Gun suppressed for lack of reasonable suspicion despite match in clothing and race between fleeing suspect and man stopped nearby

In United States v.Bey, No. 17-2945 (Dec. 21, 2018), the Court reverses the denial of a motion to suppress, holding that while officers acted within the authority conferred by Terry v. Ohio in initially ordering the defendant to stop, his continued detention became unreasonable once officers “had a good look at his face and features,” which differed significantly from the description of the suspect under pursuit.

The episode began when police stopped a vehicle occupied by three black men for not coming to a complete stop at a stop sign. In seeking to ascertain each man’s identity, police noticed evidence of marijuana possession and decided to remove the occupants from the vehicle. Shortly thereafter, a gun was spotted near where one man had been seated, and that man took flight. Police launched a pursuit and, moments later, realized that meanwhile a second of the vehicle’s occupants – a man whom they had by this time identified as one Amir Robinson – had fled in the opposite direction. They called for backup, and an ensuing radio dispatch described a black man about 6’0” to 6’1” in height weighing 160-170 pounds and wearing dark blue pants and a red hoodie.

Over the next few minutes, an Officer Powell used a cruiser’s mobile data terminal to view a file photograph of Robinson, a 21-year-old, light-skinned African American man with a small patch of hair under his chin and a tattoo on his neck. Given the direction in which Robinson fled and what patrolling officers knew of the neighborhood, police suspected he might have sought to escape detection by blending in at a local bar. As Powell and a second officer approached the bar, a man wearing a red, hooded puffer jacket and black sweatpants exited and began walking in another direction. The police drew their guns and ordered him to stop and show his hands. The man complied and turned around, whereupon police beheld defendant Muadhdhin Bey, a 32-year-old, dark-skinned African American man weighing about 200 pounds with a full beard. In short order, officers said, they discovered a gun on Bey, which led to charges of unlawful possession after prior conviction of a felony.

Bey unsuccessfully moved to suppress the gun, arguing that the broadcast description was too generalized to support reasonable suspicion and, alternatively, that reasonable suspicion dissipated once he turned to face the officers and they got a good look at him. On appeal, the Third Circuit rejects the first argument but embraces the second.

In an opinion authored by Judge McKee and joined by Judges Vanaskie and Restrepo, the Court emphasizes with regard to Terry intrusions that the government carries the burden to show reasonable suspicion justifying “each individual act constituting a search or seizure.” With regard to the initial command to stop, the Court distinguishes the facts of United States v. Brown, 448 F.3d 239 (3d Cir. 2006), which held a description of two black suspects in an attempted robbery insufficient to supply reasonable suspicion justifying the stop of the defendant and a second black man three blocks away in Philadelphia’s center city. While the defendant and the second man matched the race and height of the two suspects, they were some years older and, unlike the suspects, had full beards.

The Court now explains that the stop in Brown “was based only on a generalized description of the suspect,” whereas here Bey “was wearing clothing similar to that worn by the fleeing suspect and he was where police expected to find that suspect.” But Brown cuts in the opposite direction, the Court holds, with regard to Bey’s alternative claim that reasonable suspicion dissipated once he turned to face the officers. At that point, officers “should have noticed the clear differences in appearance and age between the two men.” That made his continued detention unlawful.

The Court is not persuaded by the district court’s conclusion that because a photograph of Amir Robinson (the man who fled the traffic stop) introduced at the suppression hearing had been taken six months after the night Bey was stopped and arrested, the differences between Robinson’s appearance in the photograph and Bey’s appearance were not controlling. This line of analysis, the Third Circuit explains, improperly shifted to the defense what was properly the government’s burden. To the extent the image actually viewed by Officer Powell may have more closely resembled Bey, “the Government’s failure to produce that image fatally undermines its attempt to prove that the police acted reasonably in detaining Bey after they had a good look at him.”

Challenges to anonymous tip and ‘career offender’ designation fall short

In United States v.McCants, No. 17-3103 (Dec. 18, 2018), the Court rejects a Fourth Amendment challenge to a stop and frisk predicated on an anonymous tip and upholds application of the Sentencing Guidelines’ ‘career offender’ enhancement based on prior New Jersey robbery convictions.

As summarized by Judge Hardiman in an opinion joined by Judges Krause and Bibas, an unknown “caller used the 911 system to report an eyewitness account of domestic violence and provided the officers with a detailed description of the suspect and location, both of which were quickly confirmed by the police.”  The tipster reported that a man with braids and a red hat was “out here beating up his girlfriend … really bad right now” near the intersection of Grove and Williams in East Orange.  The caller also said “I think he has a gun,” then hung up without identifying herself.  Within a minute, an officer had responded to the reported location and spotted a man with dreadlocks and a red hat walking on Grove Street with a woman.  The woman showed no sign of injury.  Police searched the man and found a handgun, then placed him under arrest and recovered heroin, leading to gun and drug trafficking charges under 18 U.S.C. § 922(g)(1) and 21 U.S.C. § 841(a), (b)(1)(C).
 

