United States v. Lott

Opinion

USCA1 Opinion

March 25, 1994        [NOT FOR PUBLICATION]
                                [NOT FOR PUBLICATION]
                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT
                                 ____________________

        No. 93-1191

                                    UNITED STATES,

                                      Appellee,

                                          v.

                                   GEORGE E. LOTT,

                                Defendant, Appellant.

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                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                          FOR THE DISTRICT OF MASSACHUSETTS

                     [Hon. William G. Young, U.S. District Judge]
                                             ___________________
                                 ____________________

                                        Before

                                 Selya, Circuit Judge,
                                        _____________
                            Bownes, Senior Circuit Judge,
                                    ____________________
                              and Stahl, Circuit Judge.
                                         _____________

                                 ____________________

            Kevin S. Nixon for defendant, appellant.
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            James  D. Herbert,  Assistant United  States Attorney,  with  whom
            _________________
        Donald K. Stern, United States Attorney, and Despena Fillios Billings,
        _______________                              ________________________
        Assistant United States Attorney, were on brief for appellee.

____________________

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BOWNES,   Senior  Circuit  Judge.    Defendant  was
                      BOWNES,   Senior  Circuit  Judge.
                                ______________________

            apprehended in  a taxicab after robbing a bank.  After a two-

            count indictment  was returned charging  defendant with armed

            bank robbery, he moved to suppress all evidence obtained as a

            result of  the stop and search of the taxicab in which he was

            a passenger at  the time of his  arrest.  The district  court

            held  a hearing  on the  motion and  denied it,  making bench

            findings  and  rulings.    The  next  day  defendant  offered

            conditional guilty  pleas to  both counts of  the indictment,

            reserving the right to  appeal from the denial of  the motion

            to suppress.    The  court  accepted  the  guilty  pleas  and

            sentenced  defendant to  180  months of  incarceration to  be

            followed  by 36  months of  supervised release.   Defendant's

            claim  on appeal  is that  the evidence  failed to  establish

            reasonable suspicion for the stop and search of the taxi.

                                     THE EVIDENCE
                                     THE EVIDENCE
                                     ____________

                      Our evidentiary review begins during  the afternoon

            of  September  19,  1991,  in  Robert's  Bakery  in  Needham,

            Massachusetts.  The weather  was overcast, threatening  rain.

            The owner of  the bakery,  Robert DiMarino, Jr.,  was in  the

            back  room when  his  attention was  drawn  to a  man  on the

            sidewalk shouting  through the window at  Marino's mother who

            was  in the customer area of the restaurant.  Marino inquired

            as to what was going on and  she told him that the man wanted

            her to call a taxi for  him.  Marino told his mother to  make

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the call.  She  called Veteran's Taxi Company in  Needham and

            was asked by the dispatcher the passenger's destination.  She

            repeated the question to the man  and was told that he wanted

            to go to Newton Center.

                      After the  call was  completed, it started  to rain

            and the man who  had requested the taxi came into  the bakery

            to  wait for  it.   He was  a tall,  thin black  male wearing

            jeans,  a brown striped  pullover and an  oversized black and

            white knit cap.   Within  a few minutes  a Veteran's  taxicab

            arrived to pick up the  man.  He came  out of the bakery  and

            asked  the cab driver  if he would  wait a few  minutes so he

            could find  out if his  wife was  going to  accompany him  to

            Newton Center.  He then left the area.

                      Within a  very short  time, a  man walked  into the

            Needham  Cooperative Bank.    The bank  is  located down  the

            street and around the  corner from Robert's Bakery.   He went

            directly to teller  stations two  and three in  the bank  and

            after  a short  conversation  with the  tellers proceeded  to

            scoop money out  of the  cash drawers.   Surveillance  photos

            show  him doing  this.   The  assistant manager  observed the

            robber as did a  young woman, Yvonne Welch, who  was standing

            next to him.  During the robbery, the robber wore a ski mask.

                      While the robbery was proceeding, an officer of the

            bank, Mr. McGeorge, was on the phone talking to his wife.  He

            told her that the bank was being robbed and asked her to call

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the  police.  Three other bank employees called the police to

            report a robbery in progress.   In at least one of  the calls

            the robber was described as a  tall, thin black man wearing a

            brown sweater  and blue jeans with his  face covered by a ski

            mask.   The Needham Police dispatcher radioed to all units in

            Needham  that an armed robbery was in progress at the Needham

            Cooperative  Bank involving  a black  male wearing  a striped

            brown sweater. 

                      The  robber left the bank on foot.  He was followed

            by the bank officer, McGeorge, through  a parking lot leading

            to  the street  on which  the taxi  was parked.   The  robber

            either fortuitously  or purposely eluded McGeorge.  McGeorge,

            however, got close enough  to see the robber's face,  the ski

            mask  having  been removed.    About  ten minutes  after  the

            robbery, the man who  had called for the taxi,  signalled the

            taxi  which had been waiting for him.   He got into the taxi,

            told the driver that  his wife was not coming with  him, that

            he felt ill and was going to lie down on the back seat, which

            he did.

                      Our  exposition  now  brings us  back  to  Robert's

            Bakery.  Within moments of the robbery, or during it, Needham

            Police Officer Arthur Douglas walked into the bakery.  He was

            known to the proprietor, who told him about his mother's call

            for a  taxi for a man and the conversation between his mother

            and the man  requesting the call.  As Douglas  was going into

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the rear of the store for tea  and a pastry, he heard on  his

            portable  radio that there was a robbery at the Needham Bank.

            Douglas immediately  ran to the bank,  obtained a description

            of the  robber and  then  ran back  to the  bakery  to get  a

            description of the  man who had used  the proprietor's mother

            to  call a taxi.  Both descriptions dovetailed.  Douglas also

            learned  that  the  taxi's  destination  was  Newton  Center.

