On Appeal from the United States District Court for the Eastern District of Pennsylvania, D.C. Criminal No. 85-00310-01.
Before: SEITZ, SLOVITER and ROSENN, Circuit Judges.
Appellant Milton Hawkins, who was convicted of possession of a firearm by a felon under 18 U.S.C. app. § 1202(a)(1) and sentenced to a mandatory prison term of fifteen years because he had three prior convictions for burglary or robbery, challenges the legality of the stop which resulted in finding the gun and the legality of his sentence.
At periodic intervals during the evening of March 20, 1985. Philadelphia police officers Robert Stott and Dennis Donlon were conducting plain clothes surveillance of a house in the Germantown section of Philadelphia for narcotics activity. The officers had been informed by two other police officers that the house was a suspected narcotics location. During their surveillance from 8:45 to 9:30 p.m. and from 10:00 to 10:30 p.m., one or both officers saw people go to the door of the house or go inside the house briefly and then leave. Although the officers did not see any drugs change hands between the occupants of the house and the visitors, Officer Donlon testified to having observed "exchange of hand motion." App. at 126.
At 11:30 p.m., the officers saw a car containing two persons pull up to the house. The passenger left the car, entered the house, returned to the car within five minutes, spoke with the driver for about a minute and then returned to the house. A few minutes later, the passenger exited the house with two men who got into the rear seat; the passenger got into the front seat.
As the car pulled away, the officers followed in an unmarked van. The officers testified that as the car travelled for several miles, it passed a bus, crossed double yellow lines, and ran a red light at a high rate of speed before parking. The officers parked in back of the car, turned on the van's high beams, got out of the van and approached the car. As they identified themselves, Officer Donlon, who has approached the car from the driver's side, observed Hawkins, who was sitting behind the driver, moving his arms and shoulders. Officer Donlon shined a flashlight on Hawkins who appeared to be trying to tuck something into the seat. The officers ordered everyone out of the car. As Hawkins exited the car, Officer Donlon observed him drop a gun to the seat and cover it with a pillow. Officer Donlon retrieved the gun and placed Hawkins under arrest. The officer frisked all four occupants of the car and found narcotics on Howkins and the front seat passenger.
Following his arrest, Hawkins was charged with possession of a firearm by a felon under 18 U.S.C. app. § 1201(a)(1). Hawkins moved to suppress the gun. The district court conducted a suppression hearing at which the officers testified that they stopped the car in order to conduct an investigation of the alleged traffic violations. The district court held that since the officers identified themselves after flooding the car with their headlights, there was a "stop" under Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968). The court also held that although there was no evidence to support a stop for the reasons given by the officers, the events the officers observed during their surveillance constituted "reasonable suspicion" to believe that the occupants of the car were engaged in a narcotics violation. On that basis, the court held that the stop was legal and that the resulting evidence was admissible.
Hawkins challenges both the district court's conclusion that the facts known to the officers were sufficient to create reasonable suspicion that the occupants of the car were engaged in a narcotics violation, and its conclusion that the stop can be justified on grounds different than those given by the officers. We consider first whether the court erred in finding the officers had objective reasonable grounds to justify the stop.
The district court credited the officers' testimony that they had been informed by two other officers that the house at issue was a suspected narcotics location. In light of the reputation of the house and the observations by the officers of persons going to the house late at night for brief periods, some of whom were observed exchanging hand movement, and the actions of the occupants in the car,*fn1 we agree with the district court that there was sufficient basis to raise a reasonable suspicion that the occupants of the car, like the other visitors to the house, were engaged in the sale and purchase of narcotics. Given the time frame of the events, that suspicion justified a brief investigatory stop under the standards enunciated in Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968).
It is my understanding, and I would credit it as true from the testimony of the officers that they were on surveilling that particular property as one reputed to be the property at which controlled substances were distributed; that when the car drove up to the address the person in the passenger's side of the front of the car got out, went into the house for a short period of time and minutes thereafter returned, apparently had a conversation with the driver and thereafter went back to the house. Then the passenger left the house together with two other individuals.
Hawkins argues, however, that because the officers testified that their sole motivation for investigating the car once it came to a stop was the alleged traffic violations,*fn2 and the district court declined to credit this testimony,*fn3 the stop cannot be upheld. He argues that as a matter of law, the court may not rely upon its post hoc assignment of reasonable suspicion based upon the facts observed during the surveillance.*fn4 We have found no direct Supreme Court authority on this issue, but the analysis applied by the Court in recent cases suggests that the legality of a stop must be judged by the objective facts known to the seizing officers rather than by the justifications articulated by them.
