United States v. Rita L. Williams

714 F.2d 777

• Court: Court of Appeals for the Eighth Circuit
• Decided: September 15, 1983
• Docket: 82-2263
• Status: Published

Opinions

HEANEY, Circuit Judge.

Rita Williams appeals from her conviction for aiding and abetting a bank robbery in violation of 18 U.S.C. §§ 2 and 2113(a) & (d). Williams waived her right to a jury trial, and the district court tried the case on the basis of stipulated facts. On October 5, 1982, the district court found Williams guilty and sentenced her to a study sentence pursuant to 18 U.S.C. § 4205. We affirm the district court’s judgment.

I.

FACTS

On June 25, 1982, three black males entered the United Missouri Bank South in Kansas City, Missouri, and robbed it of approximately $7,100. The three men fled from the scene of the crime in a red 1970 Ford station wagon containing two other black males.

About one-half hour before the robbery, the Kansas City police radio broadcast reported that a red Ford station wagon had been stolen at gunpoint by two black males wearing dark blue sweat suits. About twenty minutes later, Kansas City Police Officer Francey Chapman, who had heard the stolen vehicle report, noticed a black male and two black females in a 1971 white and gold Buick automobile in a shopping center parking lot approximately eight blocks north of the United Missouri Bank South. Officer Chapman observed that after the male — who was dressed in dark clothing — exited from the Buick, the two women drove away.

Less than ten minutes later, the police radio broadcast reported the United Missouri Bank South robbery and identified the suspect vehicle as a red Ford station wagon. Officer Chapman, who had remained in the shopping center parking lot, immediately began to drive toward the United Missouri Bank South until she spotted the white and gold Buick with two black women proceeding in a direction away from the bank. As the Buick turned east, Officer Chapman began to follow it. The police radio broadcast then reported that the suspect vehicle — the red Ford station wagon — was occupied by five black males. Shortly thereafter, Chapman stopped the Buick. She ordered the two women — Rita Williams, the driver, and Nadine Farris — out of the car and frisked them. Upon feeling a hard object under Farris’s blouse, Chapman removed it and discovered a large roll of money. Chapman then searched the vehicle and found two zipped bags. She opened them, and found several handguns in one and a bundle of loose cash in the other. Chapman then directed the backup officer to place the two women under arrest and advise them of their constitutional rights, which he did. Subsequently, Williams confessed her involvement in the bank robbery during a custodial interrogation.

II.

DISCUSSION

Prior to her trial, Williams moved to suppress her confession and the evidence seized from her automobile¹ on the ground that Officer Chapman’s warrantless search and seizure violated the fourth amendment. The district court denied this motion, and Williams’ subsequent motion for reconsideration. We review the district court’s factual findings and determinations regarding the existence of circumstances justifying the warrantless seizure and search of Williams under the clearly erroneous standard. E.g., United States v. McGlynn, 671 F.2d 1140, 1143 (8th Cir.1982).

In Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), the Supreme Court first recognized an exception to the requirement that fourth amendment seizures of persons must be based upon probable cause. It is now settled that under certain limited circumstances, law enforcement officers, without a warrant, may stop a motor vehicle for investigative purposes. Such a stop is permissible only when the officers are aware of particularized and articulable objective facts which, taken together with rational inferences from those facts, reasonably warrant the suspicion that the person stopped is, or is about to be, engaged in criminal activity. United States v. Cortez, 449 U.S. 411, 417-418, 101 S.Ct. 690, 694-695, 66 L.Ed.2d 621 (1981); Adams v. Williams, 407 U.S. 143, 145, 92 S.Ct. 1921, 1923, 32 L.Ed.2d 612 (1972); United States v. Martin, 706 F.2d 263 at 265 (8th Cir.1983).

The district court found that Officer Chapman’s stop of Williams’ automobile and her frisk of the occupants was a valid investigatory seizure. Williams argues that the district court erred because the vehicle stop was impermissibly based on the race of the automobile’s occupants rather than a reasonable suspicion that they were engaged in criminal activity.² The court below rejected this contention, finding that Chapman did not rely upon the race of Williams and Farris to justify the vehicle stop, and that Chapman’s conduct was based upon reasonable suspicion.

In United States v. Clay, 640 F.2d 157, 159-160 (8th Cir.1981), this Court stated:

Police cannot have grounds for suspicion based solely on the race of the suspect. * * * Although color of skin is an identifying factor, * * * this court has consistently rejected the use of race in combination with other factors to justify investigative searches and seizures. * * * In the case at bar, like Nicholas, “we think that, at best, the police were acting upon a generalized suspicion that any black person ... might be engaged in criminal activity.” [Emphasis added; citations and footnote omitted.]

