United States v. Kehoe

• Decision Date: 20 June 2018
• Docket Number: No. 17-4536,17-4536
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Edward Joseph KEHOE, Defendant–Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

893 F.3d 232

UNITED STATES of America, Plaintiff–Appellee,

v.Edward Joseph KEHOE, Defendant–Appellant.

No. 17-4536

United States Court of Appeals, Fourth Circuit.

Argued: May 10, 2018

Decided: June 20, 2018

ARGUED: Caroline Swift Platt, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Alexandria, Virginia, for Appellant. Richard Daniel Cooke, OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia, for Appellee. ON BRIEF: Geremy C. Kamens, Federal Public Defender, Wilfredo Bonilla, Jr., Assistant Federal Public Defender, Alexandria, Virginia, for Appellant. Dana J. Boente, United States Attorney, Alexandria, Virginia, Megan M. Cowles, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Newport News, Virginia, for Appellee.

Before WILKINSON, MOTZ and KING, Circuit Judges.

Affirmed by published opinion. Judge Motz wrote the opinion, in which Judge Wilkinson and Judge King joined.

DIANA GRIBBON MOTZ, Circuit Judge:

Edward Joseph Kehoe entered a conditional plea to being a felon in possession of a firearm, reserving the right to appeal the district court’s order denying his motion to suppress. Kehoe now appeals that order. For the reasons that follow, we affirm.

I.

A.

On August 2, 2016, the Newport News Police Department received two phone calls reporting a potential issue at RJ’s Sports Bar involving a man drinking while carrying a concealed firearm. Police officers went to RJ’s and, after investigating, seized a gun from Kehoe’s person and arrested Kehoe.

A grand jury indicted Kehoe for possession of a firearm by a felon, in violation of 18 U.S.C. § 922(g)(1). Kehoe moved to suppress the gun seized from his person and his statements to officers. He argued that the officers lacked reasonable suspicion for the seizure. At the suppression hearing, the district court admitted recordings of the two phone calls, a "call for service report," body camera footage, and a photo of the firearm recovered from Kehoe’s person. The court also heard testimony from two Newport News police officers, Gary Lipscomb and E.D. Barnes. Although Kehoe called Officer Lipscomb as a witness, Kehoe did not testify or offer any other witnesses on his behalf.

According to recordings of the two phone calls, the first caller reported that he was at RJ’s, and that a white male wearing "a blue-and-white striped shirt" had a gun "on his side" "under his shirt" and had "been drinking." The caller stated that he wished to be anonymous, but at the 911 operator’s request, provided his first name and phone number. Almost simultaneously, a second caller, an off-duty police officer, informed the police that a "bartender at RJ’s" had called to inform him that a white male at RJ’s was "intoxicated" and "carrying a firearm."

Based on these two phone calls, the Police Department dispatched multiple officers to RJ’s, including Officers Lipscomb and Barnes. Both officers testified that RJ’s was in a "known problem area." Newport News officers had previously responded to a "myriad of calls" at RJ’s and in the surrounding area for incidents involving "gunshots," "intoxicated individuals refusing to leave after being kicked out of the bar," and "fights in the parking lot."

The officers did not listen to the 911 calls before entering RJ’s. Instead, they reviewed a written police "call for service report." That report includes some, but not all, of the information supplied by the two callers. Specifically, it notes that the first caller, who provided his first name and telephone number, described seeing at RJ’s a white male in a blue-and-white striped shirt who had a "gun on his side covered by his shirt" and was "drinking." The call for service report states that a second caller said that the RJ’s bartender was concerned about a white male in unknown clothing who was carrying a firearm. The report does not indicate that the second caller was a police officer or otherwise identify him, nor does it indicate that the second caller stated that the suspect was intoxicated.

Upon arriving at RJ’s, but before entering the bar, the police officers "went over some of the different code sections." Officer Lipscomb testified that, based on this review, the officers determined that under state law, persons "could be inside of a bar possessing a firearm concealed if they had a concealed permit, as long as they were not drinking." See Va. Code § 18.2-308.012(B).

The officers then entered RJ’s. Inside, Officer Lipscomb conferred with the bartender for approximately one minute. According to Officer Lipscomb, the bartender confirmed that several patrons had reported that a white male in a blue-and-white striped shirt had a gun, and that the bartender had seen a "bulge" but not the gun itself. The bartender also told Officer Lipscomb that the white man was located in the adjacent pool hall area. The officers immediately proceeded to that area where they identified the one patron—Kehoe—who matched the description of the suspect.

