United States v. Airrington Sykes , 914 F.3d 615 ( 2019 )

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 17-3221
___________________________
United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Airrington L. Sykes
lllllllllllllllllllllDefendant - Appellant
____________
Appeal from United States District Court
for the Northern District of Iowa - Waterloo
____________
Submitted: October 18, 2018
Filed: January 30, 2019
____________
Before WOLLMAN, ARNOLD, and BENTON, Circuit Judges.
____________
ARNOLD, Circuit Judge.
After the government indicted Airrington Sykes for being a felon in possession
of a firearm, see 18 U.S.C. § 922(g)(1), he moved to suppress evidence that a police
officer obtained after he stopped Sykes and frisked him. When the district court1
1
The Honorable Linda R. Reade, United States District Judge for the Northern
District of Iowa, adopting the report and recommendation of the Honorable C.J.
denied the motion, Sykes pleaded guilty to the charge but reserved his right to appeal
the denial of his motion. He appeals and we affirm.
On a December evening just shy of midnight, a police officer in Waterloo,
Iowa, was dispatched to a 24-hour laundromat where he met a woman in the parking
lot who reported finding a loaded handgun magazine in a laundry basket. She
explained that the only other people in the laundromat at the time she discovered the
magazine were two men dressed in black. She stated she was unsure if they had
anything to do with the magazine, but she noticed they had stood near her basket at
one point. She said that the men were still in the laundromat, though other people had
since arrived.
The officer entered the laundromat and began approaching the two men in
question. His body camera shows that, when he entered the aisle where the men stood,
one of the men, Sykes, turned and began walking away. The officer attempted to
intercept Sykes at a back corner of the laundromat near an exit and a bathroom. The
officer's body camera shows Sykes bypass the exit, enter the restroom, and close the
door. Moments later the officer opened the restroom door and told Sykes to "give me
one second" and that he needed "one second of [his] time." Sykes complied, and the
officer grabbed Sykes's sleeve and guided him out of the restroom. He then patted
Sykes for weapons and discovered a handgun in Sykes's pants pocket.
Sykes's primary argument on appeal is that the officer lacked a reasonable
suspicion that Sykes was committing a crime. The government disagrees, responding
that Iowa Code § 724.4(1), which makes it an aggravated misdemeanor for someone
to go "armed with a dangerous weapon concealed on or about the person," supplied
the legal basis for the stop. Sykes counters that the officer had no reason to believe
Williams, then Magistrate Judge for the Northern District of Iowa, now United States
District Judge for the Northern District of Iowa.
-2-
that he lacked a permit for the gun or that he was anything other than a lawful gun
carrier.
We recently decided a case that presented this very issue. See United States v.
Pope, 910 F.3d 413 (8th Cir. 2018). We held in Pope that an officer in Iowa may
briefly detain someone whom the officer reasonably believes is possessing a
concealed weapon. Id. at 416. We explained that, since a concealed-weapons permit
is merely an affirmative defense to a charge under § 724.4(1), an officer may presume
that the suspect is committing a criminal offense until the suspect demonstrates
otherwise. Id. at 415–16. We therefore reject Sykes's contention.
Sykes also argues that the officer lacked a reasonable suspicion that he even
possessed a gun. We disagree. It is true that this case is unlike Pope, where an officer
saw the suspect conceal a weapon in his pants. But here we have a report from a
known person with whom the officer had an extensive discussion and who asserted
that she found a loaded handgun magazine of unknown origins; and she identified the
only two people who had access to the location where the magazine was found. We
think it reasonable to suspect that a person with loaded handgun magazines may have
a handgun since, without the handgun, the magazines are of little use. We also believe
it was reasonable to suspect that Sykes or his companion had a concealed gun, as
opposed to a gun openly carried, since the woman who found the magazine never
reported that she actually saw a gun in Sykes's or his companion's possession. And the
officers who approached Sykes never testified to seeing a gun being openly displayed,
either through the windows of the laundromat or during their approach of Sykes. See
United States v. Polite, 910 F.3d 384, 388 (8th Cir. 2018).
We want to emphasize that we give no weight to the fact that Sykes turned and
walked away from the officers as they approached him. Though a person's unprovoked
"flight" from police may be considered in the reasonable-suspicion calculus, a person's
decision during a consensual police encounter "to ignore the police and go about his
-3-
business" cannot. See Illinois v. Wardlow, 528 U.S. 119, 124–26 (2000). After
reviewing the body-camera video ourselves, we think Sykes's avoidance of the officer
lies near the intersection of these two principles. But we need not decide the legal
significance, if any, of Sykes's walking away from the officer because we think the
officer had reasonable suspicion to detain Sykes even before Sykes began to leave.
