U.S. v. Walker

• Decision Date: 04 October 1993
• Docket Number: No. 1597,D,1597
• Citation: 7 F.3d 26
• Parties: UNITED STATES of America, Appellee, v. Trevis WALKER, Defendant-Appellant. ocket 93-1105.
• Court: U.S. Court of Appeals — Second Circuit

Page 26

7 F.3d 26

UNITED STATES of America, Appellee, v. Trevis WALKER, Defendant-Appellant.

No. 1597, Docket 93-1105.

United States Court of Appeals, Second Circuit.

Argued June 15, 1993.

Decided Oct. 4, 1993.

David A. Lewis, The Legal Aid Society, Federal Defender Services Unit, New York City, for defendant-appellant.

Celeste L. Koeleveld, Asst. U.S. Atty., S.D.N.Y., New York City (Roger S. Hayes, Acting U.S. Atty., Paul G. Gardephe, Asst. U.S. Atty., of counsel), for appellee.

Before: KEARSE, PRATT, and MINER, Circuit Judges.

GEORGE C. PRATT, Circuit Judge:

FACTS AND BACKGROUND

At 10:15 a.m. on April 8, 1992, an anonymous male telephoned the Amtrak police in New York City, stating that a man coming from the south on one of the trains would be carrying automatic weapons. The caller described the suspect as a black male, approximately 5'8" to 5'9", approximately twenty-five years old, very large and fat, clean shaven, with short close-cropped hair. When the Amtrak radio-desk sergeant attempted to elicit more information from the caller, including the name of the individual, the city the caller was calling from, and a better description of the man alleged to have the guns, the caller hung up without answering the sergeant's questions.

The radio-desk sergeant relayed the information to Sergeant Robert P. Collins, a member of the criminal investigative division of Amtrak, in New York City's Pennsylvania Station ("Penn Station"). Collins wrote the description on a piece of paper, checked the schedule for the next train arriving from the south, and determined that train 88 from Miami, Florida, originally scheduled for an 11:00 a.m. arrival, was due to arrive at about 11:35 a.m. He distributed the description to three other officers, and they all went down to the arrival platform for train 88. If any of the officers saw a person who fit the description, he was to signal the others by raising a hand high in the air. When Officer Williams spotted Trevis Walker, the defendant, he signaled accordingly. Walker is a twenty-three year old black man who is 5'11" tall and weighs 470 pounds. At the time he was clean shaven, with close-cropped hair. Walker was carrying two bags.

The officers approached Walker and displayed their identifications. Sergeant Collins asked Walker if he could talk to him. Walker agreed, and Collins asked him to move toward an elevator wall away from the stream of exiting passengers. Once out of the flow of traffic, Collins asked Walker if he had gotten off the train, and Walker replied that he had. Collins asked for Walker's ticket stub; Walker told him that he had left it on the train. When Collins asked Walker whether he had any automatic weapons, Walker said no and asserted that he had not done anything wrong. Collins then showed Walker the piece of paper on which he had written the description received from the anonymous caller, told him that he matched the description and that the caller had said the person in question was carrying automatic weapons, and asked Walker whether he could pat him down. Walker consented. The pat down revealed no weapons or contraband.

When asked for identification, Walker gave Collins his New York State identification card. Instead of following Amtrak police procedure and promptly returning the card, Collins handed the card to Officer Williams, who retained it. Collins then asked if the two bags Walker was carrying were his, and Walker said they were. Collins inquired if the bags contained any automatic weapons. Walker responded that they did not.

At this point Collins claims that Walker began sweating a bit more than he had been and turned paler. However, Collins' initial report omitted these facts. His first mention of them appeared in his affidavit in response to Walker's motion to suppress. Because Collins knew it was important to report anything relevant to determining reasonable suspicion, including signs of nervousness, but failed to mention any such symptoms in his report on Walker, the district court concluded that Collins' testimony regarding Walker's perspiration and pallor was not credible.

Walker refused to consent to a search of his bags and asked the officers why they were harassing him. Collins replied that he was acting within his "guidelines according to the parameters of the law" and that since Walker fit the description, he was going to seize Walker's bags. Collins again asked Walker if he was carrying any automatic weapons; Walker again said no. Collins told Walker that they were going to get a trained munitions dog, a process that would take less than two hours, and in the event the dog indicated that the bags contained weapons, he would obtain a search warrant.

