F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS MAY 20 1999 TENTH CIRCUIT PATRICK FISHER Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee, v. No. 98-5178 (D.C. No. 98-CR-06-001-K) JAMES EDWARD HICKS, JR., (N.D. Okla.)
Defendant-Appellant.
ORDER AND JUDGMENT *
Before SEYMOUR, Chief Judge, EBEL, and MURPHY, Circuit Judges.
Defendant-Appellant James Edward Hicks appeals his conviction on federal
armed robbery and weapons charges following a jury trial in the Northern District
of Oklahoma. He argues on appeal that the district court erred in denying his
motion to suppress statements and evidence. He also contends that certain
accomplice testimony introduced against him at trial was obtained in violation of
18 U.S.C. § 201(c)(2). We affirm.
* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. This court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. BACKGROUND
On November 30, 1997, at approximately 2:00 a.m., Officer Jenkins of the
Tulsa Police was called to investigate a fight at a bar called the Brick House.
While there, Jenkins heard a gunshot at an apartment complex near the Brick
House parking lot, saw a crowd running in all directions, and a blue GM model
car speeding away from the complex. The officer saw no other traffic in the area.
Jenkins requested assistance in pursuing the vehicle. He lost sight of the
car for about 15 seconds, but then intercepted the vehicle as it re-entered the
apartment complex. Jenkins and other officers stopped the car, pointed their
guns, and had the occupants exit the car one by one, including the driver,
defendant-appellant James Edward Hicks.
Hicks and the two passengers were handcuffed and detained. All three
were patted down; police found approximately $500 in Hicks’ jacket pocket, but
no weapons on his person. The officers then searched the vehicle and discovered
a mask, gloves, and a Crown Royal bag containing money. They also found a .38
caliber revolver in the map pocket of the driver’s side door. Hicks then was
arrested for transporting a loaded firearm and carrying a concealed weapon.
The police took Hicks and the two passengers to a police station, where
they read Hicks his Miranda rights, and obtained a confession from him that he
had been involved in the armed robbery of a Radio Shack the day before. After
-2- obtaining Hicks’ consent, the officers searched Hicks’ residence and discovered a
large amount of cash, bullets matching the .38 caliber gun, and a stolen
camcorder.
On January 9, 1998, a federal grand jury returned a two-count indictment
against Hicks, charging him with the armed robbery of a Radio Shack on
November 29, 1997. On February 24, 1998, Hicks filed a motion to suppress
evidence alleged to have been seized illegally and to suppress Hicks’ statements
to the police. On March 4, 1998, the grand jury returned a twelve-count
superseding indictment, charging Hicks with five additional armed robberies
committed in November 1997. On April 17, 1998, the district court denied Hicks’
motion to suppress.
On May 20, 1998, Hicks was convicted by a jury in the Northern District of
Oklahoma on all twelve armed robbery and weapons charges. 1 On September 14,
1998, he was sentenced to 1,350 months’ imprisonment, 3 years’ supervised
release, and restitution. Hicks now appeals.
1 Hicks was convicted of violations of 18 U.S.C. § 1951 (armed robbery affecting interstate commerce); 18 U.S.C. § 924(c) (use of a firearm during the commission of a violent crime); and 18 U.S.C. § 2 (aiding and abetting).
-3- DISCUSSION
Motion to Suppress
“In reviewing the district court’s denial of a motion to suppress, we accept
the court’s factual findings unless they are clearly erroneous and consider the
evidence in the light most favorable to the government.” See United States v.
Gordon, No. 98-2100, 1999 WL 203154, at *2 (10th Cir. Apr. 12, 1999). “The
ultimate question of whether a search and seizure were reasonable under the
Fourth Amendment is a question of law we review de novo.” Id.
Hicks contends that the officers lacked reasonable suspicion to make the
initial investigatory stop. He maintains that there was no evidence that he or
anyone in his car had fired a weapon that night, or that he had committed any
traffic violation that would justify a traffic stop. Hicks submits that as a result,
the officers had no reasonable suspicion to believe that Hicks had been, was, or
was about to be engaged in criminal activity, much less did the officers have
probable cause to arrest him. Because his arrest was unlawful, Hicks argues, the
fruits of the search of his vehicle and his subsequent statement to the police
should have been suppressed.
In contrast, the district court found at Hicks’ motion to suppress hearing
that the police did have reasonable suspicion to stop Hicks’ vehicle. The court
found that Officer Jenkins saw Hicks’ vehicle in the vicinity of gunshots; that
-4- Hicks’ car sped away from the location; that people were running from the
vehicle and the area; and that the car was stopped within a few minutes in the
same general area as the shooting. The district court further found that the
occupants of Hicks’ car were properly subjected to a patdown search, in light of
the fact that shots had been fired. Likewise, the court found that the protective
sweep search of the vehicle was justified for safety reasons, and that his arrest
was lawful based upon the officers’ discovery of the weapon. Finally, the court
ruled that Hicks’ consent to search his apartment was valid, and that his
statements to police came after he had been read his Miranda rights and showed
no sign of coercion.
