United States v. Green

Decision Date10 September 2012
Docket NumberNo. 11–2308.,11–2308.
PartiesUNITED STATES of America, Plaintiff–Appellee, v. Robert E. GREEN, Defendant–Appellant.
CourtU.S. Court of Appeals — Eighth Circuit

OPINION TEXT STARTS HERE

David Bell, Wyrsch Hobbs & Mirakian, P.C., Kansas City, MO, argued, for appellant.

Robert E. Green, Greenville, IL, pro se.

D. Michael Green, Asst. U.S. Atty., Kansas City, MO, argued (Beth Phillips, U.S. Atty., on the brief), for appellee.

Before WOLLMAN and COLLOTON, Circuit Judges, and HICKEY,1 District Judge.

COLLOTON, Circuit Judge.

Following a bench trial, Robert Green was convicted of one count of bank robbery, in violation of 18 U.S.C. § 2113(a). The district court 2 & sentenced him to 96 months' imprisonment. On appeal, Green challenges the district court's denial of a motion to suppress evidence and the sentence imposed. We affirm.

I.

On March 28, 2009, Officers Ricky Ropka and Kevin Growney of the Kansas City, Missouri, Police Department were on patrol. It was a cloudy day with occasional moderate to heavy rain. At approximately 9:00 a.m., Growney and Ropka heard a radio call reporting a robbery at the Commerce Bank at 63rd Street and Brookside Plaza in Kansas City. The suspect was described as a 30 to 40–year–old black male with facial hair and a medium build, wearing a black raincoat, black baseball cap, blue jeans, and white Nike tennis shoes. Growney, Ropka, and other officers set up a perimeter in the area surrounding the bank.

Growney noticed a black male walking near 65th and Wyandotte Streets, approximately two blocks from Commerce Bank. The man, later identified as Green, had a medium build, was approximately 5'10? to 5'11? tall, had a goatee, and wore white Nike tennis shoes. Growney asked Green to stop, and he complied. Green told Growney that he was a personal trainer and was in the area looking for a trail on which to run.

Growney ran a computer check and discovered two outstanding warrants for Green's arrest. Growney arrested Green and found a large amount of cash in his front pants pocket. While canvassing the area, other officers found a black rain jacket, black sweatshirt, black hat, and a box cutter in a trash can at a nearby home. Green later made inculpatory statements during an interview with law enforcement. After the interview, officers seized a Styrofoam cup that Green had used in the interview room and submitted it for DNA testing.

A grand jury charged Green with bank robbery. He moved to suppress his statements to law enforcement and several pieces of physical evidence. Green argued that Growney's investigatory stop violated the Fourth Amendment, because the officer had nothing more than an “inchoate and unparticularized suspicion or hunch” of criminal activity. After a hearing, a magistrate judge 3 recommended denial of the motion. Citing the facts that Green was walking in the area of the recent bank robbery and matched many aspects of the suspect's description, the magistrate judge concluded that Growney was justified in conducting an investigative detention.4

After issuing the report and recommendation, but before the deadline for filing objections had expired, the magistrate judge granted Green's request to proceed pro se, with his former counsel continuing only as stand-by counsel. Green did not file objections to the magistrate's recommendation. The district court then adopted the recommendation and denied the motion to suppress.

After a two-day bench trial, the district court found Green guilty of bank robbery. At sentencing, the court varied upward from the advisory guideline sentencing range of 46 to 57 months' imprisonment and sentenced Green to a 96–month term.

II.

On appeal, Green reasserts his claim that Growney lacked reasonable suspicion to make an investigative stop. He also contends for the first time on appeal that even if the stop were justified, Growney exceeded the permissible scope of an investigative detention under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and subjected him to a de facto arrest without probable cause. As a result, Green argues, the currency seized from his pocket, his statements to law enforcement, and the “genetic profile” developed from the Styrofoam cup must be suppressed.

A.

A law enforcement officer may detain a person for investigation without probable cause to arrest if the officer “has a reasonable suspicion supported by articulable facts that criminal activity ‘may be afoot.’ United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989) (quoting Terry, 392 U.S. at 30, 88 S.Ct. 1868). “Whether the particular facts known to the officer amount to an objective and particularized basis for a reasonable suspicion of criminal activity is determined in light of the totality of the circumstances.” United States v. Garcia, 23 F.3d 1331, 1334 (8th Cir.1994). We review de novo the district court's determination that reasonable suspicion existed. Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996).

