U.S. v. Jones

• Decision Date: 13 May 1985
• Docket Number: No. 84-1846,84-1846
• Citation: 759 F.2d 633
• Parties: UNITED STATES of America, Appellee, v. Tyjuan JONES, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 633

759 F.2d 633

UNITED STATES of America, Appellee, v. Tyjuan JONES, Appellant.

No. 84-1846.

United States Court of Appeals Eighth Circuit.

Submitted Nov. 13, 1984.

Decided April 10, 1985.

Rehearing Denied May 13, 1985.

Martin Zucker, St. Louis, Mo., for appellant.

Debra Herzog, St. Louis, Mo., for appellee.

Before ARNOLD, Circuit Judge, HENLEY, Senior Circuit Judge, and JOHN R. GIBSON, Circuit Judge.

JOHN R. GIBSON, Circuit Judge.

The main issue before us is at what point a show of force by police will elevate an intended investigative stop into an arrest which, in the absence of probable cause, would warrant exclusion of evidence thereby seized as violative of the fourth amendment. The district court ¹ denied Tyjuan Jones' motions to suppress and in limine and allowed the introduction into evidence of the handgun found in the car in which Jones was apprehended. Jones was convicted as a felon in possession of a firearm in violation of 18 U.S.C.App. Sec. 1202(a)(1)(1982). We affirm.

On Sunday afternoon December 11, 1983, Tyjuan Jones, accompanied by his two sons and nephew, all less than twelve years old, was on his way to visit his father when he stopped at the apartment of a friend. While he was waiting on the doorstep for an answer to the security buzzer, police detectives Terry James and Kurt Shrum, on routine patrol in business suits and an unmarked car, observed Louis Brown, who was known to them as a burglar, walking away from the rear of the same apartment building at which Jones was standing. Brown, upon appearing to notice the officers, put his hand over his face. James and Shrum called Brown to their car and conducted a pat-down frisk, which revealed no weapons or stolen property. At the same time Detective James noticed Jones at the door of the apartment building. Jones then, upon also appearing to see the officers, turned and ran through a gangway to the rear of the apartments where his sister's yellow Volkswagen, which he had been driving, was parked.

Knowing that burglars often worked in pairs, the detectives suspected that Jones might have been serving as a lookout while Brown broke in the back of the apartment building. James followed Jones on foot while Shrum put Brown in the back seat of the unmarked police car, drove around behind the apartments, and stopped directly behind and perpendicular to the Volkswagen which Jones had entered and in which he was then sitting with the three children. As Jones started the car, detectives James and Shrum approached with guns drawn. They ordered Jones to get out and asked him for some identification. While Jones did state that he did not live in the neighborhood, he repeatedly refused to get out of the Volkswagen, insisting that he did not know James and Shrum were police officers. There was testimony that the detectives had shown their badges several times during the exchange.

Also, at one point Shrum, in an attempt to get Jones out of the car, opened the back door of the Volkswagen on the driver's side and leaned in and, according to some witnesses, pointed his gun at Jones' head. Though the sequence is not clear, the officers apparently had their guns in and out of their holsters at various times during the encounter with Jones.

Finally, Shrum reached into the Volkswagen through the front driver's side window, which was down four or five inches, pulled up the knob, and pulled down on the door handle. The door, however, was broken and wouldn't open. Jones then took both hands, cranked the window shut on Shrum's arm, and yelled to the child in the front seat, "Give it to me, hand it to me, it's between the seats." As Jones released his right hand from the window crank and put the car in reverse so that it began to move backward, Shrum saw a small pistol between the seats. When he saw Jones release the shift lever and start for the pistol, Shrum reached his left hand to his shoulder holster, withdrew his revolver, and fired directly down through the window to break the glass and free his arm and to stop Jones from getting the pistol. Jones was struck by Shrum's shot. The encounter was estimated to have lasted three to six minutes.

Pursuant to the subsequent arrest and search, police seized the pistol from the Volkswagen and some bullets from the pocket of the jacket Jones had been wearing. Jones was charged as a felon in possession of a firearm in violation of section 1202(a)(1), and the district court, after a hearing, denied his pretrial motion to suppress. The court characterized the evidence as "uncontradicted basically" and made oral findings of fact from the bench as follows:

The policeman came up to the car, he had a gun, he had seen Mr. Brown, a known burglar in the vicinity, and saw him running away. And he asked Mr. Jones to get out of the car and Mr. Jones said, "What for?" The police officer, he showed him his badge and he said he wouldn't get out of the car. He asked him on several occasions and showed him the badge on two or three occasions, and additionally, after he twisted his arm in the window, * * * he took the gun and fired * * *.

