United States v. Jesse Kithcart

against Ste- Court Territorial entered

ven. America STATES

UNITED Defender As- McColgin (argued), L. David KITHCART, Appellant. Divi- Philadelphia, Federal Court Jesse sociation PA, Appellant. sion, for Philadelphia, No. 97-1168. Philadelphia, (argued), L. Perzan Howard Appeals, Court States United PA, Appellee. for Third Circuit. McKEE, ALITO, LEWIS, and Before: 11, 1997. Aug. Argued Judges. Circuit 12, 1998. Jan. Decided THE COURT OF OPINION ALITO, Judge: Circuit in judgment appeals from a Kithcart Jesse guilty to one pled Kithcart case. a criminal possession of a being a felon count of 922(g)(1), § firearm, 18 U.S.C. in violation of appeal the dis- right reserved but he sup- his motion to on court’s decision trict appeal question. This press the firearm in officers had question whether raises the Kithcart. and search cause to arrest they not have we conclude Because cause, reverse the we on suppression motion denial court’s fur- we remand given, and grounds with accordance proceedings ther opinion.

I. Township Po- July Bensalem On to a assigned Teresa Nelson lice Officer evening Over shift. patrol radio hour, re- Officer Nelson of an the course transmissions, re- each three radio ceived first robbery. The armed porting an in Bensalem motels at robberies con- last transmission Township, neighboring cerned was re- report Township. The final —which p.m. 10:43 approximately ceived —did 530 specify either the time or location 1, of the 1868, 392 U.S. 88 S.Ct. 20 L.Ed.2d 889 robbery. of,

