U.S. v. Lego, 87-5169

• Decision Date: 25 August 1988
• Docket Number: No. 87-5169,87-5169
• Parties: 26 Fed. R. Evid. Serv. 624 UNITED STATES of America, Appellee, v. Marcus Stephen LEGO, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 542

855 F.2d 542

26 Fed. R. Evid. Serv. 624

UNITED STATES of America, Appellee, v. Marcus Stephen LEGO, Appellant.

No. 87-5169.

United States Court of Appeals, Eighth Circuit.

Submitted Feb. 9, 1988.

Decided Aug. 25, 1988.

Ceciliam M. Michel, Minneapolis, Minn., for appellant.

Jon M. Hopeman, Asst. U.S. Atty., Minneapolis, Minn., for appellee.

Before HEANEY, Circuit Judge, FAIRCHILD, ^* Senior Circuit Judge, and MAGILL, Circuit Judge.

MAGILL, Circuit Judge.

I. INTRODUCTION

Marcus Stephen Lego (Lego) was convicted of two counts of possession of a firearm by a felon, in violation of 18 U.S.C.App Sec. 1202(a)(1). ¹ He argues that evidence of a third possession of firearms was admitted in violation of his Fourth Amendment rights and Fed.R.Evid. 404(b). Finding his appeal to be without merit, we affirm.

II. FACTS

On July 23, 1986, undercover agents of the Bureau of Alcohol, Tobacco and Firearms and the Minnesota Bureau of Criminal Apprehension met with Lego and purchased a .357 caliber revolver from him; on August 4, 1986, the agents again met with Lego but refused to purchase the .22 caliber revolver he offered them because it was too expensive. Based on these two meetings, Lego was indicted on two counts of possession of a firearm by a felon. He remained at large until October 23, 1986, when he was arrested for possession of a third handgun.

On the night of October 23, 1986, plainclothes officers of a special investigation unit of the Minneapolis Police Department were conducting surveillance in a north Minneapolis neighborhood. During the course of their observations, the officers' attention was drawn to a Ford pickup truck, which arrived at and departed from 3016 North Sixth Street ² on five occasions during a one-hour period. After each visit to other houses in the neighborhood, the truck returned to 3016 North Sixth Street, the driver got out of the truck, went inside the house for a few minutes, and returned to the truck to make another trip. From this activity, the officers surmised that drug deliveries were being made. A check on the license number of the truck revealed that the truck was registered to a known narcotics and stolen property dealer. Officers of the unit who knew this dealer by sight indicated that he was not the driver of the truck. At this point, the plainclothes officers decided to stop the truck "to identify the driver and find out what was going on." The officers testified that they did not decide to search the vehicle at that time.

A uniformed officer in a marked car, Deanna Johnson, was instructed to stop the truck. As the truck pulled into a convenience store in the neighborhood, Officer Johnson pulled in behind it and activated her red lights. Lego got out of the truck, stood beside it, and looked around the back of the truck at Officer Johnson. He fumbled underneath his coat, and reached inside the truck cab into the console area between the two front seats. It appeared to the plainclothes officers observing the stop that Lego either put something into or pulled something from the truck cab. Lego then turned toward Officer Johnson and began walking toward her with his hands in his coat pockets, as she drew her weapon. Officer Johnson ordered Lego to take his hands out of his pockets and to provide her with some identification. Lego handed her his Georgia driver's license. Officer Johnson then ordered Lego to place his hands on the patrol car while she frisked him for weapons. Officer Johnson found a buck knife in a case on his belt, which she confiscated. She finished her patdown search and ushered Lego into the rear seat of the patrol car.

At this point, one of the plainclothes officers, Officer Haugen, joined Officer Johnson. While Officers Haugen and Johnson were conferring, they received a bulletin over the radio that other officers had been warned that someone named "Marcus" was in the neighborhood, and was thought to be armed and dangerous. The officers decided to search the truck. The search of the truck yielded a .22 caliber revolver that was stuffed between the seats. Lego was arrested and transported to jail. Officer Johnson later discovered eight .22 caliber bullets in the backseat of her patrol car, which she turned over to government attorneys.

Lego was tried for the July 23, 1986 and August 4, 1986 firearms possession charges. The district court ³ denied Lego's motion to suppress the evidence seized on October 23, 1986. Officer Johnson's testimony, the .22 caliber revolver, and the eight .22 caliber bullets recovered from the backseat of Officer Johnson's patrol car were introduced, over Lego's objection, as "other crimes" evidence pursuant to Fed.R.Evid. 404(b). Lego was convicted on both counts and was sentenced to two eighteen-year terms of imprisonment, to be served concurrently.

