United States v. Richards

• Court: Court of Appeals for the Tenth Circuit
• Decided: February 23, 2007
• Docket: 06-3286
• Status: Unpublished

Opinion

F I L E D United States Court of Appeals Tenth Circuit UNITED STATES CO URT O F APPEALS February 23, 2007 TENTH CIRCUIT Elisabeth A. Shumaker __________________________ Clerk of Court

U N ITED STA TES O F A M ER ICA,

Plaintiff-Appellee,

v. No. 06-3286 (D . Kan.) TER RY L. RICH ARD S, (D.Ct. No. 05-CR-40148-SAC)

Defendant-Appellant. ____________________________

OR D ER AND JUDGM ENT *

Before TA CH A, Chief Circuit Judge, and BARRETT and BROR BY, Senior Circuit Judges.

After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1.9(G). The case is

therefore ordered submitted without oral argument.

Appellant Terry L. Richards appeals his conviction for one count of

* This order and judgment is not binding precedent except under the doctrines of law of the case, res judicata and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1).

M r. Richards appeals his conviction on grounds the district court erred in denying

his motion to suppress evidence obtained following a pat-down search of his

person in violation of his Fourth Amendment rights. W e exercise jurisdiction

pursuant to 28 U.S.C. § 1291 and affirm M r. Richards’s conviction.

I. Factual and Procedural Background

The following undisputed facts stem from evidence presented at the

suppression hearing and relied on by the district court in denying M r. Richards’s

motion to suppress. At 12:45 a.m. on August 29, 2005, Police Officer Bobby

M ing was on patrol in Topeka, Kansas, when he received a police dispatch

notifying him of an armed robbery of a cab driver on the north side of town. The

dispatch identified the suspects as three black males who robbed the cab driver

with a nine millimeter handgun in the area of a convenience store near

Seventeenth Street and Topeka Boulevard. It also reported the cab driver had

originally picked the suspects up three miles away at the 2400 block of M adison

Street, which is near the southeast area of Topeka where Officer M ing was

located; after the robbery, the suspects were reported to have fled in a dark-

colored Cadillac. At the dispatcher’s request, Officer M ing drove to the 2400

block of M adison, where the cab ride originated, in the event the suspects

returned to that area, but he did not see a car fitting the description.

-2- Officer M ing then drove to the Boys’ and Girls’ Club a few blocks away

and parked his vehicle so he could observe the 2600 block of Adams Street. A t

approximately 1:05 a.m., he heard a loud noise from the exhaust of a vehicle

accelerating uphill and traveling from the direction of town where the robbery

occurred; the vehicle was an older, dark grey-blue Cadillac heading southbound at

a high rate of speed. 1 No other vehicles were operating in the area, which Officer

M ing noted was the typical traffic situation at 1:05 on a Sunday morning. At that

time, Officer M ing could not see how many people w ere in the vehicle or their

race or sex.

Officer M ing followed the vehicle, which he observed failing to stay in its

lane and weaving between lanes without signaling, presumably due to the driver

spotting the officer in his rearview mirror. Before stopping the vehicle, Officer

M ing called for a back-up unit because he feared for his and others’ safety, given

the C adillac might contain the nine millimeter gun used to rob the cab driver. In

attempting to stop the vehicle Officer M ing turned on his emergency lights, but

the Cadillac did not immediately stop and instead pulled over as if to yield, then

traveled thirty-five to forty yards against the curb, creeping along at an idling

speed. Based on his many years of law enforcement experience, this action

1 Officer M ing is a certified radar operator, required to estimate vehicle speeds correctly within a range of five miles per hour.

-3- caused Officer M ing to believe the occupants were drinking, hiding evidence of

illegal conduct, accessing weapons, or preparing to flee; consequently, his belief

the traffic stop would be dangerous was heightened.

