U.S. v. Kithcart

• Decision Date: 14 September 1999
• Docket Number: No. 99-1082,99-1082
• Citation: 218 F.3d 213
• Parties: (3rd Cir. 2000) UNITED STATES OF AMERICA, V. JESSE KITHCART, APPELLANT Submitted Under Third Circuit LAR 34.1(a)
• Court: U.S. Court of Appeals — Third Circuit

Page 213

218 F.3d 213 (3rd Cir. 2000)

UNITED STATES OF AMERICA,

V.

JESSE KITHCART, APPELLANT

No. 99-1082

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

Submitted Under Third Circuit LAR 34.1(a) September 14, 1999

Opinion Filed June 28, 2000

Opinion Amended August 8, 2000.

Appeal from the United States District Court for the Eastern District of Pennsylvania Criminal No. 96-cr-00090 District Judge: Hon. Bruce W. Kauffman

Maureen Kearney Rowley, Esq. Chief Federal Defender David L. McColgin, Esq. Assistant Federal Defender Supervising Appellate Attorney Federal Court Division Defender Association of Philadelphia Suite 800 -- Lafayette Building 437 Chestnut Street Philadelphia, PA 19106, for Appellant.

Michael R. Stiles, Esq. United States Attorney Walter S. Batty, Jr., Esq. Assistant United States Attorney Chief of Appeals Howard L. Perzan, Esq. Assistant United States Attorney Suite 1250 615 Chestnut Street, Suite 1250 Philadelphia, PA 19106, for Appellee.

Before: Mansmann and McKEE, Circuit Judges, and Stapleton, Senior Circuit Judge

OPINION OF THE COURT

McKEE, Circuit Judge.

On July 25, 1995, Bensalem Township Police Officers seized a gun from the person of Jesse Kithcart after they stopped the car he was riding in. Kithcart was thereafter prosecuted for federal weapons violations, and following denial of a suppression motion, he conditionally pled guilty to being a felon in possession of a firearm in violation of 18 U.S.C. S 922(g)(1). Kithcart then appealed the district court's denial of his suppression motion. We reversed the district court's suppression ruling and remanded the matter back to the district court. With one panel member concurring and dissenting, we held that the district court had erred in concluding that police had probable cause to search Kithcart. United States v. Kithcart, 134 F.3d 529 (3d Cir. 1998) ("Kithcart I").

On remand, the district court allowed the government to reopen the suppression hearing and present additional testimony.¹ However, the court neither requested, nor received any explanation as to why the testimony that was introduced upon remand had not been introduced originally. At the conclusion of the reopened hearing the court upheld the search based upon its finding that the car Kithcart was riding in ran a red light, and Kithcart again appeals.

We hold that the district court erred in allowing the prosecution to open the record and present additional testimony. We will therefore once again reverse and remand.²

I. BACKGROUND

A. The First Suppression Hearing.

In Kithcart I, we summarized the facts adduced at the original suppression hearing as follows:

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.'

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.

134 F.3d at 529-30.

Officer Nelson was the only witness who testified at the original suppression hearing. The government did not attempt to call either Officer Kellaher or Officer Williams; nor was there any discussion of, or explanation for, their absence. Id. at 531 n.2. Carl Green -- the driver of the car that Kithcart was riding in -- entered into a cooperation agreement and was available to testify. However, he was not called as a witness either though both sides stipulated to what his testimony would be if he were to testify. The district court was made aware of that stipulation before the conclusion of the first suppression hearing. Id.

During his "cooperation sessions" Green had told the government that he had not driven through the red light prior to Officer Nelson's stop, and that was the substance of his stipulated testimony. Id. App. 25a-26a; 29a. However, the stipulation was not considered by the district court because of the court's understandable reluctance to resolve a question of credibility based upon a conflict between a stipulation and live testimony.³

Based upon the state of the record at the conclusion of Officer Nelson's testimony, the government argued that it had satisfied its burden of establishing both reasonable suspicion to stop the car, and probable cause. Kithcart countered by arguing that the government had not established reasonable suspicion or probable cause because the description of the car was not consistent with the car Officer Nelson stopped, Officer Nelson believed the car contained only one driver when she stopped it even though she was looking for a car with two suspects, and the description of those suspects was too general to justify stopping the car he was riding in. Kithcart also argued that the timing of the robberies in relation to Officer Nelson's sighting of the car was too uncertain to support the stop. He insisted that Officer Nelson's testimony about the traffic violation could not support a finding of probable cause or reasonable suspicion because it was disputed by the government's own cooperating witness (Green) who denied committing that traffic violation even though he had confessed to serious crimes.

The district court ruled that the government had met its burden of establishing probable cause to seize the gun from Kithcart. The judge relied upon "the direction, the timing, the location of the vehicle, plus the fact that it[was] a black sports car." App. at 60a. The court recognized that there was a discrepancy between the radio description of the suspects as two Black males and Officer Nelson's initial belief that there was only one Black male inside the car when she stopped it. However, the district court found that "probable cause [was] heightened by the fact that [Nelson] had not seen a lot of cars driven by black males in[the] area as she was looking." Id. The court minimized the purported discrepancy in the number of people in the car by speculating that the car could have stopped and someone could have gotten out. Id. Since the district court found that the police officers had probable cause, it did not address the issue of whether the alleged traffic violation provided an independent basis for stopping the car and searching Kithcart, or whether the search was justified by reasonable suspicion.

B. Kithcart's First Appeal.

In Kithcart I we concluded:

[T]he 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.... 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...