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U.S. v. Kithcart

January 12, 1998

UNITED STATES OF AMERICA

v.

JESSE KITHCART, APPELLANT



ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA (D.C. Crim. No. 96-00090-1)

Before: ALITO, LEWIS, and McKEE, Circuit Judges

ALITO, Circuit Judge

Filed January 12, 1998

Argued: August 11, 1997

OPINION OF THE COURT

Jesse Kithcart appeals from a judgment in a criminal case. Kithcart pled guilty to one count of being a felon in possession of a firearm, in violation of 18 U.S.C.Section(s) 922(g)(1), but he reserved his right to appeal the district court's decision on his motion to suppress the firearm in question. This appeal raises the question whether the officers had probable cause to arrest and search Kithcart. Because we conclude that they did not have probable cause, we reverse the district court's denial of the suppression motion on the grounds given, and we remand for further proceedings in accordance with this opinion.

I.

On July 25, 1995, Bensalem Township Police Officer Teresa Nelson was assigned to a radio patrol car on the evening shift. Over the course of an hour, Officer Nelson received three radio transmissions, each reporting an armed robbery. The first two robberies occurred at motels in Bensalem Township, and the last transmission concerned a robbery in neighboring Bristol Township. The final report -- which was received at approximately 10:43 p.m. -- did not specify either the time or location of the Bristol robbery. Bristol is north of, and adjacent to, Bensalem Township.

The alleged perpetrators of these robberies were described as "two black males in a black sports car." It was also reported that one of the perpetrators might have been wearing white clothes, and the vehicle was described as a "possible Z-28, possible Camaro." *fn1

At 10:53 p.m. -- approximately ten minutes after receiving the final radio transmission regarding the Bristol robbery -- Officer Nelson spotted a black Nissan 300ZX, which she described as a sports car, traveling south on Route 13, approximately a mile or less from the boundary of Bristol Township. The vehicle was driven by an African-American male who appeared to be the only person in the car. Officer Nelson testified that since the time when she received the first radio transmission more than an hour earlier, this was the first occasion when she spotted either a black vehicle or a black male driving a car. Officer Nelson also testified that immediately after she pulled up behind the vehicle, which had stopped at a red light, the driver drove the Nissan through the red light. Officer Nelson then flashed her dome lights, and the Nissan pulled over to the side of the road. At this point, Officer Nelson saw two sets of arms raised toward the roof of the car, and she realized that there were two people in the car.

Officer Nelson then called for backup and waited in her patrol car until Officers Christine Kellaher and Bill Williams arrived at the scene. Officer Williams found a gun in Kithcart's white nylon waist pouch, and Officer Kellaher found a gun under the driver's seat.

In moving to suppress the evidence seized by the police, Kithcart contended among other things, that the police lacked reasonable suspicion for an investigatory stop pursuant to Delaware v. Prouse, 440 U.S. 648 (1979), Terry v. Ohio, 392 U.S. 1 (1968), and related cases. See App. 95a. Consistent with this argument, Kithcart argued that Officer Williams had discovered his gun during a "pat down" or "frisk" but that the standard for conducting a "frisk" under Terry had not been met. App. 97a. The government argued that the police were justified in stopping the car because the driver ran a red light. In addition, the government's brief argued as follows:

[G]iven that Officers Nelson and Williams were confronted with two black males in a black sports car shortly after and in the vicinity of the reported robberies, and that the males had attempted to flee upon seeing Officer Nelson's car pull behind theirs, the totality of the circumstances established reasonable suspicion to support the pat-down of the defendant and his waist-pack. See Chimel v. California, 395 U.S. 752, 763 (1969) (lawful arrest creates a situation which justifies a contemporaneous search of arrestee and immediate area, including area from within which arrestee might gain possession of a weapon); Terry v. Ohio, 392 U.S. 1 1968 (limited pat-down of a suspect's exterior clothing and protective sweep of area within immediate control are authorized during a lawful stop). App. 107a-108a.

At the hearing on the motion, counsel for Kithcart, counsel for the government, and the court all referred to the government's latter argument as concerning the question of "probable cause" (see e.g., App. 27a, 28a, 54a, 58a), and at the conclusion of the hearing, *fn2 the district court orally ruled that the police had "probable cause . . . for the stop." App. 60a. The court relied on "the direction, the timing, the location of the vehicle, plus the fact it [was] a black sports car." App. 60a. The court noted the discrepancy between the radioed description of the perpetrators as two black males and Officer Nelson's initial belief that there was only one black male in the car, but the court held that the fact that Officer Nelson had not seen any other black men driving cars since she received the initial radio transmission heightened the probability that the driver of the vehicle had been involved in the robberies. Because the court concluded that the officers had probable cause, the court found it unnecessary to decide whether the alleged running of the red light provided an independent basis for Officer Nelson's stop and the subsequent actions of the officers.

Following this ruling, Kithcart pled guilty, subject to the condition that he be allowed to challenge on appeal the district court's denial of his motion to suppress.

II.

We turn first to the ground on which we understand the district court to have denied Kithcart's suppression motion, viz., that the officers had "probable cause" to arrest Kithcart and to search him incident to the arrest. When a warrantless search is made pursuant to an arrest, "[t]he constitutional validity of the search . . . must depend upon the constitutional validity of the . . . arrest." Beck v. Ohio, 379 U.S. 89, 91 (1964).

Whether that [warrantless] arrest was constitutionally valid depends in turn upon whether, at the moment the arrest was made, the officers had probable cause to make it -- whether at that moment the facts and circumstances within their knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the [suspect] had committed or was committing an offense. Id.

<--text--> See also Barna v. City of Perth Amboy, 42 F.3d 809, 819 (3d Cir. 1994) (test for probable cause is objective test: did the police officer have a reasonable basis for believing that the suspect had committed or was committing a crime). Our review of a district court's determination that there was probable cause to effect a warrantless search is de novo. Ornelas v. United States, 116 S. Ct. 1657, 1659 (1996).

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