United States v. Thomas
| Decision Date | 17 May 2021 |
| Docket Number | No. 20-10757,20-10757 |
| Citation | 997 F.3d 603 |
| Parties | UNITED STATES of America, Plaintiff—Appellee, v. Pizarro THOMAS, Defendant—Appellant. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Joseph Andrew Magliolo, Esq., Leigha Amy Simonton, Assistant U.S. Attorney, U.S. Attorney's Office, Northern District of Texas, Dallas, TX, for Plaintiff-Appellee.
Robert Clary, Attorney, Murphy, TX, for Defendant-Appellant.
Before Davis, Southwick, and Costa, Circuit Judges.
Pizarro Thomas appeals from his conviction for being a felon in possession of a firearm. He challenges the district court's denial of his motion to suppress evidence of a firearm discovered during a stop and frisk. This case requires us to analyze the reasonableness of officers’ suspicions as to a particular individual when the uncertainty is not whether a crime has occurred but who within a group committed it. We AFFIRM.
On June 18, 2018, around 5:30 p.m., Officers Alan Hovis and Benito Garcia were patrolling the "Five Points" area of Dallas, an area known for pervasive crime involving drugs and violence. Earlier that day, the officers were informed that a vehicle stolen in an aggravated robbery had been identified in the area by an automatic license plate reader ("ALPR"). The officers were driving through the area in a marked patrol vehicle specifically for the purpose of locating the stolen vehicle, a silver Toyota Camry.
The aggravated robbery occurred on June 8, ten days before these events. The record does not make clear whether the officers were aware that the crime happened ten days earlier, though they knew it had not occurred in the last few hours. Information about the date of the crime was available to the officers and included in the National Crime Information Center ("NCIC") database that they accessed before making the stop.
The record shows the robbery was committed by two black males. At the time, though, the officers did not have a description of the people involved in the crime, and there is no indication that they knew how many individuals had been involved. What they knew was the description of the vehicle, its license plate number, the location where it was spotted by the ALPR, and that it was stolen in an aggravated robbery involving a firearm.
With that information, the officers drove to the apartment complex where the ALPR identified the stolen vehicle. As they drove through the complex, they saw the stolen vehicle backed into a covered parking spot near the entrance to one of the apartment buildings. They kept driving past the vehicle and, at that time, one of the officers confirmed via the NCIC database that the license plate matched that of the vehicle reported stolen.
During that initial pass, the officers observed two people sitting inside the stolen vehicle, while another four people — including Thomas — were standing in the immediate vicinity of and surrounding the vehicle. According to Officer Hovis, the people outside the vehicle "were either touching it or talking to the people that were in it; talking no more than seven feet away from it." It appeared to him that all six people knew each other and were having a conversation as a group. Of the four people outside the vehicle, Thomas was standing closest to the vehicle, by the driver's side front tire.
The officers’ suspicions as to Thomas were based entirely on his presence in a high-crime area, his proximity to the stolen vehicle, and his interaction with others in and around the vehicle. No crime unrelated to the presence of the stolen vehicle was witnessed. They could not overhear any of the group's conversation. There is no suggestion that either officer had encountered Thomas before or was aware of his criminal history.
Relying on what they observed and what they knew from the report of the aggravated robbery, the officers decided to stop and frisk these individuals, implicitly invoking their authority under Terry v. Ohio , 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). The officers decided to detain all six people "[b]ecause they were around the [vehicle] that was taken in an aggravated robbery." They made a U-turn, drove back to the stolen vehicle, and stopped near it. They quickly exited, drew their firearms, and approached the group. According to Officer Hovis, the officers drew their firearms because the underlying crime "was an aggravated robbery, so a weapon [was] involved." That drove a concern that any or all of the people might be armed. Outnumbered six to two, the officers "wanted to surprise them and detain everybody without actually using any other force."
As they approached the group, the officers ordered everybody to get on the ground. All complied. The officers then handcuffed four of the six people, including Thomas, behind their backs as they were lying face down. They would have handcuffed everybody, but they only had four sets of handcuffs. Thomas and the others were kept on the ground for about ten minutes.
