UNITED STATES v. LINDSEY, USCA-11 No. 05-11273, 2007 U.S.App. LEXIS 7062, on appeal from USDC-FLSD, before Chief USCJ Edmondson, USCJs Barkett, Cox, opinion by Edmondson, dissent by Barkett, filed 27 Mar 2007.
LONG STORY SHORT: Anonymous tip that reported four black males loading guns into a white SUV at a specific location, coupled with police knowledge of a pattern of robberies in the area and reasonably mistaking a chair bag for a rifle container, amounted to probable cause to search SUV. Binding in AL, FL, GA.
FACTS: Someone calling himself Davis reported to Palm Beach County 911 that behind a Mobil gas station across from a Wachovia bank branch were four black males loading firearms and putting them in a white SUV. The West Palm Beach, FL PD knew of a string of bank robberies wherein three to four black males arrived in a large white SUV and displayed assault-type weapons. [Note: Courts generally have no idea what "assault-type weapons" are, other than any gun that the news media doesn't like.] Also, that same Wachovia branch had twice recently experienced robberies perpetrated by two black males.
Sergeant Tierney, first to arrive, saw a large white SUV parked in the reported place, and as he watched, the SUV suddenly left, apparently in reaction to his arrival, and drove to the front of the Mobil station and stopped at a gas pump. Four black males got out; one raised the SUV's hood and the other three walked toward the station. Sergeant Tierney, believing a robbery was imminent, stopped the subjects at shotgun point and ordered them to get on the ground. Defendant, one of the three who had been heading to the station, asked "what did I do" before lying down and submitting to handcuffs. As responding officers put the subjects in police vehicles, an armored car pulled up to the bank and security personnel left the bank carrying satchels of cash. Mobil employees told police that the SUV had been parked there for two hours.
All four subjects were convicted felons, but none had any outstanding warrants. However, Defendant was the registered owner of the SUV and was on parole for armed bank robbery. After releasing the other three subjects, police kept Defendant to investigate possible parole violations (one of his conditions was that he not associate with convicted felons) and to confirm or disconfirm their suspicion that weapons were in the SUV. Defendant refused permission to search his vehicle. Inside it, police saw in plain view a pair of binoculars and a black canvas bag that looked like a rifle bag.
Police arrested Defendant for being a felon in possession of firearms, towed the SUV, and swore out a search warrant based on the 911 call and what they had learned. The bag turned out to be an empty bag for a folding chair, but in the center console was a .38 revolver loaded with two live rounds. At about the same time, Defendant waived his Miranda rights and admitted to buying the revolver and to owning all items in the SUV.
PROCEDURE: The United States indicted Defendant in U.S. District Court for the Southern District of Florida for possessing firearms and ammunition while a convicted felon, and for being an armed career criminal. Defendant moved to suppress the items seized and his post-arrest statements, arguing that police did not verify the anonymous tip and had no reasonable suspicion of criminal activity being afoot before they stopped him, had no probable cause to obtain a warrant, and had no probable cause to arrest him. The trial court ruled that on the totality of circumstances, police articulated reasonable suspicion and appropriately dealt with a potentially deadly situation as efficiently as they could. SUPPRESSION DENIED. A jury convicted Defendant as charged and the trial court sentenced him to 300 months. Defendant appealed his convictions and sentence to the U.S. Court of Appeals for the Eleventh Circuit.
DECISION: Police were able to confirm the anonyous tip, as far as it went. Their recent experiences with three to four black males in a white SUV using guns to rob banks, and the two robberies at that same Wachovia branch, made their suspicions more particular. When the SUV suddenly drove off as Sergeant Tierney's vehicle came into view, suspicion increased. Police had more than a hunch that a robbery was about to go down.
Then, the armored car showed up within minutes, and there appeared to be a rifle bag in the vehicle that the caller had reported guns being loaded into, and police found that Defendant was a convicted felon. This added up to probable cause to arrest him for felon in possession.
The Eleventh Circuit did not consider whether the search warrant was valid, because it was unnecessary. The automobile exception to the warrant requirement applies if the vehicle is readily mobile (it was) and if police have probable cause to search it, that is, a fair probability that evidence or contraband will be found. From the facts already known, police had probable cause. DENIAL OF SUPPRESSION AFFIRMED. Defendant also raised issues of unfair trial, but they were without merit. CONVICTIONS AND SENTENCE AFFIRMED in all respects.
The dissent would have ruled Defendant's initial seizure at gunpoint to have been without reasonable suspicion. The anonymous tip was not reliable and at least its prediction that more than one gun would be in the SUV was incorrect. The recent robberies had nothing in common with Defendant and his companions other than they were four black males in a large white SUV, not an uncommon sight in West Palm Beach. Police held Defendant too long for a Terry stop and never saw any suspicious bulges consistent with concealed weapons on the subjects. All evidence and statements should have been suppressed.
EDITORIAL: Here's a rare event--the Eleventh Circuit publishes one of its Fourth Amendment cases! Good catch by West Palm Beach PD, but I can't totally disagree with the dissent. Judge Barkett is a known liberal and will resolve any doubt in favor of turning loose criminals. Here, she had something of a point. Three or four black guys in a white SUV is, indeed, not uncommon in West Palm and many other places. The more I learn about police work, the less inclined I am to assume that a group of black males MUST be up to no good. What's more, I can assure you that I can tell the difference between a chair bag and a rifle case, because I carry BOTH items to highpower rifle matches! Had I been there, I would have had to point that out, reluctantly.
Judge Barkett also seemed upset with the display of weapons by eight officers, and I suppose that people who know nothing about weapons and their proper use would not like that. However, you ensure peace and non-resistance by a sudden "excessive" show of force, making it abundantly clear that resistance will not be a good career move. Giving dangerous people a fair chance is extremely UNfair to officers and innocents.
This is an honestly debatable case, but what pushed it over the edge for me was that the SUV was parked for two hours in position to surveil a bank, and as soon as the police popped up, suddenly remembered an urgent need for gasoline and preventive maintenance. This is NOT ordinary behavior no matter how many occupants of whatever color and gender are involved. It was also a good gesture for police to go get a warrant even when they didn't need one. This is not the mark of a rush to judgment. With only one revolver and two rounds, these guys may not have meant to rob anybody right then, but it wouldn't have been long before they did. See you again in a couple decades, fella.
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