U.S. v. Fisher, 212

• Decision Date: 08 March 1983
• Docket Number: D,No. 212,212
• Citation: 702 F.2d 372
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Leroy FISHER, Defendant-Appellant. ocket 82-1149.
• Court: U.S. Court of Appeals — Second Circuit

Page 372

702 F.2d 372

UNITED STATES of America, Plaintiff-Appellee, v. Leroy FISHER, Defendant-Appellant.

No. 212, Docket 82-1149.

United States Court of Appeals Second Circuit.

Argued Nov. 30, 1982.

Decided March 8, 1983.

Michael A. Brady, Asst. U.S. Atty., Buffalo, N.Y. (Salvatore R. Martoche, U.S. Atty., W.D.N.Y., Carol E. Heckman, Asst. U.S. Atty., Buffalo, N.Y., on brief), for plaintiff-appellee.

Herbert Greenman, Buffalo, N.Y. (Paul V. Hurley, Palmer, Greenman & Hurley, Buffalo, N.Y., on brief), for defendant-appellant.

Before FRIENDLY, MANSFIELD and KEARSE, Circuit Judges.

KEARSE, Circuit Judge:

Defendant Leroy Fisher appeals from a judgment of conviction entered in the United States District Court for the Western District of New York, before Charles L. Brieant, Jr., Judge (sitting by designation), following his plea of guilty to a single count of bank larceny in violation of 18 U.S.C. Sec. 2113(b) (1976). ¹ Fisher's plea was entered pursuant to a court-approved agreement preserving his right to appeal the denial by the district court, John T. Elfvin, Judge, of his motion to suppress a pretrial identification of him on the ground, inter alia, that he had been arrested without probable cause and that the identification was a product of the unlawful arrest. We agree that the motion to suppress should have been granted on this ground, ² and we vacate the judgment and remand to permit Fisher to withdraw his guilty plea.

BACKGROUND

According to the evidence presented by the government at the hearing on Fisher's suppression motion, ³ the following events led to Fisher's arrest some thirty-five minutes after a bank robbery. At approximately 12:20 p.m. on August 12, 1981, a Buffalo, New York, police radio transmission informed patrol cars that a certain branch of the M & T Bank had just been robbed. The radio dispatcher provided a license plate number for a red automobile used in the robbery and a few minutes later advised that the car was registered to a Christopher Young whose address was 254 Bissell Street. Police Officer Ronald F. Skotnicki and his partner went to 254 Bissell where they and other officers learned that Young was not at home, having left earlier that day in his car, in the company of one Ronald Evans, who lived at 118 Moselle Street. Young's wife told the officers that Young and Evans were supposed to be painting a house on Moselle, which was one block west of Bissell.

At about the same time Police Officer Joseph T. Ransford, in another patrol car, located Young's car parked, unoccupied, approximately in front of 43 St. Louis Street. He saw three or four Black males on a porch, one or two houses south of Young's car. The car and the porch were on the east side of St. Louis, which was one block west of Moselle. Ransford parked his car around the corner from St. Louis at a point where he could observe Young's car and could not be seen by the people on the porch. Ransford could describe only one of the three or four individuals on the porch; that one was a light-skinned Black in his twenties, wearing a large straw hat. Ransford asked the radio dispatcher for descriptions of the robbers. The dispatcher, who had previously reported that Young was [T]he only thing I've got is, uh, three Black males, all about 5' 10"' to 6 feet tall. One's got on a, uh, rust colored sweater, another guy's got on a blue wool hat, at least two of them were armed. ⁴

20-21 years old, then received descriptions of the robbers from a police officer at the bank and relayed them as follows:

The dispatcher shortly relayed further information from an officer who had spoken with Young's wife, to wit, that Young was a light-skinned Black with a heavy build and tightly curled hair, and that Evans was 5' 6"' or 5' 7"' tall.

In the meantime, Skotnicki had left Bissell Street and gone to Moselle Street, in case the robbers tried to cut through backyards to get from St. Louis to Evans's home at 118 Moselle. Skotnicki parked across from the house at 32 Moselle, which was back-to-back with the house at 43 St. Louis, not far from which Young's car was parked. About five minutes later, Fisher, a tall, slim, young, dark-skinned Black male wearing jeans and a white T-shirt emerged from the side of 42 Moselle and commenced to walk north on Moselle. When he was approximately opposite the next house he stopped and returned to Number 42, stood by the porch of that house for perhaps half a minute, then turned and began walking north again. About a half-minute later, a shorter, heavier, light-skinned young Black wearing a straw hat walked out of a yard two houses south of 42 Moselle and began walking north.

