U.S. v. Jackson

• Decision Date: 15 June 1981
• Docket Number: No. 756,D,756
• Citation: 652 F.2d 244
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jan W. JACKSON, Defendant-Appellant. ocket 80-1423.
• Court: U.S. Court of Appeals — Second Circuit

Page 244

652 F.2d 244

UNITED STATES of America, Plaintiff-Appellee, v. Jan W. JACKSON, Defendant-Appellant.

No. 756, Docket 80-1423.

United States Court of Appeals Second Circuit.

Argued Feb. 3, 1981.

Decided June 15, 1981.

Wesley L. Taylor, Jr., Buffalo, N. Y., for defendant-appellant.

Cheryl S. Fisher, Asst. U. S. Atty., W. D. N. Y., Buffalo, N. Y. (Richard J. Arcara, U. S. Atty., W. D. N. Y., Buffalo, N. Y., of counsel), for plaintiff-appellee.

Before WATERMAN, MANSFIELD and MESKILL, Circuit Judges.

MESKILL, Circuit Judge:

Jan Jackson appeals from a judgment of conviction for bank larceny in violation of 18 U.S.C. § 2113(b) (1976) entered in the United States District Court for the Western District of New York, Curtin, Ch. J. Appellant pled guilty following the denial of his motion to suppress certain evidence, reserving his right to challenge on appeal the denial of his suppression motion. He was sentenced to a prison term of nine years.

Appellant drove the getaway car in a holdup of a branch of the Manufacturers and Traders Trust Company (M & T Bank) in Buffalo, New York on March 4, 1980. After he was apprehended, a search of the car's trunk revealed a revolver, M & T Bank wrappers and appellant's accomplice, Edward Dixon, who had actually robbed the bank. ¹ Appellant argues that the search of the trunk and his arrest were illegal and that therefore the evidence discovered in the trunk and any statements made subsequently should be suppressed. We affirm Judge Curtin's denial of the suppression motion.

BACKGROUND

The evidence viewed in the light most favorable to the government, as it must be in reviewing the denial of a motion to suppress, United States v. Oates, 560 F.2d 45, 49 (2d Cir. 1977); see United States v. Vital-Padilla, 500 F.2d 641, 642-43 (9th Cir. 1974); United States v. Walling, 486 F.2d 229, 236 (9th Cir. 1973), cert. denied, 415 U.S. 923, 94 S.Ct. 1427, 39 L.Ed.2d 479 (1974), is as follows.

About 10:00 a. m. on March 4, 1980, the M & T Bank alarm sounded in the 17th precinct house of the Buffalo, New York, Police Coyle approached the driver and asked him his name and where he was coming from. The driver said his name was Jan Jackson and that "he was coming from Hertel Avenue, dropping his mother off." (Tr. 8). This response probably aroused Coyle's suspicion, since Coyle knew that Jackson had not dropped anyone off when he drove down Parkside past Hertel. Coyle did notice, however, that Jackson did not entirely fit the description of the robber. Although the driver was a black male in his twenties with a medium afro and was about six feet tall, he was about fifty pounds heavier than the described thief, and significantly, his clothing differed from that of the reported robber. Appellant's coat, which had looked tannish from a distance, appeared on closer examination to be a light grey tweed; his sweater was green instead of grey; he was not wearing a tan hat. Coyle wondered if Jackson had changed his clothes, as do many robbers immediately after a holdup. He circled Jackson's car looking for clothing and other clues. As he passed the trunk, he noticed that its lock had been punched out and was missing. At the same time, he heard a noise which "sounded like it was in the trunk, like a tire fell, movement in the trunk, a thump." (Tr. 20). After hearing the thump, Coyle asked Jackson how he got into his trunk and Jackson replied that he did not get into his trunk. Judge Curtin found that by this time, Coyle had probable cause to search the trunk.