Sykes suggests that the officer did not have reasonable suspicion at that point
because he had no reason to suspect that Sykes, as opposed to the other person
present, was engaged in criminal activity, and the Fourth Amendment requires "a
particularized and objective basis for suspecting the particular person stopped of
criminal activity." See United States v. Cortez, 449 U.S. 411, 417–18 (1981). As he
sees it, "nothing points to Sykes possessing the firearm instead of his friend."
For stop-and-frisk purposes, however, the Fourth Amendment does not require
that an officer must suspect only one person to the exclusion of all others. "[T]he
simultaneous stopping of multiple 'suspects' for a one-person crime may sometimes
be justified by the virtual certainty that the perpetrator is a member of that group and
that means of singling him out will soon be available." 4 Wayne R. LaFave, Search
& Seizure: A Treatise on the Fourth Amendment § 9.5(b) (5th ed. Oct. 2018). The
Third Circuit's decision in United States v. Ramos nicely illustrates this principle. 443
F.3d 304 (3d Cir. 2006). There, when police officers drove between two vehicles in
an otherwise empty parking lot, one of the officers smelled marijuana. After one of
the vehicles left the lot, the officers conducted a traffic stop and discovered illegal
contraband. A defendant in the vehicle argued that the officers' stop violated the
Fourth Amendment because the officers' suspicion of him was not sufficiently
particularized since the odor could have been coming from the other vehicle. The
Third Circuit disagreed, holding that "it would have been reasonable for the officers
to conclude that the odor was coming from one, the other, or both vehicles," and so
their suspicion was sufficiently particularized under the Fourth Amendment to allow
them to stop the vehicle they stopped. Id. at 309.
-4-
We conclude that it would likewise have been reasonable here for the officer
to suspect that Sykes, his companion, or both were carrying a concealed firearm, so
we detect no constitutional violation. In the abstract, we recognize that as the number
of suspects to be stopped increases, it will be less likely that suspicion will be
sufficiently particularized to meet constitutional standards. Various considerations
will bear on whether a given search is particularized enough in the circumstances. The
key, as is typical in the Fourth Amendment context, is reasonableness, see Cty. of L.A.
v. Mendez, 137 S. Ct. 1539, 1546 (2017), and we think it was reasonable in the
circumstances here for the officer to detain Sykes briefly to investigate whether he
was unlawfully carrying a concealed weapon.
Sykes also maintains that, even if the officer had reasonable suspicion to stop
him, he lacked reasonable suspicion to frisk him. An officer may frisk a suspect whom
he has lawfully stopped if he believes the suspect is "armed and dangerous." Terry v.
Ohio, 392 U.S. 1, 27 (1968). According to Sykes, the officer had no reason to believe
that he was dangerous just because he was carrying a concealed weapon. We resolved
this very issue in Pope, holding that an officer may indeed frisk someone he has
lawfully stopped if he reasonably believes the person is armed with a gun, regardless
of whether the person possesses the gun legally. See Pope, 910 F.3d at 416–17.
Sykes's argument therefore fails.
We also note that Sykes appears to raise a Second Amendment challenge to
§ 724.4(1) in his reply brief. Because he failed to raise the argument in his opening
brief, we decline to address it. See id. at 417.
We turn now to Sykes's sentence. Under USSG § 2K2.1(a), the base offense
level of a person convicted of being a felon in possession of a firearm increases if he
has previously been convicted of a crime of violence. A "crime of violence" is
defined, in relevant part, as a federal or state offense that "has as an element the use,
attempted use, or threatened use of physical force against the person of another."
-5-
USSG § 4B1.2(a)(1). Sykes argues that the district court erred when it deemed his
prior Illinois conviction for aggravated vehicular hijacking a crime of violence. See
USSG § 2K2.1(a)(4)(A). We review de novo the district court's designation of a prior
conviction as a crime of violence. United States v. Williams, 899 F.3d 659, 662 (8th
Cir. 2018).
Sykes was convicted of aggravated vehicular hijacking because, while armed
with a firearm, he "knowingly t[ook] a motor vehicle from the person or the
immediate presence of another by the use of force or by threatening the imminent use
of force." 720 Ill. Comp. Stat. 5/18–3(a), –4(a)(4). Though the definition of this crime
explicitly requires the actual or threatened use of force, Sykes maintains that the crime
still does not have "as an element the use, attempted use, or threatened use of physical
force against the person of another" because it does not require, as it must, "force
capable of causing physical pain or injury." See Johnson v. United States, 559 U.S.
