U.S. v. Williams

• Decision Date: 01 December 1993
• Docket Number: 92-5497,92-5498 and 92-5503,Nos. 92-5382,s. 92-5382
• Citation: 10 F.3d 1070
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Larry Sinclair WILLIAMS, Defendant-Appellant. (Two Cases) UNITED STATES of America, Plaintiff-Appellee, v. Wayne Edward JOYNER, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Michael Wendell BEST, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 1070

10 F.3d 1070

UNITED STATES of America, Plaintiff-Appellee, v. Larry Sinclair WILLIAMS, Defendant-Appellant. (Two Cases)

UNITED STATES of America, Plaintiff-Appellee, v. Wayne Edward JOYNER, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Michael Wendell BEST, Defendant-Appellant.

Nos. 92-5382, 92-5497, 92-5498 and 92-5503.

United States Court of Appeals,

Fourth Circuit.

Argued Oct. 1, 1993.

Decided Dec. 1, 1993.

Warren Gary Kohlman, Kohlman & Rochon, Washington, DC, Paul Peter Vangellow, Falls Church, VA, argued, for defendants-appellants.

Brian C. Plitt, Washington, DC, of counsel, for defendant-appellant Joyner.

Charles Anthony O'Reilly, Sp. Asst. U.S. Atty., argued, Alexandria, VA (Kenneth E. Melson, U.S. Atty., John P. Rowley, Asst. U.S. Atty., of counsel, for plaintiff-appellee.

Before MURNAGHAN, WILKINS, and LUTTIG, Circuit Judges.

OPINION

MURNAGHAN, Circuit Judge:

Defendants Larry Sinclair Williams and Wayne Edward Joyner were convicted of conspiracy to commit a bank robbery under 18 U.S.C. Sec. 371, armed bank robbery under 18 U.S.C. Sec. 2113(a) and (d), use of a firearm in relation to a crime of violence under 18 U.S.C. Sec. 924(c), and possession of a firearm by a convicted felon under 18 U.S.C. Sec. 922(g)(1). Defendant Williams was convicted of an additional count of armed robbery. Defendant Michael Wendell Best was convicted of conspiracy to commit bank robbery under 18 U.S.C. Sec. 371 and possession of a firearm by a convicted felon under 18 U.S.C. Sec. 922(g)(1).

The United States District Court for the Eastern District of Virginia, Alexandria Division entered the convictions under which Williams and Joyner were each sentenced to 562 months imprisonment and Best to 180 months.

Defendants appeal their convictions arguing, inter alia, that they were arrested without probable cause, that the evidence obtained as a result of the illegal arrest and subsequent search should have been suppressed, and that Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), requiring disclosure of material evidence favorable to defendants, should apply to pre-trial suppression hearings. Finding that there was a substantial basis for the district court to conclude that probable cause to arrest existed and that the resolution of the Brady matter would not be relevant to the outcome of the case, we affirm the district court's decision.

I Facts

The facts surrounding the arrest of the defendants on January 16, 1992 indicate that the police had probable cause to arrest the defendants.

Between November 1 and January 16, 1992, a series of bank robberies took place in the Arlington area. As of mid-January, investigating officers were looking for four black males in a white, four door, jeep-like vehicle who were suspected of committing the robberies. The robberies shared a common modus operandi including the use of firearms, similar procedures, and the use of latex gloves and ski masks with eye holes cut into them. Witnesses described four black males: one who waited in the car, one who guarded the entrance with a firearm, and two who went behind the counter to steal the money. Witnesses to the first five robberies identified a light colored Chevette-type vehicle, while witnesses to the January 7th robbery described a white, four door, Jeep-like automobile with a Maryland license plate. Two witnesses to the robbery on January 7th gave slightly different accounts of the perpetrators and the getaway car. A customer who was in the Crestar Bank on January 7th while it was being robbed was able positively to identify defendant Williams.

Donald Sneed, one of the four men arrested on January 16th but not a defendant at the trial, entered into a plea agreement with the government and testified to the conspiracy between the defendants to rob a bank sometime between January 14th and 16th. Sneed testified that he accompanied Williams, Joyner, and Best when they drove to Arlington to search for a bank to rob on the morning of the 16th. After casing First American Bank, Best and Williams agreed "it didn't feel right," so they decided to return to Washington, D.C.