The district court correctly held that Growney had reasonable, articulable suspicion that was sufficient to stop Green. An investigative stop “typically is justified when a suspect matches the description of a person involved in a disturbance near in time and location to the stop.” United States v. Horton, 611 F.3d 936, 940 (8th Cir.2010). After receiving a description of the suspected bank robber, Growney observed a black male with a medium build and facial hair wearing white Nike tennis shoes. Each of these features matched the description given to Growney. Growney also observed Green walking approximately two blocks away from the bank that had just been robbed. Given Green's similarities to the description of the suspected robber and his proximity in both time and place to the crime, Growney had reasonable suspicion that Green committed a crime.

B.

Green next argues that Growney exceeded the permissible scope of a Terry stop and subjected him to a de facto arrest without probable cause. He contends that Growney effected a de facto arrest because the officer was driving a “patrol wagon” used to transport arrestees for booking, and he instructed Green to “stop and walk toward me.” Green also complains that when Growney placed his hand on Green's chest to feel his heartbeat, presumably to see if he had been running in the immediate aftermath of the bank robbery, the officer conducted a search for evidence that went beyond the scope of a permissible Terry stop. These contentions were not raised in a pretrial motion to suppress evidence, and they are therefore waived. SeeFed.R.Crim.P. 12(e).

Federal Rule of Criminal Procedure 12(b)(3) specifies that “a motion to suppress evidence must be made before trial. The district court may establish a deadline for pretrial motions, Fed.R.Crim.P. 12(c), and a party waives any Rule 12(b)(3) defense, objection, or request not raised” by the court's pretrial deadline. Fed.R.Crim.P. 12(e) (emphasis added). The court may, however, grant relief from the waiver for “good cause.” Id. Because “waived claims are unreviewable on appeal,” United States v. Booker, 576 F.3d 506, 511 (8th Cir.2009), the waiver provision of Rule 12 precludes appellate review of arguments to suppress evidence that are not raised in a pretrial motion to suppress. See United States v. Henderson, 613 F.3d 1177, 1182 (8th Cir.2010); United States v. Spotted Elk, 548 F.3d 641, 656 (8th Cir.2008); United States v. New, 491 F.3d 369, 374 n. 3 (8th Cir.2007); United States v. Buchanan, 985 F.2d 1372, 1380 (8th Cir.1993); United States v. Neumann, 887 F.2d 880, 885–86 (8th Cir.1989); see also United States v. Crooker, 688 F.3d 1, 10 (1st Cir.2012); United States v. Burke, 633 F.3d 984, 988–89 (10th Cir.2011); United States v. Rose, 538 F.3d 175, 182 (3d Cir.2008); United States v. Yousef, 327 F.3d 56, 124–25 (2d Cir.2003); United States v. Murillo, 288 F.3d 1126, 1135 (9th Cir.2002); United States v. Chavez–Valencia, 116 F.3d 127, 134 (5th Cir.1997).5

To be sure, there is a general rule that a “plain error that affects substantial rights may be considered even though it was not brought to the court's attention,” Fed.R.Crim.P. 52(b), and a “mere forfeiture” typically “does not extinguish an ‘error’ under Rule 52(b).” United States v. Olano, 507 U.S. 725, 733, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). But Rule 12 “singles out motions to suppress.” Rose, 538 F.3d at 183.Rule 12 mandates that such motions must be brought before trial, and it provides that a party “waives” any Rule 12(b)(3) “defense, objection, or request” not raised by the court's pretrial deadline. Fed.R.Crim.P. 12(e). “When general and specific statutory provisions apparently contradict, it is well-established that the two may exist together, the specific provision qualifying or limiting the general.” United States v. Gullickson, 981 F.2d 344, 349 (8th Cir.1992) (internal quotation omitted). We do not apply “a general provision when doing so would undermine limitations created by a more specific provision.” Varity Corp. v. Howe, 516 U.S. 489, 511, 116 S.Ct. 1065, 134 L.Ed.2d 130 (1996). If we were to apply the forfeiture analysis of Rule 52(b) and Olano in the face of Rule 12's specific waiver provision, then a Rule 12 waiver “would have no consequence other than that [the claim] would be reviewed for plain error”—the same result as if there were no Rule 12(e). United States v. Weathers, 186 F.3d 948, 955 (D.C.Cir.1999).

The Supreme Court in Davis v. United States, 411 U.S. 233, 93 S.Ct. 1577, 36 L.Ed.2d 216 (1973), explained that “waiver” in Rule 12 precludes further judicial review. The defendant there brought a proceeding under 28 U.S.C. § 2255, alleging that there had been unconstitutional discrimination in the selection of a grand jury. Id. at 234–35, 93 S.Ct. 1577. Although he had not raised this claim at trial, the defendant argued that his collateral attack was not barred unless he ...

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