We reaffirm our commitment to these principles. Nonetheless, after carefully reviewing the record here, we cannot say that the district court clearly erred in finding that Officer Chapman did not base her stop of Williams’ vehicle on the race of the automobile’s occupants. Chapman testified in the proceedings below that it was “rare” for black persons to be in the predominately white neighborhood where the robbery occurred. Read as a whole, however, the record supports the district court’s findings that Chapman only considered the race of the automobile occupants as an identifying factor and that she based her conduct upon a reasonable suspicion that Williams and Farris were engaged in criminal activity.

Less than ten minutes before the bank robbery was reported, Officer Chapman observed a parked white and gold Buick occupied by two black women and one black man in a shopping center parking lot. Chapman noticed that the male, who was exiting from the automobile, had black gloves in his back pocket and was wearing dark blue clothing which the officer considered “unusual dress for * * * a June day” because “it was warm and he was dressed very warmly.” At this time, Chapman was aware that approximately one-half hour earlier two armed black men, dressed in dark blue sweat suits, had stolen a red Ford station wagon in a park less than five miles from the shopping center.

Shortly after Officer Chapman observed the Buick in the parking lot, the police radio broadcast reported that there had been an armed robbery at the Union Missouri Bank South, and directed police officers to be “[o]n the lookout for a red Ford station wagon.” It was reasonable for Chapman to infer that the Ford automobile was the bank robbery getaway car and that it was the same one which had been stolen shortly before by two black men dressed similarly to the black male she had seen exiting from the white and gold Buick. When Chapman heard this report, she began to drive toward the bank, which is located about eight blocks south of the shopping center where she was parked. When Chapman spotted the white and gold Buick traveling in a direction away from the bank, she turned to follow it. Chapman, following the automobile as it turned east and then south, noticed that it contained the two black women but not the black male dressed in dark clothing that she had seen earlier. She also observed that the Buick’s driver, Williams, reduced her speed and apparently signaled for a right turn on several occasions without turning:³ such a turn would have taken the automobile back toward the bank or an area with numerous parking places. Shortly thereafter, the police radio broadcast reported that the suspect vehicle — the red Ford station wagon — was occupied by five black males and that it was the automobile which had been stolen shortly before the bank robbery.

On the basis of these circumstances, Officer Chapman stopped the Williams’ vehicle. We agree with the district court that this stop was a valid investigatory seizure based upon particularized and articulable objective facts which reasonably warranted Chapman’s suspicion that the occupants of the vehicle were involved in the robbery of the United Missouri Bank South.

Williams alternatively argues that even if she was subjected to a valid investigatory stop, Officer Chapman impermissibly extended that stop by searching the automobile without probable cause after she had frisked Williams and Farris.⁴

In Florida v. Royer, - U.S. -, -, 103 S.Ct. 1319, 1325-1326, 75 L.Ed.2d 229, 238 (1983), the Supreme Court emphasized that

[t]he predicate permitting seizures on suspicion short of probable cause is that law enforcement interests warrant a limited intrusion on the personal security of the suspect. * * * [A]n investigative detention must be temporary and last no longer than is necessary to effectuate the purpose of the stop. Similarly, the investigative methods employed should be the least intrusive means reasonably available to verify or dispel the officer’s suspicion in a short period of time. * * * It is the State’s burden to demonstrate that the seizure it seeks to justify on the basis of a reasonable suspicion was sufficiently limited in scope and duration to satisfy the conditions of an investigative seizure. [Emphasis added; citations omitted.]

Any further detention or search beyond that necessary to effectuate the investigatory purpose of the stop must be based on consent or probable cause. See id. at -, 103 S.Ct. at 1325-1329, 75 L.Ed.2d at 238-243; Dunaway v. New York, supra, 442 U.S. at 212, 99 S.Ct. at 2256.

In United States v. Ross, 456 U.S. 798, 810-824, 102 S.Ct. 2157, 2165-2172, 72 L.Ed.2d 572, 584-593 (1982), the Supreme Court held that if law enforcement officials have legitimately stopped a motor vehicle and they have probable cause to believe that the vehicle contains contraband, they may conduct a warrantless search of the automobile and any containers in it in which the contraband might reasonably be found. The court below found that after Officer Chapman had legitimately stopped Williams’ vehicle and frisked its occupants, she had probable cause to search the automobile and the two zipped bags she found inside.⁵ This finding is not clearly erroneous.

