U.S. v. Taylor

• Decision Date: 13 September 1988
• Docket Number: Nos. 88-5502,s. 88-5502
• Citation: 857 F.2d 210
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Thomas H. TAYLOR, Jr., a/k/a Seifullah Rahman, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Vernon A. COLLINS, a/k/a Bey Brother, Defendant-Appellant. (L), 88-5503.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 210

857 F.2d 210

UNITED STATES of America, Plaintiff-Appellee, v. Thomas H. TAYLOR, Jr., a/k/a Seifullah Rahman, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Vernon A. COLLINS, a/k/a Bey Brother, Defendant-Appellant.

Nos. 88-5502(L), 88-5503.

United States Court of Appeals Fourth Circuit.

Argued July 15, 1988.

Decided Sept. 13, 1988.

John Maurice Hassett (Harold I. Glaser, Fred Warren Bennett, Federal Public Defender, Wanda Keyes Robinson, Asst. Federal Public Defender, Baltimore, Md., on brief), for defendant-appellant.

Howard B. Gersh (Breckinridge L. Willcox, U.S. Atty., Charles P. Scheeler, Asst. U.S. Atty., Baltimore, Md., on brief), for plaintiff-appellee.

Before CHAPMAN, WILKINSON and WILKINS, Circuit Judges.

WILKINSON, Circuit Judge:

Thomas H. Taylor, Jr. and Vernon A. Collins appeal their convictions for conspiracy to distribute and possess with intent to distribute heroin, 21 U.S.C. Sec. 846; possession with intent to distribute heroin, 21 U.S.C. Sec. 841(a)(1); and employment of a person under eighteen years of age to possess with intent to distribute heroin, 21 U.S.C. Sec. 845b(a)(1). Collins also appeals his convictions for possession of a firearm by a convicted felon, 18 U.S.C. Sec. 922(g)(1). Appellants contend that the district court erred in refusing to suppress evidence seized after a stop of Collins' automobile, in refusing to grant appellants' motion for a continuance, and in refusing to invalidate a warrant authorizing a search of Collins' residence. Finding no merit in these contentions, we affirm the judgment of the district court.

I.

On July 10, 1987, agents of the Federal Bureau of Investigation secured a warrant authorizing the search of Vernon A. Collins' residence in Baltimore, Maryland. The affidavit in support of the search warrant contained information from six informants that Collins and Taylor were involved in narcotics trafficking and were partners in a narcotics distribution operation. The affidavit detailed Collins' prior narcotics activity and recounted appellants' criminal histories. Both Collins and Taylor have records that include narcotics violations, handgun violations, and various crimes of violence. One of the FBI's informants described Collins as a "narcotics hit man who is feared throughout the narcotics underworld in Baltimore"; another informant described Taylor as Collins' "main enforcer." The warrant authorized a search for evidence related to narcotics trafficking.

At approximately 5:00 p.m., on July 11, 1987, an FBI surveillance team observed Collins, Taylor, and a youth, subsequently identified as sixteen year-old Thomas Thornton, leave Collins' residence and drive away in Collins' automobile toward Baltimore City. The surveillance team--approximately six vehicles and fourteen agents and officers of the FBI, Internal Revenue Service, and Baltimore City Police--stopped the automobile a short distance from Collins' residence. The officers approached the automobile with their weapons drawn, ordered Collins, Taylor, and Thornton to get out of the car, and frisked them. The frisk of Thornton revealed twenty-eight bags of heroin.

The occupants were then placed under arrest and taken to FBI headquarters in Woodlawn, Maryland. A subsequent search of Collins revealed an additional bag of heroin. Two leather bags containing "tally sheets," money, and appellants' identification were discovered during a search of the automobile. After Collins, Taylor, and Thornton were arrested, the search warrant was executed at Collins' residence. Numerous items were seized, including two handguns and 473 bags of heroin.

On July 22, 1987, a federal grand jury returned a five count indictment against Taylor and Collins. On October 9, 1987, a jury convicted appellants on each count. Collins received thirty-five years imprisonment- ; Taylor twenty years. Both defendants appeal.

II.

We address here four discrete components of police activity: (A) Was the stop of Collins' automobile permissible? (B) If so, did the show of force in stopping the automobile convert it into an arrest? (C) Was the pat-down search of Collins, Taylor, and Thornton permissible? and (D) Was the subsequent search of Collins' automobile proper? We examine each issue in turn.

A.

Appellants assert that the investigating officers, at the time they stopped Collins' automobile, could not have had a reasonable suspicion that the occupants were engaged in criminal activity. We disagree.