Collins informed Walker that the bags would be taken to the Amtrak command center in Penn Station for the dog sniff. Another officer then took the bags and left. Collins told Walker that he was free to leave or that he could stay and watch the procedure. He said that if the dog did not alert to any weapons, he would have the bags delivered to Walker's home. Walker opted to leave and went to get a taxi. Collins instructed two other officers to follow him, allegedly to "insure that he got in his taxi safely".

Once back at the Amtrak command center, Collins learned that the tipster had called again, reiterated the earlier message, and disclosed that he was calling from New York City. Another officer informed Collins that an assistant United States attorney had said that the Amtrak police could have detained not only Walker's bags but also Walker himself for up to an hour.

On his way to the Eighth Avenue exit from Penn Station, Walker told one of the escorting officers that he did not want them to look in his bags. The officer replied that if Walker had any questions, he should direct them to Sergeant Collins. Walker decided to go to the command center to talk to Collins. When he got there, he told Collins that he had done nothing wrong and that he did not think they had grounds to search his bags. Collins informed Walker that he had just learned that he could not only detain the bags, but also Walker himself, during the time needed to have a dog sniff the bags. He then asked Walker to have a seat. As Walker sat down, Collins called Metro North and repeated aloud in Walker's presence that his call was being transferred to the canine unit. When he was told that a dog was available and that it would take twenty to thirty minutes to bring the dog from Yonkers, New York, he relayed this information to Walker. At that point, Walker said that he would permit them to search his bags.

The officers discovered two nine-millimeter pistols, 102 rounds of nine-millimeter ammunition, and nineteen shotgun shells in Walker's bags. They subsequently arrested Walker and advised him of his rights. A search incident to the arrest revealed that Walker had a bill of sale for one of the weapons, showing that he had purchased it from a South Carolina gun dealer for $278. Walker said that he had used a South Carolina motor vehicle identification card to buy the pistol from the dealer and that he had bought the other pistol from a crack user on the street for $100 because he could not resist getting it at that price. He said he had bought the weapons only for his own protection because he had been robbed several times and was often harassed due to his large size. He also said that he had intended to buy the guns legally and would never have transported them to New York if he had known it was illegal to do so.

Walker was charged in a one-count indictment with transporting weapons in interstate commerce in violation of 18 U.S.C. § 922(a)(3). Initially, Walker pled not guilty. He moved to suppress the evidence, claiming that the Amtrak officers had lacked reasonable suspicion to seize and search his bags. After a hearing in the United States District Court for the Southern District of New York When one adds to the caller's unmistakable description of Walker and his prediction that Walker would get off in New York the caller's disclosure that Walker was carrying guns and the officers' awareness that Walker was traveling from an area that was a likely source of such contraband, there was reasonable suspicion to detain Walker and his luggage.

                Michael B. Mukasey, Judge, his motion was denied.   The district court held
                

United States v. Walker, 805 F.Supp. 1112, 1119 (S.D.N.Y.1992). Walker then entered a conditional guilty plea, reserving the right to appeal the denial of his motion to suppress. See Fed.R.Crim.P. 11(a)(2). He was sentenced to two years' probation, including six months in home detention.

Walker now appeals the district court's denial of his suppression motion.

DISCUSSION

In reviewing the district court's ruling on the motion to suppress, we will uphold findings of fact--what information the officers had, what acts were performed, and what statements were made--unless they are clearly erroneous. United States v. Uribe-Velasco, 930 F.2d 1029, 1032 (2d Cir.1991). We review de novo the district court's determination of whether the police had reasonable suspicion. United States v. Springer, 946 F.2d 1012, 1015 (2d Cir.1991).

A police officer may in appropriate circumstances and in an appropriate manner stop 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 test is whether

a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger. * * * And in determining whether the officer acted reasonably in such circumstances, due weight must be given, not to his inchoate and unparticularized suspicion or "hunch," but to the specific reasonable inferences which he is entitled to draw from the facts in light of his experience.

Id. at 27, 88 S.Ct. at 1883 (citations and footnote...