Bristol Bristol is north (1968), and and related cases. See App. 95a. adjacent to, Township. Bensalem Consistent argument, with this ar- Kithcart gued that Officer Williams had discovered his alleged perpetrators The of these robber- gun during “pat a down” or “frisk” but that ies were described “two black males in a the standard for conducting a “frisk” sports black reported car.” It was also Terry had not App. been met. one of the 97a. The perpetrators might have been government argued clothes, wearing police jus- white and the were vehicle was tified in Z-28, stopping “possible described as a the car possible because the driver Cá- light. addition, maro.”1 ran a red govern- ment’s argued brief as follows: At 10:53 p.m. approximately ten minutes — receiving after final radio transmission [Gjiven that Officers Nelson and Williams regarding the Bristol Nel- —Officer were confronted with two black males a son spotted 300ZX, black Nissan which she sports shortly black car after and car, described as a sports traveling south on vicinity reported robberies, and that 13, approximately Route a mile or less from attempted males had to flee upon see- boundary Township. The vehi- ing Officer pull theirs, car behind cle driven by an African-American male totality of the circumstances estab- appeared who to be the person in the lished reasonable to support the car. Officer Nelson testified since the pat-down of the defendant and his waist- time when she received the first radio trans- pack. See California, Chimel v. 395 U.S. more earlier, mission an than hour this was 752, 763, 89 S.Ct. 23 L.Ed.2d the first spotted occasion when she either a (1969) (lawful 685 arrest creates a situation black vehicle or a black male driving car. justifies which contemporaneous Officer Nelson also testified that immediately of arrestee area, and immediate including after pulled up vehicle, behind the which area from within which might arrestee light, a red the driver drove possession gain of a weapon); Terry v. the Nissan through light. the red Officer 1[, 392 1868, Nelson then flashed her lights, dome and the (limited (1968) L.Ed.2d pat-down 889] of a pulled Nissan over the side of the road. suspect’s exterior clothing protective and point, At this Officer Nelson saw two sets of sweep of area within immediate control are arms raised toward the ear, roof of the and authorized during a stop). lawful she realized that there were two people in App. 107a-108a. Officer Nelson then for backup called and At the hearing motion, on the counsel for patrol in her waited car until Officers Chris- Kithcart, counsel government, for the tine Kellaher Bill and Williams arrived at the the court all referred government’s to the scene. Officer gun Williams found a in Kith- argument latter as concerning the question nylon cart’s white pouch, waist and Officer (see “probable cause” e.g., 27a, 28a, App. gun Kellaher found a under the driver’s seat. 58a), 54a, and at the conclusion of the hear- In moving suppress ing,2 the evidence seized district court orally ruled that the by police, Kithcart police “probable contended among oth- ... stop.” things, er lacked App. 60a. direction, The court relied “the suspicion for an investigatory stop pursuant the timing, vehicle, location plus Prouse, to Delaware v. 99 S.Ct. the fact it [was] black App. car.” 1391, 59 (1979), L.Ed.2d 660 Terry Ohio, 60a. The court noted discrepancy be- Z-28 type is a of Camaro. against witness Kithcart—told the that he had through driven prior not a red light 2. Officer Nelson hearing. testified at the Officers stop by to the Nelson. district court Kellaher and testify. Williams did not issue, relying resolve this instead on its Nelson's account of the traffic violation was dis- finding that there was cause to arrest puted by the defense. Co-defendant Carl and search based on the radio transmissions. Green—the driver a cooperating L,Ed.2d 690,-, 116 S.Ct. perpe- description radioed tween (1996). black males as two trators only one there was belief initial son’s set standard Based on the held that but the male in the Beck, the district Supreme Court seen had not the fact that concluding that there erred in re- cars since she driving men other black prior to to Kithcart cause arrest and search height- radio transmission the initial ceived fact The mere guns. of discovery driver of that probability ened perpetrators and that is black Kithcart in the robberies. been involved vehicle had males is been described two black had officers concluded Because previously have we plainly insufficient. As n “ cause, it unnec- found the court probable noted, negro males’ description of ‘two running to essary decide whether ... ... more ‘black males’ without and two independent provided an light of the red provide to sufficient would not have been stop and the subse- Nelson’s for básis Ed suspect].” [the to probable cause arrest the officers. actions of quent Philadelphia, 860 F.2d City wards v. of Cir.1988). Moreover, (3d pled guilty;' the match ruling, Following this Kithcart 571 n. 2 " perpetrators’ allowed to description he subject condition that between the to the Z-28, (a court’s denial sports “possible possi appeal the district challenge on black Camaro)” in which Kith- vehicle suppress. to and the ble of motion 300ZX) (a spotted black Nissan cart was II. Z-28 the Camaro precise. Although far from could be considered the Nissan 300ZX and ground on first to the turnWe cars,” offered there evidence “sports was no to . we understand the which shapes of hearing that the suppression at the motion, suppression Kithcart’s have denied sufficiently so as to similar cars were cause” to viz., “probable officers had that the could be that a 300ZX an inference warrant incident to to him and search Kithcart arrest a Z-28. for mistaken is a warrantless When search the arrest. arrest, “[t]he an pursuant to made by either constitu: probable established Nor is cause depend must ... the search validity of tional stop. There was time or the location ... validity of the constitutional upon the Bristol as to where in presented no evidence . 85 U.S. arrest.” Beck 379 occurred; nor robbery Township the final (1964). 223, 225, 13 142 L.Ed.2d Bristol that the presented evidence there [warrantlessj shortly before Officer Whether that arrest `cvascon- robbery occurred stitutionally depends Al- carrying Kithcart. the car stopped son valid in turn whether, - regarding the at the moment the arrest was though the radio transmission made, probable to, min- 10 approximately robbery came Bristol the officers had cause make it-whether at that moment the facts stopped, vehicle was utes before the knowledge, did not recall (cid:127)Nelson testified and circumstances within their (cid:127) they reasonably revealed when transmission the radio and of which trust- worthy occurred, other than information were sufficient to war- prudent believing Ed- evening. Compare that same rant a man in that the F,2d [suspect] (although wards, n. at 571 had committed or was commit- ting insuffi- an offense. negro males” was “two description , ' cause provide by itself Amboy cient City Perth Barna v. Id. See also linking closely evidence Cir.1994) (test suspect, other (3d arrest proba for F.3d crime suffi- reported suspect to scene objective test: ble cause ’ cient). sum, that it clear we think believing basis have a reasonable officer within circumstances com the facts or was committed suspect had time she knowledge crime). of a district Our review mitting a pru- .to allow were insufficient the Nissan proba there was court’s determination its the car and person believe dent search is de a warrantless effect ble n committing or were States, occupants had committed 517 v. United novo. Ornelas words, an offense. In other armed with in- and search Kithcart. We therefore reverse driving formation that two black males the denial of motion and car were believed to have com- remand for further proceedings to consider mitted three in the robberies area some rela- whether the officers had reasonable earlier, tively short time investigative Nelson could for an weapons justifiably arrest African-American person. man happened who in any type to drive