Officer Lipscomb approached Kehoe, who was seated at a small table near a pool table. Body camera footage shows that while speaking to Officer Lipscomb, Kehoe remained seated, leaning slightly to his left—the same side on which Officer Lipscomb was standing. Officer Lipscomb testified that Kehoe’s speech was "slightly slurred." Because the confined space, loud music, and pool tables made it difficult to have a conversation, Officer Lipscomb asked Kehoe to "step outside with" the officers. When Kehoe did not comply, Officer Lipscomb asked Kehoe to "stand up" and produce identification. Kehoe did so, and two officers placed their hands on Kehoe to steer him toward the exit.

Officer Lipscomb described Kehoe’s demeanor as "calm," "polite," but a bit "passive-aggressive." Officer Lipscomb also testified that he believed Kehoe’s initial refusal to stand up, talk to the officers, or leave the bar indicated nervousness.

Once outside, the police officers testified that, among other things, Kehoe’s speech was slurred and his eyes were glassy, suggesting that he had consumed alcohol. At this point, the officers handcuffed Kehoe and began a pat-down search, which revealed a handgun concealed underneath Kehoe’s shirt. The police then arrested Kehoe.

B.

At the suppression hearing, the district court orally denied Kehoe’s motion to suppress the challenged evidence.¹ Nine days later, the court issued a twenty-five page written opinion detailing its reasons for denying the motion. In that opinion, the court found that three categories of evidence provided the officers with reasonable suspicion sufficient to detain Kehoe briefly for investigative purposes.

First, the court found that the police dispatch was not based on a single, anonymous tip, but instead "on two 911 calls that, in combination with each other and the other factors present that night, supported reasonable suspicion." The court concluded that neither caller was anonymous, because the first caller "provided both his first name and a phone number," and "[t]he second call was from another police officer, who was reporting the concerns of the bartender and other patrons." In addition, the court found that the bartender "offered a physical description of the Defendant that matched the information in the dispatch."

Second, the court noted that "[t]he officers’ experience also contributed to the development of reasonable suspicion. Both Officer Lipscomb and Officer Barnes had previously responded to calls for service concerning guns, and [RJ’s] was known to the Newport News Police Department for the very sort of activity the officers had received a dispatch for."

Third, the district court concluded that Kehoe’s behavior "contributed to the officers’ reasonable suspicion." The court explained, "When the officers approached [Kehoe], they observed him leaning to his right side (where the gun was previously reported to have been), detected the consumption of alcohol by" Kehoe, and noted Kehoe’s "refusal to answer their questions." Thus, the court found that, "together with the information provided in the dispatch and the officers’ previous experience with the bar, the totality of the circumstances supported reasonable suspicion of criminal activity." On these bases, the court denied Kehoe’s motion to suppress.

C.

Kehoe pled guilty to one count of being a felon in possession of a firearm, but reserved "the right to appeal the court’s ruling on all grounds in his previously filed motion to suppress." The district court sentenced Kehoe to 24 months’ imprisonment and two years of supervised release.

Kehoe now appeals the denial of his motion to suppress. He maintains that the police officers seized him "without a warrant and without reasonable suspicion that he had or was about to engage in criminal activity." Appellant Br. at 11. Kehoe recognizes that in assessing "a district court’s decision on a motion to suppress," although we review the court’s "factual findings for clear error," we review its "legal conclusions de novo." Id. ; see United States v. McGee , 736 F.3d 263, 269 (4th Cir. 2013).

II.

The Fourth Amendment protects against unreasonable searches and seizures. U.S. Const. Amend. IV. This includes brief investigatory stops, also known as Terry stops. Terry v. Ohio , 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). In assessing the constitutionality of such a stop, we ask whether, at the time of the seizure, the police officer had a "reasonable suspicion" that the person seized was "involved in criminal activity." Hiibel v. Sixth Judicial Dist. Court of Nevada , 542 U.S. 177, 185, 124 S.Ct. 2451, 159 L.Ed.2d 292 (2004).

Reasonable suspicion requires "more than an inchoate and unparticularized suspicion or hunch"; rather, the government agent must articulate a particularized, objective basis for his or her actions. United States v. Sokolow , 490 U.S. 1, 7, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989) (internal citation and quotation marks omitted). To determine whether an officer had such a basis for "suspecting legal wrongdoing," "rev...