Once the Cadillac stopped, Officer M ing waited for a back-up officer to

arrive. After the officer arrived, Officer M ing approached the vehicle with his

flashlight on and his handgun out with its safety off. Although it was dark,

Officer M ing ascertained the vehicle contained four or five black males,

heightening his suspicion it might be the same vehicle involved in the robbery. In

approaching the vehicle, Officer M ing proceeded along the trunk to the vehicle’s

rear window pillar so if anyone possessed a gun they would have to turn around

and make a noticeable motion before they fired at him. W hile standing behind the

window pillar, Officer M ing identified himself, explained the reason for the stop,

requested paperwork, and asked the driver to step out of the vehicle and back to

Officer M ing’s location. Officer M ing then explained to the driver that the reason

for the stop stemmed from his speeding and a recent robbery, and, with his

consent, Officer M ing did a pat-down search of the driver and then directed him

to sit on the curb, with which he complied.

Officer M ing then went to the passenger side of the Cadillac and asked M r.

Richards, the front seat passenger, to step out of the vehicle and join him at the

-4- rear of the vehicle so he could speak with him. W hile M r. Richards ultimately

complied, Officer M ing noticed he was hesitant about getting out and reluctant to

comply with his requests; M r. Richards also began questioning the officer about

the purpose of the stop. Concerned for his safety because M r. Richards was a

large man, and hoping to defuse any tension, Officer M ing calmly asked him to

place his hands on the trunk; M r. Richards hesitated and then complied. In

patting him down, Officer M ing first put one hand on M r. Richards’s back and

felt him tense; just as Officer M ing began to sweep the front of his waistband,

M r. Richards spun around, at which time Officer M ing distinctly felt a gun

protruding through his t-shirt. M r. Richards then ran, fleeing to a nearby wooded

area with Officer M ing giving chase, shouting for him to stop, and radioing for

additional backup. After other officers arrived, M r. Richards was arrested. W hen

another officer patted down M r. Richards, he found a handgun magazine

containing .25 caliber rounds in his front pants pocket. About six to ten feet from

where M r. Richards was patted down, the officers also found a handgun, drugs

and a six-pointed star ring. 2

Follow ing his arrest, M r. Richards’s counsel filed a motion to suppress

evidence obtained from the pat-down search, contending the search was

2 According to Officer M ing, the six-pointed star ring is “an indicator of the Folks Gang. It’s a recognition sign.” R., Vol. 3 at 39.

-5- unconstitutional. Following a suppression hearing where Officer M ing testified,

the district court issued a well-reasoned, comprehensive decision, determining

Officer M ing possessed an articulable, reasonable suspicion to: (1) stop the

C adillac based on the speeding and lane violations; and (2) perform the pat-down

search. W ith respect to the latter, the district court applied the relevant law to the

facts presented and determined Officer M ing possessed an articulable, reasonable

suspicion for the pat-down search based on the “totality of the circumstances,”

including, in part, the fact: (1) the vehicle matched the description of the dark-

colored Cadillac involved in the armed robbery; (2) the race, number, and sex of

its occupants matched the description of the armed robbery suspects; (3) the

location of the speeding vehicle was near where the taxi ride originated and was

traveling away from the area where the robbery occurred; (4) it was the early

hours of the morning and there was a lack of other traffic at that time; (5) the car

was operated in a fast or unusual manner before and during Officer M ing’s

attempt to stop it; (6) M r. Richards displayed hesitant and argumentative conduct

when asked to cooperate and place his hands on the trunk; and (7) Officer M ing

believed the defendant, as an occupant of the stopped vehicle, might be armed and

dangerous and a Terry frisk would be necessary to protect himself and others.

Following the district court’s denial of his motion to suppress, M r.

Richards entered a conditional guilty plea to possession of a firearm by a

-6- convicted felon, reserving the right to appeal the suppression issue raised.

Following the sentencing hearing, the district court sentenced M r. Richards to

fifty-one months imprisonment. M r. Richards now appeals his conviction.

