UNITED STATES of America, Appellee, v. Andrew Sonny JONES, also known as A.J. Jones, Appellant.
No. 07-2918
United States Court of Appeals, Eighth Circuit.
July 30, 2008.
535 F.3d 886
This case is distinguishable from Regans where the defendant was found in a car possessing a small amount of drugs for personal use and a firearm. 125 F.3d at 685. The Regans court rejected the defendant‘s argument of coincidence, stating that “when a drug user chooses to carry his illegal drugs out into public with a firearm, there are many ways in which the weapon can facilitate the drug offense and dangerously embolden the offender.” Id. at 687; cf. United States v. Wallace, 46 F.3d 1148 (9th Cir.1995) (unpublished) (affirming application of the
Additionally, the evidence failed to prove a temporal link between the firearms and a greater amount of methamphetamine than just the residue. We do not know if Smith used or possessed methamphetamine in his home in the days before the search or if he did, whether the firearms were present in his home at that time. Finally, the evidence does not suggest that Smith disposed of any methamphetamine that might have been in the baggie to evade its discovery by law enforcement during its search of his home.
We make no bright line rule that
III.
We reverse Smith‘s sentence and remand for resentencing in accordance with this opinion.
Katherine M. Menendez, AFPD, argued, Minneapolis, MN, for appellant.
Richard Newberry, AUSA, argued, Minneapolis, MN, for appellee.
Before LOKEN, Chief Judge, JOHN R. GIBSON and MELLOY, Circuit Judges.
Andrew Sonny Jones was charged with one count of bank robbery, a violation of
I. Background
At approximately 2:30 p.m. on August 9, 2006, a man entered the Highland Bank in downtown Minneapolis and approached the only teller at the counter, Mai Yang. The man demanded money from Yang, informing her that he was armed with a sawed-off shotgun. Yang gave the man money, and the man departed.
Another teller, Sandy Xiong, was working away from the front counter and saw the man interacting with Yang. Xiong was not aware that the man was robbing the bank. From her vantage point, Xiong was able to view the man from the waist up.
Yang called 911 as soon as the man left. She told the 911 operator that the robber was a black man in his mid-thirties, about five feet five inches tall, with a medium to heavy build. She described his attire, noting he was wearing dark jeans, a black tee shirt, white tennis shoes, and a black New York Yankees baseball cap. She mentioned the robber was carrying a medium-sized cardboard box. Yang told the operator which way the man headed as he left the bank.
Police dispatchers broadcast the description of the Highland Bank robber to
Inside the skyway system, a security guard at the Quest Building stopped Officer Sheneman and informed him that “the robber” had just exited to the street via a nearby escalator. The guard and Officer Sheneman followed the path taken by the suspect, and the guard pointed out the man to Officer Sheneman when they reached the street level. The man matched the combined description of the suspect—he fit the original physical description, was not wearing a hat, and was carrying a backpack and a soft drink bottle.
After visually identifying the suspect, Officer Sheneman called in his location and updated the command center. It was just after 3:00 p.m. Officer Sheneman began to follow the suspect. As he was walking, the robbery suspect turned back, looked at Officer Sheneman, and then abruptly began jaywalking across the street. Before the suspect was able to cross traffic, Officer Sheneman unholstered his firearm and ordered the man to stop.
Officer Sheneman ordered the man to return to the sidewalk, and the suspect complied. Other officers quickly arrived at the scene and the suspect, later identified as Jones, was handcuffed and placed in a squad car. After Jones was secured, Officer Sheneman looked inside the backpack Jones had been carrying. Inside the backpack Officer Sheneman saw a black Chicago White Sox baseball cap, bundles of cash, and bank papers.
Officers took Jones to Highland Bank, which was less than a mile away from where Jones was apprehended. At the bank, Jones was ordered to stand in front of the bank facing the bank‘s mirrored windows. Jones was still in handcuffs and was surrounded by law enforcement officers. From inside the bank, both Yang and Xiong identified Jones as the man who had robbed the bank less than one hour earlier. Neither Yang nor Jones had any doubts as to Jones‘s identification.
