U.S. v. Hines, s. 90-5514
| Decision Date | 23 August 1991 |
| Docket Number | 90-5523,Nos. 90-5514,s. 90-5514 |
| Citation | 943 F.2d 348 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Michael HINES, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. James M. HALL, Jr., Defendant-Appellant. |
| Court | U.S. Court of Appeals — Fourth Circuit |
John B. Boatwright, III, Boatwright & Linka, Richmond, Va., argued for defendant-appellant Hines.
David Preston Baugh, Richmond, Va., argued for defendant-appellant Hall.
Stephen Wiley Miller, Asst. U.S. Atty., Richmond, Va., argued (Henry E. Hudson, U.S. Atty., on brief), for plaintiff-appellee.
Before HALL, Circuit Judge, CHAPMAN, Senior Circuit Judge, and MULLEN, District Judge for the Western District of North Carolina, sitting by designation.
Two defendants appeal their convictions and sentences in the trial court below. Finding no error in the conduct of the trial or in the imposition of the sentences, we will affirm.
On December 7, 1989, James M. Hall, Jr. arrived in Richmond on a bus from New York City. Michael Talbert and David Farmer, two Richmond police officers, were conducting a plainclothes surveillance of the Richmond bus terminal. The police officers were attempting to locate an individual they believed was transporting cocaine into Richmond. The suspect sought by the officers was not on the bus, but the officers' attention was drawn to Hall.
Farmer noticed that while Hall was on the bus he had two carry-on bags. Hall emerged from the bus without any luggage, however, and conducted an inspection of the bus terminal. Farmer testified that Hall approached each gate in the terminal, looking out every door and in the alcove areas on either side of each door. During this tour of the terminal, Hall also looked into the coffee shop and gift shop, and checked the main entrance of the terminal. After completing his search of the terminal, Hall went back to the bus and retrieved one of the bags.
Hall walked to the main entrance and advanced through the first set of doors. At this time Michael Hines entered through a second set of doors from the exterior of the bus terminal, meeting Hall in the area enclosed by the doors. Hall transferred the bag to Hines and turned back into the terminal. Hines exited the building. Officers Talbert and Farmer, their suspicions being aroused by this course of conduct, decided to follow Hines into the bus terminal's parking lot.
Farmer twice called out to Hines and asked to speak to him, but Hines did not acknowledge the request in any way. Farmer then asked to speak to Hines again, but for the first time identified himself as a police officer and displayed his badge. At this time Hines was a few feet from a rental car bearing New Jersey license plates and occupied by a driver. Hines opened the passenger door, placed the bag in the car and said something to the driver. Hines turned back toward the officers and the bus terminal, and Talbert made an investigative stop. Because Hines was wearing a bulky coat, Talbert conducted a weapons pat down at the outset of the stop.
During this time, Farmer watched the driver of the car. Farmer observed the driver looking at him and apparently handling something under the seat of the car. Talbert announced to Farmer that he felt what appeared to be a bullet in Hines' pocket. At the same time, the driver of the car began to reach for the bag that Hines had placed on the front seat. Fearing that the driver and the bag might pose a threat, Farmer reached inside the car to remove the bag. In removing the bag from the car, Farmer felt the barrel of a gun through the fabric of the bag. Hines and the driver were then placed under arrest for concealed weapons and handcuffed.
Subsequent to the arrest Farmer opened the bag to disarm the weapon inside and discovered two loaded pistols and a smaller plastic bag. Patting the plastic bag revealed that it also contained a weapon, later discovered to be yet another revolver. The smaller plastic bag was also found to contain crack and cocaine packaged for street distribution. While Farmer was discovering and unloading the weapons inside the bag, Talbert returned to the bus station and apprehended Hall. In a search incident to the arrest Hall was found to be carrying a substance later determined to be LSD.
