U.S. v. Shareef, 95-3381

• Decision Date: 13 November 1996
• Docket Number: No. 95-3381,95-3381
• Citation: 100 F.3d 1491
• Parties: UNITED STATES OF AMERICA, Plaintiff - Appellant, v. NAFIS OMAR SHAREEF, also known as Kenneth Hultman, also known as James Russell McCellen, also known as Donald James Simmons; WILLIAM D. SMITH, also known as Mark Killingsworth; JOSEPH BROWN; CHESTER RAYMOND PITTS, also known as David Wayne Drare; SPERGEON WILLIE MURPHY; ALICIA D. NASH, also known as Laura Ann Bohland, Defendants - Appellees
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1491

100 F.3d 1491

UNITED STATES OF AMERICA, Plaintiff - Appellant, v. NAFIS OMAR SHAREEF, also known as Kenneth Hultman, also known as James Russell McCellen, also known as Donald James Simmons; WILLIAM D. SMITH, also known as Mark Killingsworth; JOSEPH BROWN; CHESTER RAYMOND PITTS, also known as David Wayne Drare; SPERGEON WILLIE MURPHY; ALICIA D. NASH, also known as Laura Ann Bohland, Defendants - Appellees.

No. 95-3381

UNITED STATES COURT OF APPEALS TENTH CIRCUIT

November 13, 1996

Appeal from the United States District Court for the District of Kansas (D.C. No. 95-40022-06-RDR) Richard A. Friedman, United States Department of Justice, Washington, D.C.(Randall K. Rathbun, U.S. Attorney, and Gregory G. Hough, Office of the U.S. Attorney, Topeka, KS, with him on the brief) for Plaintiff-Appellant.

Charles D. Dedmon, Office of the Federal Public Defender, Topeka, KS (David J. Phillips, Federal Public Defender, Kansas City, KS, with him on the brief) for Defendant-Appellee Nafis Omar Shareef.

J. Richard Lake, Holton, KS, for Defendant-Appellee William D. Smith.

Jenine M. Jensen, Office of the Federal Public Defender, Denver, CO (Michael Gordon Katz, Federal Public Defender, Denver, CO, with her on the brief) for Defendant-Appellee Joseph Brown.

Michael M. Jackson, Topeka, KS, for Defendant-Appellee Chester Raymond Pitts.

Melanie S. Morgan, Topeka, KS (Joseph D. Johnson, Topeka, KS, with her on the brief) for Defendant-Appellee Spergeon Willie Murphy.

F.G. Manzanares, Topeka, KS (Stephen W. Kessler, Topeka, KS, with him on the brief) for Defendant-Appellee Alicia D. Nash.

Before EBEL, LOGAN and BRISCOE, Circuit Judges.

EBEL, Circuit Judge.

This case presents the difficult question of how much force police officers may use to detain individuals following a lawful traffic stop when the officers have reasonable suspicion that the individuals are involved in criminal activity, but the suspicion has not yet ripened into probable cause to arrest. The district court found the police officers' conduct in detaining the defendants to be unreasonable and suppressed evidence discovered during the investigative stop. The government now appeals. We have jurisdiction pursuant to 18 U.S.C. 3731, and we REVERSE and REMAND for further proceedings.

I.

"When reviewing an order granting a motion to suppress, we accept the trial court's factual findings unless clearly erroneous, and we view the evidence in the light most favorable to the district court's ruling." United States v. Little, 18 F.3d 1499, 1503 (10th Cir. 1994). The facts adduced at the suppression hearings are as follows. At approximately 3:30 a.m. on March 5, 1995, Marysville police officer Mark Maschmeier was operating stationary radar from his patrol car at an intersection in Marysville, Kansas. Sergeant Jerry Reinhart was sitting in his own patrol car next to Maschmeier's car, and the two were talking. Officer Maschmeier clocked a large four-door vehicle traveling westbound at 43 m.p.h in a 30 m.p.h. zone. Approximately two to three lengths behind the first car was a U-Haul truck. The radar showed the U-Haul traveling at 41 m.p.h. Another dark four-door car, also traveling at 41 m.p.h., was following the U-Haul.

Intending to stop all three vehicles, Maschmeier drove behind the third car and activated his emergency lights. The cars did not pull over or decrease their speed. Officer Maschmeier then passed two of the vehicles and pulled in behind the first car, which finally pulled over in response to his lights and short bursts of his siren. The other two cars then pulled over as well. Sergeant Reinhart, who had followed the chase, stopped nearby.

