U.S. v. Burbridge

• Decision Date: 28 May 2001
• Docket Number: No. 00-50006,00-50006
• Citation: 252 F.3d 775
• Parties: (5th Cir. 2001) UNITED STATES OF AMERICA, Plaintiff - Appellee v. WAYNE BURBRIDGE, also known as Edward Cabral, Defendant-Appellant
• Court: U.S. Court of Appeals — Fifth Circuit

Page 775

252 F.3d 775 (5th Cir. 2001)

UNITED STATES OF AMERICA, Plaintiff - Appellee v. WAYNE BURBRIDGE, also known as Edward Cabral, Defendant-Appellant

No. 00-50006

UNITED STATES COURT OF APPEALS, Fifth Circuit

May 28, 2001

Appeal from the United States District Court For the Western District of Texas.

Before REYNALDO G. GARZA, STEWART, and DENNIS, Circuit Judges.

DENNIS, Circuit Judge:

A single jury convicted the defendant-appellant, Mr. Wayne Burbridge, of two crimes committed on separate occasions: possession of a firearm by a previously-convicted felon and bank robbery.¹ He appeals both convictions on the ground that the district court failed to suppress evidence obtained in violation of the Constitution. For the following reasons, we reject Mr. Burbridge's constitutional challenges to the evidence used to convict him and AFFIRM his convictions.

I. Standard of Review

We apply a two-pronged standard of review to a district court's denial of a motion to suppress: factual findings are reviewed under the clearly erroneous standard, and legal conclusions are reviewed de novo. United States v. Chavez-Villareal, 3 F.3d 124, 126 (5th Cir. 1993). The evidence must be viewed in the light most favorable to the party prevailing on the motion to suppress in the district court, the Government. United States v. Castro, 166 F.3d 728, 731 (5th Cir. 1999).

II. The Firearm Conviction

A. Facts

On October 6, 1998, a husband and wife, Mr. and Mrs. Andrew Celovsky, were in a store parking lot when they witnessed Burbridge carrying a pistol "in his hand" in a grocery sack. Considering Burbridge's conduct suspicious, the Celovskys followed him in their car as he drove away on a black BMW motorcycle.

Mrs. Celovsky called 911 on her cellular phone and reported what the couple had seen. She told the dispatcher that she and her husband presently were following Burbridge, who was headed east on Southeast Military Drive, and she described what he was wearing-"an aqua t-shirt and blue jeans." Mrs. Celovsky told the dispatcher that she thought "the man put the gun in the compartment on the side of the motorcycle," but that he "may have the gun between his legs."

The 911 dispatcher notified San Antonio Police Officer Robert Handowski that a man was riding on a motorcycle through traffic with a gun. Near an intersection along the suspect's reported route, Officer Handowski spotted a man on a motorcycle and pulled in behind him. The Celovskys, who were still following Burbridge and communicating with 911 on their cellular phone, saw the police car pull in behind Burbridge's motorcycle. They told the dispatcher, who in turn told Officer Handowski, that the officer "had the right guy." They flashed their car's headlights to signal their affirmation directly to Handowski. Officer Handowski testified that upon receiving the communication from the citizen witnesses, he "knew right away that was the motorcycle." He turned on his emergency lights and directed Burbridge, who had been waiting at a red light, to pull over to the shoulder of the road.

Handowski handcuffed Burbridge and frisked him, but did not find a weapon on his person. Another officer arrived and the two searched the motorcycle's fiberglass saddlebag, which was within reaching distance of a seated motorcycle driver. The officers found a loaded .38 caliber pistol.

The citizen witnesses, the Celovskys, had pulled to the side of the road and watched as the police searched Burbridge's motorcycle. After Burbridge was Mirandized and placed under arrest for unlawfully carrying a firearm, the Celovskys gave statements to the police. Subsequently they testified at Burbridge's suppression hearing.

