U.S. v. Kithcart, 97-1168

Citation134 F.3d 529
Decision Date12 January 1998
Docket NumberNo. 97-1168,97-1168
PartiesUNITED STATES of America v. Jesse KITHCART, Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (3rd Circuit)

David L. McColgin (argued), Defender Association of Philadelphia, Federal Court Division, Philadelphia, PA, for Appellant.

Howard L. Perzan (argued), Philadelphia, PA, for Appellee.

Before: ALITO, LEWIS, and McKEE, Circuit Judges.

OPINION OF THE COURT

ALITO, Circuit Judge:

Jesse Kithcart appeals from a judgment in a criminal case. Kithcart pled guilty to one count of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1), but he reserved his right to appeal the district court's decision on his motion to suppress the firearm in question. This appeal raises the question whether the officers had probable cause to arrest and search Kithcart. Because we conclude that they did not have probable cause, we reverse the district court's denial of the suppression motion on the grounds given, and we remand for further proceedings in accordance with this opinion.

I.

On July 25, 1995, Bensalem Township Police Officer Teresa Nelson was assigned to a radio patrol car on the evening shift. Over the course of an hour, Officer Nelson received three radio transmissions, each reporting an armed robbery. The first two robberies occurred at motels in Bensalem Township, and the last transmission concerned a robbery in neighboring Bristol Township. The final report--which was received at approximately 10:43 p.m.--did not specify either the time or location of the Bristol robbery. Bristol is north of, and adjacent to, Bensalem Township.

The alleged perpetrators of these robberies were described as "two black males in a black sports car." It was also reported that one of the perpetrators might have been wearing white clothes, and the vehicle was described as a "possible Z-28, possible Camaro." 1

At 10:53 p.m.--approximately ten minutes after receiving the final radio transmission regarding the Bristol robbery--Officer Nelson spotted a black Nissan 300ZX, which she described as a sports car, traveling south on Route 13, approximately a mile or less from the boundary of Bristol Township. The vehicle was driven by an African-American male who appeared to be the only person in the car. Officer Nelson testified that since the time when she received the first radio transmission more than an hour earlier, this was the first occasion when she spotted either a black vehicle or a black male driving a car. Officer Nelson also testified that immediately after she pulled up behind the vehicle, which had stopped at a red light, the driver drove the Nissan through the red light. Officer Nelson then flashed her dome lights, and the Nissan pulled over to the side of the road. At this point, Officer Nelson saw two sets of arms raised toward the roof of the car, and she realized that there were two people in the car.

Officer Nelson then called for backup and waited in her patrol car until Officers Christine Kellaher and Bill Williams arrived at the scene. Officer Williams found a gun in Kithcart's white nylon waist pouch, and Officer Kellaher found a gun under the driver's seat.

In moving to suppress the evidence seized by the police, Kithcart contended among other things, that the police lacked reasonable suspicion for an investigatory stop pursuant to Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979), Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and related cases. See App. 95a. Consistent with this argument, Kithcart argued that Officer Williams had discovered his gun during a "pat down" or "frisk" but that the standard for conducting a "frisk" under Terry had not been met. App. 97a. The government argued that the police were justified in stopping the car because the driver ran a red light. In addition, the government's brief argued as follows:

[G]iven that Officers Nelson and Williams were confronted with two black males in a black sports car shortly after and in the vicinity of the reported robberies, and that the males had attempted to flee upon seeing Officer Nelson's car pull behind theirs, the totality of the circumstances established reasonable suspicion to support the pat-down of the defendant and his waist-pack. See Chimel v. California, 395 U.S. 752, 763, 89 S.Ct. 2034, 2040, 23 L.Ed.2d 685 (1969) (lawful arrest creates a situation which justifies a contemporaneous search of arrestee and immediate area, including area from within which arrestee might gain possession of a weapon); Terry v. Ohio, 392 U.S. 1[, 88 S.Ct. 1868, 20 L.Ed.2d 889] (1968) (limited pat-down of a suspect's exterior clothing and protective sweep of area within immediate control are authorized during a lawful stop).

App. 107a-108a.

