Summary
rejecting the argument that a stop 30 minutes after a robbery was unconstitutional because it occurred too long after the crime
Summary of this case from U.S. v. HicksOpinion
Criminal No. 04-241.
August 4, 2004
MEMORANDUM ORDER
Defendant Randy Foxwell is charged with the crime of possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1). Presently before the Court is Defendant's Motion to Suppress Physical Evidence. On July 23, and on July 29, 2004, a hearing was held on this Motion. After consideration of the evidence presented and the applicable law, Defendant's Motion will be denied.
I. Facts
On April 28, 2002, at 5:04 a.m., Police Officer Malachi Carter received a police radio call concerning a gunpoint robbery that had taken place in the 1300 block of E. Carey Street in Philadelphia. (Tr. July 23, 2004 at 9, July 29, 2004 at 4.) The flash report indicated that there were three persons involved in the robbery. (Tr. July 29, 2004 at 4.) The report indicated that the perpetrators were black males dressed in black clothing. (Id.) The report also stated that the robbers had taken complainant's baby-blue colored Avirex jacket and his wallet. (Id. at 5.)
Around 5:35 a.m., Officer Carter saw Defendant walking near the intersection of I and Venango streets. (Id. at 7.) This intersection is approximately six blocks away from the scene of the robbery. (Id.) Because Defendant was a black male wearing all black clothing, and carrying a baby-blue colored jacket draped over his left arm, Officer Carter pulled his car over to the sidewalk where Defendant was walking (Id. at 7). Another police officer on duty, Officer Smith, pulled his vehicle next to Officer Carter's vehicle. (Id.) Officer Carter asked Defendant to stop and Defendant complied. (Id. at 8.) Officer Smith then asked Defendant to give him the jacket that Defendant was carrying. It was an Avirex jacket. (Id.) As Defendant handed the jacket to Officer Smith, Defendant started to reach into his waistband area. (Id.) At this point, both Officers told Defendant several times to put his hands up. (Id. at 9.) When Defendant refused, both Officers drew their weapons. (Id.) Officer Smith kept his weapon pointed at Defendant while Officer Carter approached Defendant, reached into Defendant's waistband area and removed a gun. (Id. at 10.) Officer Carter proceeded to hand-cuff Defendant. (Id. at 11.)
Defendant contends that Officers Carter and Smith illegally seized him when they ordered him to stop walking. (Def.'s Mot. to Suppress at ¶ 7.) Defendant argues that the flash report's description of the perpetrator was too general to support a reasonable suspicion that Defendant had committed the crime. (Id. at 2.) Specifically, Defendant maintains that the description was too general because it did not include information regarding the perpetrator's height, weight, complexion, or presence of facial hair. (Id. at 3.) Defendant further argues that the police stop was unconstitutional because it occurred too long after the crime had taken place. (Id.) Defendant contends that because the initial stop of Defendant was illegal, all physical evidence seized as a result of the stop must be suppressed. (Id. at ¶ 8.)
II. Legal Standard
Evidence obtained as the result of a search or seizure that violated the Fourth Amendment may not be admitted in trial because it is the "fruit" of an unlawful action. See Wong Sun v. United States, 371 U.S. 471, 484-85 (1963). Investigative stops, or seizures, can be justified under the Fourth Amendment if they are made based on a police officer's reasonable suspicion. See United States v. Robertson, 90 F.3d 75, 77 (3d Cir. 1996) (citing Terry, 392 U.S. at 20 (holding that an investigative stop may be justified by less than the probable cause for an arrest)). Upon conducting an investigative stop, a police officer may perform a pat-down search for weapons, if he has a reasonable fear that the perpetrator with whom he is dealing is "armed and presently dangerous." See id. at 30-31. The officer must be able to point to "specific and articulable facts which, taken together, with rational inferences from those facts, reasonably warrant [the] intrusion." Id. at 21.
A warrantless stop is categorized as a seizure. See Terry v. Ohio, 392 U.S. 1, 16 (1968) (holding that there is a "seizure" whenever police officer accosts individual and restrains his freedom to walk away. . . .").
III. Analysis
The arresting officers stopped Defendant because he was a black man, wearing black clothing, carrying a baby-blue jacket, located only six blocks from the scene of the robbery, and only about thirty minutes after the robbery had occurred. A prudent officer seeing a person of the race and dress described in a crime report, carrying an item unique to that crime, only six blocks away from the crime scene shortly after the crime was committed would at least have reasonable suspicion that the person was the perpetrator of the crime. Defendant's arguments that the flash report's description of the perpetrator was too vague because it lacked certain physical information and that a Terry stop thirty minutes after the commission of the crime was improper are without merit.
Because the stop and search of Defendant were proper underTerry, we need not determine whether the officers had probable cause to arrest Defendant based upon the information received in the radio report and their initial observation of Defendant. SeeUnited States v. Cuyler, 563 F.2d 627, 630 (3d Cir. 1977) (holding that to determine whether probable cause for arrest exists turns on "whether the description of the assailants, as well as the time and geographic factors, [are] sufficient for a prudent man to believe that petitioner had committed the offense").
In Chambers v. Maroney police officers stopped a vehicle based on the fact that it was light-blue, carrying four men, one of whom was wearing a green sweater, another who was wearing a trench coat. 399 U.S. 42, 46-47 (1975). The Supreme Court concluded that this description was sufficiently specific to warrant an investigative stop regardless of the fact that the police lacked information concerning the perpetrator's presence of facial hair, height, weight, or complexion. Moreover, our Courts have recognized that a delay of thirty minutes between the crime and the stop of defendant does not render the investigative stop unreasonable. See Orricer v. Erickson, 471 F.2d 1204, 1207 (8th Cir. 1973) (holding that an investigative stop that occurred within one hour after the crime took place met the reasonable suspicion standard).
In addition, the arresting officers had reasonable grounds to search the Defendant because they had reason to believe that Defendant was armed and dangerous. See Terry, 392 U.S. at 30-31. The officers knew that one of the perpetrators of the robbery was armed. Defendant met the description of a perpetrator and carried a jacket exactly like the one taken in the robbery. Defendant placed his hand inside his waistband area and refused the police command to raise his hands. The officers certainly had reason to believe that Defendant might be armed. See Terry, 392 U.S. at 27 (stating that deference "is given to the officer's conclusion based on the officer's experience"); see also United States v. Brown, 159 F.3d 147, 149 (3d Cir. 1998) (same).
IV. Conclusion
The police officers had sufficiently specific information to create a reasonable suspicion that Defendant was the perpetrator of the robbery. The Terry Stop was proper. In addition, the information that the officers had received coupled with the Defendant's actions constituted sufficient articulable facts to support the reasonable inference that Defendant was armed. The search of Defendant was proper. Accordingly, Defendant's Motion to Suppress Physical Evidence will be denied.
An appropriate Order follows.
ORDER
AND NOW, this __ day of August, 2004, upon consideration of Defendant's Motion to Suppress Physical Evidence, and all papers filed in support thereof, and opposition thereto, it is ORDERED that Defendant's Motion is DENIED.IT IS SO ORDERED.