black sports car. McKEE, Judge, Circuit dissenting part, concurring part. III. I agree majority’s with the conclusion that cause, finding however, of no prosecution did not establish that Officer Ohio, does inquiry. Terry not end the v. Nelson had cause to the arrest de- supra, Supreme held Court that law en- However, fendant. the same testimony that stop forcement officers may and temporarily requires us to reverse the district court’s persons detain short of arrest without violat- determination government prob- ing the Fourth Amendment. A stop Terry is able cause also establishes that Officer Nel- justified when an officer has a reasonable son not have suspicion did stop reasonable to suspicion that activity “criminal may be and detain occupants of the ear. There- 30, afoot.” Id. at S.Ct. at 88 1884. The fore, I disagree the majority’s with decision suspicion officer’s must be on based articula- to remand this matter so that the district ble merely facts and not subjec- the officer’s court can determine if was autho- good 21, tive faith. Id. at 88 S.Ct. at 1879- Terry rized 1, 392 U.S. 88 may An officer also conduct a “reason- 1868, (1968). S.Ct. 20 L.Ed.2d 889 clearly It able weapons search for protection not, was I and would so rule as a matter of police officer, where he has reason to Thus, law. I dissent from portion that believe that he dealing is with an armed and opinion that allows reconsideration under dangerous 27, individual....” Id. at 88 S.Ct. Terry on remand. at 1883. The test is reasonably “whether a prudent man in the circumstances would be I.