At some point, the officers called for additional officers, who arrived shortly after Thomas was handcuffed. In the meantime, the officers began to frisk each person for weapons. Officer Hovis stated that it was necessary to frisk even those who were on the ground and handcuffed behind their backs because it remained possible for them to access a concealed weapon.
Officer Hovis eventually patted down Thomas and found a loaded firearm in his waist area. It was later determined to be stolen. Once the determination to arrest Thomas was made, other officers conducted a search incident to his arrest and found cocaine in his hat.
Relevant to one of Thomas's arguments on appeal, Officer Hovis could not recall whether he or any other officer questioned Thomas about the stolen vehicle. He testified that he "knew that [he] was most likely not going to" question Thomas about the aggravated robbery because Dallas Police Department policy prohibited an officer from asking questions about the underlying crime unless the detective assigned to the investigation was present.
Thomas was indicted in August 2018 for being a felon in possession of a firearm. See 18 U.S.C. §§ 922(g)(1), 924(a)(2). He filed a motion to suppress evidence derived from the stop and frisk. He argued that it was not enough to justify the stop that officers saw him "in the vicinity" of the stolen vehicle and "reportedly saw him speak to the occupants." The Government opposed the motion, contending that the officers conducted a "by-the-book Terry stop and frisk."
Before the district court held a hearing, Thomas obtained new counsel and sought to supplement his arguments. In his supplemental brief, he argued that the circumstances of his detention — the officers’ drawing their firearms, ordering him to the ground, and handcuffing him — converted the investigatory stop into an arrest for which the officers lacked probable cause. He also argued that, even if Terry applied, the officers lacked reasonable suspicion to stop him or to frisk him.
At a hearing on the motion, Officer Hovis was the only witness to testify. The district court denied the motion, determining, first, that the officers discovered the weapon while conducting an investigatory Terry stop, not an arrest. Second, it concluded that it was reasonable to detain all six people because "[t]hey were in a high-crime area and surrounding a stolen vehicle." The court rejected the argument that the officers could detain only those inside the vehicle and needed to order the others to disperse. The court explained that such a requirement would not be "consistent with protecting the officers’ safety." Third, the court explained that it was reasonable to suspect that any or all of the people were armed, given the circumstances of the underlying aggravated robbery. Fourth, it determined that the officers’ showing of force, ordering Thomas to the ground, and handcuffing him were reasonable under the circumstances.
Thomas pled not guilty but agreed to have a bench trial. He stipulated that the Government could prove the basic facts necessary for conviction and reserved the right to appeal the denial of his motion to suppress. After the trial, the court found Thomas guilty of the firearm offense. The district court later issued findings of fact and conclusions of law based on the parties’ stipulated facts. Thomas was sentenced to 30 months of imprisonment and 3 years of supervised release. Thomas timely appealed solely on the issue of the suppression motion.
When a challenge to the denial of a motion to suppress is made, we review legal determinations de novo and factual findings for clear error. United States v. Bolden , 508 F.3d 204, 205 (5th Cir. 2007). We view the evidence in the light most favorable to the party who prevailed in district court — here, the Government. United States v. Michelletti , 13 F.3d 838, 841 (5th Cir. 1994) (en banc ). The district court's ruling on a motion to suppress will be upheld if there is any reasonable view of the evidence to support doing so. Id.
The Fourth Amendment protects "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." U.S. CONST. amend. IV. Warrantless searches and seizures are per se unreasonable unless one of the recognized exceptions applies. Cotropia v. Chapman , 978 F.3d 282, 286 (5th Cir. 2020). The Government bears the burden of showing that a warrantless search or seizure fits within one of the exceptions. United States v. Monsivais , 848 F.3d 353, 357 (5th Cir. 2017).
One exception to the warrant requirement, first articulated in Terry v. Ohio , 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), permits officers to conduct "an investigatory stop (temporary detention) and frisk (patdown for weapons) ... if two conditions are met." Arizona v. Johnson , 555 U.S. 323, 326, 129 S.Ct. 781, 172 L.Ed.2d 694 (2009). First, the investigatory stop must be supported...
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