In the course of its Fourth Amendment analysis, the Court reaffirms five factors it has previously articulated for assessing the reliability of anonymous tips, such as whether the information is relayed face-to-face, whether the tipster can be held responsible if allegations turn out to be fabricated, and whether the tip predicts what will follow.  Though several of the factors were lacking here, the Court reiterates that “a tip need not bear all the indicia – or even any particular indicium – to supply reasonable suspicion.”  In the Court’s view, the tip was less “limited and vague” than the one held to lack sufficient reliability in Florida v. J.L., 529 U.S. 266 (2000), where the caller reported that a young black man in a plaid shirt at a bus stop was carrying a gun.  In J.L., the Court states here, “the informant reported significantly fewer details and described potentially innocuous behavior without explaining why the informant thought the subject was committing (or was about to commit) a crime."

The Court also states that the East Orange caller’s use of 911 added to the tip’s reliability under the circumstances, and that proper deference to “law enforcement officers’ experiences and training regarding domestic violence” foreclosed the argument that the woman’s evident lack of injury dispelled reasonable suspicion.  For these points the Court draws heavily on Navarette v. California, 572 U.S. 393 (2014), which held an anonymous 911 caller’s report sufficient under the circumstances to establish reasonable suspicion of drunk driving even though police did not observe any erratic driving.

On the sentencing challenge, the Court holds N.J. Stat. Ann. § 2C:15-1 “divisible” without citing state decisional law, reading United States v. Peppers, 899 F.3d 211 (3d Cir. 2018), and United States v. Ramos, 892 F.3d 599 (3d Cir. 2018), to make it sufficient that on the face of the statute, each of three disjunctively worded subsections “requires different proof to sustain a second-degree robbery conviction.”  Construing transcripts of colloquies from the defendant’s prior cases, the Court determines that he pled guilty to the offense defined by subsection (a)(2) of the statute, which is violated when a person, in the course of committing a theft, “[t]hreatens another with or purposely puts him in fear of immediate bodily injury.”

This definition is a categorical match for a “crime of violence” under the career offender guideline at U.S.S.G. § 4B1.2(a) on each of two analyses, the Court concludes.  On the rationale of United States v. Chapman, 866 F.3d 129 (3d Cir. 2017), the requirement that the defendant intentionally place another in fear of physical pain or injury means the offense “has as an element the use, attempted use, or threatened use of physical force against the person of another.”  Alternatively, the requirement that the defendant threaten bodily injury means the offense involves more than “de minimis force,” rendering it within the scope of “robbery” as that term is generically used in the guideline to enumerate one type of qualifying predicate.

Bridgegate Defendants: Court upholds wire fraud, and theft or bribery concerning programs receiving federal funds convictions, reverses deprivation of civil rights convictions.

U.S. v. Baroni, 17-1817, 2018 WL 6175668 (3d Cir. Nov. 27, 2018)

Defendants Baroni and Kelly were charged with conspiracy to obtain by fraud, knowingly convert, or intentionally misapply property of an organization receiving federal benefits, 18 U.S.C. § 371, and the substantive offense, § 666(a)(1)(A); conspiracy to commit wire fraud, § 1349, and two counts of the substantive offense, § 1343; and conspiracy against civil rights, § 241, and the substantive offense, § 242. 

The charges stemmed from “Bridgegate”—the much covered scheme to impose gridlock on the Borough of Fort Lee, New Jersey, after Fort Lee’s mayor refused to endorse the 2013 reelection bid of then-Governor Chris Christie.  Under the guise of conducting a “traffic study,” Baroni and Kelly, among others, conspired to limit Fort Lee motorists’ access to the George Washington Bridge, over a period of four days, causing severe traffic jams and safety issues.

A jury convicted on all counts.  Defendants challenged only their various convictions.  The Court upheld the wire fraud, (§§ 1349 and 1343), and theft or bribery concerning programs receiving federal funds, (§§ 371 and 666), convictions, but reversed the deprivation of civil rights convictions, (§§ 241 and 242).  In brief, the Court held as follows:

I.  The evidence was sufficient to support the jury's finding that defendants obtained, by false or fraudulent pretenses, property of Port Authority of New York and New Jersey as required to support convictions for wire fraud.  The Port Authority had financial interest in its public employees’ time and wages, 14 Port Authority employees were used to realign traffic, Port Authority was required to pay toll operators and other employees overtime and other compensation, and defendants accepted compensation for time spent conspiring to defraud the Port Authority.  Time and wages of public employees of Port Authority of New York and New Jersey constituted a form of intangible property for purposes of wire fraud statute.  Included within the meaning of money or property, for purposes of federal wire fraud statute, is the victim’s right to control that money or property.

II.  The evidence was sufficient to support the jury’s finding that defendants fraudulently obtained, knowingly converted, or intentionally misapplied property, as required to support conviction for theft or bribery concerning programs receiving federal funds.  18 U.S.C.A. § 666.  Defendants forced the Port Authority of New York and New Jersey, which was interstate agency created by Congressional consent that received substantial federal funding, to pay unnecessary overtime to toll workers and divert well-paid professional staff away from legitimate Port Authority activities.

