United States v. Glen Lamar Bailey
417 F.3d 873
8th Cir.
2005
Check Treatment
Docket

*1 nary complaint common-law one state purposes federal claim for stating a complaint Caterpillar rule.’

well-pleaded Williams,

Inc. v. (1987) (quoting 96 L.Ed.2d Ins. v. Taylor,

Metro. Co. Life (1987)). 1542, 95 L.Ed.2d 55 prematurely

The district did not act in addressing

and did not err the ERISA issue.

preemption error, no

Finding we affirm. See 8th

Cir. R. 47B. America,

UNITED STATES

Appellee, BAILEY, Appellant.

Glen Lamar

No. 04-1161. Appeals,

United States Court of

Eighth Circuit. Sept.

Submitted: 2004.

Filed: Aug. 2005.

Rehearing Granted in Part

Sept. *2 Federal Liggett, Assistant

Lucille G. Louis, MO, Defender, argued, St. Public appellant. Keller, Jr., At- Assistant U.S. Roger A. Louis, (Raymond MO torney, argued, St. brief), Gruender, appellee. W. MURPHY, McMILLIAN Before BENTON, Judges. Circuit MURPHY, Judge. Circuit Bailey of juryA convicted Glen Lamar firearm, in of a being possession a felon of cocaine grams more than five possessing distribute, pos- an intent to base with drug in furtherance of a sessing a firearm court1 sen- trafficking crime. The district Bailey appeals, tenced him to 360 months. in the district court erred arguing physical denying suppress his motion to obtained from evidence and statements investigatory stop him as the result of an conducted without reasonable We affirm. May uniformed St. Louis

On Anthony Duane police officers patrolling in a marked Wozniak neigh- in Park squad car the Walnut West Wells, who had worked borhood. Officer years, in area for eleven knew as high preva- crime due to the robbery, burgla- drug trafficking, lence of ry, and assault. Three before Wells attempted armed car- investigated station, and he jacking at an area Shell carjacking suspects, the two knew by the victim as black males described Stohr, United of Missouri. 1. The Honorable Donald J. Judge States District for the Eastern District twenties, early to their middle remained at was a handgun. admitted month, large. was, Earlier he had ar- that it him, placed handcuffed rested a woman at the same station for arrest, him under and removed the weap- using crack cocaine. on. The semiautomatic pistol *3 fully loaded with a in bullet the chamber.

Around 1:00 a.m. officers noticed several standing individuals in the parking lot of Officer of his Mi- Bailey Wells advised an open Phillips 66 station which was lo- randa rights Bailey and said he under- cated across the street from the Shell sta- stood them. why When asked he was tion where the carjacking had been at- carrying pistol, the Bailey said that he had tempted. They noticed that a young black previously required been robbed and the Bailey appeared male later identified as to gun protection. his own Wells then using pay phone light be under a broken conducted a search Bailey’s incident at the lot entrance. Officer knew Wells arrest and found more than 11 grams of years that for some three the crack in cocaine his left pocket, separated been disconnected p.m. between 9:00 and baggies. into 23 Bailey was informed a.m., 7:00 but he regular was unaware that Miranda again of his rights being before recently service had been restored to it. why asked he had the cocaine. He re- He believed that phone Bailey the sponded that it was to “make ends meet.” talking inoperable into was and that he The officers took him police to the station having a conver- where he declined to make a written state- sation. ment. pulled The officers parking lot July On grand a federal jury investigate. Officer got out returned a three count charg- indictment car, squad in individuals the lot ing Bailey being a felon in possession dispersed except Bailey who remained firearm, of a in violation of 18 U.S.C. with the receiver to his § 922(g)(1); possessing more than five him, approached ear. As Bailey grams of cocaine base with intent to dis- turned telephone, leaning toward the tribute, 841(a); § in violation of 21 U.S.C. against it concealing and the left side of his and possessing a firearm in furtherance body. previously Wells had seen individu- crime, a drug trafficking in violation of 18 als make similar movements to conceal 924(c). trial, § Bailey U.S.C. Before officers, weapons contraband or from and suppress moved to the physical evidence he suspected Bailey was trying to hide and statements obtained as a result of the something him. Bailey from Wells asked arguing Officer had acted what he was doing, Bailey answered without reasonable The motion he was the telephone. Wells magistrate judge2 believed was referred to a lying merely who pre- tending evidentiary hearing after an that the casing use while the area or waiting drugs. to deal officer had reasonable Bai- pat Because he feared down; safety ley for his partner, and that of his he recommended that the mo- patted Bailey down on tion to suppress the side he had be denied. filed objections concealed from report view. The officer felt an to the and recommenda- object Bailey’s waistband and asked if it tion which the district court overruled. Adelman, The Honorable I. United trict of Missouri. Magistrate Judge for the Eastern Dis- error, “giving fact findings for clear ‘due court found

