United States of America v. Airrington L. Sykes
No. 17-3221
United States Court of Appeals For the Eighth Circuit
January 30, 2019
Aрpeal from United States District Court for the Northern District of Iowa - Waterloo
Submitted: October 18, 2018
Filed: January 30, 2019
Before WOLLMAN, ARNOLD, and BENTON, Circuit Judges.
After the government indicted Airrington Sykes for being a felon in possession of a firearm, see
On a December evening just shy of midnight, a police officer in Waterloo, Iowa, was dispatсhed to a 24-hour laundromat where he met a woman in the parking lot who reported finding a loaded handgun magazine in a laundry basket. She explained that the only other people in the laundromat at the time she discovered the magazine were two men dressed in black. She stated she was unsure if they had anything to do with the magazine, but she noticed they had stood near her basket at one point. She said that the men were still in the laundromat, though other people had since arrived.
The officer entered the laundromat and began apрroaching the two men in question. His body camera shows that, when he entered the aisle where the men stood, one of the men, Sykes, turned and began walking away. The officer attempted to intercept Sykes at a back corner of the laundromat near an exit and a bathroom. The officer‘s body camera shows Sykes bypass the exit, enter the restroom, and close the door. Moments later the officer opened the restroom door and told Sykes to “give me one second” and that he needed “one second of [his] time.” Sykеs complied, and the officer grabbed Sykes‘s sleeve and guided him out of the restroom. He then patted Sykes for weapons and discovered a handgun in Sykes‘s pants pocket.
Sykes‘s primary argument on appeal is that the officer lacked a reasonable suspicion that Sykes was committing a crime. The government disagrees, responding that
We recently decided a case that presented this very issue. See United States v. Pope, 910 F.3d 413 (8th Cir. 2018). We held in Pope that an officer in Iowa may briefly detain someone whom the officer reasonably believes is possessing a concealed weapon. Id. at 416. We explained that, since a concealed-weapons permit is merely an affirmative defense to a charge under
Sykes also argues that the officer lacked a reasonable suspicion that he even possessed a gun. We disagree. It is true that this case is unlike Pope, where an officer saw the suspеct conceal a weapon in his pants. But here we have a report from a known person with whom the officer had an extensive discussion and who asserted that she found a loaded handgun magazine of unknown origins; and she identified the only two people who had аccess to the location where the magazine was found.
We want to emphasize that we give no weight to the fact that Sykes turned and walked away from the officers as they approached him. Though a person‘s unprovoked “flight” from police may be considered in the reasonable-suspicion calculus, a person‘s decision during a consensual police encounter “to ignore the police and go about his business” cannot. See Illinois v. Wardlow, 528 U.S. 119, 124-26 (2000). After reviewing the body-camera video ourselves, we think Sykes‘s avoidance of the officer lies near the intersection of these two principles. But we need not decide the legal significance, if any, of Sykes‘s walking away from the officer because we think the officer had reasonable suspicion to detain Sykes even before Sykes began to leave.
Sykes suggests that the officer did not have reasonable suspicion at that point because he had no reason to suspect that Sykes, as opposed to the other person present, was engaged in criminal activity, and the Fourth Amendment requires “a particularized and objective basis for suspecting the particular person stopped of criminal activity.” See United States v. Cortez, 449 U.S. 411, 417-18 (1981). As he sees it, “nothing points to Sykes possessing the firearm instead of his friend.”
For stop-and-frisk purposes, however, the Fourth Amendment does not require that an officer must suspect only one person to the exclusion of all others. “[T]he simultaneous stopping of multiple ‘suspects’ for a one-person crime may sometimes be justified by thе virtual certainty that the perpetrator is a member of that group and that means of singling him out will soon be available.” 4 Wayne R. LaFave, Search & Seizure: A Treatise on the Fourth Amendment § 9.5(b) (5th ed. Oct. 2018). The Third Circuit‘s decision in United States v. Ramos nicely illustrates this principle. 443 F.3d 304 (3d Cir. 2006). There, when police officers drove between two vehicles in an otherwise empty parking lot, one of the officers smelled marijuana. After one of the vehicles left the lot, the officers conducted a traffic stop and discovered illegal contraband. A defendant in the vehicle argued that the officers’ stop violated the Fourth Amendment because the officers’ suspicion of him was not sufficiently particularized since the odor could have been coming from the other vehicle. The Third Circuit disagreed, holding that “it would have been reasonable for the officers to conсlude that the odor was coming from one, the other, or both vehicles,” and so their suspicion was sufficiently particularized under the Fourth Amendment to allow them to stop the vehicle they stopped. Id. at 309.