At the hearing on the motion, counsel for Kithcart, counsel for the government, and the court all referred to the government's latter argument as concerning the question of "probable cause" (see e.g., App. 27a, 28a, 54a, 58a), and at the conclusion of the hearing, 2 the district court orally ruled that the police had "probable cause ... for the stop." App. 60a. The court relied on "the direction, the timing, the location of the vehicle, plus the fact it [was] a black sports car." App. 60a. The court noted the discrepancy between the radioed description of the perpetrators as two black males and Officer Nelson's initial belief that there was only one black male in the car, but the court held that the fact that Officer Nelson had not seen any other black men driving cars since she received the initial radio transmission heightened the probability that the driver of the vehicle had been involved in the robberies. Because the court concluded that the officers had probable cause, the court found it unnecessary to decide whether the alleged running of the red light provided an independent basis for Officer Nelson's stop and the subsequent actions of the officers.

Following this ruling, Kithcart pled guilty, subject to the condition that he be allowed to challenge on appeal the district court's denial of his motion to suppress.

II.

We turn first to the ground on which we understand the district court to have denied Kithcart's suppression motion, viz., that the officers had "probable cause" to arrest Kithcart and to search him incident to the arrest. When a warrantless search is made pursuant to an arrest, "[t]he constitutional validity of the search ... must depend upon the constitutional validity of the ... arrest." Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 225, 13 L.Ed.2d 142 (1964).

Whether that [warrantless] arrest was constitutionally valid depends in turn upon whether, at the moment the arrest was made, the officers had probable cause to make it--whether at that moment the facts and circumstances within their knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the [suspect] had committed or was committing an offense.

Id. See also Barna v. City of Perth Amboy, 42 F.3d 809, 819 (3d Cir.1994) (test for probable cause is objective test: did the police officer have a reasonable basis for believing that the suspect had committed or was committing a crime). Our review of a district court's determination that there was probable cause to effect a warrantless search is de novo. Ornelas v. United States, 517 U.S. 690, ----, 116 S.Ct. 1657, 1659, 134 L.Ed.2d 911 (1996).

Based on the standard set by the Supreme Court in Beck, the district court erred in concluding that there was probable cause to arrest and search Kithcart prior to the discovery of the guns. The mere fact that Kithcart is black and the perpetrators had been described as two black males is plainly insufficient. As we have previously noted, a description of " 'two negro males' and two 'black males' ... without more ... would not have been sufficient to provide probable cause to arrest [the suspect]." Edwards v. City of Philadelphia, 860 F.2d 568, 571 n. 2 (3d Cir.1988). Moreover, the match between the description of the perpetrators' car (a black sports car, "possible Z-28, possible Camaro)" and the vehicle in which Kithcart was spotted (a black Nissan 300ZX) was far from precise. Although the Camaro Z-28 and the Nissan 300ZX could be considered "sports cars," there was no evidence offered at the suppression hearing that the shapes of the two cars were sufficiently similar so as to warrant an inference that a 300ZX could be mistaken for a Z-28.

Nor is probable cause established by either the location or time of the stop. There was no evidence presented as to where in Bristol Township the final robbery occurred; nor was there evidence presented that the Bristol robbery occurred shortly before Officer Nelson stopped the car carrying Kithcart. Although the radio transmission regarding the Bristol robbery came approximately 10 minutes before the vehicle was stopped, Officer Nelson testified that she did not recall that the radio transmission revealed when the Bristol robbery occurred, other than that it occurred that same evening. Compare Edwards, 860 F.2d at 571 n. 2 (although the description "two negro males" was insufficient by itself to provide probable cause to arrest suspect, other evidence closely linking suspect to scene of reported crime was sufficient). In sum, we think that it is clear that the facts and circumstances within Officer Nelson's knowledge at the time she stopped the Nissan were insufficient to allow a prudent person to believe that the car and its occupants had committed or were committing an offense. In other words, armed with information that two black males driving a black sports car were believed to have committed three robberies in the area some relatively short time earlier, Officer Nelson could not justifiably arrest any African-American man who happened to drive by in any type of black sports car.

III.

The finding of no...

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