702 F.2d 372 | 2d Cir. | 1983
Lead Opinion
Defendant Leroy Fisher appeals from a judgment of conviction entered in the United States District Court for the Western District of New York, before Charles L. Brieant, Jr., Judge (sitting by designation), following his plea of guilty to a single count of bank larceny in violation of 18 U.S.C. § 2113(b) (1976).
BACKGROUND
According to the evidence presented by the government at the hearing on Fisher’s suppression motion,
At about the same time Police Officer Joseph T. Ransford, in another patrol car, located Young’s car parked, unoccupied, approximately in front of 43 St. Louis Street. He saw three or four Black males on a porch, one or two houses south of Young’s car. The car and the porch were on the east side of St. Louis, which was one block west of Moselle. Ransford parked his car around the corner from St. Louis at a point where he could observe Young’s car and could not be seen by the people on the porch. Ransford could describe only one of the three or four individuals on the porch; that one was a light-skinned Black in his twenties, wearing a large straw hat. Rans-ford asked the radio dispatcher for descriptions of the robbers. The dispatcher, who had previously reported that Young was
[T]he only thing I’ve got is, uh, three Black males, all about 5' 10" to 6 feet tall. One’s got on a, uh, rust colored sweater, another guy’s got on a blue wool hat, at least two of them were armed.
The dispatcher shortly relayed further information from an officer who had spoken with Young’s wife, to wit, that Young was a light-skinned Black with a heavy build and tightly curled hair, and that Evans was 5' 6" or 5' 7" tall.
In the meantime, Skotnicki had left Bis-sell Street and gone to Moselle Street, in case the robbers tried to cut through backyards to get from St. Louis to Evans’s home at 118 Moselle. Skotnicki parked across from the house at 32 Moselle, which was back-to-back with the house at 43 St. Louis, not far from which Young’s car was parked. About five minutes later, Fisher, a tall, slim, young, dark-skinned Black male wearing jeans and a white T-shirt emerged from the side of 42 Moselle and commenced to walk north on Moselle. When he was approximately opposite the next house he stopped and returned to Number 42, stood by the porch of that house for perhaps half a minute, then turned and began walking north again. About a half-minute later, a shorter, heavier, light-skinned young Black wearing a straw hat walked out of a yard two houses south of 42 Moselle and began walking north.
Skotnicki and his partner drove up Moselle and pulled up alongside the first Black, at about 66 Moselle, and stopped him. Skotnicki asked his name; he told them it was Leroy Fisher. The officer asked what Fisher was doing coming out of the yard at 42 Moselle; Fisher said he was cutting through from a friend’s house. Skotnicki asked Fisher if he had any identification; he said, he had none. The record does not indicate that the officers asked any other questions. Skotnicki placed Fisher under arrest.
In the meantime, the heavier, light-skinned Black in the straw hat had disappeared into a yard. Skotnicki and his partner shouted this information to Ransford and his partner, who had just come to Moselle, having been relieved of their stakeout of Young’s car by other officers. Rans-ford found the straw-hatted individual, who identified himself as Christopher Young, on the back porch at 62 Moselle and arrested him.
The arrests were reported to. the radio dispatcher at about 12:51 p.m. When Skot-nicki’s partner reported the arrest of Fisher, he did not give Fisher’s name but rather called him “Little,” which the radio dispatcher interpreted as meaning the little man, i.e., Evans. The dispatcher instructed Ransford and Skotnicki to bring Young and “Evans” to the bank for possible identification. Young and Fisher were returned to the bank to be viewed by eyewitnesses to the robbery. Following this “showup,” Faith Parkin, a teller, identified Young and Fisher as two of the three individuals she had observed putting on masks beside a red Mustang outside of the bank just prior to the robbery.
Eventually Fisher, along with Young and Evans, was indicted on three counts of bank robbery, in violation of 18 U.S.C. §§ 2113(a), (b), and (d), respectively. Fisher moved to suppress Parkin’s pretrial identification of him, contending, inter alia, that he had been arrested without probable cause and that the identification was the product of his unlawful arrest. After a hearing at which the evidence described above was presented, Judge Elfvin denied the motion. While the court found Fisher’s contention “very tenabl[e],” Decision dated January 16, 1982, at 2, it concluded that probable cause had existed, stating as follows:
What converts ... the uncertainty of probable cause in the context of the
Id. at 3-4 (footnote omitted).
