936 F.2d 1561 (10th Cir. 1991), 90-5031, United States v. Morgan

Docket Nº:90-5031.
Citation:936 F.2d 1561
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Rodney Lee MORGAN, Defendant-Appellant.
Case Date:June 28, 1991
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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936 F.2d 1561 (10th Cir. 1991)

UNITED STATES of America, Plaintiff-Appellee,

v.

Rodney Lee MORGAN, Defendant-Appellant.

No. 90-5031.

United States Court of Appeals, Tenth Circuit

June 28, 1991

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Kathryn H. Phillips, Asst. U.S. Atty. (Tony M. Graham, U.S. Atty., Susan W. Pennington, Asst. U.S. Atty., with her on the brief), Tulsa, Okl., for plaintiff-appellee.

June E. Tyhurst, Asst. Federal Public Defender, Oklahoma City, Okl., for defendant-appellant.

Before SEYMOUR, MOORE, and BRORBY, Circuit Judges.

BRORBY, Circuit Judge.

Rodney Lee Morgan appeals his conviction by jury trial of the two-count indictment filed against him on September 6, 1989. The indictment charged Defendant with the following offenses: Count 1, armed bank robbery in violation of 18 U.S.C. Sec. 2113(a) and (d), and aiding and abetting in violation of 18 U.S.C. Sec. 2; and Count 2, possession of a firearm during the commission of a violent crime in violation of 18 U.S.C. Sec. 924(c)(1).

On appeal Mr. Morgan raises the following issues: (1) "Was it error for the trial court to deny defendant's motion to suppress?"; (2) "Was it error for the trial court to allow admission of evidence of defendant's participation in a prior uncharged bank robbery?"; and (3) "Was it error for the trial court to increase defendant's Sentencing Guidelines offense level for obstruction of justice and for being a leader or organizer of the criminal activity?" Because we find each of the above queries properly answered in the negative, we affirm.

I.

On August 11, 1989, Tulsa Police Officer Michael Eubanks was notified by police dispatch that the Heartland Savings and Loan had been robbed by three black males. Prior to this date, Officer Eubanks had received information from his superiors in the police department notifying him that a Chevrolet El Camino, license plate number "OST 757," was suspected of being used in recent bank robberies that had occurred in the area. Officer Eubanks was aware that a vehicle matching that description was frequently driven by a resident in the area, Mr. Dwight Reed. Officer Eubanks was also aware Mr. Morgan was a possible suspect in the recent robberies in the area as Mr. Morgan had been previously tried and acquitted of a bank robbery involving a switch vehicle and a clothes switch by the robbers immediately following the robbery.

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After receiving notification of the Heartland robbery from dispatch, Officer Eubanks called fellow police officer Jay Taylor, and the two officers positioned their cars at two separate locations near the residence of Mr. Reed. Soon after, Officer Eubanks noticed the suspect El Camino pass, carrying three black males, one of whom he knew on sight as Defendant, Rodney Morgan. Officer Eubanks then followed the car with his red lights on for several blocks until it pulled into Reed's driveway. Officer Eubanks pulled in behind the vehicle.

At this time, Mr. Morgan exited the vehicle on the passenger's side, carrying a large tan bag, and Mr. Reed exited on the driver's side. 1 Officer Eubanks then told the men to "hold up," and Mr. Morgan replied, "What do you want?" and began backing away. Officer Eubanks told Mr. Morgan not to run, but Mr. Morgan did so fleeing eastward around the north side of the residence. Officer Eubanks pursued Mr. Morgan to the back of the residence where he observed Mr. Morgan attempting to enter the Reed house through the back door. Unable to gain entry into the house, Mr. Morgan threw the tan bag he was carrying to the south side of the porch and headed back down the porch stairs in the direction of Officer Eubanks. Mr. Morgan then disregarded Officer Eubanks's order to get down on the ground and attempted to go by him. A struggle ensued, but Officer Eubanks ultimately subdued and handcuffed Mr. Morgan. Officer Taylor arrived to assist Officer Eubanks and handcuffed Mr. Reed near Mr. Morgan. The third male occupant of the vehicle, however, fled the scene and was not found.

After Mr. Morgan and Mr. Reed were secured, Officer Eubanks retrieved the tan bag, and it was taken along with the two men to the Tulsa Police Station where it was searched without a warrant. The bag contained, among other things, several pairs of blue jeans, several partial pairs of pantyhose, two pistols, and over $6,000 in cash, including bait money from Heartland bank.