II. Discussion

On appeal, M r. Richards contends the pat-down search by Officer M ing

was “constitutionally unreasonable, because the facts available to law

enforcement did not warrant a reasonable belief ... [he] was armed and

dangerous.” M r. Richards premises his contention on the fact the police dispatch

only provided “thumbnail bits of information” that an armed robbery occurred

involving a dark-colored Cadillac containing three suspects, which he argues was

insufficient, under our decision in United States v. Jones, 998 F.2d 883 (10th Cir.

1993), to support a pat-down search. In support of his argument, M r. Richards

contends: (1) dark-colored Cadillacs are not unusual in Topeka and the generic

description of a dark Cadillac was too broad to generate reasonable suspicion for

the stop; (2) Officer M ing stopped a Cadillac containing five individuals and not

three individuals as reported by the dispatch; (3) other than information the three

suspects w ere black males, no information was known about the “height, weight,

hair style, clothing, or any other distinguishing characteristic[s] of the robbery

suspects”; (4) the elapsed twenty- to thirty-minute time period between the

dispatch and the stop meant the suspect vehicle could be anywhere in Topeka; (5)

-7- it should have taken only three to five minutes, rather than twenty to thirty

minutes, to drive three miles from the robbery location to the stop location; and

(6) neither the driver nor M r. Richards said or did anything threatening to the

officers prior to the pat-down search. He also argues the fact the car drove slowly

for forty yards after Officer M ing activated his emergency lights was insufficient

to warrant a reasonable belief M r. Richards w as armed and dangerous, and M r.

Richards’s hesitancy to comply with Officer M ing’s commands was momentary

and otherwise did not justify a pat-down search. For these reasons, M r. Richards

suggests the pat-down search was unconstitutional, and therefore, evidence

resulting from the search should have been suppressed.

W e begin addressing M r. Richards’s argument with our standard of review :

W hen reviewing the denial of a motion to suppress, we accept the district court’s factual findings unless clearly erroneous, and we review the evidence in the light most favorable to the government. However, we review de novo the ultimate determination of reasonableness under the Fourth Amendment because that is a legal conclusion. The defendant bears the burden of establishing a Fourth Amendment violation.

United States v. Patterson, 472 F.3d 767, 775 (10th Cir. 2006) (quotation marks

and citations omitted).

A s to the applicable legal analysis, for the purpose of judicial economy we

decline to repeat the district court’s exhaustive discussion of the law applicable to

-8- pat-down searches, other than to repeat a few relevant principles specifically

applicable to the circumstances presented here. In situations involving a traffic

stop, we have held an officer may take steps to reasonably protect himself and

others, provided those measures are not too intrusive and the government’s strong

interest in officer safety outweighs the motorist’s interests. See United States v.

Dennison, 410 F.3d 1203, 1211 (10th Cir.), cert. denied, 126 S. Ct. 468 (2005).

W hen an officer possesses a reasonable suspicion to believe an occupant of a

vehicle may be armed and dangerous, that officer may conduct a reasonable pat-

down search of the driver and any passengers of the vehicle for weapons in order

to protect himself and others. See Dennison, 410 F.3d at 1211; United States v.

M anjarrez, 348 F.3d 881, 886-87 (10th Cir. 2003). Thus, in determining if a pat-

down search is constitutionally valid, we look to the totality of the circumstances,

including the articulable facts presented, taken together with the rational

inferences from those facts, to determine if they would cause a reasonably

prudent officer to believe his safety and the safety of others was in danger. See

Dennison, 410 F.3d at 1210-11; M anjarrez, 348 F.3d at 887. In so doing, we give

“deference to the officer’s ability to draw on his own experience and specialized

training to make inferences from and deductions about the cumulative information

available to him that might well elude an untrained person.” United States v.

Johnson, 364 F.3d 1185, 1193 (10th Cir. 2004) (quotation marks and citations

omitted).