Hines and Hall were indicted and tried on drug and firearm charges stemming from the incident. Hall was convicted of conspiracy to possess with intent to distribute in excess of 5 grams of cocaine base and cocaine hydrochloride (18 U.S.C. § 371), one count of possession with intent to distribute more than 5 grams of cocaine base (21 U.S.C. § 841), one count of possession with intent to distribute cocaine (21 U.S.C. § 841), one count of carrying a firearm during the commission of a drug offense (18 U.S.C. § 924(c)), and simple possession of LSD (21 U.S.C. § 844). Hines was convicted of conspiracy to possess with intent to distribute in excess of 5 grams of cocaine base and cocaine hydrochloride (18 U.S.C. § 371), one count of possession with intent to distribute more than 5 grams of cocaine base (21 U.S.C. § 841), one count of possession with intent to distribute cocaine (21 U.S.C. § 841), one count of carrying a firearm during the commission of a drug offense (18 U.S.C. § 924(c)), and one count of possession of a firearm by a convicted felon (18 U.S.C. § 922(g)(1)).
Prior to trial Hall and Hines moved to suppress the evidence seized by the police officers subsequent to the search. This motion was denied by the trial court.
When the jury was selected for the trial of the case, one of the prospective jurors, who worked part time at a chemical dependency program, indicated that she had contact with individuals who had been involved with drugs. However, when asked if she could decide the case based solely on the evidence presented in court and not on outside influence, she said she thought she could.
During the trial of the case the district court allowed Martin Minsky, Hines' New York state parole officer, to testify that Hines was a convicted felon and that he had not sought permission to travel outside of New York in violation of his parole restrictions. Minsky also testified that such permission was easily obtained and could have been granted to allow the defendant to make the trip to Richmond for business or social purposes. The defendant objected to any testimony regarding his parole restrictions.
Finally, after conviction, the district court determined that Hall was a career criminal because he had two prior convictions in New York, although he had received concurrent sentences for those prior convictions. The court also departed upward from the sentencing guidelines in sentencing Hines based upon a determination that the sentencing guidelines did not adequately take into account Hines' prior criminal record or likelihood that he would commit additional crimes. The defendants have appealed their convictions and sentences.
The defendants sought to suppress the weapons and drugs found by the police, claiming that Hines had been unlawfully detained and searched outside the bus terminal. If this initial search and seizure had not occurred none of the evidence would have been discovered. Conversely, the initial search and seizure conducted against Hines led directly to the discovery of the weapons and the arrests of both Hall and Hines. Thus the admissibility of all of the seized contraband hinges on the propriety of the initial stop.
In making an investigative stop in accordance with Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), a policeman is not required to assert a probable cause basis for believing that criminal activity is underway. Rather, an officer may stop a person when he has "reasonable articulable suspicion that the person has been, is, or is about to be engaged in criminal activity." United States v. Place, 462 U.S. 696, 702, 103 S.Ct. 2637, 2642, 77 L.Ed.2d 110 (1983). Having detained a person, an officer may make a limited pat-down to ascertain that the individual does not possess a weapon or pose a threat to his safety. United States v. Gilliard, 847 F.2d 21 (1st Cir.1988), cert. den. 488 U.S. 1033, 109 S.Ct. 846, 102 L.Ed.2d 978 (1989); see also, Terry v. Ohio, supra.
In the present case Farmer and Talbert had seen Hall, an apparent cohort of Hines, conduct a meticulously thorough inspection of each entrance to the bus terminal immediately upon arriving by bus from New York. Hall then retrieved one of two bags he had left on the bus and delivered the bag to Hines, who only momentarily entered the entranceway to the bus terminal itself. This activity in and of itself is sufficient to raise the suspicion that a crime, specifically the transfer of contraband or valuables of dubious legitimacy, is taking place. United States v. Whitehead, 849 F.2d 849 (4th Cir.1988), reh. den., cert. den. 488 U.S. 983, 109 S.Ct. 534, 102 L.Ed.2d 566 (1988).
The police were within their rights to follow Hines (and the bag) to observe what other actions might occur or to attempt to question Hines. Hines ignored the officers' attempt to engage him in voluntary conversation, though, and continued on his way. Having received no response to their entreaties, Talbert and Farmer chose to identify themselves as policemen. Hines still did not speak to the officers, but did react by quickening his pace toward the rental car bearing New Jersey plates. Upon reaching the car Hines placed the bag inside of the vehicle.
The police had now seen the bag arrive from New York, change hands two times in a matter of seconds, and end up in a car bearing New Jersey plates, following a careful inspection of the scene of exchange by the individual who originally held the bag. Such a surveillance and an apparent pre-arranged series of quick transfers are sufficient to justify a brief investigatory stop of the...
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