In United States v. Henning, 906 F.2d 1392 (10th Cir. 1990), modified on
other grounds by United States v. Moore, 958 F.2d 310 (10th Cir. 1992), we ruled
that “‘[a]n investigative detention is justified where specific and articulable facts
and rational inferences from those facts give rise to reasonable suspicion that a
person has committed or is committing a crime.’” Id. at 1395 (quoting United
States v. Espinosa, 782 F.2d 888, 890 (10th Cir. 1986)). Henning is controlling,
as its facts are analogous to the instant case.
In Henning, police officers were investigating gang activity near a bar
when they heard a gunshot 300 to 400 yards away. Moments later, they observed
a vehicle emerge from the general area of the gunshot, make a “California stop”
-5- at an intersection, and then speed away. There was no other traffic in the area.
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F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS MAY 20 1999 TENTH CIRCUIT PATRICK FISHER Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee, v. No. 98-5178 (D.C. No. 98-CR-06-001-K) JAMES EDWARD HICKS, JR., (N.D. Okla.)
Defendant-Appellant.
ORDER AND JUDGMENT *
Before SEYMOUR, Chief Judge, EBEL, and MURPHY, Circuit Judges.
Defendant-Appellant James Edward Hicks appeals his conviction on federal
armed robbery and weapons charges following a jury trial in the Northern District
of Oklahoma. He argues on appeal that the district court erred in denying his
motion to suppress statements and evidence. He also contends that certain
accomplice testimony introduced against him at trial was obtained in violation of
18 U.S.C. § 201(c)(2). We affirm.
* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. This court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. BACKGROUND
On November 30, 1997, at approximately 2:00 a.m., Officer Jenkins of the
Tulsa Police was called to investigate a fight at a bar called the Brick House.
While there, Jenkins heard a gunshot at an apartment complex near the Brick
House parking lot, saw a crowd running in all directions, and a blue GM model
car speeding away from the complex. The officer saw no other traffic in the area.
Jenkins requested assistance in pursuing the vehicle. He lost sight of the
car for about 15 seconds, but then intercepted the vehicle as it re-entered the
apartment complex. Jenkins and other officers stopped the car, pointed their
guns, and had the occupants exit the car one by one, including the driver,
defendant-appellant James Edward Hicks.
Hicks and the two passengers were handcuffed and detained. All three
were patted down; police found approximately $500 in Hicks’ jacket pocket, but
no weapons on his person. The officers then searched the vehicle and discovered
a mask, gloves, and a Crown Royal bag containing money. They also found a .38
caliber revolver in the map pocket of the driver’s side door. Hicks then was
arrested for transporting a loaded firearm and carrying a concealed weapon.
The police took Hicks and the two passengers to a police station, where
they read Hicks his Miranda rights, and obtained a confession from him that he
had been involved in the armed robbery of a Radio Shack the day before. After
-2- obtaining Hicks’ consent, the officers searched Hicks’ residence and discovered a
large amount of cash, bullets matching the .38 caliber gun, and a stolen
camcorder.
On January 9, 1998, a federal grand jury returned a two-count indictment
against Hicks, charging him with the armed robbery of a Radio Shack on
November 29, 1997. On February 24, 1998, Hicks filed a motion to suppress
evidence alleged to have been seized illegally and to suppress Hicks’ statements
to the police. On March 4, 1998, the grand jury returned a twelve-count
superseding indictment, charging Hicks with five additional armed robberies
committed in November 1997. On April 17, 1998, the district court denied Hicks’
motion to suppress.
On May 20, 1998, Hicks was convicted by a jury in the Northern District of
Oklahoma on all twelve armed robbery and weapons charges. 1 On September 14,
1998, he was sentenced to 1,350 months’ imprisonment, 3 years’ supervised
release, and restitution. Hicks now appeals.
1 Hicks was convicted of violations of 18 U.S.C. § 1951 (armed robbery affecting interstate commerce); 18 U.S.C. § 924(c) (use of a firearm during the commission of a violent crime); and 18 U.S.C. § 2 (aiding and abetting).
-3- DISCUSSION
Motion to Suppress
“In reviewing the district court’s denial of a motion to suppress, we accept
the court’s factual findings unless they are clearly erroneous and consider the
evidence in the light most favorable to the government.” See United States v.
Gordon, No. 98-2100, 1999 WL 203154, at *2 (10th Cir. Apr. 12, 1999). “The
ultimate question of whether a search and seizure were reasonable under the
Fourth Amendment is a question of law we review de novo.” Id.
Hicks contends that the officers lacked reasonable suspicion to make the
initial investigatory stop. He maintains that there was no evidence that he or
anyone in his car had fired a weapon that night, or that he had committed any
traffic violation that would justify a traffic stop. Hicks submits that as a result,
the officers had no reasonable suspicion to believe that Hicks had been, was, or
was about to be engaged in criminal activity, much less did the officers have
probable cause to arrest him. Because his arrest was unlawful, Hicks argues, the
fruits of the search of his vehicle and his subsequent statement to the police
should have been suppressed.
