463 F.3d 115 (2nd Cir. 2006), 05-4923, United States v. Muhammad

Docket Nº:05-4923-CR.
Citation:463 F.3d 115
Party Name:UNITED STATES of America, Appellee, v. Abdul R. MUHAMMAD, Defendant-Appellant.
Case Date:September 07, 2006
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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463 F.3d 115 (2nd Cir. 2006)

UNITED STATES of America, Appellee,

v.

Abdul R. MUHAMMAD, Defendant-Appellant.

No. 05-4923-CR.

United States Court of Appeals, Second Circuit.

Sept. 7, 2006

Argued: May 16, 2006.

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Richard Power Maigret, Assistant United States Attorney (Stephan J. Baczynski, Assistant United States Attorney, on the brief, Kathleen M. Mehltretter, Acting United States Attorney, Western District of New York, of counsel), Buffalo, New York, for Appellee.

Kimberly A. Schechter, Assistant Federal Defender, Federal Defender's Office, Western District of New York (MaryBeth Covert, of counsel), Buffalo, New York, for Defendant-Appellant.

Before: MINER and WESLEY, Circuit Judges, and SWAIN, District Judge. [*]

MINER, Circuit Judge.

Defendant-appellant Abdul R. Muhammad appeals from a judgment of conviction and sentence for possession of a firearm as a convicted felon entered in the United States District Court for the Western District of New York (Skretny, J.) following a guilty plea. Prior to the plea, the District Court had denied a motion to suppress the assault rifle found in defendant's possession. That ruling was a consequence of the District Court's conclusion that the police had reasonable suspicion to stop Muhammad and that subsequent events justified the seizure of the rifle. On this appeal, Muhammad challenges the findings giving rise to the District Court's conclusion as well as the conclusion itself. We affirm for the reasons that follow.

BACKGROUND

The background narrative that follows is based upon the factual findings of Magistrate Judge H. Kenneth Schroeder, to whom the suppression issue was referred for a Report and Recommendation. The findings were made following a hearing and are included in the Report and Recommendation filed by the Magistrate Judge and adopted by the District Court.

The events giving rise to the apprehension of Muhammad began with an anonymous cell phone call to the Buffalo Police 911 Call Center at approximately 11:13 P.M. on August 31, 2003. The female caller reported that a black man, attired in a white sweat suit and carrying a gun, was riding a bicycle west on Stanislaus Street toward Fillmore Avenue in the City of Buffalo. According to the caller, who never was identified, the gun was "out in the open." At approximately 11:16 P.M., the information provided by the caller was relayed by radio transmission to Buffalo police officers Richard Cruz and Joseph Langdon, who were on duty in a marked patrol car. The transmission specifically advised the officers that a cell phone caller had reported that "a black male dressed in white on a bike had a gun in his hand on Stanislaus headed toward Fillmore."

After receiving the call, the officers made their way toward Stanislaus Street. Driving east on Stanislaus, the officers were approaching the intersection of Rother Avenue when Officer Cruz "noticed a

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black male on a bike dressed in white, traveling west on Stanislaus." Activating the patrol vehicle's spotlight and overhead lights, Officer Cruz "attempted to slow down the suspect by approaching him in a forty-five degree angle toward the curb." The suspect increased the speed of his bicycle and drove it between the curb and the patrol car. Officer Cruz considered that "the [suspect] was attempting to flee." At that time, there was no one else in the vicinity, which the officers knew to be a high crime area.

According to Officer Cruz, Officer Langdon got out of the patrol car, chased the suspect and yelled at him to stop while Cruz tried to cut off the suspect's departure by driving the patrol car in reverse. Officer Langdon, in his version of events, said that he did not leave the vehicle but yelled at the suspect through the window: "hey, hold up." According to Langdon, the suspect did not stop, continued to ride his bicycle, and "kept trying to pass our vehicle." As Officer Cruz drove a short distance in reverse, another marked patrol car arrived, pulled in front of the suspect, and blocked his passage.

The second patrol car was occupied by Buffalo police officers Ronald Clark and Thomas Moran. When these officers first came upon the scene, Officer Clark saw the bicyclist ride past the passenger side of the other patrol car. According to Officer Clark, the bicyclist was moving at a high rate of speed and "trying to get away from the vehicle that was trying to stop him." Officer Moran also observed Muhammad's attempt to drive around the other patrol car, which he characterized as "fleeing the scene." The suspect was "boxed in" when Officer Clark positioned the car he was driving in front of the suspect, and Officer Cruz, driving his vehicle in reverse, was able to narrow the space between the two vehicles so that any further movement of the bicycle was impossible. Accordingly, the bicycle was brought to what Officer Clark described as an "abrupt stop."

Exiting the patrol car, Officer Moran recognized the bicyclist as defendant Muhammad, with whom he had had a previous encounter and whom he described as a person who "gets very agitated" and is not cooperative. Officer Clark also had past experience with Muhammad and described him in similar terms and as one "likely to flee." Officer Langdon ran from his patrol car to the place where Muhammad had been stopped and was then "straddling his bike holding on to the handlebars." Muhammad dropped the bicycle as ordered, and Langdon grabbed one of Muhammad's arms and another officer took his other arm. The officers then escorted Muhammad to a patrol car, where he was constrained to stand with his hands on the trunk. It was at that point that Officer Cruz observed a black gym bag strapped to Muhammad's back.

In response to Officer Cruz's question as to the contents of the gym bag, Muhammad said that the bag contained a baseball bat. Aware of the time of night, the absence of baseball fields in the vicinity, and the fact that they were in a high crime area, the officers were concerned that the bag might contain a gun. The officers feared that even a baseball bat could be used against them. Accordingly, Officer Cruz "patted the bag down for officer safety," while Officer Langdon did a pat down of Muhammad's...

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