In Terry v. Ohio, supra, the Supreme Court held that the Fourth Amendment was not violated by a brief investigatory stop. The Court stated that the validity of such stops was to be "judged against an objective standard: would the facts available to the officer at the moment of the seizure or the search 'warrant a man of reasonable caution in the belief' that the action taken was appropriate?" 392 U.S. at 21-22. In cases following Terry, the Court reaffirmed that an investigatory stop will be sustained where "the detaining officers [had] a particularized and objective basis for suspecting the particular person stopped of criminal activity." United States v. Cortez, 449 U.S. 411, 417-18, 66 L. Ed. 2d 621, 101 S. Ct. 690 (1981) (emphasis added); see also Brown v. Texas, 443 U.S. 47, 51, 61 L. Ed. 2d 357, 99 S. Ct. 2637 (1979); United States v. Brignoni-Ponce, 422 U.S. 873, 884, 45 L. Ed. 2d 607, 95 S. Ct. 2574 (1975).
The focus on objective factors rather than subjective intent has been illustrated by a number of decisions discounting the relevance of the officer's state of mind. In Scott v. United States, 436 U.S. 128, 56 L. Ed. 2d 168, 98 S. Ct. 1717 (1978), the Court upheld the legality of a wiretap on the basis of the objective reasonableness of the search notwithstanding the officers' purposeful failure to comply with the minimization order. The Court stated that "the fact that the officer does not have the state of mind which is hypothecated by the reasons which provide the legal justification for the officer's action does not invalidate the action so long as the circumstances, viewed objectively, justify that action." Id. at 138. The Court approvingly referred to opinions of the Court of Appeals which "examined the challenged searches under a standard of objective reasonableness without regard to the underlying intent or motivation of the officers involved." Id.
Similarly, in Maryland v. Macon, 472 U.S. 463, 105 S. Ct. 2778, 86 L. Ed. 2d 370 (1985), the Court held that the purchase of obscene materials was not a seizure, despite the purchasing officer's intent to retrieve the marked purchase money for use as evidence. The Court stated: "Whether a Fourth Amendment violation has occurred 'turns on an objective assessment of the officer's actions in light of the facts and circumstances confronting him at the time,' . . . and not on the officer's actual state of mind at the time the challenged action was taken." Id. 105 S. Ct. at 2783 (quoting Scott v. United States, 436 U.S. at 136).
The Scott/Macon principle that a Fourth Amendment inquiry focuses on the objective facts known to the officer rather than the seizing officer's state of mind has been applied in a number of contexts. Both the Supreme Court and this court have held that a seizure that is valid based upon the stated purpose cannot be challenged on the grounds that the seizing officers were in fact motivated by an improper purpose. Thus, in United States v. Villamonte-Marquez, 462 U.S. 579, 584 n.3, 77 L. Ed. 2d 22, 103 S. Ct. 2573 (1983), and in United States v. Demanett, 629 F.2d 862, 868-69 (3d Cir. 1980), cert. denied, 450 U.S. 910, 101 S. Ct. 1347, 67 L. Ed. 2d 333 (1981), valid stops of vessels for the purpose of inspecting required documentation were upheld despite evidence that the officers conducting the stops were in fact motivated by suspicions of narcotics violations. Similarly, in United States v. Hensley, 469 U.S. 221, 234-35, 83 L. Ed. 2d 604, 105 S. Ct. 675 (1985), a stop based upon an objective reasonable suspicion was upheld even though the officer making the stop intended to make an arrest of a suspect under circumstances where an arrest would not be justified. Finally, an arrest based upon objective probable cause has been upheld even when the arresting officers did not believe that such probable cause existed. See Peters v. New York, decided with Sibron v. New York, 392 U.S. 40, 66-67, 20 L. Ed. 2d 917, 88 S. Ct. 1889 (1968); see also 1 W. LaFave, Search and Seizure § 1.2, at 45-46 (Supp. 1986).
Unlike the situations in the cases cited above where courts considered whether the officers' inadequate or improper motivations tainted an objectively reasonable search or seizure, in this case the officers justified the stop on pretextual grounds. Hawkins, citing United States v. Sharpe, 470 U.S. 675, 686-87, 84 L. Ed. 2d 605, 105 S. Ct. 1568 (1985), argues that "[a] creative judge engaged in post hoc evaluation of police conduct can almost always imagine some alternative means by which the objectives of the police might have been accomplished." He contends that in return for the latitude that Terry gives the the stopping officers to investigate based on suspicions developed in light of their senses, experience and training, see 392 U.S. at 27, "the police officers must tell the court the truth about what they were doing and why so that courts can pass on the reasonableness of their actions." Appellant's brief at 18. We fail to see any basis for such a quid pro quo in the Fourth Amendment.
