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United States v. Brown

October 27, 2008

UNITED STATES OF AMERICA
v.
KASIEM BROWN, A/K/A "KING"



The opinion of the court was delivered by: Hon. Joseph H. Rodriguez

Opinion

This matter comes before the court on Defendant Kasiem Brown's pre-trial motion to suppress the firearms seized on January 30, 2006. Defendant contends that the police lacked the requisite reasonable suspicion to stop his vehicle. For the reasons expressed below, Defendant's motion is granted.

I. Factual and Procedural Background

On January 30, 2006, officers of the Atlantic City Police Department received reports of gunfire at 4:00 a.m. near the Sands Casino Hotel ("the Sands"). (See Def.'s Ex. 8.) Officers were immediately dispatched to the intersection of Indiana and Pacific Avenues. (Id.) Witnesses at the scene told police that an SUV "had been the target of gunshots fired by unknown persons". (See Gov't. Opp'n Br., p.15.) A radio transmission at 4:02:56 a.m. described the suspected vehicle as a black Chevrolet Suburban (SUV) with four to five black males inside.*fn1 (See Def.'s Reply Br., Attach. 2, p.44.) The Suburban's rear-tinted window was reported as having been shot-out. (Id. at Attach. 1, 16.) Consistent with that report, responding Officer Petinga reported shards of "tinted and clear glass from vehicle windows" laying "in the middle of the street" at the scene of the shooting. (Def.'s Ex. 8.) An eye-witness indicated that the SUV had driven away "southbound at a high rate of speed". (Id.)

Upon hearing reports from dispatch, Officers Barrett and Wagner responded. Traveling in a marked car, they arrived at Indiana and Pacific Avenues within minutes. (See Def.'s Reply Br., Attach. 1, p.17.) Officer Barrett described the area as being "very well lit." (Id. at 5.) While conducting a search of the surrounding blocks, the officers received reports that an SUV, similar to the one described in the initial report, was spotted on the Atlantic City Expressway. (See Barrett Test. Tr. p. 18.) That radio report was transmitted to the officers at 4:04:33 a.m. (Id.)

Four minutes after receiving that transmission--approximately nine minutes after the initial report of gun fire--Officer Barrett and Officer Wagner spot a dark-blue Chevrolet Tahoe idling three blocks from the scene of the shooting at a red light. (Id. at 16, 22; and Gov't. Ex. C.) The Tahoe was headed westbound at Arkansas and Pacific Avenues, while the officers were traveling eastbound. (See Def.'s Reply Br., Attach. 1, p.23.) Detective Barrett observed three individuals in the Tahoe, two of whom were discernibly black males. (Id. at Attach. 2, 45.) As the officers drove past the Tahoe, the driver turned his head. (See Gov't. Ex. C.) The officers then made a quick u-turn to get behind the vehicle. (Id.) Detective Barrett observed the driver through the tinted windows handing an indescript object to the passenger in the rear seat. (Id.) At that point, the officers activated their emergency lights and sirens in order to perform an investigatory stop. (Id.)

Next, Officer Barrett immediately approached the Tahoe with his flashlight in hand. (See Def.'s Reply Br., Attach. 1 at 9.) He positioned himself "towards the rear of the passenger's side" of the Tahoe. (Id.) From that vantage point, Detective Barrett shined his flashlight into the vehicle, and saw the muzzle of a firearm protruding from an open compartment in plain view. (Id. at 10.) A second firearm was later discovered after a thorough search of the vehicle. (Gov't Surreply Br., p.2.)