Officer Maschmeier approached the first vehicle, a Lincoln Continental, in which defendants Smith, Murphy, and Nash were riding. The driver identified himself as William D. Smith and gave his date of birth as September 2, 1956. Smith stated that he did not have his California driver's license with him. Officer Maschmeier told Smith that he was going to issue a speeding citation to him, and returned to his patrol car to write the ticket. Officer Maschmeier relayed Smith's name, birth date, and reported state of licensure to Renae Kenworthy, the dispatcher. Kenworthy ran a driver's license check and a check for outstanding warrants. She determined that California did not show a driver's license for a William D. Smith, and communicated this to Officer Maschmeier at 3:40 a.m. Maschmeier continued writing the speeding ticket and returned to the Lincoln. To complete the ticket, he obtained additional information from Smith, including Smith's address, height and weight. Smith gave his height as six feet and his weight as 205 pounds; in addition Maschmeier noted that Smith was a black male. Officer Maschmeier asked Murphy, the front-seat passenger, if he had a driver's license. Murphy replied that he did. Officer Maschmeier asked him to switch places with the driver. Officer Maschmeier then told Smith (now in the passenger seat) to pull over to the side of the road. Smith asked why, and Officer Maschmeier replied that he was going to issue tickets to the other two drivers. Smith told Officer Maschmeier that he didn't have to write citations for the other two vehicles. The Lincoln pulled into a parking area at the side of the road and waited.

Officer Maschmeier then approached the U-Haul truck, in which defendants Shareef and Pitts were riding. Maschmeier told the driver he was going to issue a speeding citation to him. The driver identified himself as Nafis O. Shareef and provided a date of birth. Shareef stated that he did not have his California driver's license with him. Officer Maschmeier told Shareef to wait and proceeded to the third vehicle, a Pontiac Bonneville. The driver of the Pontiac stated that he did not have a license with him, and Officer Maschmeier told him to wait. The driver was defendant Joseph Brown, although Officer Maschmeier did not ask Brown for his name at that time. Officer Maschmeier returned to his patrol car. He told Sergeant Reinhart, who also had returned to his own patrol car, that something was strange about the situation. At 3:43 a.m., Maschmeier asked dispatcher Kenworthy to run a license check on Shareef and vehicle registration checks on the U-Haul and the Pontiac. Sergeant Reinhart informed the dispatcher that all three cars were stopped for speeding and none of the drivers was carrying a driver's license. The dispatcher reported that the computer used for retrieving the criminal history and warrants information was temporarily not responding.

Before the computer checks for licensure and vehicle registration had been completed, and while Officer Maschmeier was still writing the citation for Shareef, the dispatcher received a teletype from the National Crime Information Center ("NCIC") computer. The teletype was received at approximately 3:55 a.m. It identified two individuals born on September 2, 1956, with the last name of Smith who had outstanding warrants. The first name on the list was Karlton Wilbur Smith, described as a black male, six feet tall, weighing 175 pounds, who was wanted on a weapons charge in Florida. The teletype listed eighteen aliases for Karlton Wilbur Smith.¹ The agency that had issued the warrant was the Bureau of Alcohol Tobacco and Firearms ("ATF"). The second name on the list was Gary J. Smith, described as a white male, five feet ten inches tall, weighing 160 pounds, wanted by the Metro-Dade Police Department in Miami Florida for parole violation.

Upon receiving the teletype, the dispatcher radioed Sergeant Reinhart and asked him if he was "10-12," indicating that she had private information to relay. The communication was switched to a telephone line, and the dispatcher and Reinhart had the following conversation:

Kenworthy: Wanted person caution-- just a second let me finish reading um caution-- Wilbur Smith is he a black male?

Reinhart: Yep.

Kenworthy: Black male, height six foot one hundred seventy five pounds.

Reinhart: From the Lincoln? Is that who we are talking about?

Kenworthy: Um. This would be the first 27 [driver's license check] or 28 [registration check] that . . . you wanted. And my second person is also--

Reinhart: Your what?

Kenworthy: The second one he wanted ran--

Reinhart: Oh, O.K.

Kenworthy: Is also. Um it's just pert-near everything they're wanted for. Armed and dangerous.

Reinhart: They're armed and dangerous?

Kenworthy: That's what they have, possession of firearms. Hold for U.S. Marshals, Miami, Florida.

Reinhart: Hold for U.S. Marshals, Miami Florida?

Kenworthy: Uh huh.

Reinhart: Call 10 [Police Chief Brian Davidson] and 14 [Officer Brian Kenworthy].

Kenworthy: O.K., you got it.

Reinhart: ASAP, please

Kenworthy: Got it.

From this conversation, the district court determined that the dispatcher, who was not licensed to operate the NCIC computer, made a number of errors in interpreting the report. She assumed that the first name of the driver of the Lincoln was Wilbur, rather than William. She further assumed that the report indicated that two of the suspects had outstanding warrants, although she had been told by Maschmeier that the driver of the U- Haul was named Shareef not Smith. In a subsequent transmission with the dispatcher, Reinhart realized that they had only one "hit," as all the suspects were black and Gary Smith was white.

Reinhart informed Maschmeier that there was an NCIC "hit" on the driver of the Lincoln, who was wanted on a weapons charge in Florida. Reinhart told Maschmeier to return to his patrol car, pretend to write the speeding citations, and wait for backup officers to arrive. The dispatcher, meanwhile, contacted several officers and asked them to proceed to the scene. These calls were completed by 4:06 a.m.

Shortly before 4:15 a.m., backup arrived and the officers began a "felony stop" of the occupants of all three vehicles. The officers, using the public address...