Skotnicki and his partner drove up Moselle and pulled up alongside the first Black, at about 66 Moselle, and stopped him. Skotnicki asked his name; he told them it was Leroy Fisher. The officer asked what Fisher was doing coming out of the yard at 42 Moselle; Fisher said he was cutting through from a friend's house. Skotnicki asked Fisher if he had any identification; he said he had none. The record does not indicate that the officers asked any other questions. Skotnicki placed Fisher under arrest.

In the meantime, the heavier, light-skinned Black in the straw hat had disappeared into a yard. Skotnicki and his partner shouted this information to Ransford and his partner, who had just come to Moselle, having been relieved of their stake-out of Young's car by other officers. Ransford found the straw-hatted individual, who identified himself as Christopher Young, on the back porch at 62 Moselle and arrested him.

The arrests were reported to the radio dispatcher at about 12:51 p.m. When Skotnicki's partner reported the arrest of Fisher, he did not give Fisher's name but rather called him "Little," which the radio dispatcher interpreted as meaning the little man, i.e., Evans. The dispatcher instructed Ransford and Skotnicki to bring Young and "Evans" to the bank for possible identification. Young and Fisher were returned to the bank to be viewed by eyewitnesses to the robbery. Following this "showup," Faith Parkin, a teller, identified Young and Fisher as two of the three individuals she had observed putting on masks beside a red Mustang outside of the bank just prior to the robbery.

Eventually Fisher, along with Young and Evans, was indicted on three counts of bank robbery, in violation of 18 U.S.C. Secs. 2113(a), (b), and (d), respectively. Fisher moved to suppress Parkin's pretrial identification of him, contending, inter alia, that he had been arrested without probable cause and that the identification was the product of his unlawful arrest. After a hearing at which the evidence described above was presented, Judge Elfvin denied the motion. While the court found Fisher's contention "very tenabl[e]," Decision dated January 16, 1982, at 2, it concluded that probable cause had existed, stating as follows:

What converts ... the uncertainty of probable cause in the context of the Id. at 3-4 (footnote omitted).

above factual recitation to clear probable cause is an item ... which the arresting officer must then have known--to wit, Young, the owner and possessor of the getaway car which was parked on St. Louis Street, was light skinned and heavy set and with curly hair and the second young black male who had fairly simultaneously come to the west side of Moselle Street from the direction of St. Louis Street was light skinned and heavy set and wearing a straw hat. This juxtaposition of parked getaway car and its owner's appearance of having come from its direction and Fisher's odd performance while proceeding in the same direction as did the car's owner gave the arresting officer probable cause to arrest Fisher.... All of this was within about one-half hour of the bank robbery and the car owner's description had been promulgated via the police radio system. Seeing Young emerge and act as he did undoubtedly put the icing on the probable cause cake for the officer. That he arrested Fisher who was more northerly on the street than was Young and left the latter to be relocated in a Moselle Street back yard does not flaw the above.

Thereafter, pursuant to an agreement with the government, which was approved by the court, Fisher pleaded guilty to a single count of bank larceny in violation of Sec. 2113(b), while preserving his right to appeal the denial of his motion to suppress; the government consented to the dismissal of the other two counts against Fisher; and Fisher testified for the government at the trial of Young and Evans. ⁵ Fisher was sentenced to time served plus a period of probation not to exceed four years.

DISCUSSION

It is fundamental that because Fisher's arrest was made without a warrant it was unlawful unless it was made upon probable cause. ⁶ Dunaway v. New York, 442 U.S. 200, 208 & n. 9, 99 S.Ct. 2248, 2254 & n. 9, 60 L.Ed.2d 824 (1979); Wong Sun v. United States, 371 U.S. 471, 479, 83 S.Ct. 407, 412, 9 L.Ed.2d 441 (1963); Henry v. United States, 361 U.S. 98, 100, 80 S.Ct. 168, 170, 4 L.Ed.2d 134 (1959); Brinegar v. United States, 338 U.S. 160, 175, 69 S.Ct. 1302, 1310, 93 L.Ed. 1879 (1949); Carroll v. United States, 267 U.S. 132, 162, 45 S.Ct. 280, 288, 69 L.Ed. 543 (1925). The quantum of evidence required to establish probable cause to arrest need not reach the level of evidence necessary to support a conviction, Wong Sun, supra; Henry, supra, 361 U.S. at 102, 80 S.Ct. at 171, but it must constitute more than rumor, suspicion, or even a " 'strong reason to suspect,' " id. at 101, 80 S.Ct. at 170; Brinegar, supra. Although the existence of probable cause must be determined with reference to the facts of each case, in general probable cause to arrest exists when the officers have knowledge or reasonably trustworthy information of facts and circumstances that are sufficient in themselves to warrant a person of reasonable caution in the belief that (1) an offense has been or is being committed (2) by the person...