Jones was indicted for bank robbery under
II. Discussion
We now consider the district court‘s denial of Jones‘s motions to suppress. “In the context of suppression motions, we review the district court‘s factual findings for clear error and its legal deter-
A. Arrest and Search
Jones contends that he was unlawfully arrested without probable cause and that, therefore, the evidence seized in the search incident to his arrest should have been suppressed. We conclude that his arrest had sufficient support, making evidence obtained in the search incident to his arrest admissible.
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.”
In this case, the victim teller gave a description of the physical appearance and attire of the bank robber to the police immediately after the robber left the bank. The description included the suspect‘s height, race, clothing, and physical build. The teller also told the police the direction the robber went after leaving the bank. This information was conveyed to police and security personnel in the area surrounding the bank in a timely manner. Upon hearing the broadcast, local security personnel provided additional details about an individual matching the description of the bank robber. Very little time had passed between the robbery and these new sightings, which occurred in the immediate vicinity of the bank. Based upon the security personnel‘s sightings, the police updated their description of the suspect, noting he had removed his hat, was carrying a backpack, and was carrying a soft drink bottle. With this information, Officer Sheneman encountered Jones less than one mile from the bank and within thirty minutes of the robbery. Jones matched the description‘s height, race, physical build, and clothing details. He also fit the updated characteristics provided by the security personnel near the bank: he was carrying a backpack and a soft drink bottle and not wearing a hat. As Jones was walking along the street, he turned and looked behind him. When he saw Officer Sheneman, he abruptly began jaywalking across the street.
These facts and circumstances provided probable cause to arrest Jones for bank robbery. A reasonable officer knowing of the location and time of the robbery, the direction the suspect traveled after the robbery, and the suspect‘s updated description would have cause to conclude there was a “substantial chance” Jones had recently committed a criminal act. Torres-Lona, 491 F.3d at 756 (internal quotation omitted); see also United States v. Oakley, 153 F.3d 696, 697-98 (8th Cir.1998) (affirming probable cause to ar-
Because Jones‘s warrantless arrest was supported by probable cause, Jones‘s motion to suppress the evidence seized incident to his arrest was properly denied. See Oakley, 153 F.3d at 698 (holding search of backpack was lawful search incident to arrest when probable cause existed for defendant‘s arrest).
B. Eyewitness Identifications
Jones appeals the district court‘s denial of his motion to suppress the eyewitness identifications by the bank tellers. He alleges the show-up identification violated his procedural due process rights because the procedure used was unduly suggestive and unreliable. We review this constitutional claim de novo. United States v. Hines, 387 F.3d 690, 693 (8th Cir.2004).
“A crime victim‘s identification of the defendant is admissible unless it is based upon a pretrial confrontation between the witness and the suspect that is both impermissibly suggestive and unreliable.” United States v. Martinez, 462 F.3d 903, 910 (8th Cir.2006) (internal quotation omitted). We assume, without deciding, that the procedures in this case were unduly suggestive, and therefore turn our attention to whether the identifications were unreliable. See Hines, 387 F.3d at 694 (assuming that an identification procedure was impermissibly suggestive and analyzing only whether the identification was unreliable). “An identification is unreliable if its circumstances create a very substantial likelihood of irreparable misidentification.” Martinez, 462 F.3d at 910 (internal quotation omitted). The relevant circumstances include “the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and confrontation.” United States v. Williams, 340 F.3d 563, 567 (8th Cir.2003) (quoting Manson v. Brathwaite, 432 U.S. 98, 114 (1977)).
Based on the totality of the circumstances, Hines, 387 F.3d at 694, there is very little likelihood of misidentification by Yang and Xiong. Both of the bank tellers in Highland Bank during the robbery had the opportunity to plainly see Jones. Yang interacted directly with Jones when he demanded money, and she watched him leave the bank. Her exposure to him was sufficient to provide law enforcement with an accurate description of his physical appearance, including his height, race, approximate age, clothing, and physical build. Xiong also saw Jones, though, at the time, she only regarded him
III. Conclusion
For the reasons stated above, we affirm the judgment of the district court.