Tuesday, August 20, 2013

Being Detained at Gunpoint, Handcuffed and Placed in Police Car Is Not a Full Arrest if Reasonable Suspicion Armed and Dangerous

United States v. Abdo, No. 12-50836 (Aug. 19, 2013) (Reavley, Elrod, Graves)

Being detained at gunpoint, forced to the ground, and then placed in a police car in handcuffs for fifteen minutes is not a full arrest—at least not when you’re suspected of planning a terrorist attack at Fort Hood. The panel decided this was simply an investigatory stop and that, since the officers had reasonable suspicion to believe that Abdo was armed and dangerous, the officers simply used force commensurate with the risk to officer and public safety. Accordingly, the panel affirmed the district court’s denial of his suppression motion.

Abdo also argued that one of his convictions for possession of a firearm in furtherance of a crime of violence must be vacated since 18 U.S.C. § 924(c)(1) does not permit multiple convictions for a single use of a firearm based on multiple predicate offenses. The panel agreed with this statement of law but disagreed with its application to these facts—on plain error review—since Abdo possessed the firearm for the purpose of shooting soldiers (in furtherance of the offense of attempted murder) and also possessed a firearm on the previous day when he purchased items for the explosive device (in furtherance of attempted use of a weapon of mass destruction). Thus, he separately used or possessed firearms in conjunction with distinct offenses.

Finally, Abdo argued that he was denied his right to present a defense because the district court denied his request for funds for an expert witness. The panel found that Abdo waived this argument, however, by not articulating the argument in his appellate brief and that the issue would fail on its merits because the expert’s testimony would not have materially assisted the defense. The testimony would have been that the device Abdo was capable of making would not have caused much damage. The panel concluded that since Abdo was charged with an attempt offense, evidence was sufficient that an explosive device could have been constructed, regardless of its destructive force.

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