Thereafter, pursuant to an agreement with the government, which was approved by the court, Fisher pleaded guilty to a single count of bank larceny in violation of § 2113(b), while preserving his right to appeal the denial of his motion to suppress; the government consented to the dismissal of the other two counts against Fisher; and Fisher testified for the government at the trial of Young and Evans.
DISCUSSION
It is fundamental that because Fisher’s arrest was made without a warrant it was unlawful unless it was made upon probable cause.
In determining whether probable cause exists to believe that a particular person has committed a given crime, the Supreme Court has indicated that where the information possessed by the officers could have applied to any of a number of persons and did not reasonably single out from that group the person arrested, the arrest was not made with probable cause. In Wong Sun, supra, the Court ruled that information that narcotics had been sold by a per
Other factors to be considered in determining whether there is a sufficient basis for arresting a particular individual for a given crime include whether the locale and the time of day increase the likelihood that the individual suspected is the person sought. For example> if the person sought is Black and the neighborhood under surveillance is predominantly Black, the presence of a Black person on the street will have less significance than it would if the neighborhood were predominantly White. See, e.g., United States v. Shavers, 524 F.2d 1094, 1095 (8th Cir.1975) (“The population ... was estimated at trial to be about 50% black, and a great number of men stand about 5' 8" in height.... At 9 o’clock on any weekday morning, many individuals answering to the broadcast description could be found in a business district such as the one where Shavers was arrested.”).
In the present case, the police officers had a reasonably articulable suspicion sufficient to justify stopping Fisher for questioning. See, e.g., United States v. Cortez, 449 U.S. 411, 417-21, 101 S.Ct. 690, 694-697, 66 L.Ed.2d 621 (1981); Brown v. Texas, 443 U.S. 47, 51, 99 S.Ct. 2637, 2640-2641, 61 L.Ed.2d 357 (1979); Delaware v. Prouse, 440 U.S. 648, 654, 99 S.Ct. 1391, 1396, 59 L.Ed.2d 660 (1979); United States v. Brignoni-Ponce, 422 U.S. 873, 884, 95 S.Ct. 2574, 2581-2582, 45 L.Ed.2d 607 (1975); Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). The officers had reasonable grounds for believing that at least two of the three robbers were in the vicinity of St. Louis Street. They knew that Young’s car had been used as the geta
We think it clear, however, that the officers did not have probable cause to arrest Fisher at the time of the stop. Skotnicki had only the most general description of the robbers that would have fit Fisher: they were tall (perhaps slim, see note 4 supra and surrounding text) Black males. He had no description of their ages except for Young, who was known to be 20-21 years old. He had clothing descriptions for two of the robbers: a rust-colored sweater and a blue wool hat; but these descriptions did not help, for Fisher was wearing a white T-shirt and no hat. Skotnicki knew that there were some suspects on a porch on St. Louis; but he had never seen them or received any description of them, and he did not know whether they were tall or short, young or old, or what any of them was wearing.
