305 F.3d 164 (3rd Cir. 2002), 00-1328, U.S. v. Robertson

Docket Nº:00-1328, 00-1715.
Citation:305 F.3d 164
Party Name:UNITED STATES OF AMERICA v. Mitchell ROBERTSON a/k/a Mitchell Robinson a/k/a Bryheer McMichael Mitchell Robinson, Appellant
Case Date:September 13, 2002
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit
 
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305 F.3d 164 (3rd Cir. 2002)

UNITED STATES OF AMERICA

v.

Mitchell ROBERTSON a/k/a Mitchell Robinson a/k/a Bryheer McMichael Mitchell Robinson, Appellant

Nos. 00-1328, 00-1715.

United States Court of Appeals, Third Circuit

September 13, 2002

Argued April 5, 2001.

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

Carol M. Sweeney (Argued), Office of United States Attorney, Philadelphia, PA, for Appellee.

Before SCIRICA, AMBRO and JOHN R. GIBSON,[*] Circuit Judges.

OPINION

SCIRICA, Circuit Judge.

Mitchell Robertson entered a conditional guilty plea 1 to possession of ammunition by a convicted felon, a violation of 18 U.S.C. § 922(g)(1).2 The sole issue on appeal is whether police officers had reasonable suspicion to stop a public bus on which Robertson was traveling and search for and seize a handgun and ammunition. We will affirm.

I.

On April 29, 1999, at 12:10 p.m., Philadelphia Police Captain Joseph Sullivan of the 35th Police District and Officer Joseph Carolyn, his driver, responded to a radio call that police officers were pursuing two male robbery suspects on the run, in the area of 18th Street and 66th Avenue. At least one of the suspects was allegedly armed. A second radio report described the men as African-American, one wearing a white shirt and reddish pants, the other a white or gray shirt and dark pants, possibly blue jeans. After traveling ten to twelve city blocks, Captain Sullivan and Officer Carolyn met up with several other officers in the 6600 block of Gratz Street, one-half block west of 18th Street. Captain Sullivan and Officer Carolyn left their unmarked patrol car to speak with the other officers.

At this point Captain Sullivan saw two men running "in the eastbound actual traffic lanes" of 66th Avenue, crossing the intersection of Gratz Street.3 Believing these two men fit the descriptions he had just received, Captain Sullivan instructed Officer Carolyn to return to their car, pick him up, and follow the suspects. The patrol car was parked a quarter of the way up Gratz Street, facing north, and Officer Carolyn had to back up to get onto 66th Avenue. A line of buildings and houses

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caused Captain Sullivan to lose sight of the two men after they turned the corner onto 66th Avenue. When Officer Carolyn arrived with the car, approximately one minute later, they proceeded east on 66th Avenue.

Just then, a van pulled alongside Captain Sullivan's window, and the van driver gestured to roll down the police car's window. Captain Sullivan described the van driver as a heavy-set African-American male in his late forties to early fifties. The van driver informed Captain Sullivan the two men he was "looking for" had boarded a SEPTA bus 4 a few blocks away on 66th Avenue: "Officer, them two guys you're looking for just got on that bus." Captain Sullivan did not ask the van driver's name, address, or telephone number. The two officers chased after the eastbound SEPTA bus, stopped and boarded it. Two to three minutes elapsed between the time Officer Carolyn obtained the car and the time the officers boarded the bus.

Among the twelve to fifteen passengers on the bus, Captain Sullivan saw two men matching the descriptions of the robbery suspects. Both were seated in the rear of the bus. Captain Sullivan testified that Robertson, one of the two men, was wearing a grayish shirt with dark pants 5] and the person sitting next to Robertson was wearing a white shirt and red pants.6

Upon boarding the SEPTA bus, Captain Sullivan made eye contact with Robertson. He saw Robertson remove an item from his waistband with his right hand, reach over the passenger seated next to him, and place the item behind the seat in front of him and to his right—on top of the bus's wheel well. Based on his experience, Captain Sullivan believed Robertson was trying to hide a concealed weapon. Captain Sullivan drew his weapon and ordered Robertson to lie on the floor. A search of the wheel well by another officer revealed a loaded five-shot break-open revolver.

Other officers brought the robbery victim to the scene, but the victim was unable to identify Robertson and his companion as the robbers. The recovered weapon was of indeterminate age and therefore, could not form the basis of a weapons possession charge. See 18 U.S.C. § 921(a)(3) (1994).7 Robertson was charged with illegal possession of ammunition by a convicted felon, a violation of 18 U.S.C. § 922(g)(1).8 After a hearing on Robertson's motion to suppress, the District Court held the police officers "were justified in stopping the SEPTA bus, having formed the . . . reasonable belief that the two robbery suspects had gotten on

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the bus and believing that at least one of them had a gun." This appeal followed.

