U.S. v. Rush, 10–3004.

• Decision Date: 05 October 2011
• Docket Number: No. 10–3004.,10–3004.
• Citation: 651 F.3d 871
• Parties: UNITED STATES of America, Appellee,v.Traves RUSH, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

651 F.3d 871

UNITED STATES of America, Appellee,

v.Traves RUSH, Appellant.

No. 10–3004.

United States Court of Appeals, Eighth Circuit.

Submitted: June 17, 2011.Filed: Aug. 15, 2011.Rehearing and Rehearing En Banc Denied Oct. 5, 2011.

Julie A. Frank, argued, Omaha, NE, for Appellant.Alan Lee Everett, AUSA, argued, Lincoln, NE, for Appellee.Before RILEY, Chief Judge, GRUENDER, Circuit Judge, and LIMBAUGH, ¹ District Judge.

RILEY, Chief Judge.

On October 6, 2008, three masked men robbed a TierOne Bank in Lincoln, Nebraska. Police arrested Traves Rush and two companions for the robbery. The district court ² denied Rush's motion to suppress evidence and the case proceeded to trial. A jury found Rush guilty of bank robbery and the district court sentenced him to 168 months imprisonment. Rush appeals his conviction. We affirm, and deny Rush's pending motion to strike as moot.

I. BACKGROUND

At 9:08 a.m. on October 6, 2008, Rush and Curtis Cotton left the Community Corrections Center in Omaha, Nebraska (CCC–Omaha) without permission.³ Marcus Short picked up Rush and Cotton at CCC–Omaha and the three agreed to rob a TierOne Bank some 60 miles away in Lincoln, Nebraska. Rush had been inside the bank before and knew where everything was. Short provided clothes for the robbers to wear and gave Cotton a hammer, which Rush told Cotton to use to open drawers and to “control the floor” by using the hammer “as a scare.”

Short drove Rush and Cotton to Lincoln in his dark gray Chevrolet Caprice, which they parked in a parking lot at a local religious college. A security video camera recorded Rush stealing a light blue Chrysler LeBaron from the lot. Rush drove the stolen Chrysler away, and Short and Cotton followed Rush to the parking lot of an apartment complex a short distance from the bank and from there to an alley nearby. The robbers masked their faces with clothing and dark sunglasses and donned gloves to avoid later identification. Short and Cotton joined Rush in the stolen Chrysler and Cotton drove to the bank.

The robbers entered the bank at 12:09 p.m. Although surveillance cameras recorded the robbery, the robbers cannot be identified from the recordings. During the robbery, an assistant manager escaped from the bank, observed the robbers leave the scene in the light blue Chrysler, and called the police. The robbers stole $26,500.42 of the bank's federally insured money.

The robbers returned to the alley near the apartment complex, abandoned the blue Chrysler, and drove away in the Caprice. They stopped behind a grocery store and threw the hammer, gloves, and some of their more recognizable clothing into a dumpster. Short took over the driving for the return trip to Omaha. Cotton and Rush were anxious to get back to CCC–Omaha in time for the 1:15 p.m. head count.

At about 12:15 p.m., a police radio dispatcher announced the bank robbery, notifying police that three black males and a blue Chrysler LeBaron were involved. Later radio reports indicated officers had found the blue Chrysler abandoned, and there was a possibility the robbers might then be in “a red Chrysler or some type of a red vehicle” and that “there was a white male in the mix.”

About 12:40 p.m., Lancaster County Deputy Sheriff Kirk Price arrived at an intersection on the northeast edge of Lincoln. Deputy Price heard the police radio dispatches and drove to the intersection “hoping to spot the robbery suspects traveling out of Lincoln toward Interstate 80.” With the same strategy, Lincoln Police Officer Mark Johnson parked three or four blocks east of the intersection, within sight of Deputy Price's car. Two or three minutes later, Deputy Price spotted the dark gray Caprice containing three black males and began following it. Officer Johnson also followed, but was further back due to traffic. Cotton and Rush saw Deputy Price following them and began to secret the stolen money under the car's seats. Cotton also stuffed some of the cash down his pants.

Both police cars followed the dark gray Caprice, but neither activated its lights or siren. After a little less than two miles, the Caprice entered the parking lot of a large pharmaceutical company, stopping by the main entrance. Cotton exited the Caprice and entered a building. When he got inside, Cotton asked to use the restroom, but a security guard directed him to one outside the building. Meanwhile, Short parked the Caprice in an angled parking stall. Deputy Price parked behind the Caprice, but did not obstruct the Caprice's exit with his cruiser.

