U.S. v. Harrell
| Citation | 268 F.3d 141 |
| Decision Date | 01 August 2000 |
| Docket Number | DEFENDANTS-APPELLEES,Docket No. 00-1772 |
| Parties | (2nd Cir. 2001) UNITED STATES OF AMERICA, APPELLANT, v. WALTER HARRELL AND LAWRENCE DUNHAM, |
| Court | United States Courts of Appeals. United States Court of Appeals (2nd Circuit) |
Bret A. Puscheck, Assistant United States Attorney for the Western District of New York (Denise E. O'Donnell, United States Attorney for the Western District of New York, of counsel), for Appellant.
Scott M. Green, Esq., Rochester, New York, for Defendant-Appellee Walter Harrell William Clauss, Federal Public Defender's Office, Rochester, New York (Jay S. Ovsiovitch, of counsel), for Defendant-Appellee Lawrence Dunham.
Before: Meskill, Kearse, and McLAUGHLIN, Circuit Judges.
In this appeal we are called upon to review police conduct at the dimly-lit intersection of common sense and Fourth Amendment jurisprudence.
An anonymous tipster called 911 to complain that men with guns were in a certain car (perfectly described) on Plymouth Avenue and that the men had taken a shot at the tipster a week earlier. Police officers driving on a street near Plymouth Avenue spotted the car on the road and two men in it. The car's windows were heavily tinted. Having stopped the car, they searched it and found drugs and weapons. The defendants sought to suppress the evidence under the Fourth Amendment. Did the police act properly?
In December 1999, as a result of the encounter described above, a grand jury sitting in the Western District of New York returned a six count indictment charging each defendant with possession of firearms and ammunition, in violation of 18 U.S.C. §§ 2, 922(g)(1) and 924(a)(2), possession of firearms in furtherance of a drug trafficking crime, in violation of 18 U.S.C. §§ 2 and 924(c)(2), possession with intent to distribute a mixture containing cocaine base (crack cocaine), in violation of 18 U.S.C. § 2 and 21 U.S.C. § 841(a)(1), and possession of marijuana, in violation of 18 U.S.C. § 2 and 21 U.S.C. § 844(a). Dunham, the driver, is charged with an additional count of possession of ammunition, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a). Harrell was a passenger in the car.
The case was referred to Magistrate Judge William G. Bauer for pretrial proceedings. Harrell filed a motion to suppress statements he made to the Rochester City Police after his arrest. Dunham also filed a motion to suppress physical evidence-the firearms, ammunition and drugs-seized from his car by the Rochester City Police on the night of his arrest.
Both Harrell and Dunham argued that the stop of Dunham's car was unlawful under the Fourth Amendment because the police lacked reasonable suspicion that the defendants were engaged in criminal activity. Specifically, they contended that the police failed to corroborate independently the information provided to a 911 operator by an anonymous tipster. Additionally, Harrell argued that even if the initial stop was justified, the police officers' continued detention of him after the stop resulted in an unlawful arrest because the police lacked probable cause to believe he had committed a crime.
A suppression hearing was held on Harrell's motion. (Because Dunham filed his motion after the hearing on Harrell's motion, he agreed to forgo a hearing and to rely on the evidence admitted at Harrell's suppression hearing.) Below is a summary of the pertinent evidence adduced at the suppression hearing, which included tape recordings of a 911 telephone call received by the Rochester Office of Emergency Communications (the "OEC") and the police dispatch that followed shortly thereafter. There was also testimony from Rochester City Police Officer Joseph Briganti and Sergeant Efrin Gonzalez.
In early August 1999, the OEC received a 911 call from an unidentified male who stated "sir, there's a four-door Honda Accord with South Carolina plates [that] keeps following me with a gun." He described the color of the car as "brownish" and stated that he had "just last seen [the car] on Plymouth Avenue." He then stated, "I'll guarantee you there's guns in the car."