Defendant Brown and the driver, Ibn Shabazz, were arrested and charged with unlawful possession of two firearms in the Superior Court of Atlantic County, New Jersey, Criminal Division. (Id.) Both Defendants filed motions to suppress the seizure, contending the police lacked the requisite reasonable suspicion to stop the vehicle. (Id.) After briefing and a suppression hearing, the state superior court judge ruled that the officers had reasonable suspicion to stop the vehicle. (Id. at 6.) The state dismissed the charges against Defendant Brown on May 29, 2007, however, following a superseding indictment issued by a federal grand jury on May 22, 2007. (Id.) Now in federal district court, Defendant Brown is charged, inter alia, with unlawful possession of firearms in violation of 18 U.S.C. §§ 922(g)(1) and 924(e)(1 ). Defendant has once again moved to suppress the firearms seized on January 30, 2006. Both the Government and Defendant have submitted briefings, and testimonial hearings have been held. This Court has jurisdiction pursuant to 18 U.S.C. § 3231.

II. Discussion

The Fourth Amendment ensures "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." U.S. Const. amend. IV. For a seizure to be constitutionally reasonable, "it must be effectuated with a warrant based on probable cause." See United States v. Brown, 448 F.3d 239, 245 (3d Cir. 2006) (quoting United States v. Robertson, 305 F.3d 164, 167 (3d Cir. 2002). One exception to the warrant requirement, inter alia, occurs when an officer conducts a brief investigatory stop based on articulable, reasonable suspicion that "criminal activity is afoot." See Illinois v. Wardlow, 528 U.S. 119, 123 (2000) (discussing the exception known as the "Terry stop", established in Terry v. Ohio, 392 U.S. 1 (1968)). A Terry stop may occur either before or after a crime has allegedly been committed. See Brown, 448 F.3d at 244, n.7. (citing United States v. Hensley, 469 U.S. 221, 229 (1985)).

When the police stop an automobile and detain its occupants, they have effected a seizure within the scope and meaning of the Fourth Amendment. See Delaware v. Prouse, 440 U.S. 648, 653 (1979). In the context of a Terry stop then, such stops are permitted without a warrant when the officer has articulable, reasonable suspicion that either the vehicle or its occupant has violated the law. Id. at 663. If no articulable, reasonable suspicion exists for the stop, then any evidence seized pursuant to the stop must be suppressed as "fruit of the poisonous tree." See United States v. Mosley, 454 F.3d 249, 269 (3d Cir. 2006) (citing Wong Sun v. United States, 371 U.S. 471, (1963)). Here, the central issue is whether Detective Barrett had reasonable suspicion to stop the vehicle in which Defendant Brown was a passenger. If he did not, then the firearm seen in plain view, along with the second one later discovered, must be suppressed as fruit of an unlawful seizure. The Government has the burden to show a "minimal level of objective justification" for the stop. See United States v. Delfin-Colina, 464 F.3d 392, 396 (3d Cir. 2006). Pointedly, there is no dispute that a seizure occurred, nor is the timing of the seizure at issue.*fn2

A. Reasonable Suspicion Standard

The Supreme Court recognizes that the reasonable suspicion standard is abstract and elusive. See United States v. Arvizu, 534 U.S. 266, 274 (2002) (describing the standard as "abstract") and United States v. Cortez, 449 U.S. 411, 417 (1981) (describing the standard as "elusive"). The test to determine whether articulable, reasonable suspicion exists is an objective one, judged by factors known to the officers before the investigatory stop is made. See United States v. Valentine, 232 F.3d 350, 358 (3d Cir. 2000) (citing Florida v. J.L., 529 U.S. 266, 271 (2000)) (emphasis added). Courts must examine the totality of the circumstances to determine whether the requisite "particularized suspicion" is present. United States v. Nelson, 284 F.3d 472, 478 (3d Cir. 2002). In conducting the totality of the circumstances test, each factor cannot be judged in isolation. See Arvizu, 534 U.S. at 274 (holding that Terry "precludes... divide and conquer analysis"). Such analysis is precluded because each factor may seem innocent in isolation, but when viewed collectively creates sufficient reasonable suspicion for "further investigation." Terry, 392 U.S. at 22.

