U.S. v. Juvenile TK

• Decision Date: 12 January 1998
• Docket Number: No. 97-3251,97-3251
• Citation: 134 F.3d 899
• Parties: UNITED STATES of America, Appellee, v. JUVENILE TK, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 899

134 F.3d 899

UNITED STATES of America, Appellee, v. JUVENILE TK, Appellant.

No. 97-3251.

United States Court of Appeals,

Eighth Circuit.

Submitted Dec. 10, 1997.

Decided Jan. 12, 1998.

Chad R. McCabe, Bismarck, ND, argued, for appellant.

David L. Peterson, Bismarck, ND, argued (Scott J. Schneider and John Schneider, United States Attorneys, on the brief), for appellee.

Before McMILLIAN, JOHN R. GIBSON, and MURPHY, Circuit Judges.

McMILLIAN, Circuit Judge.

Appellant TK, a juvenile and a Native American tribal member of the Three Affiliated Tribes on the Fort Berthold Reservation in North Dakota, appeals from a final judgment entered in the United States District Court ¹ for the District of North Dakota pursuant to TK's conditional guilty plea to robbery and possession of a handgun in violation of 18 U.S.C. §§ 1153 and 2111, and 18 U.S.C. § 922(x)(2)(A), respectively. TK was sentenced to thirty months probation and restitution of two dollars. For reversal, TK argues that his Fourth Amendment rights under the United States Constitution as applied to Sovereign Indian Reservations through the Federal Indian Civil Rights Act, 25 U.S.C. § 1302, were violated because the arresting officers lacked reasonable suspicion to conduct the investigative stop that culminated in his arrest. For the reasons discussed below, we affirm the judgment of the district court.

Jurisdiction

Jurisdiction was proper in the district court based upon 18 U.S.C. § 3231. Jurisdiction on appeal is proper pursuant to 28 U.S.C. § 1291. The notice of appeal was timely filed under Rule 4(a) of the Federal Rules of Appellate Procedure.

Discussion

On Friday, March 29, 1997, TK and his friends drove to the City of New Town, North Dakota, after attending a basketball game in White Shield, North Dakota. New Town is located on the Fort Berthold Reservation. There are approximately 1500 to 1700 people who reside in the area. There is also a casino just outside of New Town that is open 24 hours a day. According to Tribal Police Officer Samuel James Lincoln, there are cars entering and leaving the casino area all the time, even at four o'clock in the morning. Transcript of Suppression Hearing ("Transcript") at 24.

Dragswolf Village is an area located about five miles west of New Town. Dragswolf Village is a separate community with an estimated population of approximately two hundred. At approximately 3:10 a.m. on March 30, 1997, Officer Lincoln received a dispatch in his squad car that "a man in [Dragswolf Village] had broken out a window to a vehicle and that he had gotten into a gray vehicle and that he had a gun." Id. at 8. Officer Lincoln then informed Officer Frank Felix, the driver of the squad car, of the report and they both proceeded to Dragswolf Village to investigate the call.

According to Officer Lincoln, the only information that they possessed at that point was that the suspect was a man in a gray car; they had no license plate number or house number for the location of the incident. Id. at 10. Officer Lincoln testified that they tried to obtain a house number, but did not receive any additional information. Id. Officers Lincoln and Felix then looked around Dragswolf Village for about 15 minutes, but did not see any gray cars.

At approximately 3:49 a.m., Officer Lincoln received a dispatch stating that "there was a guy at the SuperPumper and he brandished a weapon and had gotten into a gray vehicle." Id. at 11-12. (The SuperPumper is a gas station/convenience store in New Town.) According to Officer Lincoln's testimony that was the only information he and his partner received regarding the SuperPumper incident; the attendant at SuperPumper who reported the incident did not provide a license plate number. Id. at 12.

At 3:51 a.m., Officer Lincoln called the dispatch for more information. Specifically, he and Officer Felix wanted to know if the person who reported the incident actually worked at the SuperPumper and if that person could better describe the perpetrator and the vehicle. The officers did not receive any additional information. (It was later revealed that Darwin Morsett, a SuperPumper employee, was the person who had reported the incident from the SuperPumper.)

At approximately 3:56 a.m., Officer Lincoln was driving eastbound from Dragswolf Village on Main Street when he observed a gray vehicle making a U-turn in a commercial parking lot about one and one-half to two blocks from the SuperPumper. He informed Officer Felix that "that was a gray car and that [they] should check it out." Id. at 15. The gray car exited the parking lot onto Main Street, turned left heading southbound on West Avenue, and accelerated. The officers followed the vehicle in their marked squad car. The squad car has door decals for "Bureau of Indian Affairs Police" on each side and has a visible red light bar on the roof.