The district hour, by the late to the of the district weight’ had been raised inferences neighbor- of crime and law frequency enforcement officials.” belief that hood, Replogle, officer’s reasonable States v. Cir.2002). pretending to use review district We Bailey’s attempt apparent to the facts phone, application court’s of law de something police. Williams, from conceal novo. United States v. and admit- Cir.2004). denied the motion district court “We must af re- trial over ted the evidence motion to denying sup firm an order 15, 2003, a objections. On October newed press unsupported unless decision is *4 Bailey guilty of all three counts jury evidence, on by substantial is based an He was sen- in the indictment. charged law, applicable view of or in erroneous the imprisonment, to 360 months five tenced record, of the entire are left light we release, spe- and a supervised years $300 that a a firm and definite conviction mis cial assessment. been take has made.” United States v. 632, Rodriguez-Hernandez, 353 635 that Officer

Bailey appeals, contending Cir.2003). (8th justi- lacked reasonable points frisk. He out that fy protective a prohib “The Fourth Amendment open 66 station was well lit and Phillips the ‘unreasonable and seizures’ by its searches despite the lateness of business the Government, protections and its ex hour, always phone using investigatory stops per tend to brief of capable placing of 911 calls even been that fall sons... short of traditional ar inoperable, turning and his when otherwise Arvizu, rest.” United States v. 534 U.S. away from the-officer to lean his left side 266, 273, 122 S.Ct. 151 L.Ed.2d 740 wholly have been could (2002). investigatory stops, permit Such suspi- innocent. Wells lacked reasonable ting only a of outer clothing limited search Bailey argues, support the frisk cion weapons, aimed at are not discovering sub and the district should have ject probable requirement to the cause of suppressed gun, evidence of the but also Ohio, the Fourth v. post which the crack arrest statements 1, 20, 392 U.S. 88 S.Ct. 20 fruits of were the the unlawful search. (1968). Instead, protective L.Ed.2d 889 government responds constitutionally are frisks had reasonable based on the time police a “when officer ‘observes unusual of night, frequent of his awareness crimes conduct which him leads neighborhood, poor lighting in the in light experience conclude of his pay phone, similarity in Bai- area activity afoot and that may be ley’s appearance description and the persons dealing may with whom he is carjackers, the officer’s reasonable belief presently dangerous.’ armed and speak Gray, v. States 213 F.3d phone lying an and was when Cir.2000) (quoting Terry, 392 it, he claimed to be 1868). apparent attempt conceal the left side of body ap- his when uniformed officer determining whether inves proached. requisite officer tigating had the “reason suspicion” reviewing protective district court’s able for a we denial of a motion set of suppress, guided by legal we examine are not a “neat 1987) (officer’s States, rules.” v. Ornelas United 517 U.S. “heightened” observations 690, 695-96, 116 S.Ct. 134 L.Ed.2d due to armed robbery at gas another area (1996) (internal omitted). before). quotations station several Also relevant Rather, was that “totality we must examine the the encounter occurred at 1:00 a.m. in an every circumstances” case to see if area of the parking lot the officer conducting poorly the search had a described as lit. “particularized objective basis sus Reasonable and sus pecting legal wrongdoing.” United States picion arose from these and other observed Arvizu, v. facts. Although Wells was unaware that (2002). analysis This regular service had been restored to the looks at day such facts as the “time of or by Bailey, used a reasonable but night, suspect parties, location of the and mistaken may justify belief an investiga parties’ they behavior when become stop. Johnson, tive See United States v. aware of the officer’s presence.” United 1018, 1022(8th (officer’s Cir.2003) 326 F.3d Dawdy, reasonable if mistaken belief that the sus Cir.1995). Also relevant are those infer pect was about assault); to commit an *5 by ences and deductions made un officers Ornelas-Ledesma, 16 circumstances, particular der the since law (7th 714, Cir.1994) (“A F.3d 718 mistaken enforcement officials are cull “trained to premise grounds can furnish for a Teiry significance ap from behavior that would stop, if the officers do not know that it is pear innocent to the untrained observer.” mistaken and are acting reasonable in Poitier, 679, v. 818 F.2d 683 it.”). upon suspected that (8th Cir.1987). suspicion While reasonable pretending to make a call while demanding is a “less proba standard than preparing to commit a drug or theft crime. ble cause requires showing and a consider Bailey’s reaction to his approach reason ably less than preponderance of the evi ably heightened experienced officer’s dence,” Wardlow, Illinois v. 528 U.S. suspicion, for he turned in a manner that (2000), 145 L.Ed.2d 570 suggested he attempting to conceal an may officer not rest on “inchoate and contraband. also told that ‘hunch,’ unparticularized suspicion or was speaking telephone, a state Terry, 392 U.S. at 88 S.Ct. 1868. ment the reasonably officer believed was knowledge. Bailey’s untrue based on his Considering the observations of Of apparent attempt something to conceal whole, ficer Wells “as a rather than as provided Wells additional reason to sus discrete occurrences,” and disconnected Arvizu, pect See 534 Poitier, 818 F.2d at say we cannot (“driver’s 275-76, at 122 744 S.Ct. that he lacked reasonable suspicion justify down, slowing stiffening posture, and ing an investigative Bailey. search of The acknowledge failure to a sighted law en encounter occurred in an forcement officer” relevant in determining by frequent marked involving crimes fire Gordon, suspicion); 231 F.3d at arms. This was a relevant fact to consid (“nervous, perti 756 evasive behavior ais er, especially in light of the attempted nent in determining factor reasonable sus armed carjacking adjacent at an gas sta picion”). tion a few before. See United States Sokolow, 1, 9-10, v. combination these factors left Officer (1989); United States Wells with a reasonable and Abokhai, v. may Cir. that “criminal activity be “ Bailey may pocket, armed remove his hand from his an offi and and afoot” ’ Terry, 392 U.S. at cer reached into the defendant’s coat dangerous.”

