U.S. v. JACK, (N.D.Miss. 2002)

GLEN H. DAVIDSON, Chief United States District Judge

This matter came before the court on Tuesday, January 29, 2002, for a hearing on Defendants' motion to suppress certain evidence obtained after their vehicle was stopped and they were arrested. Having carefully considered the testimony and exhibits presented at the hearing of this matter, the court finds that the motion to suppress is not well taken and shall be denied.

A. Factual Background

The Defendants, Carlos Jack and Chaz Valrie, were named in an indictment charging them with robbing the National Bank of Commerce (NBC) in New Hope, Mississippi, on October 23, 2001. Officer Greg Porter, Deputy Sheriff for Lowndes County, was the first officer to see the Defendants traveling in their vehicle after the robbery that day. Officer Porter testified that he heard on the dispatch radio that there had been a robbery at the NBC in New Hope. This initial dispatch reported that the robbery was committed by two heavy-set black males who were driving an older model brown vehicle. Porter stated that he turned on his blue lights, siren, and headed in the direction of NBC. Porter stated that while he was driving towards the scene, he received an updated dispatch confirming the original one, and further stating that the suspects were armed, and that one of them was wearing a baseball cap. Porter testified that the information in this update came from Deputy Peacock, who at the time was at the scene of the bank, interviewing witnesses, including the original witness that called 911, and passing on the information to dispatch.

Porter estimated that it was less than ten minutes between the time of the original dispatch call and the time he saw the Defendants' vehicle. Porter stated that he was traveling south on Lehmberg Road towards NBC when he saw an older brown car traveling in the opposite direction (driving away from the bank). Porter stated that there was some traffic that day, and that the brown vehicle was going slow, apparently because of traffic in front of it. Porter testified that he made eye contact with the driver, who was a black man, and appeared to be the only man in the car. Porter said he then saw a second heavy set black man raise up from the back seat and then duck back down. Porter testified that this conduct seemed suspicious, and at that point, he felt that these were the men that robbed the bank.

Porter then slowed down and attempted to stop the Defendants' vehicle. Porter testified that he came to a stop, blocking traffic in his own lane (behind his car), and angled his vehicle in the direction of the Defendants with his vehicle's blue lights blinking and sirens sounding. Rather than stopping at the signal of Officer Porter, the Defendants' vehicle left the roadway, ran into a ditch and sped away. Porter testified that he turned around to follow them and called dispatch to report the vehicle. Within approximately three minutes, Porter, with the assistance of two other officers, stopped the Defendants' vehicle.

Porter and the other officers approached the stopped vehicle with their weapons drawn and asked the Defendants where their guns were. One of the Defendants responded that he threw it out of the vehicle earlier and further stated "I knew we shouldn't have robbed the bank today." Shortly thereafter, the men were taken into custody. Detective Greg Wright, an investigator for the Lowndes County Sheriff's Department, was called to the scene after the car was stopped. By the time he got there, one of the Defendants was already in a patrol car. Wright took pictures of the vehicle, and what could be seen through windows of the interior, but stated no doors were opened and the vehicle was not searched at that time. Two bags were clearly visible on the passenger side of the car. Wright stated that when he walked around to the passenger side and looked through the window, he could see money in one of the bags. The vehicle was towed to an impound lot, where an inventory search was subsequently done. The Defendants have not made any arguments that they were interrogated while in custody in violation of Miranda, nor have they challenged the subsequent inventory search. Their only argument is that Officer Porter did not have reasonable suspicion or probable cause to stop the vehicle. They argue that the stop was illegal and therefore any evidence or statements obtained as a result should be suppressed as fruit of the poisonous tree.

B. Law and Analysis

When the government searches or seizes a defendant without a warrant, as in the present case, the government bears the burden of proving, by a preponderance of the evidence, that the search or seizure was constitutional. United States v. Guerrero-Barajas, 240 F.3d 428, 432 (5th Cir. 2001). There is no question but that the stopping of a vehicle and the detention of its occupants is a "seizure" within the meaning of the Fourth Amendment. United States v. Shabazz, 993 F.2d 431, 434 (5th Cir. 1993) (citing Delaware v. Prouse, 440 U.S. 648, 653, 99 S.Ct. 1391, 1396, 59 L.Ed.2d 660 (1979)). The Fifth Circuit has stated that probable cause to search an automobile exists when "trustworthy facts and circumstances within the officer's personal knowledge would cause a reasonably prudent man to believe that the vehicle contains contraband." United States v. Shaw, 701 F.2d 367, 376 (citing United States v. Edwards, 577 F.2d 883 (5th Cir. 1978)). There the court stressed that probable cause is the "sum total of layers of information and the synthesis of what police have heard, what they know, and what they observed as trained officers." Shaw, 701 F.2d 376 (citation omitted). While in the present case, based on testimony at the suppression hearing, the vehicle was not actually searched until after the car was impounded, the government argues that Shaw and Edwards are on point. It appears that essentially their argument is the facts of Shaw (at least as to the initial description of vehicle) are close to the instant case, and thus, Officer Porter had probable cause to stop the vehicle.

