U.S. v. Wright, 77-1130

• Decision Date: 07 November 1977
• Docket Number: No. 77-1130,77-1130
• Citation: 565 F.2d 486
• Parties: UNITED STATES of America, Appellant, v. Robert Lee WRIGHT, Jr., Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 486

565 F.2d 486

UNITED STATES of America, Appellant, v. Robert Lee WRIGHT, Jr., Appellee.

No. 77-1130.

United States Court of Appeals, Eighth Circuit.

Submitted June 13, 1977.

Decided Nov. 7, 1977.

Alan H. Kirshen, Asst. U.S. Atty., Sioux City, Iowa (argued), Evan L. Hultman, U.S. Atty., on brief, for appellant.

Stanford J. Patterson, Waterloo, Iowa, for appellee.

Before LAY and ROSS, Circuit Judges, and MILLER, Judge. ^*

MILLER, Judge.

Robert Lee Wright, Jr., was convicted in federal district court ¹ by a jury on all five counts of an indictment charging him with unlawful possession of a sawed-off shotgun. Prior to trial, he moved to suppress the testimony of all law enforcement officers and any contraband or evidence seized by them prior to, during, or subsequent to his arrest, arguing that there were no reasonable grounds for stopping him and that there was no probable cause for seizure of the weapon. The motion was denied, and Wright filed a motion to reconsider. Following the jury's verdict, the district court reconsidered its denial of the motion to suppress, reversed its previous position thereon, and granted Wright's motion for judgment of acquittal. Although the court rejected Wright's "no probable cause for seizure of the weapon" argument, it determined that the investigatory stop by two Waterloo police officers, Sgt. H. A. Hofmann and Patrolman Robert Erbes, was illegal, so that "the fruit of the resulting search" (the weapon) must fall.

FACTS

On June 15, 1976, at approximately 10:00 p.m., Officers Hofmann and Erbes were on routine patrol in a marked police car when they received a radio dispatch that a nearby gas station at 302 West 11th Street in Waterloo had just been robbed by two adult black males, one 5' 11 and the other a little taller, in possession of a long-barreled handgun. Both were last seen running east from the gas station toward the Cedar River. ² An estimated six to eight minutes later and approximately eight blocks from the gas station, the officers noticed two men (later identified as Wright and Terry Bell), both black, standing about 150 feet away from the patrol car in a parking area in the vicinity of 11th and Mulberry Streets in a racially mixed part of the city. The lighting in the area was good, but the officers could not tell from their vantage point whether one of the men was taller than the other. One was wearing a long leather jacket, notwithstanding that it was a warm evening, which the officers regarded as unusual. The two men looked at the patrol car, faced each other as if conferring, then entered a Lincoln Continental parked nearby at the curb. Both officers testified that, at this point in time, they decided to stop the Lincoln Continental. As they slowly approached in the patrol car, the officers saw the auto (subsequently it was determined that Wright was driving) pull away from the curb, stop, back up to the curb, stop, pull forward again, and proceed down the road. (This maneuvering was not necessary to move the auto from the curb into the road.) Erbes, the driver of the patrol car, then stopped the auto for investigatory purposes by blocking its path with the patrol car.

Because of the armed robbery report and because of what the officers conceived to be "suspicious behavior" ³ on the part of the two men, Hofmann asked Wright for identification. Wright immediately got out of the car and appeared to be attempting to block Hofmann's view of the car's interior. However, Hofmann was able to look into the front seat, where he saw the handle of what he recognized to be a sawed-off shotgun protruding from the armrest. He reached into the car and seized the weapon. It does not appear that Wright and Bell were involved in the gas station robbery.

OPINION

Citing Terry v. Ohio, 392 U.S. 1, 16, 21, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and Adams v. Williams, 407 U.S. 143, 146, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972), the district court correctly stated the applicable law as follows:

(W)henever a police officer accosts an individual and restrains his freedom, he has seized that person within the meaning of the Fourth Amendment. Certainly, less than a rigorous standard of probable cause is necessary to justify the initial intrusion. But the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts reasonably warrant the intrusion. . . . The reasonableness of the stop must be viewed in light of the facts known to the officer at the time of the stop. (Emphasis supplied.)

However, we are persuaded that the district court failed to apply the law in concentrating on facts known to Officers Hofmann and Erbes at the time of their initial decision to stop the Wright vehicle, which was prior to their observation of the forward-backward driving activity ⁴ and, of course, prior to the investigatory stop itself. Moreover, the district court appears to have overlooked the admonition in Terry, id. at 21-22, 88 S.Ct. at 1880, that

(I)t is imperative that the facts be judged against an objective standard : would the facts available to the officer at the moment of the seizure or the search "warrant a man of reasonable caution in the belief" that the action was appropriate? (Emphasis supplied.)

Instead of following this standard, the court merely expressed its own beliefs that the "purported suspicious nature of the conferral of Bell and Wright subsequent to their apparent recognition of the officer's patrol car . . . was facially innocuous"; and that it "does not seem likely" that Wright, upon observing a police car, "would drive alternately backward and forward seemingly for the purpose of attracting attention." Accordingly, the district court erred in concluding that "the only reason Robert Lee Wright, Jr. and his companion were stopped, and subsequently searched, was because they were two black males in an eight block radius vector extending east from the point of the gas station robbery," and that "the propriety of the...