U.S. v. Banks

• Decision Date: 02 February 2009
• Docket Number: No. 08-2511.,08-2511.
• Citation: 553 F.3d 1101
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Warren Patrick BANKS, Jr., also known as Richard Anderson, also known as Pat Ricky, also known as Gerald Banks, also known as Jarald Vincent Banks, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

553 F.3d 1101

UNITED STATES of America, Plaintiff-Appellee, v. Warren Patrick BANKS, Jr., also known as Richard Anderson, also known as Pat Ricky, also known as Gerald Banks, also known as Jarald Vincent Banks, Defendant-Appellant.

No. 08-2511.

United States Court of Appeals, Eighth Circuit.

Submitted: December 10, 2008.

Filed: February 2, 2009.

Douglas Altman, argued, Minneapolis, MN, for appellant.

Lisa D. Kirkpatrick, AUSA, argued, Minneapolis, MN, for appellee.

Before COLLOTON, BRIGHT, and SHEPHERD, Circuit Judges.

BRIGHT, Circuit Judge.

Appellant Warren Patrick Banks, Jr. challenges his conviction for being a felon in possession of a firearm, 18 U.S.C. §§ 922(g)(1) and 924(a)(2), arguing that the district court (1) erred by denying his motion to suppress a firearm recovered as the result of an illegal search and seizure and (2) abused its discretion by allowing the government to introduce the names of his two prior felony convictions. Jurisdiction arises under 28 U.S.C. § 1291. The district court did not err by denying Banks's motion to suppress or abuse its discretion by admitting evidence of two prior felonies. We affirm.

FACTS AND PROCEDURAL HISTORY

The parties do not dispute the material facts as found by the magistrate judge¹, and adopted by the district court², which are as follows:

On July 18, 2007, at approximately 1:40 a.m., Officers Fitzpatrick and Gregory were patrolling Broadway Avenue in Minneapolis. As they traveled eastbound, the officers saw Defendant riding his bicycle on the northern sidewalk along Broadway Avenue. Defendant was also traveling eastbound. No other pedestrians, bicycles, or vehicles were in the vicinity. Officer Gregory noticed that Defendant's bicycle did not have a headlamp, which is required by Minneapolis city ordinance when a bicycle is ridden at night. Ordinarily, an individual is given a citation and fined for violating this ordinance.

The officers decided to stop Defendant and advise him of the ordinance. Officer Fitzpatrick drove the squad car across Broadway and next to Defendant and asked him to stop, which Defendant did. Officer Fitzpatrick then asked Defendant to raise his hands and move toward the officers, and Defendant complied. As Defendant was walking, Officer Gregory asked him who owned the bicycle. Defendant said that it belonged to his boss. Officer Gregory asked who Defendant's boss was, and Defendant stalled his answer with a drawn-out "ahh" before saying he was not sure of his boss's name. Defendant then walked to the squad car and placed his hands on the hood. Officer Fitzpatrick asked Defendant if there was anything in his pockets that could harm the officers. Defendant shrugged his shoulders and said he did not know. Officer Fitzpatrick reached across Defendant and pat-searched his waist area, checking for guns or weapons for officer safety. He then frisked Defendant's right front pants pocket, felt a pistol, and said "gun" to advise Officer Gregory of the weapon's existence. Officer Fitzpatrick removed the gun from Defendant's pocket. The officers handcuffed Defendant, placed him in the squad car, and transported him to jail.

On the basis of these facts, a grand jury returned an indictment charging Banks with being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). Banks moved to suppress the handgun, arguing that it was discovered as the result of an unlawful search and seizure. The magistrate judge held a hearing on the matter and recommended denying the motion to suppress. The district court held a second suppression hearing on the matter and denied the motion to suppress.

At trial, Banks refused to stipulate to the fact that he had prior felony convictions and moved to exclude the names of the prior convictions.³ He attempted to limit the government's proof to the fact of a conviction punishable by a term of imprisonment exceeding one year. The district court denied the motion, stating that the government could not meet its burden of proof without the names of the prior felonies because certain felonies cannot be used to support a felon-in-possession charge. The district court also considered the marginal prejudice that Banks would suffer by having the names of his convictions admitted.

In February 2008, a jury found Banks guilty as charged, and, in July 2008, the district court sentenced Banks to 27 months' imprisonment. This appeal follows.