In effect, Hawkins is arguing that we should extend the exclusionary rule as a prophylactic measure to discourage false testimony by police officers. However, the Fourth Amendment is designed as a bulwark against incursions to an individual's personal liberty, protecting the individual from warrantless searches and seizures. If the seizure is based on a recognized exception from the warrant requirement, the concerns to which the Fourth Amendment is directed have been adequately met. The exclusionary rule was designed to deter unconstitutional conduct, not perjury. In the absence of a constitutional violation, there is no basis upon which to exclude relevant evidence. The laudable objective of discouraging police perjury does not warrant such a draconian sanction as exclusion.
The situation in this case, where there was a reasonable objective basis for the stop, is distinguishable from those cases where the police, having no valid basis for a stop or arrest, relied on a pretext to justify their actions. See, e.g., United States v. Smith, 799 F.2d 704 (11th Cir. 1986); United States v. Cruz, 581 F.2d 535, 541-42 (5th Cir. 1978) (in banc). In those cases, it was not the pretext but the absence of a valid basis for the action that was determinative of the suppression motion. Even in United States v. Smith, on which Hawkins relies, the court emphasized that the appropriate focus should be "on objective reasonableness rather than on subjective intent or theoretical possibility." 799 F.2d at 710.
In short, despite the courts' general disapproval of police officers' resort to pretext, the outcome of suppression motions has generally depended on objective factors. See, e.g., United States v. Lester, 647 F.2d 869, 873 (8th Cir. 1981) ("the validity of the arrest should be judged by whether the arresting officers actually had probable cause for the arrest, rather than by whether the officers gave the arrested person the right reason for the arrests); Klingler v. United States, 409 F.2d 299, 305 (8th Cir.), cert. denied, 396 U.S. 859, 90 S. Ct. 127, 24 L. Ed. 2d 110 (1969) ("Objectively, the facts known to [the officer] prior to the arrest and search met the standard of probable cause. Notwithstanding the officer's mistaken statement of grounds, the existence of probable cause for a robbery arrest prevents the robbery arrest from being considered pretextual"). We conclude that the fact that a pretext was given does not render invalid an otherwise constitutional search.*fn5 The district court did not err in holding, based on the objective reasonableness of the stop, that the evidence of the gun that Hawkins possessed should not have been suppressed.
Hawkins had previously been convicted of two robberies and one burglary. Accordingly, following his conviction by the jury of violating 18 U.S.C. app. § 1202(a), he was sentenced to fifteen years imprisonment pursuant to the Armed Career Criminal amendment to 18 U.S.C. app. § 1202(a). That section provides:
In the case of a person who receives, possesses, or transports in commerce or affecting commerce any firearm and who has three previous convictions by any court referred to in paragraph (1) of this subsection for robbery or burglary, or both, such person shall be fined not more than $25,000 and imprisoned not less than fifteen years, and, notwithstanding nay other provision of law, the court shall not suspend the sentence of, or grant a probationary sentence to, such person with respect to the conviction under this subsection, and such person shall not be eligible for parole with respect to the sentence imposed under this subsection.
Hawkins argues that the Armed Career Criminal provision creates an unconstitutional classification of felons convicted of possession of a firearm. Unless a statute creates a suspect classification or impinges upon a fundamental interest, it will be upheld if the purpose of the classification bears some rational relationship to a legitimate state purpose. See Benner v. Oswald, 592 F.2d 174, 181 (3d Cir.), cert. denied, 444 U.S. 832, 100 S. Ct. 62, 62 L. Ed. 2d 41 (1979). A statute will be held irrational under this test only if the classification it creates "'rests on grounds wholly irrelevant to the achievement of the State's objective.'" Id. (quoting McGowan v. Maryland, 366 U.S. 420, 425, 6 L. Ed. 2d 393, 81 S. Ct. 1101 (1961)).
Hawkins admits that classifications based upon felony status are not suspect. Appellant's Brief at 31 n.8. Nonetheless, he suggests that because the statute impinges on the liberty interest, we must subject the classification to a heightened level of scrutiny. Id. However, the Supreme Court has made clear that states are entitled to make their own classifications among crimes and criminals subject only to the strictures of the Eighth Amendment. See Rummel ...