warranted in the that safety belief or that in danger.” noted, others was Id. As this Terry v. Ohio very created a excep limited question parties was briefed in the general tion to the requirement warrant court, district but the district court did not the Fourth Amendment to the United States base its ground. decision on this 21, Constitution. See 392 at 88 S.Ct. at 1879-80. Although Terry remand, allows an investi On the district court exam- should gative stop, it requires still suspi ine reasonable whether Officer Nelson had a reasonable cion before the justify can suspicion even sufficient to warrant an investiga- this limited intrusion. “It is well established stop. tive The court should consider both of that an investigatory stop short of an government’s arrest grounds asserted for the is valid based a (1) suspicion reasonable stop: (2) traffic infraction and that criminal activity is afoot.” United information regarding the armed Rickus, (3d States v. 737 F.2d suspects Cir. II, discussed Section infra. 1984) suspicion “Reasonable must be based court should also consider whether upon ‘specific which, and articulable facts leading events to discovery together taken with rational weapon inferences from pouch justified can be reasonably those facts warrant intru Terry as a “pat-down”. We offer opinion no ” sion.’ Id. (quoting Terry, juncture at U.S. at any on questions. these 1880). at S.Ct. IV. This record establishes three For reasons, the foregoing we conclude armed robberies had occurred—two Ben- that the district court in finding erred Township salem one in Bristol —some- Nelson arrest during to time evening July arrest probable cause car Nelson had sports a black males in Black that two by in a happened in- drive Black male who Z28 were a Camaro probably that was car, which it fails to establish sports also not know Nelson did volved. reported justify stopping was the ear last nor road direction which happened car in Although the to contain such cars traveling. and all sports a black riding Terry, was was Black male. See defendant Rather, the defen-' Z28. a Camaro it was not at 1884-85. 300ZX. Model traveling in a Nissan dant dis- remand the majority states “on notes, record correctly majority theAs examine whether trict should cars are these no evidence contains suspicion sufficient a reasonable Nelson had easily be confused they can so similar stop.” Majority investigative to warrant an be- Nelson or that other with each it clear Op. at 532. Camaro, Officer to be Nissan lieved the justi- determining whether not. “In model particular not on focus was fied, must the circumstances the court view Instead, the color entirety, giving stop in their surrounding the occupants. race of its and the sports car officers.” experience of the weight due that Officer The car Rickus, The district 737 F.2d at 365. than and model make only a different between the radio explained discrepancy armed rob- likely with most involved one Black males and Officer of two broadcast occupants it con- of beries, the number but model of a different observation Nelson’s with inconsistent appeared to be tained only Black containing one sports car black majority points as well. radio broadcast as follows: male Nelson only after Officer it was out that Now, male versus of one black the issue pair of a second stop saw initiated that males. She testified two black that she realized go into the air hands by other black cars had not driven seen At two males.1 in fact contain the car did looking, been had for the time she males hearing, Officer Nelson by sports ear driven sees a and she directly pulled asked, you the time “from sup- its still I do believe black male. one pulled you the time vehicle and behind the there ported by cause initially that over, you thought the vehicle or male in another black vehicle?” male in that one black there was split up or whatever. they had perhaps App. 47a. “Correct.” She answered: of a Therefore, disregarding allegation so, I think the But even stopped this violation, Nelson Officer traffic by that she the fact heightened sports car was a black solely because it car in by black males cars driven seen lot near male American by an African driven this area.... shortly learned Township after she App. at 60a. had com- American males African However, nothing this record there is in that robberies of armed mitted series up” split “had perpetrators suggest that record, majority on this area. Based other robbery, that someone or following the Nelson that “Officer concludes correctly in car when the driver than any African arrest justifiably could not conjecture Unsupported stopped it. Nelson by”in drive happened to man who American a car stop type would allow of this Op. Majority sports car.” any type of black as one Black males containing any number of majority allows then at 532. the ear speculate always could establish opportunity to an government got or out perpetrators appropriate stop was that Officer radio informa- renders speculation This following than Terry rather under suspects irrele- regarding the number tion logic. Just of its own extension the obvious police officers and allows vant establish that fails to as this record passenger. seen the if she even Nelson suggest that do not mean 1. I stopping Nissan justified in been would have person riding Black car that is “simi- through light the red when Officer Nelson lar” where, to one in a pulled up involved even crime behind his car. here, does not likely match the Essentially is, the bottom line that Carl description that has been broadcast on Green, if testify called to at this hearing,

radio. upon possibilities, Conclusions based say would that it was his recollection that no matter speculative, how remote or are go he did not through a light red immedi- inconsistent justify with the need to an inves- ately prior to being stopped by Officer tigative stop suspicion with reasonable based Nelson. upon specific and articulable facts. Accord- And I discussed this matter with [defense ingly, any attempt justify the instant stop counsel] and he felt that government if the Terry speculation would elevate would stipulation enter into a that it would conjecture to the level of articulable facts. be Mr. testimony, Green’s that there would be no types to have

[T]he need Mr. articulable Green as a facts that can witness provide hearing and that Police Officer cannot in- testimony son’s would clude be the ‘circumstances evidence [which] describe a put very large would category of forward. presumably inno- travelers, cent subject who would be to App. at 22a. virtually random seizures’ were the cir- However, the district court was justifiably accepted cumstances as reasons for the making concerned about credibility deter- investigation. mination required judge it to the live Skrutski, (3d