While the court agrees that Officer Porter likely did have probable cause to stop the Defendants, investigatory stops of a vehicle may be based on reasonable suspicion of criminal activity, which is not as stringent a standard as probable cause. See United States v. Basey, 816 F.2d 980, 989 (5th Cir. 1987) (the "reasonable suspicion" standard does not require that officers have probable cause to believe the person they stop is guilty, or that the circumstances be such that there is no reasonable hypothesis of innocent behavior."). As in the case of pedestrians, seizures of motorists who are merely suspected of criminal activity are to be analyzed under the framework established in Terry v. Ohio, 329 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). See Shabazz, 993 F.2d at 434. Some Fifth Circuit cases have termed this practice a "vehicle frisk." Id. at 435, n. 2 (citing United States v. Hernandez, 901 F.2d 1217, 1220 (5th Cir. 1990); Basey, 816 F.2d at 991). Reasonable suspicion of criminal activity warrants a temporary seizure for the purpose of questioning limited to the purpose of the stop. United States v. Carreon-Palacio, 267 F.3d 381, 388 (5th Cir. 2001).

The Defendants argue that at the time Officer Porter came to a stop and angled his car in the direction of the Defendants' vehicle, he did not have reasonable suspicion or probable cause to stop them. Defendants rely primarily on Florida v. J.L., 529 U.S. 266, 271, 120 S.Ct. 1375, 146 L.Ed.2d 1375 (2000). J.L. involved an anonymous call to the police that a man standing at a particular bus stop wearing a plaid shirt was carrying a gun. Apart from the tip, the officers had no reason to suspect the man of illegal conduct [concealed firearm without license . . .]. The Court stated "reasonable suspicion here . . . requires that a tip be reliable in its assertion of illegality, not just in its tendency to identify a determinate person." Id. at 272. The Defendants cite cases where anonymous tips provided information and argue that because Porter did not, at least initially, know who provided the information to 911 dispatch, he did not have any basis to evaluate its reliability or credibility. Of course, this is not a case involving an anonymous tip. The woman who initially called 911 on her cellular phone testified that she pulled up to the drive though window of the bank and saw a man waving a gun in the air. She remained nearby the whole time and stated that she saw a brown vehicle with two men leaving, with one of the men pulling off some kind of headgear. This caller gave her name to the 911 operator and stayed on the phone with her until she saw officers arrive at the bank. At that time, she got out and talked with a deputy, and told him what she had seen. She testified that she spoke with the deputy outside the bank within five minutes of the robbery. She testified that the deputy also was interviewing and speaking with other eye witnesses on the scene.

The Fifth Circuit has stated that an "ordinary citizen's eyewitness account of criminal activity and identification of a perpetrator is normally sufficient to supply probable cause to stop the suspect." United States v. Burbridge, 252 F.3d 775, 778 (5th Cir. 2001). The court stated

`[W]hen an average citizen tenders information to the police, the police should be permitted to assume that they are dealing with a credible person in the absence of special circumstances suggesting that such might not be the case.' United States v. Fooladi, 703 F.2d 180, 183 (5th Cir. 1983) (quotation and citation omitted). The citizen eyewitness's account is credible because eyewitnesses `are seldom involved with the miscreants or the crime. Eyewitnesses by definition are not passing along idle rumor, for they either have been the victims of the crime or have otherwise seen some portion of it.' United States v. Bell, 457 F.2d 1231, 1238-39 (5th Cir. 1972). Furthermore, identified persons who claim to have been witnesses of the offense may be held accountable if the information turns out to be inaccurate.

Burbridge, 252 F.3d at 778-79.

Under the circumstances, Officer Porter certainly had reasonable suspicion to stop Defendants' vehicle at the time he saw the second man raise his head up from the back seat and then duck back down again. In fact, Porter likely had probable cause to stop the Defendants' then, as the "facts and circumstances within the officer's personal knowledge would [likely have] cause[ed] a reasonably prudent man to believe that . . . vehicle contain[ed] contraband," although probable cause was not necessary to stop them as long as Porter had reasonable suspicion. At any rate, after the Defendants realized that Porter was attempting to stop them, their flight only heightened Porter's suspicion.

In Illinois v. Wardlow, 528 U.S. 119, 124, 120 S.Ct. 673, 676, 145 L.Ed.2d 570 (2000), the Supreme Court stated "[o]ur cases have also recognized that nervous, evasive behavior is a pertinent factor in determining reasonable suspicion." (citations omitted). "Headlong flight — wherever it occurs — is the consummate act of evasion: It is not necessarily indicative of wrongdoing, but it is certainly suggestive of such." Wardlow, 528 U.S. at 124.

C. Conclusion

For the above stated reasons, the Defendants' motion to suppress is denied. The totality of the circumstances, including Officer Porter's seeing a vehicle matching the description given traveling in the opposite direction of the bank within ten minutes of the robbery, with two heavy-set black males as described, one who appeared to be hiding in the back seat, followed by the Defendants' swerving off the road and fleeing once Porter realized they were the suspects, certainly justified the officer's decision to stop them.

A separate order in accordance with this opinion shall issue this day.

ORDER DENYING MOTION TO SUPPRESS

Pursuant to an opinion issued this day, it is hereby ORDERED that

(1) the Defendants' motion to suppress the evidence (docket entry 20) is DENIED.

SO ORDERED.