Halfway down the block on West Avenue, Officer Felix activated the squad car's red lights. According to the officers, when the squad car pulled up behind the gray car, the gray car made a quick left onto Second Street South for a short distance and then stopped. The officers believed, based on their experience, that the gray car's quick turn and acceleration, when there was no other traffic, seemed suspicious and that these driving tactics were to evade the police. Officer Lincoln testified, however, that the vehicle did not do anything illegal before it was pulled over. Officer Felix further admitted that, at the point at which the car was stopped, the only descriptions that they had received were of a gray car and a man with a gun.

When Officers Lincoln and Felix approached the vehicle, TK was in the front passenger seat and his brother, Sheldon K, was the driver. Jason S, a friend of theirs, was in the back seat. Officer Felix recognized TK as the nephew of his (Officer Felix's) ex-wife. The officers also noted that TK and Jason S appeared to be intoxicated and, as juveniles, were violating the 11:00 p.m. curfew established under the Tribal Code and New Town City Code. Both TK and Jason S were arrested for violating the curfew law and for public intoxication. TK was searched and two packs of Marlboro cigarettes were seized from his person. After Sheldon K was ordered out of the car and brought to the police cruiser for a license check, he (Sheldon K) ran off on foot. No weapon was ever discovered.

Early in the morning on March 30th, Darwin Morsette, the SuperPumper attendant who had reported the robbery, identified TK as the man with the gun who had taken a pack of cigarettes at the SuperPumper in a line-up conducted at the police department. Earlier, but after the investigative stop, the police had obtained a written description of the perpetrator from Morsette which matched TK. TK denied that he was involved in either of the reported incidents.

TK was later charged by information with juvenile delinquency in violation of 18 U.S.C. §§ 5031-5042 for committing robbery under 18 U.S.C. §§ 1153 and 2111, assault with a dangerous weapon under 18 U.S.C § § 113(a)(3) and 1153, and possession of a handgun by a juvenile under 18 U.S.C. § 922(x)(2)(a). TK moved to suppress any evidence seized or gathered at the time he was taken into custody on March 30th on the ground that the police officers did not have reasonable suspicion to stop the car in which he was riding. He also moved to suppress statements that he made to an officer on March 31, claiming that the statements were given without Miranda warnings and were involuntary. A suppression hearing was held on June 4, 1997. By order of June 19, 1997, the district court denied the motion in its entirety. ²

On July 7, 1997, by way of an Alford plea, ³ TK made a conditional guilty plea to count one (robbery) of the juvenile delinquency information, reserving his right to appeal the denial of his suppression motion. On August 8, 1997, TK received a juvenile disposition of 30 months probation and restitution of two dollars.

An officer may conduct a Fourth Amendment stop to investigate a crime only if the officer has a reasonable suspicion that that person had committed or was committing a crime. Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868, 1884-85, 20 L.Ed.2d 889 (1968) (A police officer may "stop and briefly detain a person for investigative purposes if the officer has a reasonable suspicion supported by articulable facts that criminal activity 'may be afoot.' "). " '[T]he police must point to particular facts and inferences rationally drawn from those facts that, when viewed under the totality of the circumstances and in light of the officer's experience, create a reasonable suspicion of criminal activity.' " Marti v. City of Maplewood, 57 F.3d 680, 685 (8th Cir.1995) (Marti ) (quoting United States v. Weaver, 966 F.2d 391, 394 (8th Cir.), cert. denied, 506 U.S. 1040, 113 S.Ct. 829, 121 L.Ed.2d 699 (1992)).

This court reviews the district court's findings of historical fact for clear error and reviews the determination of whether there was reasonable suspicion de novo. See Ornelas v. United States, 517 U.S. 690, ----, 116 S.Ct. 1657, 1663, 134 L.Ed.2d 911 (1996); United States v. Payne, 119 F.3d 637, 642 (8th Cir.1997), cert. denied, --- U.S. ----, 118 S.Ct. 454, 139 L.Ed.2d 389 (1997). In conducting its de novo review, this court must give due weight to inferences drawn by resident judges and local law enforcement officers from historical facts. Ornelas, 517 U.S. at ----, 116 S.Ct. at 1663.

In the instant case, the district court made eight express findings of fact ⁴ and considered the entire record before it, including the evidence presented at the suppression hearing. District Order at 1 (June 19, 1997). In his reply brief, TK contests the government's reliance on certain evidence presented at the suppression hearing. Reply Brief at 6. Specifically, TK challenges the officers' testimony that the car in which he was stopped was the only one in the area. TK...