We conclude that it would likewise have been reasonable here for the officer to suspect that Sykes, his companion, or both were carrying a concealed firearm, so we detect no constitutional violation. In the abstract, we recognize that as the number of suspects to be stopped increases, it will be less likеly that suspicion will be sufficiently particularized to meet constitutional standards. Various considerations will
Sykes also maintains that, even if the officer had reasonable suspicion to stop him, he lacked reasonable suspicion to frisk him. An officer may frisk a suspect whom he has lawfully stopped if he believes the suspect is “armed and dangerous.” Terry v. Ohio, 392 U.S. 1, 27 (1968). According to Sykes, the officer had no reason to believe that he was dangerous just because he was carrying a concealed weapon. We resolved this very issue in Pope, holding that an officer may indeed frisk someone he has lawfully stopped if he reasonably believes the person is armed with a gun, regardless of whether the person possesses the gun legally. See Pope, 910 F.3d at 416-17. Sykes‘s argument therefore fails.
We also note that Sykes appears to raise a Second Amendment challenge to
We turn now to Sykes‘s sentence. Under
Sykes was convicted of aggravated vehicular hijacking because, while armed with a firearm, he “knowingly t[ook] a motor vehicle from the person or the immediate presence of another by the use of forсe or by threatening the imminent use of force.”
To make his point, Sykes invites us to consider Illinois robbery, which similarly requires the taking of property “by the use of force or by threаtening the imminent use of force.” See
The Supreme Court‘s recent decision in Stokeling v. United States, No. 17-5554, 2019 WL 189343 (Jan. 15, 2019), forecloses Sykes‘s argument. In Stokeling, the Court considered whether a Florida robbery conviction constituted a violent felony under the Armed Career Criminal Act. The relevant definition of a violent felony under the ACCA and the definition of a crime of violence under the Guidelines are so similаr that we generally consider cases interpreting them “interchangeably.” See Boaz v. United States, 884 F.3d 808, 810 n.3 (8th Cir. 2018). The Stokeling Court held that the ACCA intended common-law robberies to be violent felonies even though common-law robbery required only sufficient force to overcome a victim‘s resistance, “howevеr slight the resistance.” 2019 WL 189343, at *4. Courts in Florida, and in most states for that matter, had subscribed to this common-law notion of force, and the Court “declined to construe the statute in a way that would render it inapplicable in many States.” Id., at *5-6.
Illinois‘s definition of robbery fits the common-law mold. As in Florida, one commits robbery in Illinois when he uses force sufficient to overcome a victim‘s resistance, however slight. See Taylor, 541 N.E.2d at 679-80. As in Florida, one does not commit robbery in Illinois when he snatches property from the person of another if the force involved was “seemingly imperceрtible to the victim.” People v. Bowel, 488 N.E.2d 995, 997-98 (Ill. 1986); see also Stokeling, 2019 WL 189343, at *9. Florida and Illinois appear to draw the same line between robbery, which requires force, and less serious crimes like theft or larceny, which don‘t. And as the Court explained in Stokeling, though in some cases only slight force is necessary to overcome a victim‘s rеsistance, such force “is inherently ‘violent’ in the sense contemplated by Johnson” and capable of causing physical pain or injury because it “necessarily involves a physical confrontation and struggle.” See Stokeling, 2019 WL 189343, at *7. Since the Supreme Court has held that common-law robbеry “has as an element the use, attempted use, or threatened use of physical force against the person of another,” and Illinois adheres to the common-law definition of robbery, we reject Sykes‘s argument.
Sykes also points to a case called In re Thomas T., 63 N.E.3d 284, 287-88 (Ill. App. Ct. 2016) to argue that Illinois courts define “force” in the vehicular-hijacking context as “power, violence, compulsion, or constraint exerted upon or against a person or thing“-a definition he maintains does not require violent force. Even if the Thomas T. court actually adopted such a definition, a matter we need not dеcide, Thomas T. involved vehicular invasion, a wholly different crime. See
Affirmed.