United States v. Arthur

• Decision Date: 22 August 2014
• Docket Number: No. 13–1892.,13–1892.
• Citation: 764 F.3d 92
• Court: U.S. Court of Appeals — First Circuit
• Parties: UNITED STATES of America, Appellee, v. Lynch E. ARTHUR, Defendant, Appellant.

764 F.3d 92

UNITED STATES of America, Appellee,

v.Lynch E. ARTHUR, Defendant, Appellant.

No. 13–1892.

United States Court of Appeals, First Circuit.

Aug. 22, 2014.

Elizabeth Prevett, Federal Defender Office, with whom Jennifer C. Pucci, Federal Defender Office, was on brief, for appellant.

Kelly Begg Lawrence, Assistant United States Attorney, with whom Carmen M. Ortiz, United States Attorney, was on brief, for appellee.

Before KAYATTA, BALDOCK^* and SELYA, Circuit Judges.

SELYA, Circuit Judge.

The reasonable suspicion that is needed to justify a minimally intrusive police stop is hard to quantify, and there is sometimes a fine line between that degree of suspicion and mere paranoia or a hunch plucked out of thin air. This case requires us to examine that line. After conducting such an examination, we conclude that the district court did not err in finding that the police conduct in this case fell on the right side of the line. We further conclude that the court committed no error in refusing to suppress proffered eyewitness identification evidence. Based on these conclusions, we affirm the denial of the appellant's motions to suppress.¹

I. BACKGROUND

We briefly sketch the genesis and travel of the case. On October 31, 2011, two armed men robbed a MetroPCS cell phone store in Boston, Massachusetts. Within a matter of minutes, a Boston police officer, Timothy Golden, spotted two men matching the culprits' general description. He stopped the pair, later identified as Ronald Brown and defendant-appellant Lynch E. Arthur, and questioned them. During this conversation, Officer Golden received additional information from other officers that bolstered his suspicions. The men were brought to the scene of the crime and identified by the store clerk in a “show-up” procedure. Arrests followed.

A federal grand jury sitting in the District of Massachusetts subsequently returned an indictment charging both men with Hobbs Act robbery, see18 U.S.C. § 1951; possessing firearms and ammunition after felony convictions, see id. § 922(g)(1); and carrying firearms during and in relation to a crime of violence, see id. § 924(c)(1)(A). A superseding indictment changed the sequence of the charges against the appellant but not their substance.²

The appellant moved to suppress. After an evidentiary hearing, the district court concluded that the stop was justified by reasonable suspicion. See United States v. Arthur, No. 12–10025, 2012 WL 6531928, at *7 (D.Mass. Dec. 12, 2012). The court further concluded that, even though the show-up procedure was impermissibly suggestive, the clerk's identification was reliable and therefore admissible. See id. at *10.

The appellant entered a conditional guilty plea to all three of the charged counts, seeFed.R.Crim.P. 11(a)(2), reserving the right to challenge the district court's refusal to suppress the challenged evidence. The court sentenced the appellant to a total of 228 months of immurement. This timely appeal ensued.

II. ANALYSIS

The appellant musters two assignments of error. First, he argues that there was no reasonable suspicion supporting Officer Golden's initial stop and that the district court's contrary finding was insupportable. Second, he argues that the district court erred in concluding that the store clerk's identification was reliable under the totality of the circumstances. We address these arguments in turn, “accepting the district court's findings of fact to the extent they are not clearly erroneous and subjecting its legal conclusions to de novo review.” United States v. Romain, 393 F.3d 63, 68 (1st Cir.2004). This means that, “[a]bsent an error of law, we will uphold a refusal to suppress evidence as long as the refusal is supported by some reasonable view of the record.” United States v. Lee, 317 F.3d 26, 29–30 (1st Cir.2003).

A. Reasonable Suspicion.

In this case, as in virtually every such case, the existence vel non of reasonable suspicion is factbound. Consequently, “[w]e recount the relevant facts as the trial court found them, consistent with record support.” Id. at 30. Our canvass here is limited to the facts known to Officer Golden at the time of the stop.

The robbery of the cell phone store took place in midday, and the robbers fled on foot. The store clerk (whom they had bound) hopped to the front counter, hit the panic alarm, and initiated a 911 call. This call prompted a radio dispatch that alerted police in the area to the robbery.³

Officer Golden, who was on patrol in his marked cruiser near the robbery scene, headed for the store. He then monitored a second dispatch informing him that two black men were involved in the robbery and were fleeing on foot down Moultrie St. (a street in close proximity to the robbed store). The officer proceeded down Moultrie St. and saw a resident raking leaves. The leaf-raker told Officer Golden that he had just seen two black men running down the street and heading away from the store. A third dispatch noted that the robbers were armed and wearing dark, heavy clothing.

