U.S. v. Cooper, s. 83-1287

Decision Date13 March 1984
Docket Number83-1288,Nos. 83-1287,s. 83-1287
Citation733 F.2d 1360
Parties15 Fed. R. Evid. Serv. 415 UNITED STATES of America, Plaintiff-Appellee, v. Vanessa Elaine COOPER, and Darryl Keith Threat, Defendants-Appellants.
CourtU.S. Court of Appeals — Tenth Circuit

Amanda S. Meers, Asst. U.S. Atty., D. Kansas, Kansas City, Kan. (Jim J. Marquez, U.S. Atty., D. Kansas, Kansas City, Kan., with her on the brief), for plaintiff-appellee.

Ira R. Kirkendoll, Asst. Federal Public Defender, D. Kansas, Kansas City, Kan. (Charles D. Anderson, Federal Public Defender, D. Kansas, Kansas City, Kan., with him on the brief), for defendant-appellant Vanessa Elaine Cooper.

Thomas L. Boeding, Kansas City, Kan., for defendant-appellant Darryl Keith Threat.

Before DOYLE, McKAY and SEYMOUR, Circuit Judges.

WILLIAM E. DOYLE, Circuit Judge.

Defendant Cooper was convicted by a jury of passing and uttering counterfeit money in violation of 18 U.S.C. Sec. 472. As to Threat, he was convicted by a jury of aiding and abetting the passing of counterfeit money also in violation of 18 U.S.C. Sec. 472.

The main issue in this case on behalf of both Cooper and Threat is whether the trial court erred in denying the defendants' motions to suppress evidence that was obtained in connection with the arrests. Both of the defendants contend that the evidence should have been suppressed because it was the result of arrests without probable cause in violation of the Fourth Amendment. The defendants were arrested and there is no dispute about that; the dispute centers around the timing of the arrests. If the arrests occurred at the time the defendants' contend, the government concedes that there was a lack of probable cause. Under defendants' view of the facts the arrests would be unlawful, and therefore, the trial court erred in denying the motions to suppress. However, if the arrests occurred when the government asserts that they did, the trial court was correct in finding that the arrests were lawful and also correctly denied the motions to suppress.

There are remaining issues consisting of the following:

2. Whether Threat's conviction should be reversed because the evidence was insufficient as a matter of law, for the jury to find him guilty beyond a reasonable doubt.

3. Whether the trial court erred in failing to strike testimony regarding other alleged prior incidents.

4. Whether the jury panel represented a fair cross section of the community.

Some of the facts are undisputed. Others are sharply disputed by the parties. Secret Service Agents were present at the Indian Springs Shopping Center in Kansas City, Kansas on October 14, 1982. The agents had a pink and white Cadillac under surveillance due to prior incidents of passing of counterfeit money where a pink and white Cadillac had been on the scene. These prior passings included one on October 3, 1982, at a Kentucky Fried Chicken franchise. Counterfeit money was also passed at a Shell Oil Company self-service station on October 8 in St. Louis, Missouri, and on October 11 at a shoe store at the Indian Hills Shopping Center. This was same shopping center as where the defendants were arrested three days later (on October 14). Following receipt of the counterfeit money on October 11, a shoe store clerk gave a description of the woman who passed the bill and of a pink and white Cadillac and its license plate.

Both the present defendants were inside the shopping center on October 14. Cooper purchased some children's clothing at J.C. Penney's with a counterfeit $100.00 bill. Threat waited outside the store. Both defendants exited the shopping center and entered Threat's car, a pink and white Cadillac. As the car started to leave the parking lot, the Secret Service agents followed the car.

At a hearing on the motions to suppress, agents testified that their initial intention was only to follow the car, but that when defendants' car began to move at a high rate of speed out of the parking lot, the agents decided to stop it. They used the flashing red lights on their car to effectuate the stop; they may have also used the siren. Following the stopping of the defendants' car, the agents approached, one going to either side. At this point the facts become contested.

Both of the defendants allege that when the agents reached their car they were told that they were under arrest. They also assert that the manner of the stop and subsequent show of authority amounted to arrest. Other police car and security vehicles arrived. It is the government's position that Cooper voluntarily got out of the car. Cooper maintains that she was then required to empty her purse. The agents took money from her purse, $163.00, which was not returned to her until the next day. Neither of the defendants were told that they were free to leave. Cooper accompanied the agents back into the shopping center. The government maintains that Cooper did this voluntarily; it is her argument that she was told that she was under arrest, and that she felt she had to accompany the agents. The counterfeit bill was located, ascertained to be counterfeit and a store clerk identified Cooper as the person who had passed it. At that point, the government maintains, the defendants were arrested; that up to that time it was simply a temporary stop.

Threat remained in his car during the time that Cooper was in the shopping center with the agents. This was voluntary, according to the government. Threat states that as he was told he was under arrest, his actions were not voluntary.

Defendants made motions to suppress, arguing that they were arrested at the time their car was stopped without probable cause. The government conceded that it did not have probable cause at that time, but also maintained that the stopping of the car was proper investigatory action because the amount of evidence produced reasonable suspicion. The actual arrest occurred after probable cause existed. The trial court ruled that the stopping of the car constituted a justified investigatory stop. Implicit in this is the finding that the government's version of the facts was credible. The trial court also found that both defendants voluntarily cooperated with the agents.

Threat makes the same argument as Cooper. In addition, Threat argues that even if this was an investigatory stop, no reasonable suspicion existed to support the stop. The government responded that a reasonable suspicion did exist.

There are 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 contract is not a seizure within the meaning of the Fourth Amendment. U.S. v. Black, 675 F.2d 129, 133 (7th Cir.1982), cert. denied, --- U.S. ----, 103 S.Ct. 1520, 75 L.Ed.2d 945 (1983), citing U.S. v. Mendenhall, 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980) (Stewart, J.) (with Renquist, J. concurring). This type of encounter is not at issue in this appeal.

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 * * *." U.S. Black at 133. 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." Id.

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. Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979); U.S. v. Black, 675 F.2d 129 (7th Cir.1982), cert. denied, --- U.S. ----, 103 S.Ct. 1520, 75 L.Ed.2d 945 (1983).

The question here is whether the stopping of the defendants' car and subsequent events constituted an investigatory stop or an arrest. This line is difficult to draw and is determined based on the facts of each case. It is important to note, however, that although the Terry case permitted police to stop persons based on less than probable cause, other courts have repeatedly held that the Terry exception to the requirement of probable cause to justify seizures is a narrow one. U.S. v. Hill, 626 F.2d 429, 433 (5th Cir.1980),quoting Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979).

The standard of review for denial of a motion to suppress is clear--the findings of fact must be accepted by the court unless clearly erroneous. If 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. Montos, 421 F.2d 215, 219, n. 1 (5th Cir.1970), cert. denied, 397 U.S. 1022, 90 S.Ct. 1262, 25 L.Ed.2d 532. Credibility determinations are for the finder of fact, that is, the trial judge. Id.

The defendants rely on several cases for the proposition that the initial stop was actually an arrest. They are, of course, free to argue this, but to establish it is something different. In U.S. v. Hill, 626 F.2d 429 (5th Cir.1980), the court held that the defendant, although not formally placed under arrest, had in fact been arrested. There, a DEA agent had a description of a suspected drug courier. The DEA agent combed an airport looking for a person meeting the description. Hill fit the description. The agent approached him and asked if they could talk, and Hill agreed. The agent then asked permission to search Hill for drugs, but Hill refused to allow this. The agent then pointed to an office and asked Hill to...

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