III.  The district court’s error in instructing the jury under § 666 that it did not need to know of the specific property defendants fraudulently obtained, knowingly converted, or intentionally misapplied, was harmless; there was overwhelming evidence that defendants knew of the property fraudulently obtained or intentionally misapplied, including the work of 14 of defendant’s subordinates who were public employees of the New York and New Jersey Port Authority.

IV.  The phrase “unjustifiable and wrongful,” as used in instruction to jury that “to intentionally misapply money or property means to intentionally use money or property of the Port Authority knowing that the use is unauthorized or unjustifiable or wrongful,” § 666, was not overbroad or ambiguous in trial for theft or bribery concerning programs receiving federal funds; other instruction in court’s charge foreclosed possibility that jury convicted defendants for lawful but imprudent conduct.

V.  The scope of statutes criminalizing violation or deprivation of any right or privilege secured by the Constitution or laws of the United States is limited to rights fairly warned of, having been made specific by the time of the charged conduct. 18 U.S.C.A. §§ 241, 242.  A due process right to intrastate travel was not a right that was fairly warned of in 2013, and thus defendants could not be convicted under statutes criminalizing violation or deprivation of any right or privilege secured by the Constitution or laws of the United States based on alleged violation of municipality's residents' right to intrastate travel in 2013. 

Circuit affirms denial of motion to suppress, but finds "possession in connection with another felony" enhancement applied in error

U.S. v. Hester, No. 16-3570, 2018 WL 6259314 (3d Cir. Nov. 30, 2018)

In this felon-in-possession of a firearm case, the Third Circuit affirmed the denial of a motion to suppress, but held that application of a sentencing enhancement for possession in connection with another felony was erroneous. 

Hester was a passenger in a car parked illegally in front of a corner store in Newark, New Jersey, at approximately 11:40 p.m.  Police observed the driver enter the corner store, which had a known history of narcotics sales.  When the driver returned to the car, a marked police car pulled up along the driver's side of the car, and an unmarked car pulled up behind it. The officers approached both sides of the car on foot, one approached the driver’s side window; three others approached and stood at the passenger's side of the vehicle.

The driver admitted that she did not have a driver’s license and that the car was not registered in her name.  Hester stated “We're good, officer. I can drive.” Hester then began to rise and exit the vehicle but, as he did so, one of the officers claimed to hear the sound of a gun hitting the floorboards, and another testified to seeing Hester drop a gun.  Hester attempted to run, but was apprehended. A gun was located at the foot of the passenger's seat. 

Hester was indicted for being a felon in possession of a firearm under 18 U.S.C. § 922(g)(1).  He moved to suppress the firearm, arguing that the police had seized him the moment that they parked, with lights flashing, alongside and behind the car, without reasonable suspicion. The district court denied the motion, concluding that the interaction with the police up until Hester's attempt to flee was a consensual encounter.  In the alternative, the District Court determined that, even if it assumed Hester had been seized when the officers boxed in the vehicle, such seizure was a Terry stop supported by reasonable suspicion because the car was illegally parked in front of a known narcotics front late at night in a high crime area.
Hester was convicted following a bench trial.  At sentencing, the parties disputed the applicability of a four-level enhancement for possession of a firearm in connection with another felony. U.S.S.G. § 2K2.1(b)(6)(B).  The Government sought the enhancement on the grounds that Hester's cousin had previously used the same firearm in an unrelated crime and had given it to Hester for disposal.  In support of this theory, the Government cited recordings of calls Hester made to relatives from jail in which he expressed regret that he had still been in possession of the firearm when he encountered the officers, having intended to dispose of it. The Government argued that this was tantamount to evidence tampering, a separate felony under New Jersey law. See N.J. Stat. Ann. § 2C:28-6.

The district court applied the enhancement, but then varied downward by four offense levels—the exact number added by the enhancement. Hester appealed both the denial of the motion to suppress and his sentence.

The Third Circuit held that the initial police contact in this case constituted a seizure rather than a consensual encounter, noting that when the driver reentered the idling parked car, it was no longer capable of simply driving away from the scene due to the change in circumstances signaled by the surrounding police cruisers.   Coupled with the subsequent directive to turn off the engine, the driver could not have felt free to drive away, and Hester likewise was not free to ignore the police presence and go about his business.  Further, the Court held that Hester submitted to the officers’ show of authority when he waited in the vehicle prior to and during questioning, before his momentary attempt to flee.  Finally, the Court found the officers had reasonable suspicion to detain the vehicle, including Hester, having seen “a vehicle illegally idling near a crosswalk, in front of a store with a known history of narcotics-related activity, close to midnight, in a high-crime area of Newark.” 

Regarding the Guidelines enhancement for use or possession “in connection with another felony offense,” U.S.S.G. § 2K2.1(b)(6)(B), the Court concluded it did not apply for two reasons.  First, the government did not establish by a preponderance that Hester had committed New Jersey evidence tampering, which requires “alteration, loss, or destruction of the evidence itself.”  Second, the district court incorrectly interpreted the provision, as a matter of law, in finding that the possession itself occurred “in connection with” a subsequent felony offense, when there was no facilitation of a secondary offense – the two alleged offenses were coextensive.