448 F.3d 239 (3rd Cir. 2006), 05-1723, United States v. Brown

Docket Nº:05-1723.
Citation:448 F.3d 239
Party Name:UNITED STATES of America v. Kareem BROWN, Appellant.
Case Date:May 22, 2006
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit

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448 F.3d 239 (3rd Cir. 2006)



Kareem BROWN, Appellant.

No. 05-1723.

United States Court of Appeals, Third Circuit.

May 22, 2006

Argued January 17, 2006

On Appeal from the United States District Court for the Eastern District of Pennsylvania, D.C. Criminal Action No. 03-cr-00683-1, District Judge: Honorable Timothy J. Savage

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[Copyrighted Material Omitted]

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Thomas F. Burke, (Argued), Law Office of William J. Brennan, Philadelphia, PA, for Appellant.

Patrick L. Meehan, United States Attorney, Robert A. Zauzmer, Assistant United States Attorney, Chief of Appeals, John N. Joseph, Assistant United States Attorney, Karen L. Grigsby, (Argued), Office of United States Attorney, Philadelphia, PA, for Appellee.

Before BARRY, AMBRO and ALDISERT, Circuit Judges.


AMBRO, Circuit Judge.

Kareem Brown appeals the denial by the United States District Court for the Eastern District of Pennsylvania of his motion to suppress evidence. Brown argues that he was improperly stopped and searched, and thus the incriminating evidence uncovered by that search was not properly admitted at his trial. We agree, and accordingly reverse the District Court's denial of Brown's motion to suppress and vacate his conviction.1

I. Factual Background

Our facts are taken from the suppression hearing held by the District Court. On the evening of June 1, 2003, Jelena Radenkovic and Lucia Zapatero were walking in the 2100 block of Locust Street in Philadelphia. They were approached by two black male teenagers who attempted to grab Radenkovic's purse. She refused to let go, and one of the males pointed a gun at her. She turned and walked away from him. The males then abandoned the robbery attempt and ran south on 22nd Street.

Moments after the attackers fled, Radenkovic called 911 to report the robbery to the police. In the course of that call, Radenkovic described the robbery suspects as African-American males between 15 and 20 years of age, one 5' 8" and the other 6', wearing dark, hooded sweatshirts and running south on 22nd Street. Immediately after calling 911, Radenkovic called her friend, William Firth, who was waiting to meet her at a nearby restaurant. Radenkovic told Firth about the attempted robbery and described the suspects, providing "just the clothing, the general description. I didn't go into too many details, but in enough detail."

Minutes later, a police officer, who was not identified in the record, arrived and took a second description from Radenkovic. That officer then relayed the description over the police radio. The parties contest the content of the broadcast. The Government states the broadcast "described the two suspects as black males in their teens or 20's with dark clothing." Brown asserts the printout of the radio call reads: "Black male, black hoody, last seen on Locust, attempted to grab female's purse. Location: westbound on Locust2, both 16-18. The description reads: six-one, gray hoody, black pants; number two: five-nine, thin, navy blue hoody." The District Court's findings of fact state that the broadcast consisted of the description Radenkovic had provided in her call to the 911 operator. The Court found that, while the officer was speaking over the radio and

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describing one of the suspects as 15 years old and the other as three or four years older, Lucia Zapatero commented that she thought the suspects were older, in their early twenties.

Within minutes of the police broadcast, Radenkovic, who was sitting in the police car at this point, received a call from Firth, who stated he had just seen two men fitting the descriptions of the robbery suspects at 22nd and Lombard Streets (a location three blocks south of Locust Street).3 The Court also found that a second officer, Kathleen Pacheco, who arrived on the scene at that time, heard Radenkovic exclaim "that the guys who had robbed her were at 22nd and Lombard Streets."

Based on Radenkovic's comments, Officer Pacheco drove to 22nd and Lombard Streets and en route issued a radio call with the location information provided by Radenkovic. Upon arriving, Pacheco observed two black males, Kareem Brown and Jerome Smith, who appeared to be coming out of a store with cups of coffee. Pacheco issued another radio call, stating that she "had in [her] sight the two men that were described [in] the [broadcast]." The following exchange took place between Officer Pacheco and the Court about her statement that the men matched the description of the suspects:

The Court: In what way did they match the description?