B. Probable Cause

The Celovskys' citizen eyewitness accounts of Burbridge's illegal conduct,² as communicated to Officer Handowski through the 911 dispatcher, along with their identification of Burbridge as the handgun violator both through the 911 dispatcher and by directly signaling Handowski with their car's headlights, provided the officers with probable cause to believe that Burbridge had committed the offense of publicly carrying a handgun.³ Burbridge did not have the weapon on his person when he was stopped. However, 911 had relayed Mrs. Celovsky's report of seeing Burbridge put the weapon between his legs on the motorcycle. Also, the Celovskys had not reported seeing him dispose of the handgun. Therefore, the officers had probable cause to believe that the handgun was somewhere on the motorcycle or in one of its compartments, making the search of the saddlebag constitutionally permissible under United States v. Ross, 456 U.S. 798, 809-824 (1982).⁴

An ordinary citizen's eyewitness account of criminal activity and identification of a perpetrator is normally sufficient to supply probable cause to stop the suspect. See J.B. v. Washington County, 127 F.3d 919, 930 (10th Cir. 1997); Gramenos v. Jewel Companies, Inc., 797 F.2d 432, 439 (7th Cir. 1986). We agree with the Sixth Circuit that

[a]n eyewitness identification will constitute sufficient probable cause unless, at the time of the arrest, there is an apparent reason for the officer to believe that the eyewitness was lying, did not accurately describe what he had seen, or was in some fashion mistaken regarding his recollection of the confrontation. This comports with the general notion that, since eyewitnesses' statements are based on firsthand observations, they are generally entitled to a presumption of reliability and veracity.

Ahlers v. Schebil, 188 F.3d 365, 370 (6th Cir. 1999)(internal quotations and citations omitted). Cf. Tangwall v. Stuckey, 135 F.3d 510, 516 (7th Cir. 1998) ("[O]nce a putative victim, like Smith, has positively identified her attacker to the police and they have no reason to disbelieve her, the officers need not take any additional steps to corroborate the information regarding the crime before taking action.") (Quotations and citations omitted).

As this court has stated, "[W]hen an average citizen tenders information to the police, the police should be permitted to assume that they are dealing with a credible person in the absence of special circumstances suggesting that such might not be the case." United States v. Fooladi, 703 F.2d 180, 183 (5th Cir. 1983)(quotation and citation omitted). The citizen eyewitness's account is credible because eyewitnesses "are seldom involved with the miscreants or the crime. Eyewitnesses by definition are not passing along idle rumor, for they either have been the victims of the crime or have otherwise seen some portion of it." United States v. Bell, 457 F.2d 1231, 1238-39 (5th Cir. 1972). Furthermore, identified persons who claim to have been witnesses of the offense may be held accountable if the information turns out to be inaccurate. The Celovskys were present during the identification, stop, and search of Burbridge and his motorcycle. That the Celovskys, ordinary citizens, remained available in person throughout the encounter ensured the credibility of the information they provided.

Based on the credible information from the Celovskys (who had followed Burbridge without reporting that he had discarded the weapon) and Officer Handowski's determination that the handgun was not on Burbridge's person, the officers had probable cause to believe that evidence of the crime reported by the Celovskys was inside a compartment of the motorcycle. Also, the dispatcher had told Officer Handowski that the citizens witnessed Burbridge with the firearm on or about his person shortly before the officer stopped Burbridge. Because Burbridge did not have immediate possession of the weapon, it was reasonable for the officers to believe that Burbridge had put the weapon in the saddlebag--which was within his reach--while he rode the motorcycle.

III. The Bank Robbery Conviction

A. Facts

Bennie Rodriguez and Jennifer Quesnot worked as bank tellers at the IBC bank in San Antonio on November 7, 1998, the day they were robbed at gunpoint. According to Rodriguez and Quesnot, the robber entered the bank, walked up to the counter, passed a note to Rodriguez, and demanded, "Right now." Then the robber lifted his shirt and exposed the handle of a gun. Rodriguez went into the vault, called Quesnot in, and handed her the note. Rodriguez then put his cash drawer on the counter in front of the robber for him to take what he wanted. Rodriguez was no more than two feet from the robber during the robbery, while Quesnot was only five feet away. Both had a good opportunity to observe his face.

Shortly after the robbery, Rodriguez and Quesnot gave separate descriptions of the robber to the police. Both described the robber as a white man who was 30-40 years old with a medium build, wearing a t-shirt and a dark jacket or overshirt. Rodriguez and Quesnot also said the robber wore a long white bandana with lettering or a design on it around his head.

As police at the crime scene interviewed witnesses, a caller reported that a suspicious character had run through yards and shed clothing in a neighborhood just one block from the bank. The description of the suspicious individual...