II.

The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction under 28 U.S.C. § 1291.

III.

The central question on appeal is whether Captain Sullivan had reasonable suspicion to stop and board the SEPTA bus on which Robertson was traveling. As in all difficult suppression cases, we must consider the totality of the circumstances, including the police officer's knowledge, experience, and common sense judgments about human behavior. The Fourth Amendment prevents "unreasonable searches and seizures." U.S. Const. amend. IV. Generally, for a seizure to be reasonable under the Fourth Amendment, it must be effectuated with a warrant based on probable cause. Katz v. United States, 389 U.S. 347, 356-57, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). But under the "narrowly drawn authority" of Terry v. Ohio, 392 U.S. 1, 27, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), an officer without a warrant "may, consistent with the Fourth Amendment, conduct a brief, investigatory stop when the officer has a reasonable, articulable suspicion that criminal activity is afoot." Wardlow, 528 U.S. at 123, 120 S.Ct. 673.

To determine whether reasonable suspicion exists, we must consider the " 'totality of the circumstances—the whole picture.'" United States v. Sokolow, 490 U.S. 1, 8, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989) (quoting United States v. Cortez, 449 U.S. 411, 417, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981)); see also United States v. Arvizu, 534 U.S. 266, 122 S.Ct. 744, 750-51, 151 L.Ed.2d 740 (2002) ("This process allows officers to draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that might well elude an untrained person." (quotation and citation omitted)). In United States v. Nelson, 284 F.3d 472 (3d Cir. 2002), we described Arvizu as follows: "In the Supreme Court's most recent pronouncement on the Fourth Amendment reasonable suspicion standard, it accorded great deference to the officer's knowledge of the nature and the nuances of the type of criminal activity that he had observed in his experience, almost to the point of permitting it to be the focal point of the analysis." Id. at 482.

Moreover, we are appropriately reluctant to "second-guess" investigative decisions made by officers in hot pursuit of criminal suspects. E.g., United States v. Valentine, 232 F.3d 350, 355 (3d Cir. 2000) ("The officers knew the suspect was still in the vicinity, and had they stalled for more lengthy questioning of the informant, the armed suspect could have escaped detection."), cert. denied, 532 U.S. 1014, 121 S.Ct. 1748, 149 L.Ed.2d 670 (2001); United States v. Brown, 159 F.3d 147, 149 (3d Cir. 1998) ("A police officer may conduct a warrantless stop and frisk if specific and articulable facts, together with all rational inferences, suggest that the suspect was involved in criminal activity.") (summarizing Terry). The Supreme Court has held "the determination of reasonable suspicion must be made on common sense judgments and inferences about human behavior." Wardlow, 528 U.S. at 125, 120 S.Ct. 673.

IV.

The District Court found the stop of the SEPTA bus was supported by reasonable suspicion and the search and seizure was valid. We exercise plenary review

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over the District Court's conclusions regarding reasonable suspicion. We review the District Court's factual findings for clear error. United States v. Riddick, 156 F.3d 505, 509 (3d Cir. 1998). We exercise plenary review over the District Court's application of law to the facts of this case. Id.

As noted, calculating whether an officer has reasonable suspicion to warrant a stop and search is often an imprecise judgment. Arvizu, 122 S.Ct. at 751 ("Our cases have recognized that the concept of reasonable suspicion is somewhat abstract."); Wardlow, 528 U.S. at 125, 120 S.Ct. 673 ("[W]e cannot reasonably demand scientific certainty from judges or law enforcement officers where none exists."). The determination is often made under exigent circumstances requiring quick, decisive reactions. Under this set of facts, Captain Sullivan had a reasonable suspicion that the two suspects he viewed sprinting through the streets of Philadelphia, in close proximity to the scene of the armed robbery, had committed the crime. See Alabama v. White, 496 U.S. 325, 330, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990) ("Reasonable suspicion is a less demanding standard than probable cause not only in the sense that reasonable suspicion can be established with information that is different in quantity or content than that required to establish probable cause, but also in the sense that reasonable suspicion can arise from information that is less reliable than that required to show probable cause.").

The "total picture" in this case demonstrates Captain Sullivan reasonably suspected the men who boarded the bus were the suspected armed...

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