If Officer Chapman’s frisk of Williams and Farris had produced nothing, we might agree with the defendant that the vehicle search was not based on probable cause and constituted an impermissible extension of the investigatory stop. When Chapman frisked Farris, however, the officer felt a “hard object” within her blouse. Chapman testified that she removed the object from Farris’s brassiere because she believed “it could possibly be a knife or small handgun.”⁶ The object in fact was a large money roll. Although Farris’s concealed possession of this substantial sum of money in other circumstances might not be significant, we cannot say in this case the district court clearly erred in finding that such possession shortly after a bank robbery, combined with the other suspicious circumstances that justified the initial stop of Williams’ vehicle, created probable cause to believe that there was contraband in that vehicle. See United States v. Martin, supra, 706 F. 2d at 265 (information obtained by officers during Terry stop “escalated the factual basis from one permitting an investigatory stop to one warranting an arrest”). Accordingly, because Chapman based her search on probable cause, her warrantless search of Williams’ vehicle and seizure of the contraband she found inside were constitutionally permissible.⁷

In summary, the district court did not clearly err in finding that Williams was not deprived of her fourth amendment rights when Officer Chapman made a warrantless investigatory stop of her vehicle and subsequently searched the automobile and seized the weapons and money found in.it. Accordingly, the court properly denied Williams’ motion to suppress the contraband seized from the vehicle and her subsequent confession. We affirm.

1 . The government urges that Williams lacks standing to assert her fourth amendment claims because the automobile she was driving was owned by Dorletha Godley and, thus, Williams allegedly had no legitimate expectation of privacy in the automobile. See Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978). The district court rejected this claim. It found that Godley and Terence Swinney, who is Williams’ nephew, were cohabitants and that Swinney, with Godley’s knowledge, occasionally permitted Williams to use the automobile. It further found that Swinney gave Williams permission to use the automobile on the day of the bank robbery, and that this approval provided Williams with a sufficient expectation of privacy in the vehicle to have standing in this case to assert her fourth amendment claims. The district court’s findings are not clearly erroneous, and they are affirmed. See United States v. Portillo, 633 F.2d 1313, 1317 (9th Cir.1980), cert. denied, 450 U.S. 1043, 101 S.Ct. 1764, 68 L.Ed.2d 241 (1981) (defendant, who had both permission to use his friend’s automobile and keys to operate it, had standing to contest search of trunk). For convenience in this opinion, we occasionally will refer to the white and gold Buick as Williams’ automobile.

2 . Williams also contends that the stop of her car in this case constituted a full arrest rather than an investigatory or Terry stop, and thus Officer Chapman was required to have probable cause — rather than a reasonable suspicion — for her actions. The determination of whether an “arrest” has occurred for fourth amendment purposes does not depend on whether the police officers have announced that they are placing an individual under arrest. Dunaway v. New York, 442 U.S. 200, 212, 99 S.Ct. 2248, 2256, 60 L.Ed.2d 824 (1979). If the officers’ conduct was more intrusive than necessary to effectuate an investigative detention otherwise authorized by the Terry line of cases, an arrest occurred. Florida v. Royer, - U.S. -, -, 103 S.Ct. 1319, 1328, 75 L.Ed.2d 229, 241 (1983). After reviewing the record in this case, however, we cannot say that the district court clearly erred in finding that Chapman’s initial stop and frisk was an investigatory stop rather than an arrest.

3 . The police subsequently discovered that the brake lights in Williams’ automobile were malfunctioning, and thus the defendant had been applying the brakes rather than signaling for right turns which she did not complete. Officer Chapman, of course, could not have known of this fact while she followed Williams’ automobile, and thus her reliance upon it as another suspicious factor was reasonable.

4 . Williams does not contend that Officer Chapman exceeded the permissible scope of an investigative seizure by ordering her out of her car and frisking her. See Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977) (upholding police officer’s order to driver to get out of car and his subsequent frisk for weapons).

5 . The Supreme Court recently held in Michigan v. Long, - U.S. -, 103 S.Ct. 3469, 3480, 77 L.Ed.2d 1201, 1220 (1983), that when a police officer makes a legitimate investigatory stop of a person in an automobile, he or she may conduct a search for weapons in any compartment in the automobile in which a weapon may be placed or hidden “if the police officer possesses a reasonable belief based on ‘specific and articulable facts which, taken together with the rational inferences from those facts, reasonably warrant’ the officer in believing that the suspect is dangerous and the suspect may gain immediate control of weapons.” (Footnote and citation omitted). Because we agree that Officer Chapman had probable cause to search the two bags she found in Williams’ automobile, we need not determine whether her investigation of the bags was a valid investigatory search for weapons.

6 . The district court held that Officer Chapman’s removal of the then unidentified object was a reasonable investigatory seizure. Williams does not challenge this holding on appeal.

7 . Because we hold that Officer Chapman’s warrantless search was valid under the automobile exception to the fourth amendment warrant requirement, we need not reach the district court’s alternative holding that Chapman conducted a permissible search incident to a lawful arrest which occurred after her initial stop and frisk.