presently . handgun. Id. at 526 The Fourth We conclude that Wells’ 88 S.Ct. 1868. held that lacked narrowly limited a Circuit the officer reason protective frisk; at of the clothing weap- the time outer able search . ons, presence telephone requirements defendant’s satisfied cooperation lack of his insufficient Fourth The basis for Id. at 529. facts mis Bailey argues that Officer Wells’ here, to those in Burton are in contrast inop that the pay taken belief at night where the search was conducted not justify for all but 911 calls did erable high in a crime in which area there feign He first observes the search. carjacking attempted been an armed a few inoperable pay phone use of an is ing before, nights appeared that the where justi “hardly illegal does itself suspect inopera use Only a mistak fy stopping an individual.” telephone, the suspect ble and where suspect engaged that a is un en belief in an apparent attempt turned conceal justify deniably criminal behavior can body part of his from the officers. Bailey, protective citing frisk contends Johnson, also that it (investigating suggests was unrea- mistakenly suspect suspect believed sonable for Officer companion), lurking about to assault his and he was to commit a crime since the Shareef, inoperable phone 100 F.3d 1491 officer admitted that an United States Cir.1996) (officer given incorrect be used call. place in could a 911 suspect that the had outstand officer could have formation concluded *6 ing using phone federal warrants and was considered was not to dangerous). Bailey’s argument emergency, authorities notify armed of howev- er, either recognize to that a combination of because of the amount of time he fails phone can officers was or because he turned provide innocent conduct away from the instead of suspicion activity. welcoming of criminal reasonable Sokolow, suspicion his assistance. Wells’ of Officer See U.S. at S.Ct. 1581 activity (series criminal was not un- unreasonable of actions consistent with innocent all der of the circumstances. suspicion). amounted to reasonable travel pre belief that was Wells’ Officer Because Officer acted with rea- to use an tending was suspicion conducting protec- sonable in a series of observations only one tive not by district court did err reasonably suspect him criminal ac led to admitting product the immediate of his tivity. search or its subsequent fruits. Accord- ingly, judgment district of the court is Bailey’s reliance on United States v. Cir.2000) affirmed. Burton, F.3d 524 is misplaced. In that case similarly officers McMILLIAN, Judge, dissenting. Circuit area to during in an serve warrants when they respectfully hours noticed the de- I I daylight dissent. believe that the facts, standing together, fendant front considered are not suffi- They him ciently significant of a convenience store. asked to to constitute though they even of identify himself no criminal The facts (time suspect activity not day reason are either partial- Id. at 528. After the character of neighborhood, time. defendant respond requests matching suspects or ly description failed to their in re- crime), especially suspicious (pre- cent not Brigitte WRIGHT,

tending pay telephone) Appellee; to use the or not Plaintiff — supported by an articulated reason for sus- movement). picion (turning COUNTY, ROLETTE Defendant; example, though Bailey

For even present high-crime in a neighborhood at Tony Sims, County E. Sheriff, Rolette a.m., gas 1:00 he was not alone. The in his capacity, individual and official addition, open busy. station ppellant; Def endant— A pay telephone Bailey relatively bright located close to overhead Moors; Eldon E. Joseph Baker; S. Ken lights gas pumps, above the as well as the Brien; neth F. Laducer; Michael W. lights gas of the station convenience store. Leonard, County Robert E. Rolette Although government argues that Bai- Commissioners, in their individual ley general description matched the capacities, and official Defendants. carjackers, station Shell who were de- twenties, scribed as black males in their No. 04-2766. matching description predomi- in the United States Court Appeals, nately African-American Walnut Park Eighth Circuit. meaningful.

West is not many “Too fit people description this for it Submitted: Feb. 2005. justify a reasonable of crimi- Aug. Filed: 2005. activity.” nal Eustaquio, (8th Cir.1999). Even Rehearing and En Rehearing Banc if believed that Sept. Denied pay telephone, use the such conduct not is criminal. As to Bai-

ley’s turning away approached, as Wells did point any facts supporting

a conclusion that movement was *7 or suggestive

furtive evasive or of criminal view, my had a hunch engaged in criminal activity. However, stop cannot be validated

“ ” ‘what it up.’ turns (8th Cir.2002)

Yousif, 308 F.3d

(quoting States, Wong Sun v. United 471, 484,

U.S. 83 S.Ct. L.Ed.2d (1963)). An unparticularized “inchoate and

suspicion or ‘hunch’ enough is not for the Ohio,

Fourth

(1968). Thus, I dissent.