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Malcolm E. Hubert H. Humphrey, III, Atty. Jesson, Asst. Paul, for appellants.

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Internet Explorer 11 is no longer supported. On October 25,at about 10 a. A woman named Sandra Swain got out of Bolton's car. These events took place in sight of police officer Stephen Taylor-the prime defendant in this case-who was rolling up to the intersection in his police car and said that he knew Swain to be a prostitute who plied her escort on the corner and that she was also a drug addict.

These supposed details were not contested by Bolton at trial, except for Taylor's claim of squealing tires. After Bolton was stopped, an altercation followed between Bolton, Taylor and several policemen who appeared in another police car. Bolton and Taylor gave different versions as to how it began, each blaming the other, but there is no doubt that Bolton was thrown down, struck and suffered severe injuries.

In due course Bolton brought the present action under section against Bolton, two other officers, the police chief and the City of New Bedford. Eventually the case went to trial on just two claims. One was a false arrest claim against Taylor and another officer, transmuted along the way into a claim that Taylor had engaged in an unlawful Terry stop. Terry v.

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Ohio, U. The other was a claim against the same two officers for use of excessive force. The jury found for the defendants in all other respects, specifically rejecting the charge of excessive force. Taylor now appeals, claiming inter alia that the evidence was insufficient to support liability. Only this first ground of the appeal need be addressed.

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Claims of insufficient evidence must ordinarily be preserved by a timely motion at trial for judgment as a matter of law. Clemmey, F. In one of Taylor's post-trial motions, he represents that he made a motion at trial both at the close of the plaintiff's case and at the close of all evidence. Although at trial his counsel did not spell out the contents of the motions, it is reasonably clear that counsel and the district court judge understood the oral motions as directed to the sufficiency of the evidence. This brings us to the merits. The background legal rules are straightforward. See Flowers v.

Fiore, F. Illinois v. Wardlow, U. Whren v. United States, U. If this is disputed, the jury's findings control unless clearly erroneous, see Ornelas v. Tibolt, 72 F. Strictly speaking, the application of an abstract standard to known facts is a legal issue even though it is sometimes called a mixed question or question of law application, e. Del Monte Dunes at Monterey, Ltd. However, there are exceptions and the Supreme Court has provided that no deference should be given to the fact-finder as to escort cause or reasonable suspicion where the raw facts are undisputed or settled and the only issue is one of law application.

Maguire, F. Although the Ornelas case involved a judge as fact-finder, it would make no sense to defer on law application to the jury but not to the trial judge. Bolton Johnson v. Campbell, F. Irwin, F. In this case, we come reluctantly to the view that a policeman in Taylor's position was entitled to have a reasonable suspicion that Bolton had engaged in criminal activity.

But under Fourth Amendment precedents, the decisive question is whether an objective observer could have had a reasonable suspicion, and to this question our answer is yes. Taylor never says that any one of these possibilities was in his mind at the time or that any or all of them motivated his decision. Typical of his testimony is the following passage:. Again, it was the totality of the whole circumstance.

Sandra Swain being in the vehicle, a high crime area, he's squealing the tires out of the parking lot, he's not looking at me, seems kind of nervous, you know, doesn't want to make eye contact with me. There's a whole myriad of things that could be happening.

The supposed drug related crimes can readily be disregarded. Taylor apparently knew Swain was a drug user but there is no evidence, and no basis for suspicion, that Swain was a supplier to anyone or that Bolton in fact a lobsterman with his own boat was supplying Swain with drugs.

Bolton v. taylor

The suggestion that Bolton was speeding or driving unsafely is also unsupported. Taylor testified that Bolton's tires squealed as he left the lot and that he was traveling fast, but Taylor never states that Bolton was exceeding the speed limit, and Taylor never charged Bolton with speeding. Moreover, Bolton denied that he was speeding, a fact we must assume that the jury decided in Bolton's favor.

Seahorse Marine Supplies, Inc. Sun Oil Co. This leaves as the only remaining crime the possibility that Bolton had solicited Swain's services as a prostitute-a crime to be sure, Commonwealth v. King, Mass.

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Is this enough to give an officer a reasonable suspicion that Bolton had solicited sexual favors from a prostitute? Two points work in Taylor's favor. One is that the required level of suspicion for a Terry stop and brief inquiry is fairly low. The other factor is that the law imputes to a trained policeman a measure of expertise, Ornelas, U. United States v.

Sokolow, U. Here, Bolton was seen parting from a known prostitute at her usual beat, and the natural inference was reinforced by the pair's alleged suspicious demeanor and Bolton's rapid departure. So, on de novo review, we think that Taylor could have had a reasonable suspicion-nothing more-that Bolton had been consorting with Swain and instituted a Terry stop to ask Bolton what had occurred between him and Swain.

Case law has allowed Terry stops on no greater suspicion.

Why then does this outcome leave a sour taste? It is primarily because Taylor apparently did not halt Bolton because Taylor was interested in investigating whether Bolton had committed the crime of soliciting a prostitute. That's why narcotics and vice handle that type of situation. Worse still, at trial Bolton testified that he had merely offered Swain a ride because she said that she was sick.

Taylor's counsel in turn called Swain as a witness and she testified that she had consorted with Bolton on the morning in question and at other times. In response, over objection from the defense, Bolton's counsel then read transcripts of an earlier interview given by Swain to the police.

Bolton v. department of human services

After the close of plaintiff's evidence, Bolton's counsel was allowed, over objection, to play a tape of Swain's interview. In the interview, Swain had told a police investigator looking into the Bolton-Taylor incident that Taylor and other officers made a regular habit of harassing Swain's clients. She intimated that the officers did so not to effect arrests but merely out of humor or malice. Bolton's counsel invoked this evidence in her closing. On appeal, Taylor says it was error to admit the tape, arguing inter alia that its impeachment value was outweighed by its prejudicial impact, see Fed.

Whether or not the tape was admissible to impeach Swain's courtroom testimony, it might well have persuaded the jury of Taylor's actual motive for stopping Bolton even though-being hearsay-it was not admissible for its truth. If the law held Taylor responsible for making a Terry stop subjectively motivated by a wrongful purpose, the verdict against Taylor might be defended. In Holland v. City of Portland, F. We expressed escort doubt that Whren admitted of exceptions, but noted that, in Holland itself, there was no compelling evidence of harassment, id.

Nothing since Holland suggests any erosion of Whren. Taylor may bolton have lacked any proper intent, but a reasonable police officer could have performed a lawful Terry stop based on what Taylor knew. That said, we in the view-obviously shared by the district judge and the jury-that Bolton was badly treated by the police. The judgment in Bolton's favor is vacated. The case is remanded for entry of judgment in Taylor's favor.

Each side shall bear its own costs on this appeal. Coady Corp. Toyota Motor Distributors, Inc. Sometimes the standard of review is described bolton one of escort, e. Padilla-Galarza, F. Another circuit has said that in light of Ornelas, it is pointless to submit the reasonable suspicion or probable cause questions to the jury at all unless the facts are disputed. See Bell, F.

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