Karnes v. testimony of Officer against F.3d contra- Cir.1995) (quoting dicting Georgia, Reid v. that was to admitted way stipulation. (1980)). L.Ed.2d 890 told defense happened That is what counsel: here. Absent a traf violation, fic I guess Nelson’s problem little I you have is that more than a random of an want African me to assess credibility, you and

American male in a want me to do it in a vacuum. In other words, assess this officer’s credibili-

II. ty compared nothing, to compared to the fact that Mr. Green be wouldn’t testifying, Although agree I that it normally would but that say. he would yet And for the important to determine if the car that was purpose credibility, that makes it very stopped went through a light, red I question difficult, you are certain this is the way propriety allowing inquiry in this you want proceed? me to case. At the beginning of the suppression App. at 25a. hearing, an arose issue as to Officer Nelson’s credibility. prosecutor The stated that government he The responded posi- that its going Nelson, to call Officer and that she tion was that Officer Nelson had reasonable going testify to that the driver of the car suspicion pulled when she up behind Green’s in which defendant was riding disregarded car, a but government’s that the argument was light red pulled up when she behind the car. prong. government The argued that the prosecutor The also informed the district car was stopped for a but, traffic violation Green, court that Carl the driver of that regardless alleged violation, Officer already guilty plea entered a in front of a Nelson still had to stop judge. different part As plea agree- the ear based the radio transmissions ment, agreed Green had to “cooperate, and she received regarding in armed robberies a provide testimony” truthful govern- in the neighboring township. at App. 26a. The prosecution ment’s App. Kithcart. prosecutor at 13a. your stated “even if Honor were Although testimony Green’s apparently im- to discount ... Officer Nelson’s testimony plicated Green in robberies, the armed [about the traffic entirety, violation] its government stipulated that if he were called there was suspicion” still reasonable to stop testify to suppression hearing, the ear. App. at 26a. No doubt out of a Green testify would go he did not adjudicate desire to fairly case expe- necessarily allow traffic violation would hear agreed to court ditiously, the district gun admit the into evi- prosecution to presence testimony outside Green’s justified traffic merely it testi- because of his trial dence course jury during the to credibility is devoid of evidence stop. This record any issue of mony and to reserve of Kith- support allowed conclusion would have a point. This until both after the was reasonable affording person cart’s while still proceed to trial litigate the credi- to Fourth Amendment. opportunity a fair sides suppression to the related bility issues court prosecution the district The informed “I reemphasized: then motion. planned present that the evidence make a decision very reluctant would be hearing was Officer during the The trial hearing [Green].” from without exchange testimony. following Nelson’s the ball “I believe prosecutor, judge told the testimony: during that 29a. Almost App. at your court.” . Q. gun from the recover Did officer thereafter, immediately defendant, Jesse Kithcart? testify about the Officer called A. Yes. up to the arrest leading circumstances Q. that? Who was at the conclusion defendant. the district Nelson’s Bill Williams. A. That was Officer upon its belief based the arrest upheld proba- testimony established [by Williams] 32 given A. I violation, any traffic regardless of ble nylon white given I and was revolver entered his conditional the defendant pouch. immediately thereafter. Accord- plea guilty trial, proceeded Q. the matter never ingly, spoken Williams you Have to Officer opportu- had an never the district court they gun from recovered about where testimony and make nity to hear Green’s Mr. Kithcart? viola- traffic finding of fact about A. Yes. tion. Q. say? Williams What did Officer clearly been have Officer Nelson would to me A. Williams stated car to enforce stopping Green’s