            Douglas then radioed to Newton Police Sergeant Albert Droney,

            gave him a description of the bank robber,  and told him that

            the bank robber was  in a red Veteran's cab  headed to Newton

            Center.     Droney,  in   turn,  called  the   Newton  Police

            dispatcher, gave him  a description of the  bank robber, told

            him to give this information to the Newton Police and to tell

            them that the robber  was in a red Veteran's  taxicab heading

            down Highland Avenue in Needham towards Newton.

                      Newton Police Officer David Richard was  sitting in

            his  cruiser  on  Center  Street   in  Newton,  which  is   a

            continuation of  Highland  Avenue,  when  the  Newton  Police

            broadcast the robbery information.  Immediately after hearing

            the  broadcast, Richard saw and stopped the taxi.  The robber

            was found  on the rear floor of the taxi on top of his beret,

            which  contained the money stolen from the bank.  The Needham

            Police subsequently arrived with witnesses to the robbery who

            unhesitatingly identified defendant as the bank robber.  This

            ends our recitation of the relevant facts.

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There is, however,  a humorous  episode that  bears

            re-telling.  During  the time that the information  about the

            bank robber  travelling in a  Veteran's cab to  Newton Center

            was being  broadcast, another  Veteran's  cab was  travelling

            from Needham Junction to Needham Heights.  It was carrying as

            passengers two  Amtrak engineers.   As the  cab approached  a

            traffic  light intersection,  the light  turned yellow.   The

            driver,  neverthe- less, proceeded  through the intersection.

            As he  did  so, one  of the  passengers informed  him that  a

            police cruiser  with its  blue lights flashing  was following

            them.   The driver pulled  the cab  over to the  side of  the

            road.  The cruiser came  alongside and police officers jumped

            out  with weapons drawn.  The driver  got out of his cab with

            his hands raised and said, "I'll never go through a red light

            again."

                                      DISCUSSION
                                      DISCUSSION
                                      __________

                      There is  no  need to  tarry long  on the  analysis

            required.  It is familiar terrain.

                         The constitutionality of the officers'
                      stop   and   search  must   be  evaluated
                      according to the  now familiar  two-prong
                      test  articulated by the Supreme Court in
                      Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868,
                      _____    ____
                      20 L.Ed.2d  889.   Determining  that  the
                      Fourth Amendment regulates  but does  not
                      prohibit  temporary detentions  that fall
                      short  of a full-scale  arrest, the Court
                      in Terry held  that such encounters  must
                         _____
                      be  justified   by  reasonable  suspicion
                      proportional to the degree  of intrusion.
                      Thus, in reviewing the  reasonableness of
                      a  Terry  stop,   the  court  must  first
                         _____

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consider whether the officer's action was
                      justified at its inception;  and, second,
                      whether the action  taken was  reasonably
                      related  in  scope  to the  circumstances
                      which justified the  interference in  the
                      first  place.   United States  v. Sharpe,
                                      _____________     ______
                      470  U.S. 675, 682, 105 S.Ct. 1568, 1573,
                      94 L.Ed.2d 605 (1985) (quoting Terry, 392
                                                     _____
                      U.S.  1, 20,  88  S.Ct.  1868,  1879,  20
                      L.Ed.2d 889).  The circumstances "are not
                      to be dissected and viewed singly; rather
                      they  must  be  considered  as  a whole."
                      United  States v.  Trullo, 809  F.2d 108,
                      ______________     ______
                      111  (1st Cir.),  cert. denied,  482 U.S.
                                        _____ ______
                      916,  107  S.Ct.  3191,  196  L.Ed.2d 679
                      (1987).

            United  States v. Stanley, 915  F.2d 54, 55  (1st Cir. 1990).
            ______________    _______

            Defendant's argument boils down to this:

                      Because  the  Needham police  officer who
                      issued  the  radio   bulletin  lacked   a
                      reasonable   suspicion   concerning   the
                      taxicab  stopped  in Newton,  and because
                      Officer    Richard    had    insufficient
                      information to justify stopping the taxi,
                      the District Court  erred when it  denied
                      the motion to suppress.

            Defendant's  Brief at 14.   The facts establish the contrary.

            The Needham police officer who issued the  radio bulletin had

            been  given  a description  of the  bank  robber by  a fellow

            police officer.   This  officer had obtained  the description

            from  eye  witnesses  to  the  robbery.    The  same  officer

            (Douglas) determined  that this  description matched  that of

            the man who had used the clerk in Robert's Bakery (the mother

            of  the proprietor)  to obtain  a taxi.   It  did not  take a

            Sherlock  Holmes to deduce that  the bank robber  and the man

            who requested  the taxi were one  and the same.   It was more

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than  a  reasonable suspicion;  it  was  a perfectly  logical

            deduction.  The bank robber  had told the woman who  made the

            taxi call  for him  that his  destination was  Newton Center.

            This  information  was  also  given  to  the  Needham  police

            dispatcher who passed  it along  to the Newton  Police.   The

            Newton Police Officer who saw and stopped the taxi containing

            the  robber had been  informed that the  robber was in  a red

            Veteran's taxicab which was  proceeding to Newton Center from

            Needham.   The cab  he stopped and  searched was  of the type

            described, and was proceeding  from Needham to Newton Center.

            On the basis  of the information he had, his  duty was clear:

            stop the cab and check its passenger.  No  amount of forensic

            skill can erase the  clear reasonable suspicion that resulted

            in the stop  and search of the taxi in  which defendant hoped

            to make his getaway.

                      Although  the facts  of this  case are  unique, the

            application of the law to the facts dictate that the judgment

            below be 

                      Affirmed.
                      Affirmed.
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