While in Arlington, the defendants were in the vicinity of the Crestar Bank that was robbed on January 7th. Their car was identified by Ruth Kossler, the aunt of FBI agent Susan Kossler. Ruth Kossler called the FBI with a description of the white Mitsubishi Montero, the license plate number, and the whereabouts of the car. Catherine Catherwood, an investigating officer on the tactical squad, received the updated lookout from Corporal Bruce Hackert, also of the Arlington County Police, who told Catherwood that he had received the report from the FBI. Later that afternoon, Officer Catherwood spotted the white Mitsubishi Montero as it drove slowly past the First American Bank that she was surveilling. After observing the four men for a period of time, and calling for back-up, she and her fellow officers executed a vehicle breakdown stop of the Montero and arrested all four men.

II Probable Cause

Police officers can make warrantless arrests as long as they act on the basis of probable cause. Probable cause "to justify an arrest means facts and circumstances within the officer's knowledge that are sufficient to warrant a prudent person, or one of reasonable caution, in believing, in the circumstances shown, that the suspect has committed, is committing, or is about to commit an offense." Michigan v. DeFillippo, 443 U.S. 31, 37, 99 S.Ct. 2627, 2632, 61 L.Ed.2d 343 (1979). The evidence needed to establish probable cause is more than a mere suspicion, rumor, or strong reason to suspect but less than evidence sufficient to convict. Wong Sun v. United States, 371 U.S. 471, 479, 83 S.Ct. 407, 413, 9 L.Ed.2d 441 (1963); United States v. Fisher, 702 F.2d 372, 375 (2d Cir.1983). According to Fisher, the information acted upon by the police must not apply to any number of persons and must reasonably single out the person or people to be arrested. Id.

Illinois v. Gates established the "totality of the circumstances" test for establishing probable cause to obtain a warrant when relying on an informant. Rejecting the two-prong Aguilar/Spinelli test, ¹ the Court held that an informant's veracity, reliability and basis of knowledge are all highly relevant to a probable cause finding, but "these elements should [not] be understood as entirely separate and independent requirements to be rigidly exacted in every case...." Illinois v. Gates, 462 U.S. 213, 230, 103 S.Ct. 2317, 2328, 76 L.Ed.2d 527 (1983). For example, under the totality of the circumstances test, unimpeachable veracity may offset a lack of demonstrated reliability when the police are dealing with a new informant. The Court emphasized that probable cause is a practical, nontechnical concept based on probabilities and common sense. Although Gates outlines the probable cause necessary to support a warrant, the underlying principle and the totality of the circumstances test have been applied to probable cause for a warrantless arrest as well. United States v. McCraw, 920 F.2d 224 (4th Cir.1990). An appellate court makes an independent judgment as to the legality of the arrest, but factual findings made by the trial court will not be disturbed unless clearly erroneous. United States v. McCraw, 920 F.2d 224, 227 (4th Cir.1990).

The defendants argue that the police officers arrested them without probable cause. Their assertion is based on the following two arguments: 1) the tip on which Officer Catherwood relied came from Ruth Kossler, the aunt of an FBI agent, who was not a witness to any of the robberies, and the information was, therefore, unreliable; and 2) the government withheld testimony and evidence at the suppression hearing that would have undermined the judge's finding of probable cause. ² Because, allegedly, the arrest was effected without probable cause, all of the incriminating evidence (including latex gloves, ski masks with eye holes cut into them, two guns, and dye stains matching the dye packs from local banks) should be excluded because it constitutes fruit of the poisonous tree.

The defendants' contentions do not undermine the district judge's finding of probable cause at the suppression hearing. First, the defendants have argued that the updated lookout based on information provided by the FBI agent's aunt was not obtained from an eyewitness to the robbery and was, consequently, unreliable. The conclusion does not follow from the premise. Reliable tips can be given by citizens other than those who witness crimes. Under Illinois v. Gates, the court may consider the informant's basis of knowledge, her veracity, and the reliability of her information. The court must consider the totality of the circumstances surrounding the arrest.

The court's finding of probable cause was based soundly on the following facts. An eyewitness to the January 7th robbery reported that he saw a white, four-door jeep-like vehicle with Maryland tags and a license plate with the numbers 382432-M leaving the scene of the crime. ³ Officer Catherwood testified that witnesses had identified the robbers as four black males. Ruth Kossler had read about the robberies and the eyewitness reports in the McLean Providence Journal and discussed them with her niece, FBI Agent Susan Kossler. Ruth Kossler provided the FBI with an updated lookout on the morning of January 16th. She spotted four black males in the white jeep-like vehicle described in the paper exactly one block from the Crestar Bank that had been robbed on January 7th. ⁴ She followed it, copied the license plate, and phoned her niece at the FBI. The police ran a check on the license number, 389432-M, and found that it did come back to a white Mitsubishi Montero identical to the one described by the eyewitness. The tag number reported by the eyewitness differed from the actual tag number by only a single digit. As for Ruth...