U.S. v. Jones
| Decision Date | 19 December 2005 |
| Docket Number | No. 04-1606.,04-1606. |
| Citation | 432 F.3d 34 |
| Parties | UNITED STATES, Appellee, v. Khary JONES, Defendant, Appellant. |
| Court | U.S. Court of Appeals — First Circuit |
Mark W. Shea, with whom Shea, LaRocque & Wood LLP was on brief, for appellant.
Cynthia A. Young, Assistant U.S. Attorney, with whom Michael J. Sullivan, United States Attorney, was on brief, for appellee.
Before LYNCH, Circuit Judge, CAMPBELL and STAHL, Senior Circuit Judges.
Appellant-defendant Khary Jones appeals from his conviction and sentence in the United States District Court for the District of Massachusetts. Jones entered a conditional guilty plea to one count of carjacking, in violation of 18 U.S.C. § 2119, and one count of using a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. § 924(c). On appeal, Jones makes two arguments: first, that the district court erred in denying his motion to suppress certain evidence, and second, that his case should be remanded for resentencing in the district court pursuant to United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). We now affirm the district court's judgment and sentence.
The facts of the case, largely undisputed, are set out in United States v. Jones, 261 F.Supp.2d 40 (D.Mass.2003). The most relevant facts are as follows:
On the cold and rainy night of March 19, 2002, at about 4:00 a.m., Boston Police Officers Christopher Broderick and Richard Moriarty were patrolling in their cruiser in Boston's South End. In the weeks prior to this night, there had been an abnormally large number of armed robberies and car break-ins in the area. The two officers had not received any reports of a specific crime that evening. As they drove toward Appleton Street, they saw on their left two men running nearly side-by-side along Appleton and across Clarendon. The men were wearing sweatshirts with hoods drawn tightly around their heads and what initially appeared to the officers to be white cotton gloves. The officers were unsure of what the men were doing but considered it to be of an "unlawful design." They sped up the cruiser and turned right onto Appleton Street, where Moriarty got out of the car and approached one of the hooded men. Moriarty told the man, later identified as the defendant, to stop, which Jones did immediately, throwing his hands up in the air. At that point, Moriarty observed that Jones' gloves were of white latex. Asked why he wore them, Jones said his hands were cold. Asked if he had any weapons on him, Jones said that he had a knife, which Moriarty confiscated.
Meanwhile, Broderick drove further down Appleton Street, parked, and got out of the cruiser. The second hooded man, later identified as Samuel Whiteside, had continued to run down the sidewalk. He turned left between two cars, right onto the sidewalk, and ran until he was under a lit lamppost, where he bent down so that Broderick could see only the top of his head. Whiteside then straightened into full view and continued to run down the sidewalk as Broderick chased him and asked him several times to stop. At this point, Broderick saw a third man, later identified as Darrell Weaver, walking on the sidewalk in the same direction that Jones and Whiteside had been running. While this was Broderick's first view of Weaver, Broderick testified that his partner, Moriarty, had told him he saw Weaver when the cruiser first turned onto Appleton Street. Moriarty was unable to testify at the suppression hearing because he was serving in Iraq. The district judge found that Moriarty saw Weaver before the officers got out of the cruiser and that Whiteside and Jones appeared to be chasing Weaver.
After Broderick saw Weaver walking ahead on the sidewalk, Whiteside ran towards Weaver but slowed to a walk as he approached him. Broderick caught up to the two men, who sat down on the steps of 84 Appleton Street. When Broderick asked what they were doing, Whiteside replied that he was "just walking with my boy." Weaver looked back and forth between Whiteside and Broderick and appeared confused. Broderick took both men back to the cruiser and questioned them individually while Moriarty talked to Jones.
The officers concluded that Weaver was not with Whiteside and Jones and let him go. Broderick asked Whiteside why he was wearing a latex glove, and Whiteside responded that he was wearing one glove because a cut on his hand had become infected. Moriarty then walked back in the direction in which he had seen Whiteside run and found, where Broderick had seen Whiteside pause and bend down earlier, a .32 caliber semi-automatic handgun with a chambered live round and a one-dollar bill sitting on top of a large white trash bag on the sidewalk. The gun was still warm and dry. Moriarty then signaled to Broderick that Jones and Whiteside should be handcuffed. The officers asked the two men if they had a license to carry a firearm, and neither man indicated he did.