The propriety of investigative stops has long been recognized. 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." Terry v. Ohio, 392 U.S. 1, 22, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889 (1968). The Fourth Amendment does not require police officers "to simply shrug [their] shoulders and allow a crime to occur or a criminal to escape." Adams v. Williams, 407 U.S. 143, 145, 92 S.Ct. 1921, 1923, 32 L.Ed.2d 612 (1972). A brief investigative stop is permissible when the investigating officers have a reasonable suspicion grounded in "specific and articulable facts" that the person stopped is, is about to be, or has been involved in criminal activity. Terry, 392 U.S. at 21, 88 S.Ct. at 1879; United States v. Hensley, 469 U.S. 221, 229, 105 S.Ct. 675, 680, 83 L.Ed.2d 604 (1985). In particular, the Supreme Court has held that law enforcement officers may stop an automobile to investigate a reasonable suspicion that its occupants are engaged in criminal activity. United States v. Cortez, 449 U.S. 411, 417-18, 101 S.Ct. 690, 694-95, 66 L.Ed.2d 621 (1981); United States v. Brignoni-Ponce, 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975). See also United States v. Mobley, 699 F.2d 172, 174-76 (4th Cir.1983), cert. denied, 461 U.S. 909, 103 S.Ct. 1883-84, 76 L.Ed.2d 813 (1983).

A combination of factors justified the investigative stop in this case. The officers possessed a search warrant based upon probable cause to believe that appellants were engaged in narcotics trafficking, that Collins stored heroin in his residence, and that appellants distributed heroin in Baltimore City. At the time of the investigative stop, Collins' automobile was travelling from his residence toward Baltimore City. The combination of these circumstances more than met the threshold test of a reasonable and articulable suspicion and justified the officers' investigative stop of the automobile.

B.

The law enforcement team in this case consisted of fourteen agents and officers of the FBI, Internal Revenue Service, and Baltimore City Police. They arrived on the scene in approximately six police vehicles and used the vehicles to block the progress of Collins' automobile. The officers emerged with weapons drawn and ordered the occupants to get out of the car. Appellants contend that the manner in which the investigating agents carried out the Terry stop constituted an impermissible show of force.

Again we disagree. Investigating officers may take such steps as are reasonably necessary to maintain the status quo and to protect their safety during an investigative stop. Hensley, 469 U.S. at 235, 105 S.Ct. at 683. Blocking the progress of Collins' automobile with police vehicles and the agents' drawn weapons, for example, were well within the range of permissible police conduct. As this court stated in United States v. Manbeck, 744 F.2d 360, 377 (4th Cir.1984), cert. denied, 469 U.S. 1217, 105 S.Ct. 1197, 84 L.Ed.2d 342 (1985), "[t]he former is a reasonable way of effectuating the stop of a motor vehicle, and the latter is a justified safety precaution." Although blockading an automobile and approaching a suspect with drawn weapons are extraordinary measures, such police procedures have been justified in this circuit as a reasonable means of neutralizing potential danger to police and innocent bystanders. United States v. Perate, 719 F.2d 706, 709 (4th Cir.1983). See also United States v. Moore, 817 F.2d 1105, 1108 (4th Cir.1987), cert. denied, --- U.S. ----, 108 S.Ct. 456, 98 L.Ed.2d 396 (1987); United States v. Seni, 662 F.2d 277, 283 (4th Cir.1981), cert. denied, 455 U.S. 950, 102 S.Ct. 1453, 71 L.Ed.2d 664 (1982). Here the agents were aware that Collins had been convicted of assault, assault with intent to murder, robbery, a narcotics violation, and escape. Contrary to appellants' assertions, a lawful investigative stop does not become a custodial arrest when circumstances such as these cause police to draw their guns. "A brief but complete restriction of liberty is valid under Terry." Moore, 817 F.2d at 1108.

C.

Appellants object further to being "forcibly removed from the vehicle at gunpoint." The investigating officers, however, were permitted to protect themselves by ordering Collins, Taylor, and Thornton out of the automobile. Once a lawful Terry stop of an automobile is made, ordering suspects from the vehicle is a valid precautionary measure designed to afford a degree of protection to the investigating officer. See Pennsylvania v. Mimms, 434 U.S. 106, 109-11, 98 S.Ct. 330, 332-33, 54 L.Ed.2d 331 (1977). Suspects within an automobile cannot be scrutinized with the same confidence as suspects whose movements are in full view. In addition, whenever there is reason to believe that a suspect is armed and dangerous, officers making a lawful Terry stop also may protect themselves by conducting a protective, "pat-down" frisk for concealed weapons. See Adams, 407...