When Officer Golden reached the end of Moultrie St., he turned left on Allston St. and immediately left again onto Kenwood St. (heading back toward the store). Just as he turned onto Kenwood St.—approximately an eighth of a mile from the store—Officer Golden noticed two black pedestrians walking in a direction that led away from the crime scene. The heavier-set man, later identified as the appellant, was wearing a black pea coat and blue jeans. The leaner man, later identified as Brown, was wearing a maroon or purple hooded sweatshirt and black pants. About five minutes had elapsed since the first dispatch, and Officer Golden had seen no other people afoot in the area.

The officer stopped his marked cruiser in the middle of the street, emergency lights flashing, and approached the two men. He did not draw his weapon, but he placed his hand on his holster. He told the duo that a robbery had taken place at a nearby cell phone store and explained that they matched the description of the suspects. He ordered them to show their hands and they complied. The parties agree that, at this juncture, the men were seized within the meaning of the Fourth Amendment.

It is against this factual backdrop that we turn to the contention that Officer Golden lacked the quantum of suspicion required to effect an investigatory stop. The Fourth Amendment protects persons from “unreasonable searches and seizures.” U.S. Const. amend. IV. This prophylaxis extends to temporary investigatory detentions falling short of arrest. See Terry v. Ohio, 392 U.S. 1, 19, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); United States v. Chhien, 266 F.3d 1, 5–6 (1st Cir.2001). Such a detention, commonly called a Terry stop, does not offend the Fourth Amendment as long as it is “justified at [its] inception” and reasonable in scope, accounting for the “emerging tableau” of information known to the detaining officer. Chhien, 266 F.3d at 6.

In this instance, the appellant challenges only the justification for the initial stop, not its scope. To be justified at its inception, a Terry stop must be accompanied by “a reasonable, articulable suspicion of an individual's involvement in some criminal activity.” United States v. Ruidíaz, 529 F.3d 25, 28 (1st Cir.2008). The reasonable suspicion standard is a protean one; it defies strict boundaries, requiring “more than a visceral hunch about the presence of illegal activity, [but] less than probable cause.” United States v. Brown, 500 F.3d 48, 54 (1st Cir.2007). “In the last analysis, reasonable suspicion is more a concept than a constant: it deals with degrees of likelihood, not with certainties or near certainties.” United States v. Arnott, 758 F.3d 40, 44, 2014 WL 2959288, at *3 (1st Cir.2014) [No. 13–1881].

The Supreme Court has explained that a detaining officer has reasonable suspicion if the totality of the circumstances give rise to “a particularized and objective basis for suspecting the particular person stopped of criminal activity.” United States v. Cortez, 449 U.S. 411, 417–18, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981). The factual mosaic “must be evaluated through a broad-based consideration of all the attendant circumstances.” Brown, 500 F.3d at 54. Thus, “reasonable suspicion can flourish in the absence of a direct evidentiary link between the suspect and the suspected crime.” Id. The focus is on what a reasonable officer, armed with the same knowledge, would have thought. See United States v. Espinoza, 490 F.3d 41, 47 (1st Cir.2007).

After careful perscrutation, we uphold the finding that the stop effected by Officer Golden was accompanied by reasonable suspicion. At the time of the initial seizure, Officer Golden had received a reliable, though generic, description of the number of suspects and their race, gender, clothing, and approximate location, as well as information about the direction in which they were heading. The location and direction information was corroborated by an unconnected witness (the leaf-raker). Just minutes had elapsed since the robbery when the suspects, who mostly matched the description, were encountered just an eighth of a mile from the crime scene, heading in the expected direction. There were, moreover, no other persons afoot in the area. Taken in the ensemble, these facts were sufficient to give rise to a reasonable suspicion that the appellant and his companion were the robbers.

We think it virtually unarguable that a reasonably prudent police officer, standing in Officer Golden's shoes and knowing what he knew, would have harbored such a suspicion. In light of the attendant circumstances, a failure to stop the men and question them briefly would have verged on a dereliction of duty. It follows that the district court's decision upholding the lawfulness of the investigatory stop was free from error.

To be sure, the stop occurred in a majority-minority neighborhood; and the physical description of a black man in dark,...