Officer Pacheco: From the radio--

The Court: What way?

Officer Pacheco: That they were two black males with dark clothing.

The Court: That's it?

Officer Pacheco: That's what we received.

On the date of the attempted robbery, Brown, the appellant in this case, was 27 years old, 6' tall, and had a full beard. Smith was 31 years old, 5'8" tall, and also had a full beard.

Meanwhile, a third officer, Officer Marano Santiago, had received the call with the location tip from Officer Pacheco and arrived at 22nd and Lombard Streets at approximately the same time. Santiago observed Smith and Brown as they were walking across the street and hailing a taxi. He testified that the men were walking normally and were not out of breath. He also stated it was not unusual to see two black males at that location, as there is a predominantly black neighborhood less than two blocks away.

Officer Santiago testified as well that Smith and Brown fit the description he received over the radio, in that they were black males of the described height in dark clothing. Santiago agreed at the suppression hearing that "two black males [] wearing dark clothing is a very general description." In fact, at some point before leaving his vehicle, Santiago had called for a more specific description of the suspects, but did not receive any additional information.4 Santiago summed up by stating that

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"[t]hey were the only two black males at that location[.] That was the only reason why those two males were stopped by me and they were investigated by me." Indeed, he testified that he would have stopped them even "if they were both five feet tall wearing white clothes."

Officer Santiago then approached Smith and Brown, told the taxicab to keep moving, and informed them that they looked like two persons who had attempted to commit a robbery and that he wanted to talk to them.

I told them basically what happened at 22nd and Locust. I told them that I need to make an investigation on both males. It was a nice, brief conversation we had. I let them know that we were having the complainant, the victim of the robbery, coming over to 22nd and Lombard to see if they were the doers. If they weren't, they were free to go. At that point, as we were waiting, I demanded both males for my safety and their safety that I was going to pat them down.

Officer Santiago testified that he wanted to pat them down because

there was a robbery committed at 22nd and Locust .... For my safety at that point, I felt that I should pat them down. Like I said, they were not at that point – they were not apprehended at any point. They complied with my demands, so I felt it was my right for me to pat them down.

Santiago also stated, in response to questioning by the Court, that he had decided to pat down the defendants regardless whether they ran away or complied.

The District Court found that, as Santiago "attempted to frisk him, Brown struggled and appeared to try to escape .... While he was facing the police car, Brown attempted to place his hand in his pocket, causing Santiago to restrain him .... Santiago placed Brown in handcuffs and then recovered a gun from Brown's front belt area."5 The moment at which "Brown struggled and appeared to try to escape" was described in more detail by Officer Pacheco:

Officer Santiago said to [Brown], ['C]ome on, I have to pat you down. We just have a job. You match the description.['] [Santiago] takes him over to the car, stands up against the car, turned him around, started to pat him, and he started to kind of like break away.

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With that, [Santiago] put him over the head of the car. You could see that he was fidgeting. I jumped on [Santiago's] back to keep [Brown] from getting his hands loose before we could cuff him ....

Officer Pacheco also stated that Brown placed his hands on the police car before his breakaway attempt. This version of events was supported by a report (called a "7549 report") summarizing the incident based on information the arresting officers provided to detectives shortly after the arrest. The 7549 report states that "[b]oth males had their hands placed on the hood of the police vehicle. Brown started to struggle while handcuffs were being placed on his hands."

A different version of the frisk was provided by Officer Santiago, who testified that "as soon as I requested both of them to put their hands on the vehicle, they made the intent to put their hands on the vehicle, they made the intent to put their hands on top of the car, but they never did. That's when [Smith fled]." After Smith ran, Brown "[had] the intent also to flee, but being that he was so close to me, I held him. We went into a little struggle."

Ultimately, police officers brought Radenkovic to the two locations where Brown and Smith were being held. Radenkovic informed the police that these were not the males who attempted to rob her; Brown and Smith had beards and the robbers did not, and Smith and Brown were much older than the robbers.

Brown moved to suppress the firearm found on him, claiming there was not reasonable suspicion for the stop. After a two-day...

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