justified nylon pouch. recovered from gun was through a red if drove traffic laws Green Q. nylon pouch? where was And Moorefield, 111 v. See United light. States waist. on Mr. Kithcart’s A. It was Cir.1997) (“It (3d. is well-estab- F.3d never prosecution The App. at 40a-41a. lawful a traffic lished Williams, any or other planned to call Officer police officer where a Amendment Fourth Green) (other and there is witness, than Carl regula- traffic of the sate a violation observes testimony suggest that additional tions.”). nothing been police would also have The neither unavailable. Kithcart out was justified ordering Green weapon in nor the seized the car searched happened. See is what the car if that other officers may have She seen Mimms, question. Pennsylvania v. gun, but (1977) seize the 333-34, conduct the search 54 L.Ed.2d 331 and/or is noth- There testimony. her not of the that was ordering a out (concluding that driver to inform ing on record justifiable, de violation is after a traffic gun was discovered intrusion). However, whether record minimis it was or whether pat during down what to determine not allow court does pouch. The though plain inside The stopped. car was happened after the view— gun how the guess must about gun fact finder thought prosecutor apparently any basis for seized and auto- was Kithcart would was seized from necessary to may have been if he established matically be admitted However, justify the seizure.2 stop. legality of initial Kithcart, merely scene, received it or if gun he from police officers on the There were several seized Officer Williams it is unclear whether appreciate I police ap- officer issue of the traffic violation. proaching apprehensive. this ear would be violation, If there no traffic Officer Nel- That is true whether or not driver justified son was in stopping not the car in Indeed, gone through light. a red the nor- which Kithcart riding. suppres- If the experience police mal of a officer would dic- sion court concludes that there was a traffic approaching tate caution in any stopped car violation, then it pro- should determine the whether or not the officer believed the car to priety allowing testimony regarding the suspects. Supreme contain armed “The circumstances the seizure after consider- repeatedly recognized Court has that traffic ing any explanation why testimony as to stops dangerous are encounters that result in produced not initially. police assaults and murders officers.” I do think asking not it is too much to (internal Moorefield, 111 F.3d at 13. quota- expect attorneys attempt to meet their omitted). However, tion marks and citations proof burdens of when issues litigat- are first although exigencies dangers that are Aed. court should not have to connect the part endemic to such confrontation are dots of inferences apart scattered as far analysis resulting of whether the intru- the ones on this record to picture construct a sion is “reasonable” under the Fourth of what during stop. Accord- Amendment, they do not all remove ingly, although join I majority opinion protection afforded under it. Accordingly, a insofar as it reverses the order of pat officer can conduct a down search court, must, however, I respectfully dissent occupants of a car “where the from the my remainder of colleagues’ opin- point specific officer is ‘able to and articu- ion. which, together lable facts taken with ration- facts, al reasonably inferences from those ” (quoting warrant that intrusion.’ Id. Terry, 1882-83). 88 S.Ct. at

reasonable inferences that arise from the

circumstances of a traffic such are require “leap does of faith” to con- AIRLINES, re: CONTINENTAL clude that the justified instant seizure was if Debtor. there was a traffic violation. protected by interests the Fourth Amend- America, UNITED Appellant, STATES important ment are too to allow Officer Nel- son’s to bridge the void in this prosecutor record. here made no effort CONTINENTAL AIRLINES. appropriate have an witness articulate the surrounding circumstances the seizure of the Ross, Thomas E. Trustee. gun. Accordingly, I am reluctant to assume No. 97-7109. should now be allowed produce a witness on remand that Appeals, United States Court of have, have, should and could during called Third Circuit. hearing. initial Argued Dec. 1997. I would leave it to the trial court’s discre- Decided Jan. 1998. tion to prosecutor decide whether the should produce allowed to that I As Amended March think is bridge needed to the interstices in transcript. That court will be in the best position to determine whether or not the

government should be allowed a second the Terry

bite of the apple by producing testimo-

ny beyond that necessary which is to rule gave

from another officer and it Officer son.

Case Details

Case Name: United States v. Jesse Kithcart

Court Name: Court of Appeals for the Third Circuit

Date Published: Jan 12, 1998

Citation: 134 F.3d 529

Docket Number: 97-1168

Court Abbreviation: 3rd Cir.