Motion to suppress, transcript at 2-46, United States v. Jones, No 84-55 Cr (C) (E.D.Mo. May 18, 1984). The district court also said, "The policeman saw the gun on the floor of the car, so he had a perfect right to question Mr. Jones," and "I believe he had a right to question Mr. Jones. Mr. Jones refused to get out of the car." Id. at 2-47.

The district court similarly denied a motion in limine at trial and at the conclusion of all evidence made the additional finding that the Volkswagen had not been blocked in by the police car. The court resolved conflicting testimony to find the police car had been at least five feet behind the Volkswagen and interpreted photographic evidence as showing that there had been sufficient room at the front and left for the Volkswagen to have pulled away. Accordingly, the court concluded, the initial actions of the officers had not constituted an "arrest" of Jones. Jones subsequently was found guilty by a jury and was sentenced to the maximum penalty of two years.

On appeal Jones argues that the challenged evidence was inadmissible as the fruits of his seizure in violation of the fourth amendment. Specifically, he contends that the finding that the Volkswagen was not blocked is clearly erroneous and that he was arrested without probable cause at the time of the blocking and the officers' approach with guns drawn. Alternately, Jones argues that Shrum and James lacked even the reduced "reasonable suspicion" necessary were their actions to be characterized as a limited "investigative stop" permissible under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

I

Our initial inquiry in this case is when an investigative stop crosses the boundary and becomes an arrest. United States v. Danielson, 728 F.2d 1143, 1146 (8th Cir.), cert. denied, --- U.S. ----, 105 S.Ct. 300, 83 L.Ed.2d 235 (1984). An "arrest" to be valid under the fourth amendment requires probable cause. Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979). Thus, since the government does not argue that officers Shrum and James had probable cause on first approaching the Volkswagen, if we find an arrest, we must find error in the failure to suppress the gun as the fruit of the illegal seizure of Jones. See Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). If, however, we find the confrontation between Jones and the officers constituted only an investigative stop, we must reach the question whether the actions of Shrum and James were supported by "reasonable articulable suspicion." United States v. Sadosky, 732 F.2d 1388, 1391 (8th Cir.), cert. denied, --- U.S. ----, 105 S.Ct. 254, 83 L.Ed.2d 191 (1984); see Terry, 392 U.S. at 21-22, 88 S.Ct. at 1879-81.

The Supreme Court held in Dunaway that despite the absence of a technical arrest probable cause may still be required when a detention is "in important respects indistinguishable from a traditional arrest." 442 U.S. at 212, 99 S.Ct. at 2256. "An action tantamount to arrest," we thus have stated, "has taken place if the officers' conduct is more intrusive than necessary for an investigative stop." United States v. Rose, 731 F.2d 1337, 1342 (8th Cir.), cert. denied, --- U.S. ----, 105 S.Ct. 326, 83 L.Ed.2d 263 (1984). There is, however, no "litmus-paper test" or "sentence or paragraph" rule to determine when, given the "endless variations in facts and circumstances," police-citizen encounters exceed the bounds of mere investigative stops. Florida v. Royer, 460 U.S. 491, 506-07, 103 S.Ct. 1319, 1329, 75 L.Ed.2d 229 (1983). In general, officers may take such steps as are "reasonably necessary to protect their personal safety and to maintain the status quo" so that the limited purposes of the stop may be achieved. ² United States v. Hensley, --- U.S. ----, 105 S.Ct. 675, 684, 83 L.Ed.2d 604 (1985).

Officers James' and Shrum's stop of Jones cannot be faulted for any of the excesses thus far identified in Supreme Court precedent. The Court has required probable cause when a petitioner, although not "booked," was taken from his home to the police station for custodial interrogation, Dunaway, 442 U.S. at 216, 99 S.Ct. at 2258, and when a drug suspect stopped in an airport was taken from the concourse to a private room by officers holding his plane ticket and driver's license when there was no compelling reason for the move beyond a desire to search the suspect's luggage. Royer, 460 U.S. at 503-05, 103 S.Ct. at 1327-28. The encounter involving Jones, in contrast, consisted only of an "on the street" exchange confined to the spot where Jones was found. Dunaway, 442 U.S. at 209, 212, 99 S.Ct. at 2254, 2256. The detention was brief, see Royer, 460 U.S. at 500, 103 S.Ct. at 1325; see also United States v. Sharpe, --- U.S. ----, 105 S.Ct. 1568, 84 L.Ed.2d 605 (1985), and it did not involve...