804 F.2d 353 (6th Cir. 1986), 85-1636, United States v. Hardnett

Docket Nº:85-1636.
Citation:804 F.2d 353
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Anthony HARDNETT, Defendant-Appellant.
Case Date:November 06, 1986
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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Page 353

804 F.2d 353 (6th Cir. 1986)

UNITED STATES of America, Plaintiff-Appellee,

v.

Anthony HARDNETT, Defendant-Appellant.

No. 85-1636.

United States Court of Appeals, Sixth Circuit

November 6, 1986

Argued Sept. 25, 1986.

Edward F. Marek, Federal Public Defender, Cleveland, Ohio, Michael G. Dane (argued), for defendant-appellant.

Phyllis M. Golden (argued), Detroit, Mich., for plaintiff-appellee.

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Before KEITH and KENNEDY, Circuit Judges, and CONTIE, Senior Circuit judge.

CONTIE, Senior Circuit Judge.

Anthony Hardnett appeals his jury conviction of being a felon in possession of a firearm in violation of 18 App. U.S.C. Sec. 1202(a)(1). On appeal, Hardnett challenges the district court's denial of his motion to suppress evidence obtained in a search of his person. Hardnett argues that the stop of an automobile containing himself and three other individuals, which precipitated the search of his person, was not an investigatory stop pursuant to Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), but was effectively an arrest which was unsupported by probable cause. For the reasons that follow, we affirm Hardnett's conviction.

I.

On January 24, 1985, Hardnett was charged in an indictment with being a felon in possession of a firearm in violation of 18 App. U.S.C. Sec. 1202(a)(1). Count One of the indictment alleged that Hardnett had previously been convicted of "assault with intent to do great bodily harm less than murder" and that on December 29, 1984 he possessed two firearms-a Rohm .22 caliber revolver and a Cheskoslevenska Zbrojovka 8 mm. bolt action rifle.

On April 19, 1985, Hardnett filed a motion to suppress evidence; namely, the firearms. At the suppression hearing, Detroit police officer George Ball testified that on December 29, 1984, he and his partner Joseph Shaw received a call from Officers Lawrence Wideman and Harry Romolino that "there were men armed with guns in front of 1251 Meadowbrook in a burgundy Pontiac." According to Ball, he and Shaw arrived at the scene at approximately the same time as Wideman and Romolino and they stopped the suspected vehicle. Shaw was the first officer to approach the car, and when the driver, Hardnett, opened his car door Shaw stated that there was a rifle on the floor. Ball looked and also saw a rifle on the floor under Hardnett's legs. Ball then "took the driver, patted him down [and] found a nickel-plated revolver in his waistband."

Officer Shaw also testified at the hearing. He stated that when he and Ball arrived at the scene they observed the vehicle in question, occupied by four black males. They passed the car, stopped in the middle of the street in front of it and left their police car. When the Pontiac started to pull away from the curb, the officers "ordered the car to stop and ... ordered the occupants out of the vehicle." The driver then opened his door. Shaw shined his flashlight towards the driver and saw the barrel of a rifle on the floor in the front seat.

Officer Wideman testified that on the night in question Dorothy Maples "flagged down" his police car by honking her car's horn and pulling alongside. According to Wideman, Maples stated that "there were men in front of her house armed with guns, and that they had come over earlier and had threatened her, and they had now returned." She also stated that some shots had been fired the previous night. Maples told Wideman that the men, four black males, were in a red, late-model Pontiac. When asked about the basis of her information, Maples stated that "she saw a man in the back seat with a rifle." Based on Maples' information, Wideman and Romolino requested a backup and proceeded to the scene. Upon arrival they pulled up behind a vehicle fitting Maples' description, boxing it in between their police car and the cruiser occupied by Ball and Shaw. They exited their car, approached the suspected vehicle, and ordered everyone out of the car at gunpoint. As Wideman opened a rear door of the car, he saw a rifle laying on the floor in the back seat. Wideman identified Hardnett as the driver of the car.

Vanessa MacLemore, Special Agent with the Bureau of Alcohol, Tobacco and Firearms, testified that she interviewed Maples in connection with the investigation of the Hardnett case. Maples stated that when she was getting into her car on the night in question a seven or eight year old girl told

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her that there were men with guns in a car near her house. Maples approached the police car on the basis of this information. Maples admitted that she did not see the car or guns prior to contacting the police.

Officer Romolino also testified as to events on December 29, 1984. Maples told him that there were men with guns in a burgundy Pontiac at 1251 Meadowbrook and that she saw the guns. Romolino and Wideman proceeded in their cruiser to that area and, along with Ball and Shaw, boxed in the Pontiac. When it attempted to manuever out from between the two police cars, the officers drew their guns and ordered it to stop.

Based on this testimony, the district court denied Hardnett's motion to suppress. The court characterized the police officers' conduct as an investigative stop governed by the principles of Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), rather than as an arrest which had to be based on probable cause. The court concluded that the officers had a "reasonable suspicion" that criminal activity existed which justified their investigative stop under Terry. The court found it "noteworthy that defendants took evasive action, and they didn't emerge readily from the car, immediately, to cooperate with the policemen; they were attempting to get away from that area when the police car arrived." Since the stop was permissible, the court found that the officers properly obtained the rifles which were in plain view. It also approved the protective patdown of Hardnett and the seizure of the pistol he was carrying.

Hardnett's jury trial commenced on April 24, 1985, and on April 29, 1985, the jury returned a verdict of guilty. The district court sentenced Hardnett to two years imprisonment on July 19, 1985. This timely appeal followed.

II.

Hardnett claims error in the district court's denial of his motion to suppress. He argues that the officers effectuated an arrest when they blocked his car, approached the car with guns drawn, and ordered him and the other occupants out of the car at gunpoint. Hardnett also asserts that the police lacked probable cause to arrest him at that point. Therefore, Hardnett concludes, his seizure was invalid under the Fourth Amendment and the firearms should have been suppressed as the fruit of an illegal seizure.

In contrast, the government argues that the police officers performed an investigative stop which was supported by reasonable suspicion based on information known to them and therefore permissible under Terry v. Ohio, supra. The government further contends that the police officers properly frisked Hardnett as part of their investigative stop. The government concludes that the officers' seizure of the handgun found on Hardnett and the rifles seen in plain view in the car was valid under the Fourth Amendment and provided probable cause for Hardnett's arrest.

Our first inquiry is whether the police officers effectuated an arrest of Hardnett when they blocked his car, approached with their weapons drawn and ordered him out of the car, or whether their confrontation only constituted an investigative stop. There is no doubt that a seizure within the meaning of the Fourth Amendment occurred; we simply must determine whether that seizure rose to the level of an arrest.

An arrest unsupported by probable cause violates the Fourth Amendment. The test for probable cause is whether "facts and circumstances within the officer's knowledge ... are sufficient to warrant a prudent person, or one of reasonable caution, [to believe], in the circumstances shown, that the suspect has committed, is committing, or is about to commit an offense." Michigan v. DeFillippo, 443 U.S. 31, 37, 99 S.Ct. 2627, 2632, 61 L.Ed.2d 343 (1979). See also Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 225, 13 L.Ed.2d 142 (1964).

Beginning with Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), however, the Supreme Court recognized that certain investigative seizures of an

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individual need not be supported by probable cause. In Terry, the Court held that a police officer may conduct a "stop" and "frisk" of an individual "for purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest" so long as the officer is "able to point to specific and articulable facts" which give rise to a reasonable suspicion of criminal activity. Id. at 21-22, 88 S.Ct....

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