Under questioning by the 911 operator, the tipster repeated his assertion that the occupants of the car "got guns" and further stated that they shot at him "like a week ago, but now I'm calling 911 `cause I'm tired of running." The tipster then stated "I gotta go" and hung up the phone without identifying himself. Neither did he provide the location from which he called.
The police traced the phone call to a public payphone at 313 Genesee Street in downtown Rochester. Soon thereafter, a police dispatch was broadcast stating
Rochester City Police Officer Joseph Briganti testified that he and his partner, Officer Bob Hill, received the radio dispatch while heading in the direction of Genesee Street. Within a minute of receiving the dispatch, Officer Briganti spotted a Brown Honda Accord with South Carolina license plates heading towards his patrol car. As the car passed by, he saw two individuals in the front seat, but could not determine whether anyone else was in the car because all four side windows and the back window of the car were tinted. Officer Briganti made a U-turn and followed the car. After following the car for three to four blocks, the officers turned on their emergency lights. Dunham pulled the car over and stopped.
As the police officers pulled behind Dunham's car, they called for backup. Soon thereafter, a separate patrol car was dispatched to 313 Genesee Street to locate the tipster, but he had already left the phone booth and has never been identified.
Officers Briganti and Hill left their patrol car and approached the Honda. Because the car's rear windows were tinted, Officer Briganti, with his gun drawn at his side, opened its rear passenger door to see if anyone was in the back seat. Only Dunham (the driver) and Harrell were in the car. Officer Hill asked Dunham for his license and registration. He then asked him to get out of the car. As Officer Hill asked Dunham to place his hands on the car, Dunham fled. Officer Hill chased and eventually caught Dunham, and arrested him soon thereafter.
While Officer Hill chased Dunham, Officer Briganti asked Harrell to get out of the car. He then performed a pat and frisk on Harrell, but found no weapons. Next, Officer Briganti led Harrell to his patrol car and asked him to remain in the back seat.
Thereafter, Officer Briganti conducted a search of the grab areas of Dunham's car. In its glove box he found two handguns. He then called police dispatch for a technician to inspect the handguns. Next, Officer Briganti asked Harrell to step out of the patrol car, handcuffed him and placed him under arrest. After the technician removed the handguns from the glove box, a more extensive search thereof revealed ammunition, 37 baggies of crack cocaine, and marijuana. A later search of the remainder of the car turned up additional rounds of ammunition.
After Harrell's arrest, while he was being transported by another Rochester City Police officer to the Rochester Public Safety Building (the "Public Safety Building"), Harrell made a statement to the officer. Upon his arrival at the Public Safety Building, Harrell was interviewed again, this time by Sergeant Gonzalez-one of the officers who had arrived at the scene after Officers Briganti and Hill had called for help. Gonzalez read Harrell his rights and proceeded to ask him about the stop. Harrell provided limited information but offered to tell Sergeant Gonzalez "everything you want to know about the guns" and about Dunham in exchange for "a deal." Sergeant Gonzalez demurred and no deal was ever struck. Eventually, the interview terminated when Harrell stated that he wished to speak to a lawyer.
In August 2000, Magistrate Judge Bauer issued an unpublished Report and Recommendation (the "Report & Recommendation"). He concluded that the motions to suppress should be denied on grounds "based on the totality of circumstances presented on the record." More specifically, he believed that the independent corroboration by Officers Briganti and Hill of the information provided by the anonymous tipster "provided a sufficient basis" for the officers to conduct a stop and that "[t]he circumstances that developed immediately thereafter provided a lawful basis to search the vehicle.... " He also concluded that Officer Briganti's "detention of Harrell was for investigative purposes and did not ripen into arrest until after the guns were found and Harrell was handcuffed."
After reviewing the record de novo, the district court declined to adopt the Report & Recommendation and instead granted appellees' motions to suppress. Specifically, the district court held that "the [anonymous] tip even as corroborated by the police can not form the basis for a lawful Terry stop."
Thereafter, the...
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