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U.S. v. Brown

October 29, 1998

UNITED STATES OF AMERICA,
v.
KENNETH C. BROWN, APPELLANT.



(D.C. No. 97-CR-00144)

Before: Nygaard, Alito, and Rendell, Circuit Judges.

The opinion of the court was delivered by: Nygaard, Circuit Judge.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

ARGUED AUGUST 4, 1998

OPINION OF THE COURT

Kenneth Brown appeals the district court's denial of his motion to suppress evidence discovered during a stop and frisk conducted by York City, Pennsylvania police officers. Brown claims that the stop and subsequent "pat-down" were not based on facts sufficient to support a warrantless stop under Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868 (1968). We have jurisdiction under 28 U.S.C. § 1291. We review the factual findings of the district court for clear error. See United States v. Roberson, 90 F.3d 75, 77 (3d Cir. 1996) (citing Ornelas v. United States, 517 U.S. 690, 699-700, 116 S. Ct. 1657, 1662-63 (1996)). We review the district court's Conclusion that there was reason to conduct the Terry stop de novo. See id. We will affirm.

I.

At approximately 1:30 a.m. on January 24, 1996, York City police officers received a radio call of "shots fired" in the 700 block of West King Street--an area known as a "very high crime area." Shortly thereafter, a second radio transmission reported that two victims of the shooting had been taken away by a private vehicle. Officer Michael Koltunovich, a uniformed police officer in a marked police vehicle, immediately responded. As he approached the area, he saw five African American men walking in the vicinity of the reported crime scene along West Princess Street. Except for these five men, the streets were deserted. Koltunovich stopped his vehicle and asked the men to "hold up." Two men stopped, were frisked for weapons, questioned and released. The other three men continued walking. Koltunovich radioed a description of the three men and stated that one (Brown) wore a black leather jacket and bright white knit cap.

Uniformed Officer Todd Ross was also on patrol that night in a marked police vehicle. As Ross responded to the "shots fired" call, he heard Koltunovich radio that three potential suspects were walking east along West Princess Street. Within seconds after receiving the radio transmission, Ross saw Brown on West Princess Street near the crime scene wearing a black leather jacket and bright white knit cap. When Ross stopped his vehicle, Brown turned and ran into an alley. Ross radioed this information. Koltunovich then radioed that he saw Brown enter Gus's Bar. Ross entered the bar and saw a white knit cap next to a man wearing a black leather jacket. The man stated that the cap was his and that he had a weapon. Koltunovich entered the bar and identified Brown as the person who had walked away from him earlier that night. The police officers frisked Brown and found an unloaded, sawed-off .22 caliber rifle. Brown was arrested and taken to the police station where they conducted a thorough search and found drugs, money and ammunition. A grand jury indicted Brown for one count of possession of afirearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1) and one count of possession of an unregistered sawed-off rifle in violation of 26 U.S.C. § 5861(d). Brown was not charged with the shootings.

Brown moved to suppress: (1) his statement admitting possession of the firearm; (2) the firearm; (3) the ammunition; and (4) the drugs. Brown claims that the officers lacked the reasonable suspicion required to conduct a warrantless stop and frisk. Brown argues that the only basis for the stop and frisk was that he fled from police and that this, without more, is insufficient to justify a Terry stop. The district court found that reasonable suspicion supported the Terry stop and denied the motion to suppress. Brown now appeals that order.

II.

In Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 1880 (1968), the Supreme Court held that a police officer may conduct a warrantless stop and frisk if specific and articulable facts, together with all rational inferences, suggest that the suspect was involved in criminal activity. This investigatory stop is short of an arrest and can be justified by "less than the probable cause necessary for an arrest." Roberson, 90 F.3d at 77. However, a mere "hunch" or "inchoate and unparticularized suspicion" cannot justify a stop and frisk under Terry. See Terry, 392 U.S. at 27, 88 S. Ct. at 1883. Deference, however, is given to the officer's Conclusions based on the officer's experience. See United States v. Rickus, 737 F.2d 360, 365 (3d Cir. 1984) (citing United States v. Cortez, 449 U.S. 411, 418, 101 S. Ct. 690, 695 (1981)). An officer cannot conduct a Terry stop simply because criminal activity is afoot. See Terry, 392 U.S. at 29, 88 S. Ct. at 1884. Instead, the officer must have a particularized and objective basis for believing that the particular person is suspected of criminal activity. See United States v. Cortez, 449 U.S. 411, 417-18, 101 S. Ct. 690, 695 (1981).

Brown contends that his flight from police is insufficient to support a Terry stop and frisk. We disagree.*fn1 We have held that flight combined with other factors may support a warrantless stop and frisk. See United States ex rel. Richardson v. Rundle, 461 F.2d 860, 863-64 (3d Cir. 1972). These other factors, apropos to Brown's stop include: (1) the reputation of an area for criminal activity, see Rickus, 737 F.2d at 365; (2) a suspect's flight upon seeing his companion questioned and frisked by officers, see United States v. Embry, 546 F.2d 552, 555 (3d Cir. 1976); and (3) a ...


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