In our view nothing Fisher said or did in response to questioning when he was stopped provided probable cause for his arrest. The only suggestive fact he disclosed in his answers was that he was cutting through from a friend’s house. This revealed that he had not come out of the house at 42 Moselle, from whose side Skot-nicki had seen him emerge, and permitted the inference that he had come from a house on St. Louis. But he apparently was not asked from what house he had come, and there was little basis for inferring that he had come from the pertinent porch on St. Louis. Fisher had emerged from the yard at 42 Moselle; but that house apparently was not opposite or adjacent to the house on St. Louis on whose porch the Black males had been observed. Number
Viewing the circumstances as a whole, there are other factors as well that give us pause in our review of the district court’s probable cause determination. First, it does not appear that the court should have given weight to Skotnicki’s characterization of Fisher’s pausing and backtracking as suspicious actions. Although the court apparently thought Fisher’s behavior “odd,” “strange,” and “evasive,” Skotnicki did not state that Fisher gave any appearance of checking for surveillance, see, e.g., United States v. Vasquez, 638 F.2d 507, 513 (2d Cir.1980), cert. denied, 454 U.S. 847, 102 S.Ct. 165, 70 L.Ed.2d 135 (1981), or that Fisher made any movement apparently designed to avoid encounter with a police officer, see id. at 530 n. 15; nor did Skotnicki articulate any other basis for viewing Fisher’s actions as ground for inferring that Fisher was a bank robber rather than merely an innocent indecisive stroller. The experience of a police officer is a factor to be considered in the determination of probable cause, see United States v. Cortez, supra, 449 U.S. at 418,101 S.Ct. at 695, but the relevance of the suspect’s conduct should be sufficiently articulable that its import can be understood by the average reasonably prudent person, see, e.g., id.; Brown v. Texas, supra, 443 U.S. at 51-52 & n. 2, 99 S.Ct. at 2640-2641 & n. 2; United States v. Brignoni-Ponce, supra, 422 U.S. at 884-86, 95 S.Ct. at 2581-2582. From all that appears in the record, Fisher’s conduct was entirely ambiguous, and ambiguous conduct does not provide probable cause for arrest. See Wong Sun, supra, 371 U.S. at 484, 83 S.Ct. at 415 (flight, in the circumstances, held ambiguous, and hence insufficient to give probable cause for arrest).
Second, we note that at the hearing Ransford repeatedly mentioned that the Black males on the porch on St. Louis numbered three or four. If there were four, at least one of them was not one of the robbers. In those circumstances, even if it were known that all three robbers were on the porch, and if Fisher was one of four people on the porch, there would have been no legitimate inference that Fisher was one of the robbers. See Johnson v. United States, 333 U.S. 10, 16, 68 S.Ct. 367, 370, 92 L.Ed. 436 (1948) (agents who smelled opium through hotel door lacked probable cause to arrest occupant until they learned that she was the only person present and were thereby given a reasonable basis for inferring that the opium smoker, and hence the illegal possessor of the drug, was she).
Finally, Skotnicki was on the alert for a person walking northward toward 118 Moselle because that is where Evans lived, and the officers thought the robbers might try to hide with Evans. Yet if a person walking north on Moselle were heading toward his own home on that street, no inference that that person was en route to a rendezvous with Evans would be warranted. An officer of reasonable caution would have sought to ascertain whether the person who appeared was a resident on the street. Skotnicki apparently did not ask Fisher, a Black in a predominantly Black neighborhood, where he lived. In fact, it appears that Fisher occupied an apartment at 118
Fisher apparently answered truthfully each of the few questions asked him when he was stopped. The fact that the officers may have believed that he was concealing his true identity did not improve the basis for the arrest since Fisher in fact had responded truthfully and the officers had no reasonable basis for believing he had lied.
In sum, the information available to Skotnicki was equally applicable to a number of individuals likely to be in the area. If probable cause existed for the arrest of Fisher, it would have existed for the arrest of virtually any Black male who, at lunchtime in a predominantly Black neighborhood, happened to come through a backyard on the west side of Moselle and begin to walk north on Moselle shortly before Young appeared. Such a person could have been young or old, could have been dressed in any type of clothing, could have been a resident on Moselle, and could have come from a porch on St. Louis where all three robbers remained, or could have come from any other house on St. Louis. We conclude that the officers did not have sufficient basis for inferring that Fisher in particular was one of the three robbers; the arrest was thus made without probable cause.
There is no doubt that the showup at the bank was a direct product of Fisher’s arrest. Since we hold that arrest unlawful, any identifications of Fisher on the basis of that showup must be suppressed as the fruits of the unlawful arrest. See Brown v. Illinois, 422 U.S. 590, 599, 95 S.Ct. 2254, 2259, 45 L.Ed.2d 416 (1975); Wong Sun, supra, 371 U.S. at 488, 83 S.Ct. at 417-418.
The judgment of conviction is vacated and the case is remanded to permit Fisher to withdraw his guilty plea. On remand, if the government pursues the prosecution of Fisher and wishes to have Parkin make an in-court identification of him, the court will be required to determine whether Parkin has an adequate basis for such an identification independent of the showup.