The officers then arrested Jones and Whiteside and took them to the jail. A booking officer booked the two men, filled out a prisoner booking form which listed Jones' property, including a set of keys, and took booking photos. The arrest booking form indicated that the two men were arrested for "intent to rob while armed." Later, the state initially charged Jones with possession of a firearm without a license, attempted armed robbery, and a moving violation.
The evening before Jones was arrested, on March 18, 2002 at about 12:15 a.m., a seemingly unrelated incident had occurred. Toni Harrison and Ramona Powell were forced out of a car at gunpoint by a young African-American man with braided hair. The two women yelled for the driver of the car, Thomas Edwards, who was across the street, and he ran towards the car as it drove away, getting a side view of the suspect.
On March 23, 2002, Harrison, Edwards, and Edwards' mother Hilda, the owner of the car, went to the police station to review photographs with Boston Police Detective Paul MacIsaac. MacIsaac first spoke to Harrison and gathered a description of the suspect in order to narrow the pool of suspects displayed on the police department's computerized identification imaging system. The result was seventy-eight young African-American men with braided hair. Harrison viewed all the photos and rejected all of them. MacIsaac then changed the search criteria to search for "afro" instead of "braids." There were ninety-one matches, and Harrison rejected the first seventy-nine. At the sight of the eightieth photo, however, she jumped back and said, and began to cry. She told MacIsaac that she was eighty-five percent sure it was the suspect.
On March 25, 2002, MacIsaac printed out the photo Harrison had identified, a 1998 booking photo of Khary Jones. A criminal records check revealed a more recent photo of Jones from his March 19, 2002 arrest. Using the computer system, MacIsaac then created a nine-photo array, including the March 19 photo. Harrison quickly identified Jones in the new photo array. Edwards, who had had a side view of the suspect, was unable to identify Jones and instead picked another photo. Powell "went right to" Jones' picture and said "that's him."
Based on the identifications by Harrison and Powell, MacIsaac obtained and executed a search warrant for Jones relative to the carjacking. He told Moriarty to look in the area of Jones' March 19 arrest for the stolen car. The car was found a couple of blocks away from Appleton and Clarendon Streets. MacIsaac examined Jones' booking sheet, which listed "a key" among his property. MacIsaac obtained a search warrant, executed it, and seized a set of keys, including Edwards' car key.
Indicted on one count of carjacking and one count of possessing a firearm during and in relation to a crime of violence in connection with the March 18, 2002 carjacking, Jones moved to suppress any and all evidence seized from him and/or his possession as a result of the warrantless stop and arrest on March 19, 2002 and the subsequent warrant-based search of his property in jail on April 6, 2002. Jones argued that the officers had not had reasonable suspicion to stop him and Whiteside, nor had they had probable cause to arrest Jones after the discovery of the gun on top of the garbage bag. The district court denied the motion to suppress, finding that the officers had had reasonable suspicion to stop Jones, but assuming arguendo that the stop was illegal, the discovery of the evidence was sufficiently attenuated from the stop to dissipate the taint. Alternatively, the court observed, the independent source doctrine provided a separate basis for the seizure of the keys because MacIsaac, separate from Broderick and Moriarty, had learned the potential significance of the keys during his own investigation.
After the denial of the motion to suppress, Jones entered a conditional guilty plea and was sentenced on April 20, 2004. The district court sentenced Jones to consecutive terms of 30 months' imprisonment on Count 1 and 84 months' imprisonment, the mandatory minimum, on Count 2. This appeal followed.
On appeal, Jones argues that on March 19, 2002, the police officers had neither reasonable suspicion to stop him and Whiteside nor probable cause to arrest them. Further, he argues, MacIsaac's discovery of the keys was not sufficiently removed from the illegal arrest to dissipate the taint, nor was it an independent discovery. Because we find that the initial stop and subsequent arrest were both legal, we do not reach the issues of dissipation of the taint or independent discovery. As Jones himself recognized in his brief, if the arrest was legal, the search of his possessions at the jail was constitutional. We affirm the defendant's conviction.
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