On appeal, Lego argues that his Fourth Amendment rights were violated because no "articulable and reasonable suspicion" justified the investigatory stop on October 23, 1986, and that the investigatory stop made on that night was really an arrest without probable cause. Lego also attacks the district court's decision to admit the evidence seized that night as "other crimes" evidence under Fed.R.Evid. 404(b). Finally, Lego challenges the legality of his sentence.

III. DISCUSSION

A. Articulable Reasonable Suspicion

In Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), the Supreme Court approved of a temporary seizure for investigation when a police officer "observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot." Id. at 30, 88 S.Ct. at 1884. The Court chose the words "articulable" and "reasonable" to characterize the level of suspicion that an officer must have before interfering with an individual citizen's freedom of movement. Lego claims that his actions leading up to his encounter with Officer Johnson were innocuous and not suggestive of any criminal activity, and that Officer Johnson thus had no "articulable reasonable suspicion" to detain him. We do not agree.

At the time the plainclothes officers radioed Officer Johnson to stop the truck, they knew that the driver had made five short trips within a three-block area; that the driver stayed at each destination for a short period of time and returned after each trip to 3016 North Sixth Street, and stayed a few minutes at that address before leaving again; that the registered owner of the truck was a known dealer of drugs and stolen property; and that the registered owner was not driving the truck. From this constellation of facts, the plainclothes officers concluded, not unreasonably, that the driver of the truck may have been up to no good. See Terry, 392 U.S. at 5-8, 88 S.Ct. at 1871-73 (investigatory stop legal where officer observed suspects for twelve minutes, saw suspicious conduct). In these circumstances, it would have been "poor police work indeed" for the officers to have failed to investigate Lego's behavior, or to have waited in the gathering darkness for Lego to commit some clearly illegal act. Terry, 392 U.S. at 23, 88 S.Ct. at 1881. Accordingly, we hold that the officers had an articulable reasonable suspicion that Lego was engaged in criminal activity, and properly detained him to investigate his conduct.

B. The Scope of the Terry Stop

The distinction between a stop and an arrest is one of degree, so it is not surprising that courts have not come up with a bright-line test to determine when a stop is transformed into an arrest. Instead, courts have tended to follow a laundry-list approach. See, e.g., United States v. White, 648 F.2d 29, 34 (D.C.Cir.) (various factors listed, but not weighted or compared), cert. denied, 454 U.S. 924, 102 S.Ct. 424, 70 L.Ed.2d 233, 70 L.Ed.2d 235 (1981). The length of time of the encounter between the officer and the citizen is typically given great attention by courts considering the constitutionality of investigatory stops, because it is a direct measure of the degree to which a citizen's freedom of movement has been curtailed. But an individual's privacy interest is also measured by the degree of fear and humiliation that the police conduct engenders. United States v. Serna-Barreto, 842 F.2d 965, 967 (7th Cir.1988). This brings us to Lego's second complaint. He argues that the investigatory stop turned into an arrest when Officer Johnson pointed her weapon at him, or at the very latest, when she placed him in the rear of her patrol car without formally arresting him. While it would be an unhappy day for us all if police officers could point a weapon at any individual that they had an "articulable reasonable suspicion" of engaging in criminal conduct, or could confine a suspect in a police car without more than just a suspicion, we think that there were other justifications for Officer Johnson's actions in this case.

The district court found, and we have no reason to doubt, that Lego reached into the cab of the truck as Officer Johnson pulled in behind the truck. Lego then turned around, hands in his pockets, and began walking toward Officer Johnson in her parked patrol car. Confronted with this apparent threat, we think it was only prudent for Officer Johnson to draw her weapon in order to ensure her own safety. While we are troubled by the thought of allowing the police to stop citizens at gunpoint in order to ask a mere question, we are unwilling to hold that a police officer has to effectuate an investigatory stop under constraints that might endanger the officer's personal safety, particularly where, as here, the suspect made what is known as a "furtive gesture" (reaching into the truck cab), and then advanced on the officer with his hands in his pockets. Other courts reviewing similar facts have agreed that an officer can point a gun at a suspect without transforming an investigatory stop into an arrest. Serna-Barreto, 842 F.2d at 967-68; United States v. Manbeck, 744...