New York

Police Department (NYPD) received a 911 call. The 911 caller reported that he had been in an

altercation with another man, and that the other man was outside his apartment building and

might have a gun. The 911 caller told the 911 operator his name, his address and apartment

number, and his telephone number.

       The 911 operator relayed the caller’s report to the police dispatcher, who in turn radioed

two NYPD officers in the area. The radio message from the dispatcher to the officers was

recorded. That recording begins as follows:

       Dispatcher: Dispute with a firearm. 739 East 182, 739 East 182 Clinton and Prospect.
       Male caller states male’s in front of the location with a gun on him. He didn’t visually see
       the gun, but the person said he had one. Male black, du rag, black coat, wearing all black.
       The complainant is in apartment [redacted] on the [redacted] floor.

       Officer: [Unintelligible.]

       Dispatcher: 10-4.

       Officer: [Unintelligible.]

A. 143-44 (footnote omitted). The officers proceeded to the address given in the radio message,

where they found Peterson, matching the description given by the dispatcher. They stopped and

frisked Peterson, and found a loaded firearm tucked into his waistband at the small of his back.

       Peterson moved to suppress the firearm, claiming that the officers lacked reasonable

suspicion to justify the stop and frisk. The district court held a hearing, at which the officers

testified that they recalled hearing the dispatcher report a dispute involving a firearm, the

location of the dispute, and the description of the suspect. One officer testified that those were

the only things he heard from the dispatcher. Neither officer testified to hearing the dispatcher

give the apartment number in which the complainant was located, although neither officer was

specifically asked about that part of the dispatcher’s message.

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       In denying the motion to suppress, the district court found that the officers had heard all

of the first transmission by the dispatcher, including the fact that the complainant was in a

particular apartment. It noted that the final sentence about the complainant’s location was

transmitted immediately after the description of the suspect, which both officers testified to

hearing. It also noted that both officers were apparently in the vehicle for the entire transmission,

and that there was no evidence to indicate that the transmission had been interrupted. Having

found that the officers heard the dispatcher say the complainant was in a particular apartment,

the district court determined that the officers had reasonable suspicion justifying the stop, and so

denied the motion to suppress.

       Peterson moved for reconsideration of the district court’s decision, which the court

denied. It recognized that at least one officer had literally testified that he did not hear anything

other than the report of a dispute involving a firearm, the location of the dispute, and the

suspect’s description; however, it determined that the officers’ testimony reflected only what

they remembered hearing. It inferred that the officers had remembered the most salient details

about the dispatcher’s message—the location involved, the description of the suspect, and the

report of a firearm—but had forgotten the additional information regarding the complainant’s

location. The district court therefore reiterated its conclusion that the officers had heard the

entire first transmission from the dispatcher in accordance with the recording.

       On appeal, Peterson argues that the district court clearly erred in finding that the officers

heard the dispatcher say that the complainant was in a particular apartment. “A [factual] finding

is clearly erroneous when although there is evidence to support it, the reviewing court on the

entire evidence is left with the definite and firm conviction that a mistake has been committed.”


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United States v. Ferguson, 702 F.3d 89, 93 (2d Cir. 2012) (quoting United States v. Sash, 396

F.3d 515, 521 (2d Cir. 2005)). “Where there are two permissible views of the evidence, the

factfinder’s choice between them cannot be clearly erroneous.” Anderson v. City of Bessemer

City, 470 U.S. 564, 574 (1985).

       We see no clear error in the district court’s finding. The recording of the radio

transmission shows that the dispatcher did indeed inform the officers that the complainant was in

a particular apartment. Given that evidence, the district court could permissibly infer that the

officers simply forgot, in the six months between the stop itself and the suppression hearing, that

they had heard the complainant’s location. That explanation is at least as plausible as Peterson’s

alternate explanation—namely, that the officers were so focused on driving to the scene that they

never heard the dispatcher give the apartment number where the complainant could be found.

We will not disturb the district court’s choice between these two permissible views of the facts.

See Anderson, 470 U.S. at 574.

       Peterson also argues that even assuming the officers heard the dispatcher state the

apartment number where the complainant was located, the officers still lacked reasonable

suspicion justifying the stop and frisk. In other words, Peterson argues that even accepting the

district court’s factual findings, the officers lacked reasonable suspicion as a matter of law. That

legal issue is subject to de novo review. See Getto, 729 F.3d at 227.

       After careful consideration, we conclude that on the facts found by the district court, the

officers had reasonable suspicion justifying their stop and frisk of Peterson. We therefore affirm




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largely for the reasons given in the district court’s meticulous opinion.1

       Finally, Peterson argues that the exclusionary rule should apply in supervised release

revocation proceedings. But see Pa. Bd. of Prob. & Parole v. Scott, 524 U.S. 357 (1998)

(holding that the federal exclusionary rule does not apply in state parole revocation proceedings).

We need not decide this issue, however; as the officers had reasonable suspicion to justify their

stop and frisk, no Fourth Amendment violation occurred here, and so there is no reason to

exclude the firearm in either the criminal case or the revocation hearing.

       We have considered Peterson’s remaining arguments and find they lack merit. For the

reasons given above, we AFFIRM the judgments of the district court.

                                                  FOR THE COURT:
                                                  CATHERINE O’HAGAN WOLFE, CLERK




       1
                The district court decided Peterson’s suppression motion before we issued our
opinion in United States v. Freeman, 735 F.3d 92 (2d Cir. 2013). Freeman held that although
“an anonymous 911 call reporting an ongoing emergency is entitled to a higher degree of
reliability and requires a lesser showing of corroboration than a tip that alleges general
criminality,” id. at 100 (quoting United States v. Simmons, 560 F.3d 98, 105 (2d Cir. 2009)), a
report of a person “possibly armed with a firearm” and “arguing with a female” does not qualify
as a report of an ongoing emergency, id. at 94, 100-01. We need not decide whether the
circumstances in this case present an “ongoing emergency” within the meaning of Freeman and
Simmons. Even assuming that the officers were not responding to an ongoing emergency, the
district court correctly concluded that the information available to the officers carried sufficient
indicia of reliability to provide reasonable suspicion.

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