U.S. v. Hassan El

• Citation: 5 F.3d 726
• Decision Date: 13 September 1993
• Docket Number: No. 92-5427,92-5427
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. James HASSAN EL, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

Page 726

5 F.3d 726

UNITED STATES of America, Plaintiff-Appellee, v. James HASSAN EL, Defendant-Appellant.

No. 92-5427.

United States Court of Appeals, Fourth Circuit.

Argued May 7, 1993.

Decided Sept. 13, 1993.

Beth Mina Farber, Asst. Federal Public Defender, Federal Public Defender's Office, Baltimore, MD, argued (James K. Bredar, Federal Public Defender, of counsel), for defendant-appellant.

Barbara Slaymaker Sale, Asst. U.S. Atty., Baltimore, MD, argued (Richard D. Bennett, U.S. Atty., Barbara S. Skalla, Asst. U.S. Atty., of counsel), for plaintiff-appellee.

Before ERVIN, Chief Judge, and PHILLIPS and MURNAGHAN, Circuit Judges.

OPINION

MURNAGHAN, Circuit Judge:

The defendant, James Hassan El, was found guilty by a jury of being a felon in possession of a firearm in violation of 18 U.S.C. Sec. 922(g). ¹ He was sentenced to 188 months imprisonment and three years supervised release. On appeal, Hassan El challenges both his conviction and sentence. He argues that the handgun introduced against him at trial should have been suppressed because it was seized as a result of a "pretextual stop" in violation of his Fourth Amendment rights. He also contends that the district court abused its discretion and violated his constitutional rights to present a defense and to confront hostile witnesses when it issued a pre-trial ruling restricting the scope of the evidence to be introduced at trial to primarily the events of the search and the seizure of the handgun. Finally, Hassan El also asserts that the district court erred in using his common law assault conviction for the purposes of calculating his sentence under the armed career criminal enhancement provisions of 18 U.S.C. Sec. 924(e).

I

According to the testimony offered at trial and at Hassan El's suppression hearing, on July 22, 1991, Baltimore City Police Officers James Rood, Kenneth Stanton, John Fabula, and Beryl Tuller were on patrol in a high crime area of West Baltimore City. All of the officers were in plain clothes. Officers Stanton and Rood, however, were driving in a marked police car, while Officers Fabula and Tuller followed them in an unmarked car. All four officers worked in the Operation Flex Unit. The flex unit investigates primarily narcotics and firearm offenses as well as burglaries, street robberies, and stolen automobiles.

At approximately 7:00 p.m., the officers in the marked car turned on their flashing lights and pulled over the Volkswagen Jetta in which Hassan El was riding. The unmarked police car pulled up in front of the vehicle and blocked any possible escape. The officers in the marked car testified that the Jetta had failed to stop at the stop sign marking the intersection of Glenolden Street and Edmondson Avenue. Officer Rood also stated that although he decided to stop the Jetta, he did not intend to give the driver a ticket and, in fact, did not have ticket books with him. Instead, he merely intended to warn the driver of his traffic violation. The officers in the unmarked vehicle testified that they did not know why the Jetta had been stopped but that they merely were performing their back-up duties by following the lead car to the side of the road.

Hassan El was seated in the front passenger seat of the car. While Officer Rood informed the driver, Pierre Cole, that he had run a stop sign and asked for his license and registration, his partner for the evening, Officer Stanton, went to the rear of the car to observe the passenger in the back seat. At the same time, Officer Fabula from the unmarked car approached Hassan El. He observed that Hassan El appeared nervous and, in the officer's words, somewhat uncomfortable. Officer Fabula further noticed a bulge in the center of Hassan El's waistband and asked him directly if he had a gun. At that point, according to the officer's testimony, Hassan El grew increasingly nervous. He also appeared to be moving his hands up his thighs towards the bulge. The officer then grabbed at the bulge through the open window and immediately felt a handgun. He screamed to Hassan El not to move his hands, opened the car door, and removed from the waistband a loaded .38 caliber revolver.

Officer Fabula quickly announced to the other officers that he had "one with a gun." After Hassan El was removed from the car, a further search uncovered a black nylon holster. Hassan El admitted to the police that he did not have a handgun permit and was placed under arrest. At some point after his arrest, Hassan El also spontaneously told the police that he had just bought the gun and was catching a "hack," a street term for a taxi or a ride. Neither the driver nor the other passenger was arrested.