133, 140 (2010).
To make his point, Sykes invites us to consider Illinois robbery, which similarly
requires the taking of property "by the use of force or by threatening the imminent use
of force." See 720 Ill. Comp. Stat. 5/18–1(a). Indeed, Illinois courts have explained
that the robbery and vehicular-hijacking statutes are "so similar that vehicular
hijacking could be fairly described, for all practical purposes, as robbery of a specific
kind of property, a motor vehicle," and "[g]iven the similarity in language," Illinois
courts have "analogized to the robbery statute when interpreting the vehicular
hijacking statute." People v. Jackson, 65 N.E.3d 550, 559 (Ill. App. Ct. 2016). Sykes
then argues that one can commit robbery in Illinois with nonviolent force, and he
purports to identify cases in which those convicted of Illinois robbery did not use
violent force. For example, he points to People v. Taylor, 541 N.E.2d 677, 678 (Ill.
1989), which involved a robbery conviction where the defendant snatched a necklace
off the victim's neck, and People v. Merchant, 836 N.E.2d 820, 821 (Ill. App. Ct.
-6-
2005), where someone was convicted of robbery after "tussling on the sidewalk" with
the victim over money.
The Supreme Court's recent decision in Stokeling v. United States, No.
17–5554, 2019 WL 189343 (Jan. 15, 2019), forecloses Sykes's argument. In Stokeling,
the Court considered whether a Florida robbery conviction constituted a violent felony
under the Armed Career Criminal Act. The relevant definition of a violent felony
under the ACCA and the definition of a crime of violence under the Guidelines are so
similar that we generally consider cases interpreting them "interchangeably." See Boaz
v. United States, 884 F.3d 808, 810 n.3 (8th Cir. 2018). The Stokeling Court held that
the ACCA intended common-law robberies to be violent felonies even though
common-law robbery required only sufficient force to overcome a victim's
resistance, "however slight the resistance." 2019 WL 189343, at *4. Courts in Florida,
and in most states for that matter, had subscribed to this common-law notion of force,
and the Court "declined to construe the statute in a way that would render it
inapplicable in many States." Id., at *5–6.
Illinois's definition of robbery fits the common-law mold. As in Florida, one
commits robbery in Illinois when he uses force sufficient to overcome a victim's
resistance, however slight. See Taylor, 541 N.E.2d at 679–80. As in Florida, one does
not commit robbery in Illinois when he snatches property from the person of another
if the force involved was "seemingly imperceptible to the victim." People v. Bowel,
488 N.E.2d 995, 997–98 (Ill. 1986); see also Stokeling, 2019 WL 189343, at *9.
Florida and Illinois appear to draw the same line between robbery, which requires
force, and less serious crimes like theft or larceny, which don't. And as the Court
explained in Stokeling, though in some cases only slight force is necessary to
overcome a victim's resistance, such force "is inherently 'violent' in the sense
contemplated by Johnson" and capable of causing physical pain or injury because it
"necessarily involves a physical confrontation and struggle." See Stokeling, 2019 WL
189343, at *7. Since the Supreme Court has held that common-law robbery "has as
-7-
an element the use, attempted use, or threatened use of physical force against the
person of another," and Illinois adheres to the common-law definition of robbery, we
reject Sykes's argument.
Sykes also points to a case called In re Thomas T., 63 N.E.3d 284, 287–88 (Ill.
App. Ct. 2016) to argue that Illinois courts define "force" in the vehicular-hijacking
context as "power, violence, compulsion, or constraint exerted upon or against a
person or thing"—a definition he maintains does not require violent force. Even if the
Thomas T. court actually adopted such a definition, a matter we need not decide,
Thomas T. involved vehicular invasion, a wholly different crime. See 720 Ill. Comp.
Stat. 5/18–6. Illinois courts have distinguished vehicular invasion from vehicular
hijacking by the amount of force each requires: A person can "commit the offense of
vehicular invasion without the use of physical force or violence against an individual,"
People v. McDaniel, No. 1-13-2679, 2015 WL 6460052, at *9–10 (Ill. App. Ct. Dec.
14, 2015) (unpublished), but an Illinois court could not "conceive of[] a situation in
which a defendant could commit vehicular hijacking without using or threatening the
use of physical force or violence." People v. Wooden, 16 N.E.3d 850, 855 (Ill. App.
Ct. 2014). We therefore see no error here.
Affirmed.
______________________________
-8-