-9- In applying these principles to the facts at hand, it is clear M r. Richards has

not carried his burden of establishing a Fourth Amendment violation. As the

district court explained, Officer M ing possessed a reasonable, articulable

suspicion to conduct the pat-down search based on his own law enforcement

experience and the totality of the circumstances, including but not limited to the

fact the speeding vehicle and its occupants appeared to match the description of

both the vehicle and suspects involved in the armed robbery, and therefore, it was

not unreasonable to believe the occupants of the vehicle may have possessed the

gun used in the armed robbery. W ithout conducting a pat-down search, Officer

M ing could not assure the safety of himself or others during the traffic stop, and

such a search was not so intrusive as to cause M r. Richards’s Fourth Amendment

interests to outweigh the officer’s interests in safety.

The fact the stop came twenty or thirty minutes after the robbery, in an area

only a few miles away from the convenience store, does not diminish Officer

M ing’s reasonable suspicion the vehicle and its occupants may have been

involved in the robbery. Not only did the Cadillac match the general description

of the robbery vehicle used, but it was the only vehicle operating in the area that

morning, and the possibility existed the robbery suspects spent time taking

measures to evade authorities before returning to the area where their conduct

originated. Similarly, while more than three men occupied the vehicle, it was not

-10- unreasonable for Officer M ing to continue to assume it contained the robbery

suspects, given one or more individuals may have been in the getaw ay vehicle

waiting to pick up the others. W hile M r. Richards points to these and other facts

to suggest innocent conduct occurred which did not necessitate a pat-down search,

we do not look at each factor in isolation but at the “totality of the circumstances”

to determine if the officer had a “particularized and objective basis for suspecting

legal wrongdoing.” United States v. Arvizu, 534 U.S. 266, 273 (2002) (quotation

marks and citation omitted). Similarly, an officer’s “determination that

reasonable suspicion exists ... need not rule out the possibility of innocent

conduct.” Id. at 277.

Next, as the district court explained, the situation presented here is

different from Jones, where authorities, looking for two armed black males in a

black M ercedes, impermissibly singled out two black males in a black M ercedes

in a city as large as Albuquerque at 4:00 p.m. on a weekday afternoon, where the

vehicle: (1) also contained a woman and at least one child; (2) was not traveling

in a direction away from the disturbance; (3) parked at a grocery store rather than

fleeing authorities; and (4) did not appear or operate in a way to arouse the

officers’ suspicions. 998 F.2d at 884-85.

In contrast, the situation here involved not only a dark-colored Cadillac and

-11- at least three black males matching the general description provided, but the

Cadillac was the only vehicle in the vicinity in the early hours of the morning,

and also sped and wove between lanes in a direction away from the robbery. W e

have held suspects fleeing from an armed robbery present an exigency calling for

action, see United States v. M iller, 532 F.2d 1335, 1338 (10th Cir. 1976), and the

matching general description of the robbery vehicle and suspects, together with

the time of day, lack of other traffic, and direction, location, and erratic operation

of the Cadillac provided Officer M ing with sufficient articulable, reasonable

suspicion to conduct a pat-down search in order to assure his and others’ safety

during the traffic stop. M oreover, unlike the situation in Jones, M r. Richards’s

demeanor and hesitant cooperation, together with other examples of the Cadillac’s

erratic operation, including its failure to stop and its operation next to the curb at

idling speed for almost forty yards, contributed to the totality of the

circumstances and Officer M ing’s articulable, reasonable suspicion the occupants

might be accessing a weapon.

III. Conclusion

For these and the other reasons outlined by the district court, M r. Richards

has failed to carry his burden of showing the district court erred in denying his

motion to suppress evidence of the gun found during a pat-down search.

-12- Accordingly, we A FFIR M M r. Richards’s conviction.

Entered by the C ourt:

W ADE BRO RBY United States Circuit Judge

-13-