B. Applicable Precedent

Relevant case law points to several factors that aid in the determination of reasonable suspicion. For example,

The Supreme Court has repeatedly recognized that a reasonable suspicion may be the result of any combination of one or several factors: specialized knowledge and investigative inferences (United States v. Cortez), personal observation of suspicious behavior (Terry v. Ohio), information from sources that have proven to be reliable, and information from sources that--while unknown to the police--prove by the accuracy and intimacy of the information provided to be reliable at least as to the details contained within that tip (Alabama v. White).

Brown, 448 F.3d at 247 (quoting Nelson, 284 F.3d at 478).

Anonymous tips and eye witness reports often form the basis for reasonable suspicion. In United States v. Nelson, the Third Circuit held that the tips communicated to police possessed sufficient indicia of reliability to justify an officer's Terry stop of an automobile. 284 F.3d at 482. There, police were looking for persons suspected of committing "armed hold-ups of drug dealers." Nelson, 284 F.3d at 475. The information conveyed was that "two black males... were driving in a gray BMW with tags in the rear window... on Martin Luther King Drive." Id. A second tip provided the same description. Id. When the police arrived at Martin Luther King Drive, they found two black males driving in a gray BMW with tags in the rear window--a precise match.*fn3

Id. at 481. The question in that case ultimately turned on the reliability of the tips, as there was no independent basis for the stop other than the precise match of the tips. Id. Because the initial caller had a previous relationship with the police, and because both calls not only matched, but also described ongoing criminal activity, the Third Circuit held that a sufficient basis existed for the stop. Id. at 482-83.

In another case, police received reports that three armed robberies had just occurred in neighboring towns.*fn4 United States v. Kithcart, 134 F.3d 529, 530 (3d Cir. 1998). Radio transmissions described "two black males in a black sports car... possible Z-28, possible Camaro", with one of the suspects possibly wearing white clothes. Id. Ten minutes after receiving the last radio transmission, an officer spotted a black Nissan 300ZX driven by a black male headed south on a road roughly one mile from the border of Bristol Township. The driver appeared to be the only person in the car. Id. at 531. The officer then "pulled up behind the vehicle, which had stopped at a red light." Id. After noticing the officer, the driver of the Nissan drove through the red light, which caused the officer to initiate a stop. Id. When two sets of arms raised up, the officer ascertained that two people were inside the car. Id. She then called for backup, and did not exit her patrol car until other officers arrived. Id. Two guns were ultimately found--one in a white-nylon waist pouch on the driver and the second under the driver's seat. Id.

The defendant moved to suppress, contending that the officer lacked reasonable suspicion to stop and detain in the first place. Id. Not addressing the reasonable suspicion argument, the district court ruled that the officer had probable cause to make the stop, independent of the running of the red light.*fn5 Id. (emphasis added). The Third Circuit reversed, noting that the match between the information transmitted and the car stopped by the officer was "far from precise." Id. at 531. Then-Circuit Judge Alito wrote:

[A]rmed with information that two black males driving a black sports car were believed to have committed three robberies in the area some relatively short time earlier, Officer Nelson could not justifiably arrest any African-American man who happened to drive by in any type of black sports car. Kithcart, 134 F.3d at 532.

Also noteworthy is the fact that the record was devoid of evidence that a Z28 could easily be mistaken for a 300ZX.*fn6 Id. at 531. The Third Circuit then remanded on the issue of whether the facts above support a finding for reasonable suspicion. Id. at 532.

Tellingly, Judge McKee wrote a separate opinion. See generally, Kithcart, 134 F.3d at 522-536 (McKee, J., concurring in part and dissenting in part). While Judge McKee agreed that the officers did not have probable cause to make the stop, he strongly disagreed with the decision to remand on the question of reasonable suspicion; "Officer Nelson did not have reasonable suspicion to stop and detain the occupants of the car." Id. at 532. In support of this conclusion, Judge McKee reasoned that:

The car that Officer Nelson stopped was not only a different make and model than the one most likely involved with the armed robberies, but the number of occupants it contained appeared to be inconsistent with the radio broadcast as well. The majority points out that it was only after Officer Nelson initiated the stop and saw a second pair ...


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