Rush got out of the Caprice and Deputy Price got out of his cruiser. Deputy Price approached Rush and in a “normal conversation” tone of voice asked Rush “what they were doing there, where they were headed or where they had come from.” Rush told Deputy Price “they were from Omaha, en route to Omaha,” and that Cotton was inside visiting his mother. At that moment, Cotton reappeared. Deputy Price noticed Cotton had a thick roll of cash stuck in the top of one of Cotton's athletic shoes. The money had fallen down Cotton's pant leg to the top of his shoe. Deputy Price seized the cash and arrested Cotton.

Officer Johnson arrived, parking behind Deputy Price's cruiser, and again not obstructing the Caprice. Officer Johnson observed Deputy Price taking the money from Cotton and “took hold” of Rush, placing him in the back of Officer Johnson's police cruiser. As Cotton and Rush were being arrested, Short backed the Caprice out of its parking place and drove away. However, Short could not find the parking lot's exit and circled the lot, returning to where Deputy Price's cruiser was. Cotton observed Short “began to hop out [of] the car while the car still rolled.” The Caprice rolled into a parked vehicle. Short ran, and Officer Johnson gave chase on foot.

Officer Johnson eventually arrested Short in a field on the north side of the highway. As Officer Johnson chased Short, the owner of the car the Caprice rested against came out of the building for her lunch break. Deputy Price prepared to move the Caprice so the woman could leave. Finding the Caprice still running, Deputy Price backed up the Caprice enough to allow the other car to exit, placed the Caprice in park, shut off the engine, and took the keys. Deputy Price did not search the Caprice.

Lincoln Police Officer Larry Bratt arrived on the scene and processed the Caprice. Before entering the car, Officer Bratt observed and photographed a wad of cash, two bank bags, and a plastic bag full of currency inside the Caprice. During a search of the Caprice, police found cash, including “bait bills,” several bank bags, and black overalls similar to those appearing in the bank surveillance video. Police later found $8,850 hidden in the back of one of the cruisers. When Rush and Cotton were being held in a cell together before a court appearance, Rush told Cotton that Rush hid some of the money from the robbery in the back seat of the cruiser.

On October 21, 2009, a grand jury indicted Rush and Short for bank robbery, in violation of 18 U.S.C. § 2113(a). Rush moved to suppress the evidence seized from the Caprice, arguing (1) Deputy Price unconstitutionally seized him when “[Deputy] Price demanded of Rush that he answer questions related to his purpose and reason for being at [the pharmaceutical company],” and (2) no reasonable suspicion or probable cause existed to search the Caprice. Acting on a recommendation from the magistrate judge,⁴ the district court denied Rush's motion to suppress, finding

the parking of the gray vehicle ... did not implicate the Fourth Amendment; Mr. Rush's initial contact with Deputy Price was consensual ...; the seizure of Mr. Rush by Officer Johnson was supported by a reasonable, particularized suspicion that Mr. Rush was involved in a bank robbery; and the search of the gray vehicle did not violate the Fourth Amendment.

At trial, Cotton gave detailed testimony implicating Rush in the robbery. Rush testified in his own defense and swore that he had been in Lincoln that day looking at apartments with a woman from Omaha, who could not testify in his defense because she had recently died. Rush implied the woman and he were romantically involved, but that she asked him to leave her vehicle because she thought he was “stepping out on her.” Along came Cotton and Short, who, according to Rush, agreed to drive him back to CCC–Omaha. Deputy Price began following them a short time later. The government called the deceased woman's sister and best friend in rebuttal, both of whom testified the deceased woman had never personally known Rush.

The jury found Rush guilty as charged. The district court sentenced Rush to 168 months imprisonment and 3 years supervised release. This appeal followed. After Rush noticed his appeal, the grand jury indicted Rush for making a false material declaration, in violation of 18 U.S.C. § 1623, by falsely testifying that he had come to Lincoln with the deceased woman and was “looking at apartments and riding in her car with her” “immediately preceding and during the bank robbery.” Pursuant to a plea agreement, Rush pled guilty to the crime. In an addendum to its brief in this case, the government attached documents showing Rush's admissions that his statements were false. Rush moves to strike these documents, arguing they are irrelevant and “not part of the record on appeal.” This court has jurisdiction pursuant to 28 U.S.C. § 1291.

II. DISCUSSIONA. Deputy Price's Initial Contact with Rush

Rush argues the district court erred in denying his motion to suppress because his initial contact with Deputy Price was not consensual. Rush contends Deputy Price seized him in an investigatory stop and that Deputy Price's failure to articulate a reasonable suspicion that criminal activity was afoot renders the seizure unconstitutional. “This court reviews the district court's factual determinations in support of its denial of a motion to suppress for clear error and...