. 18 U.S.C. § 2113(b) in pertinent part provides:
(b) Whoever takes and carries away, with intent to steal or purloin, any property or money or any other thing of value exceeding $100 belonging to, or in the care, custody, control, management, or possession of any bank, credit union, or any savings and loan association, shall be fined not more than $5,000 or imprisoned not more than ten years, or both; ....
We do not reach Fisher’s other contention, also rejected by the district court and pursued on appeal, that the identification was the result of an impermissibly suggestive showup.
. Fisher presented no evidence.
. The officer at the bank also told the dispatcher that one of the robbers had a thin build and wore dark clothes, and that the robber in the rust-colored sweater wore black gloves. The radio transcript does not indicate that this information was relayed by the dispatcher to the patrol units, but Skotnicki testified that he recalled having heard it.
. Young and Evans were found guilty on all three counts described above. Young did not appeal his conviction. Evans’s conviction was affirmed by this Court by summary order in United States v. Evans, No. 82-1169 (2d Cir. Dec. 20, 1982).
. State law governs the validity of this war-rantless arrest, see United States v. Di Re, 332 U.S. 581, 589 (1948), and the New York criterion for such arrests conforms to the federal standard of probable cause, see United States v. Rosario, 543 F.2d 6, 8 n. 1 (2d Cir. 1976).
. See also Commonwealth v. Jackson, 459 Pa. 669, 331 A.2d 189, 191 (1975) (where the two assailants were described as Black male youths in dark clothing, 5' 6" to 5' 8" in height, with medium builds, medium-to-dark complexions, and semi-bush haircuts, probable cause did not exist to arrest, one block away from scene of the crime, the defendant, who fit that description, since it “was equally applicable to a great many individuals in the area.” Indeed, four additional suspects were seized in the same block.).
. Skotnicki’s testimony at the hearing was as follows:
Q What other information did you have?
A We also knew that there were some suspects on a porch near the car....
Q Do you know what they looked like?
A No.
Q Do you know what race they were or did you have any information?
A Well, we knew that there was three black males and that their height was between 5' 10" and 6 feet tall.
(September 28, 1981 Transcript at 81.) In light of Skotnicki’s earlier negative answer to the question clearly directed toward his knowledge of the appearances of the persons on the porch, and given the absence of any descriptions of the porch’s occupants in the police radio transmissions and Ransford’s inability to give descriptions of anyone other than Young, we construe Skotnicki’s latter answer that he knew of three black males, 5' 10" to 6' in height, as merely a reference to the descriptions of the robbers that had been relayed from the bank.
We note also that, except as to Christopher Young, the district court’s description of the men on the porch as “young” is unsupported by the record.
. Evans so stated to FBI agents in an interview on the night of August 12.
. Although Skotnicki did not so testify, it appears that he and his partner may have believed that Fisher had given them a false name and was in fact Evans. Although Fisher told them that his name was Leroy Fisher, the officers never reported this to the radio dispatcher; instead they reported that the man they had was “Little,” which the dispatcher interpreted as meaning “the little man,” which was the way Evans had been described. The officers never disabused the dispatcher of this notion when the latter told them to take “Evans” to the bank for the showup, and they even described Fisher’s garments when the dispatcher asked how “Evans” was dressed. Thus it may be inferred that the officers thought they had stopped Evans and that Fisher had falsely identified himself. There was no basis for this since Fisher did not fit the description the officers had of Evans. And, had the officers asked Fisher where he lived, it seems likely that he would have told them and thus quickly been able to obtain and provide identification confirming that he was Leroy Fisher and not Ronald Evans.
Dissenting Opinion
dissenting;
Although this is a close case, I respectfully dissent. The majority seems to be saying in effect that law enforcement officers cannot rely on what on their face are sufficient indicia of probable cause of guilt but must thoroughly consider circumstances that might show the suspect’s probable innocence. This sets the standard of probable cause for arrest too high. I would affirm on the well-considered opinion of the trial judge who was familiar with local conditions and saw and heard the witnesses.