Department. It took Detective Sergeant Coyle and his partner, Detective Morrison, about one minute to drive to the bank on the corner of Hertel Avenue and Parkside Avenue. Coyle entered the bank and received a description of the robber as a black male in his twenties with a medium "afro," approximately six feet tall, weighing 150 pounds, and wearing a light brown coat, matching hat and a grey sweater. He also learned that the robber had gone north on Parkside Avenue on foot about twenty seconds before Coyle arrived. Coyle relayed the information to Detective Young who joined him at the bank, and together with Detective Morrison they drove their unmarked car slowly north on Parkside Avenue looking for the robber. Morrison drove, with Coyle riding in the passenger seat and Young sitting in the rear. After the detectives had proceeded a short way, Young yelled to Morrison to turn the car around because he had seen someone who might be a suspect in the bank robbery. Young had observed a Dodge Coronet stopped in traffic, heading south on Parkside and thus from the vicinity to which the robber had fled. Young testified that the driver of the Coronet appeared to be a black male in his twenties with a medium afro and a tan coat. The Dodge was stopped in traffic near the bank and Young thought it was suspicious that the driver kept staring straight ahead, deliberately ignoring the commotion caused by the many police cars near the bank. The officers radioed a short description of the Dodge and its driver and asked that it be stopped for investigation. By the time they turned around, a maneuver which had to be accomplished in heavy traffic, the Dodge was already at least two to three hundred feet ahead of them. They finally lost sight of the Dodge about three-quarters of a mile from the bank. Fortunately, another squad car almost immediately radioed that they had spotted the Dodge and pulled it over at a street corner about two miles from the bank. Coyle and his companions proceeded directly to the scene and found the driver already outside his car conversing with the officers.

More police had arrived and several officers joined Coyle in what proved to be a considerable effort to open the trunk. After initial attempts to jimmy the lock with a screwdriver proved unavailing, one of the officers spotted a wriggling finger inside the lock hole. An officer's shouted order ended the finger's efforts to push the screwdriver aside and the trunk came open. In the trunk was Edward Dixon, a black male in his twenties wearing a grey sweater, a light tan coat, and a matching hat atop a medium afro. A frisk yielded a revolver and some bank slips from an M & T Bank. Jackson and Dixon were then arrested for

the bank robbery. Later that day at police headquarters, both men confessed.

DISCUSSION

On this appeal, Jackson claims that the evidence discovered in the trunk and his subsequent confession were fruits of an illegal arrest and search. If, as Jackson claims, the evidence and confession were so derived, then they would indeed have to be excluded. Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). Our review of the events surrounding the stop and subsequent search, however, does not reveal any unlawful conduct. ² We therefore affirm for the reasons stated below.

A. The Legality of the Stop

At the outset, we agree with the appellant that there was no probable cause to arrest the driver of the Dodge Coronet at the time that that vehicle was stopped. The government contends, however, that the detention was an investigative stop for which probable cause was not necessary. See Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972); Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). An investigative stop is legal only if it is reasonable under the Fourth Amendment. Brown v. Texas, 443 U.S. 47, 50, 99 S.Ct. 2637, 2640, 61 L.Ed.2d 357 (1979); Terry v. Ohio, supra. In determining the reasonableness of a Terry stop, a reviewing court must examine both "the basis for the stop and the degree to which the stop restrains the individual." United States v. Vasquez, 638 F.2d 507, 520 (2d Cir. 1980). We examine these factors in turn.

1. The Basis for the Stop

The Supreme Court has approved investigative stops of automobiles based upon an officer's "reasonable suspicion" that criminal activity is afoot. Terry v. Ohio, supra. As the Supreme Court has explained:

In Terry this Court recognized that "a police officer may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest." The Fourth Amendment does not require a policeman who lacks the precise level of information necessary for probable cause to arrest to simply shrug his shoulders and allow a crime to occur or a criminal to escape. On the contrary, Terry recognizes that it may be the essence of good police work to adopt an intermediate response. A brief stop of a suspicious individual, in order to determine his identity or to maintain the status quo momentarily while obtaining more information, may be most reasonable in light of the facts known to the officer at the time.

Adams v. Williams, supra, 407 U.S. at 145-46, 92 S.Ct. at 1922-1923 (citations omitted). The police must, however, be "aware of specific articulable facts, together with rational inferences from those facts, that reasonably warrant suspicion" that the suspect is engaged in criminal activity. United States v. Brignoni-Ponce, 422 U.S. 873, 884, 95 S.Ct. 2574, 2581, 45 L.Ed.2d 607 (1975). The decision to order an investigative stop of the Dodge meets this objective test because Coyle and his companions were aware of a number of facts which reasonably warranted the suspicion that the driver of the Dodge was the bank robber.

Detective Young's initial observation revealed that the age, race, hairstyle, and coat color of the driver all appeared to match the description of the robber. Although closer observation of Jackson during the investigative stop indicated that he was not wearing the exact clothing ascribed to the robber, Judge Curtin properly found that Young had reasonably believed that the driver fit the description of the robber. Furthermore, the Dodge was coming from the direction in which the robber had fled on foot less than five minutes before. And

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