Prior to his trial, Defendant brought a motion to suppress all evidence obtained as a result of the warrantless search of the tan bag. Defendant also argued his arrest was illegal as it was not supported by probable cause. The district court held an evidentiary hearing on Defendant's motion. Following the hearing, the district court denied Defendant's motion, finding there was probable cause for the warrantless arrest of Mr. Morgan, and that the warrantless search of the tan bag was lawful.

Mr. Morgan's case proceeded to trial. During the trial, a hearing was held outside the presence of the jury to determine whether the Government would be allowed to admit evidence relating to Defendant's involvement in a prior uncharged bank robbery. The court allowed the admission over the objection of Defendant. On December 5, 1989, the jury returned guilty verdicts as to both counts charged in the indictment. Defendant was subsequently sentenced to eighty-seven months on Count I, and sixty months on Count II, to run consecutively.

II.

A. Motion to Suppress

"In an appeal of the denial of a defendant's motion to suppress evidence, our standard of review is to accept the trial court's findings of fact, unless clearly erroneous, and to consider the evidence in the light most favorable to the Government." United States v. McAlpine, 919 F.2d 1461, 1463 (10th Cir.1990). "If or where findings are not made, this court must uphold the ruling if there is any reasonable view of the evidence to support it." United States v. Neu, 879 F.2d 805, 807 (10th Cir.1989) (citing United States v. Comosona, 848 F.2d 1110, 1111 (10th Cir.1988)). Ultimate determinations of reasonableness concerning Fourth Amendment issues and other questions of law, however, are reviewed de

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novo. United States v. Butler, 904 F.2d 1482, 1484 (10th Cir.1990).

1. Warrantless Arrest

On appeal, Mr. Morgan contends the trial court erred in determining the warrantless arrest was supported by probable cause, arguing that he was "seized" at the time Officer Eubanks ordered him not to leave; that "it [is] at this time that Eubanks had to have probable cause to arrest"; and that probable cause did not then exist.

This court has previously identified three categories of police/citizen encounters:

"The first is referred to as a police-citizen encounter and is characterized by the voluntary cooperation of a citizen in response to non-coercive questioning. This has been held to raise no constitutional issues because this type of contact is not a seizure within the meaning of the Fourth Amendment....

"The second type of encounter is the Terry-type of stop. The standards here are set forth in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Most courts characterize this as a 'brief, non-intrusive detention during a frisk for weapons or preliminary questioning * * *.' This is considered a seizure of the person within the meaning of the Fourth Amendment, but need not be supported by probable cause. In order to justify an investigatory stop, the officer need have only 'specific and articulable facts sufficient to give rise to reasonable suspicion that a person has committed or is committing a crime.'

"The final category is an arrest which is characterized by highly intrusive or lengthy search or detention. An arrest is justified only when there is probable cause to believe that a person has committed or is committing a crime."

United States v. Santillanes, 848 F.2d 1103, 1106 (10th Cir.1988) (quoting United States v. Cooper, 733 F.2d 1360, 1363 (10th Cir.), cert. denied, 467 U.S. 1255, 104 S.Ct. 3543, 82 L.Ed.2d 847 (1984) (citations omitted)).

With these guidelines in mind, we review the encounter at issue in this case. The record reveals Officer Eubanks followed the suspect vehicle, in which Defendant was a passenger, for several blocks with his red lights on. When the vehicle turned into the driveway of the Reed residence, Eubanks pulled into the driveway behind it. Upon Defendant's exit from the vehicle, Officer Eubanks testified that the following exchange occurred:

[Officer Eubanks:] I told them to hold up, and Rodney [Morgan] says, "What do you want?" And I said, "Just hold it right there." Rodney started to back up. I said, "Rodney, don't run." And he ran around on the north side of the house to the east.

"[N]ot all [encounters] between policemen and citizens involve[ ] 'seizures' of persons. Only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a 'seizure' has occurred." Terry v. Ohio, 392 U.S. 1, 19 n. 16, 88 S.Ct. 1868, 1879 n. 16, 20 L.Ed.2d 889 (1968). For purposes of invoking Fourth Amendment protection, a person is deemed "seized ... 'only if ... a reasonable person would have believed that he was not free to leave.' " Michigan v. Chesternut, 486 U.S. 567, 573, 108 S.Ct. 1975, 1979, 100 L.Ed.2d 565 (1988) (quoting United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 1877, 64 L.Ed.2d 497 (1980) (opinion of Stewart, J.)); see also INS v. Delgado, 466 U.S. 210, 215, 104 S.Ct. 1758, 1762, 80 L.Ed.2d 247 (1984). This so-called "Mendenhall test" was discussed by the Supreme Court in its recent case, California v. Hodari D., --- U.S. ----, 111...

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