DISCUSSION

I. The district court did not err by denying Banks's motion to suppress.

Banks argues first that his "seizure for a petty misdemeanor bicycle equipment violation was unreasonable under the Fourth Amendment." Banks also argues that, even if his seizure was legal, the officers did not have reasonable suspicion to conduct the pat-down search, which resulted in the recovery of a firearm. "We review the district court's factual determinations for clear error and the denial of a motion to suppress de novo." United States v. Green, 275 F.3d 694, 698 (8th Cir.2001).

A. Terry stop

A police officer may stop and briefly question a person if the officer has a reasonable, articulable suspicion of criminal activity. See Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). When a person commits a crime in the presence of the officer, that conduct gives the officer probable cause—a higher standard than reasonable, articulable suspicion—to seize the person. See e.g., United States v. Lewis, 183 F.3d 791, 794 (8th Cir.1999) (describing the rule as "well-established"); United States v. Beardslee, 609 F.2d 914, 917-18 (8th Cir.1979) (noting that an officer had probable cause to arrest after the defendant pointed a firearm at another officer).

Here, the testimony of the officers, which the district court credited, indicated that Banks was riding his bicycle at night without a headlight. This is a petty misdemeanor. See Minn.Stat. § 169.222, subd. 6 ("No person shall operate a bicycle at nighttime unless the bicycle or its operator is equipped with a lamp...."). Thus, the officers actually witnessed Banks riding a bicycle without a light, which is more than sufficient to establish reasonable, articulable suspicion of criminal activity. Although we acknowledge that an officer may have probable cause to arrest when a person commits a crime in his presence, see Lewis, 183 F.3d at 794, we need not decide that the officers here had probable cause. Because the officers saw Banks violating the bicycle-equipment statute, they had, at the very least, the authority to stop him to advise him of the violation. Accordingly, we conclude that the officers lawfully stopped Banks in accordance with Terry.

Banks argues that Minnesota law does not authorize custodial arrests for the bicycle-equipment offense here. Even were we inclined to agree with that interpretation of Minnesota law, it would not change the result because the officers could have made a Terry stop even if Minnesota law had not authorized a custodial arrest. See, e.g., Virginia v. Moore, ___ U.S. ___, ___, 128 S.Ct. 1598, 1607, 170 L.Ed.2d 559 (2008) (concluding that state restrictions do not alter the Fourth Amendment's protections); United States v. Bell, 54 F.3d 502, 504 (8th Cir.1995) (same). And, in any event, Banks's argument fails to recognize the distinction between a Terry stop and an arrest. See United States v. Martinez, 462 F.3d 903, 907 (8th Cir.2006) (noting distinction between an investigatory detention and an arrest).

B. Expansion of the Terry stop

Because the officers possessed reasonable, articulable suspicion of criminal activity to justify an investigative stop, the next issue is whether the officers improperly expanded the scope of the stop by asking Banks questions and conducting a pat-down search. This issue raises two issues, which we address in turn.

First, Banks argues that the officer's instruction to "stop, raise [his] hands and approach" were "inconsistent with a bicycle equipment stop and investigation." We disagree.

After making an otherwise lawful Terry stop, an officer may conduct an investigation "reasonably related in scope to the circumstances which justified the interference in the first place." Terry, 392 U.S. at 20, 88 S.Ct. 1868; United States v. Bloomfield, 40 F.3d 910, 915 (8th Cir. 1994). In conducting this investigation, an officer may engage in brief questioning on matters even unrelated to the original offense if the initial detention is not prolonged by the questions. See United States v. Olivera-Mendez, 484 F.3d 505, 510-511 (8th Cir.2007). And when a suspect's response to an investigatory question raises suspicion unrelated to the original offense, the officer may expand his inquiry to satisfy the suspicion. See United States v. Johnson, 58 F.3d 356, 357 (8th Cir.1995). When evaluating whether such reasonable suspicion exists, "we look to the totality of the circumstances, in light of the officer's experience." United States v. Hanlon, 401 F.3d 926, 929 (8th Cir.2005) (quotation omitted).

Here, the totality of the circumstances show that the officers' requests were reasonably related in scope to the bicycle-equipment violation, and Banks's conduct heightened the officers' reasonable suspicion that he was engaged in criminal activity that was more serious than a bicycle-equipment violation. Banks cites no authority (and we have found none) to support the proposition that officers impermissibly expand the scope of a Terry stop by asking the suspect to stop and approach the officers. This leaves the officers' request that Banks raise his hands. We decline to say that the officers, who saw Banks commit a crime on a deserted street in the early hours of the morning, unlawfully expanded the scope of their investigation by asking him to raise his hands as he approached them.

Banks's second argument regarding the expansion of the stop claims that the record does not support the district court's conclusion that the officers had a...