In contrast, the district court found at Hicks’ motion to suppress hearing
that the police did have reasonable suspicion to stop Hicks’ vehicle. The court
found that Officer Jenkins saw Hicks’ vehicle in the vicinity of gunshots; that
-4- Hicks’ car sped away from the location; that people were running from the
vehicle and the area; and that the car was stopped within a few minutes in the
same general area as the shooting. The district court further found that the
occupants of Hicks’ car were properly subjected to a patdown search, in light of
the fact that shots had been fired. Likewise, the court found that the protective
sweep search of the vehicle was justified for safety reasons, and that his arrest
was lawful based upon the officers’ discovery of the weapon. Finally, the court
ruled that Hicks’ consent to search his apartment was valid, and that his
statements to police came after he had been read his Miranda rights and showed
no sign of coercion.
In United States v. Henning, 906 F.2d 1392 (10th Cir. 1990), modified on
other grounds by United States v. Moore, 958 F.2d 310 (10th Cir. 1992), we ruled
that “‘[a]n investigative detention is justified where specific and articulable facts
and rational inferences from those facts give rise to reasonable suspicion that a
person has committed or is committing a crime.’” Id. at 1395 (quoting United
States v. Espinosa, 782 F.2d 888, 890 (10th Cir. 1986)). Henning is controlling,
as its facts are analogous to the instant case.
In Henning, police officers were investigating gang activity near a bar
when they heard a gunshot 300 to 400 yards away. Moments later, they observed
a vehicle emerge from the general area of the gunshot, make a “California stop”
-5- at an intersection, and then speed away. There was no other traffic in the area.
Henning, 906 F.2d at 1395-96. The officers pursued the vehicle and pulled it
over. When they asked Henning to exit the vehicle, an automatic weapon fell to
the ground. The officers subjected Henning to a patdown search, which revealed
another gun, and arrested him. A search of his vehicle incident to his arrest
revealed a cache of drugs and firearms. See id. at 1394-95.
Henning argued on a motion to suppress that the initial stop was not
supported by probable cause. See id. at 1395. We upheld the district court’s
ruling that the initial stop was justified under the circumstances, reasoning that
“[t]rained law enforcement officers could not reasonably be expected to simply
stand by and ignore the potential significance such a fact pattern presents . . . .”
Id. at 1396.
This case presents a remarkably similar fact pattern. Here, Officer Jenkins
heard gunshots and observed a blue GM car speed away from the scene, with no
other traffic in the parking lot area. Although Jenkins briefly lost sight of the
vehicle, he pulled it over moments later in the same general area as the shooting.
Under the circumstances, Jenkins had specific and articulable facts which,
together with the rational inferences to be drawn therefrom, provided him and the
other officers with reasonable suspicion that the occupants of the blue GM had
-6- committed or were committing a crime. Accordingly, the officers’ initial stop of
the vehicle was permissible under the Fourth Amendment.
In addition, it was not unreasonable under the circumstances for the
officers to execute the stop with their weapons drawn.
While Terry stops generally must be fairly nonintrusive, officers may take necessary steps to protect themselves if the circumstances reasonably warrant such measures. The use of guns in connection with a stop is permissible where the police reasonably believe the weapons are necessary for their protection.
United States v. Perdue, 8 F.3d 1455, 1462 (10th Cir. 1993) (internal quotations
and alterations omitted). Given that gunshots had been fired minutes before, the
officers here were reasonably concerned for their safety, and were justified in
drawing their weapons and in ordering the passengers out of the vehicle. See id.
at 1463.
Likewise, even though the officers had already frisked the occupants for
weapons and knew that none of them was armed, under the circumstances, they
were justified in handcuffing the defendants while the officers conducted a
protective sweep of the car. See United States v. Shareef, 100 F.3d 1491, 1507
(10th Cir. 1996) (handcuffing of defendants was justified until all defendants
were secured, and for reasonable time thereafter while officers conducted
protective sweeps of cars and assessed situation).
-7- Thus, the officers’ initial stop, frisk, and protective sweep search of the
vehicle in this case were constitutional, and the items from Hicks’ person and the
car were lawfully seized. Additionally, because his arrest was lawful, his
subsequent statements to the police should not have been suppressed as the
product of an unlawful arrest.
Witnesses’ Testimony
Hicks was convicted largely on the testimony of three accomplices, Alonzo
Nolen, Clyde McShan, and Sheryl Murphee. All three witnesses testified against
Hicks pursuant to plea agreements with the government. Hicks argues on appeal
that these witnesses’ testimony violated 18 U.S.C. § 201(c)(2). Hicks did not
argue this below, and in any event, the issue was resolved against his position in
United States v. Singleton, 165 F.3d 1297 (10th Cir. 1999).
Accordingly, the judgment of the district court is AFFIRMED.
ENTERED FOR THE COURT
David M. Ebel Circuit Judge
-8-