UNITED STATES of America, Plaintiff-Appellee, v. Leroy FISHER, Defendant-Appellant.
No. 212, Docket 82-1149
United States Court of Appeals, Second Circuit
Argued Nov. 30, 1982. Decided March 8, 1983.
The judgment of conviction is affirmed.
Friendly, Circuit Judge, filed dissenting opinion.
Herbert Greenman, Buffalo, N.Y. (Paul V. Hurley, Palmer, Greenman & Hurley, Buffalo, N.Y., on brief), for defendant-appellant.
Before FRIENDLY, MANSFIELD, and KEARSE, Circuit Judges.
KEARSE, Circuit Judge:
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
BACKGROUND
According to the evidence presented by the government at the hearing on Fisher‘s suppression motion,3 the following events led to Fisher‘s arrest some thirty-five minutes after a bank robbery. At approximately 12:20 p.m. on August 12, 1981, a Buffalo, New York, police radio transmission informed patrol cars that a certain branch of the M & T Bank had just been robbed. The radio dispatcher provided a license plate number for a red automobile used in the robbery and a few minutes later advised that the car was registered to a Christopher Young whose address was 254 Bissell Street. Police Officer Ronald F. Skotnicki and his partner went to 254 Bissell where they and other officers learned that Young was not at home, having left earlier that day in his car, in the company of one Ronald Evans, who lived at 118 Moselle Street. Young‘s wife told the officers that Young and Evans were supposed to be painting a house on Moselle, which was one block west of Bissell.
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. Ransford 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.4
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 Bissell 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. Ransford 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 Skotnicki‘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
What converts ... the uncertainty of probable cause in the context of the
above factual recitation to clear probable cause is an item ... which the arresting officer must then have known—to wit, Young, the owner and possessor of the getaway car which was parked on St. Louis Street, was light skinned and heavy set and with curly hair and the second young black male who had fairly simultaneously come to the west side of Moselle Street from the direction of St. Louis Street was light skinned and heavy set and wearing a straw hat. This juxtaposition of parked getaway car and its owner‘s appearance of having come from its direction and Fisher‘s odd performance while proceeding in the same direction as did the car‘s owner gave the arresting officer probable cause to arrest Fisher.... All of this was within about one-half hour of the bank robbery and the car owner‘s description had been promulgated via the police radio system. Seeing Young emerge and act as he did undoubtedly put the icing on the probable cause cake for the officer. That he arrested Fisher who was more northerly on the street than was Young and left the latter to be relocated in a Moselle Street back yard does not flaw the above.
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
DISCUSSION
It is fundamental that because Fisher‘s arrest was made without a warrant it was unlawful unless it was made upon probable cause.6 Dunaway v. New York, 442 U.S. 200, 208 & n. 9 (1979); Wong Sun v. United States, 371 U.S. 471, 479 (1963); Henry v. United States, 361 U.S. 98, 100 (1959); Brinegar v. United States, 338 U.S. 160, 175 (1949); Carroll v. United States, 267 U.S. 132, 162 (1925). The quantum of evidence required to establish probable cause to arrest need not reach the level of evidence necessary to support a conviction, Wong Sun, supra; Henry, 361 U.S. at 102, but it must constitute more than rumor, suspicion, or even a “strong reason to suspect,” id. at 101; Brinegar, supra. Although the existence of probable cause must be determined with reference to the facts of each case, in general probable cause to arrest exists when the officers have knowledge or reasonably trustworthy information of facts and circumstances that are sufficient in themselves to warrant a person of reasonable caution in the belief that (1) an offense has been or is being committed (2) by the person to be arrested. Dunaway v. New York, supra; Brinegar, supra; Wong Sun, supra; see Mallory v. United States, 354 U.S. 449, 456 (1957).
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 (1981); Brown v. Texas, 443 U.S. 47, 51 (1979); Delaware v. Prouse, 440 U.S. 648, 654 (1979); United States v. Brignoni-Ponce, 422 U.S. 873, 884 (1975); Terry v. Ohio, 392 U.S. 1 (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.8 Even Ransford, having seen the people on the porch, who were apparently seated, was unable to describe any of them as to height or weight; and, other than the light-skinned male with the straw hat, he did not describe any of them as young. And when Skotnicki stopped Fisher, the officers did not know whether all or any of the individuals who had been on the porch on St. Louis were still there. Finally, we note that Skotnicki testified that when he saw Fisher emerge and then Young emerge on Moselle Street, he did not infer that Young was “with” Fisher.
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 Skotnicki 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 (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, 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, 443 U.S. at 51-52 & n. 2; United States v. Brignoni-Ponce, 422 U.S. at 884-86. 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 (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 (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.10 Compare United States v. Jackson, 652 F.2d at 251, in which the suspect gave some responses after the investigatory stop that were known to be false and others that were highly improbable.
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 (1975); Wong Sun, 371 U.S. at 488.
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.
FRIENDLY, Circuit Judge, 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.
Notes
(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; ...
Q What other information did you have?(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.
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.