Officer Stanton, who had been watching the rear passenger, testified that he did not actually see the removal of the handgun from Hassan El but did see him removed from the car. Officer Rood, who had been speaking to the driver, could not recall seeing Officer Fabula remove either the gun or the defendant. Officer Tuller, however, testified that he saw Officer Fabula remove the gun from Hassan El's waistband.

II

Prior to trial, Hassan El filed motions to suppress the physical evidence and statements taken as a result of the stop of the Jetta. At the suppression hearing, the district court credited the testimony of the two police officers that the Jetta had gone through a stop sign. It concluded therefore that the officers were legally justified in stopping the car for committing a traffic violation. The district court further credited the testimony of Officer Fabula that he saw a bulge in the defendant's waistband, and it held the search and removal of the gun to be proper.

The primary issue on appeal is whether the district court erred in concluding that the officers were legally justified in stopping the Volkswagen Jetta. Because an ordinary traffic stop constitutes a limited seizure within the meaning of the Fourth and Fourteenth Amendments, Delaware v. Prouse, 440 U.S. 648, 653, 99 S.Ct. 1391, 1395, 59 L.Ed.2d 660 (1979), such action must be justified by probable cause or a reasonable suspicion, based on specific and articulable facts, of unlawful conduct. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Evidence seized as a result of an illegal stop is subject to the fruit of the poisonous tree doctrine. See, e.g., Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). Here, however, there was a specific and articulable fact: the traffic offense.

Hassan El argues that the police used the minor traffic violation--"if there was one"--as a pretext to conduct a stop of the Jetta and to search, without justification, for more serious criminal activity. Despite the trial court's decision to credit the officers' testimony concerning the Jetta's failure to stop at the stop sign, Hassan El maintains that the officers' testimony demonstrated that their true motivation for stopping the car was their unsubstantiated hunch that the passengers were involved in some sort of criminal activity or that the car had been stolen. Hassan El contends that such a "pretextual stop" violates the Fourth Amendment's prohibition against unreasonable searches and seizures. See, e.g., United States v. Guzman, 864 F.2d 1512, 1516 (10th Cir.1988) (defining a pretextual stop as an occasion on which "the police use a legal justification to make [a] stop in order to search a person or place, or to interrogate a person, for an unrelated serious crime for which they do not have the reasonable suspicion necessary to support a [legal] stop").

Hassan El urges us to adopt the test used by the Tenth and Eleventh Circuits for evaluating claims of pretextual stops. ² In those circuits, an otherwise objectively lawful investigative stop will be deemed invalid if it represents a departure from routine police practices. " '[I]n determining when an investigatory stop is unreasonably pretextual, the proper inquiry ... is not whether the officer could validly have made the stop but whether under the same circumstances a reasonable officer would have made the stop in the absence of the invalid purpose.' " United States v. Valdez, 931 F.2d 1448, 1450 (11th Cir.1991) (quoting United States v. Smith, 799 F.2d 704, 709 (11th Cir.1986)); accord United States v. Guzman, 864 F.2d 1512, 1517 (10th Cir.1988) (applying the Smith test and noting that a stop is " 'unreasonable not because the officer secretly hope[s] to find evidence of a greater offense, but because it [i]s clear that an officer would have been uninterested in pursuing the lesser offense absent that hope' " (quoting Smith, 799 F.2d at 710)).

Employing the test used by Tenth and Eleventh Circuits, Hassan El contends that, under the circumstances of the instant case, no reasonable officer on patrol would have followed and eventually stopped the Jetta for merely failing to stop at a stop sign. The four officers, he notes, were specifically assigned to investigate narcotics offenses, stolen vehicles, and firearms violations. Furthermore, they did not carry ticket books, and Officer Rood conceded that he did not intend to give the driver a ticket. Hassan El concludes therefore that the pretextual stop tainted the search and seizure process and required the suppression of the handgun. ³

Regardless of the subjective motivations of the officers involved in the instant case, we conclude, in light of the district court's factual determinations, that the stop of the vehicle was justified and constitutional. Several circuits have considered claims of pretext and have adopted what is often referred to as a purely objective standard. The standard relies solely on the objective facts and circumstances surrounding the stop. See United States v. Cummins, 920 F.2d 498, 500-01 (8th Cir.1990), cert. denied, --- U.S. ----, 112 S.Ct. 428, 116 L.Ed.2d 448 (1991); United States v. Mitchell, 951 F.2d 1291 (D.C.Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 1976, 118...