United States v. Juvenile TK ( 1998 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 97-3251
___________
United States of America, *
*
Appellee, *
* Appeal from the United
States
v. * District Court for the
* District of North Dakota
Juvenile TK, *
*
Appellant. *
___________
Submitted: December 10, 1997
Filed: January 12, 1998
___________
Before McMILLIAN, JOHN R. GIBSON, and MURPHY, Circuit
Judges.
___________
McMILLIAN, Circuit Judge.
Appellant TK, a juvenile and a Native American tribal
member of the Three Affiliated Tribes on the Fort
Berthold Reservation in North Dakota, appeals from a
final judgment entered in the United States District
Court1 for the District of North Dakota pursuant to TK’s
conditional guilty plea to robbery and possession of a
1
The Honorable Patrick A. Conmy, United States District Judge for the District
of North Dakota.
handgun in violation of 18 U.S.C. §§ 1153 and 2111, and 18
U.S.C. § 922(x)(2)(A), respectively. TK was sentenced to
thirty months probation and restitution of two dollars.
For reversal, TK argues that his Fourth Amendment rights
under the United States Constitution as applied to
Sovereign Indian Reservations through the Federal Indian
Civil Rights Act, 25 U.S.C. § 1302, were violated because
the arresting officers lacked reasonable suspicion to
conduct the investigative stop that culminated in his
arrest. For the reasons discussed below, we affirm the
judgment of the district court.
Jurisdiction
Jurisdiction was proper in the district court based
upon 18 U.S.C. § 3231. Jurisdiction on appeal is proper
pursuant to 28 U.S.C. § 1291. The notice of appeal was
timely filed under Rule 4(a) of the Federal Rules of
Appellate Procedure.
Discussion
On Friday, March 29, 1997, TK and his friends drove
to the City of New Town, North Dakota, after attending a
basketball game in White Shield, North Dakota. New Town
is located on the Fort Berthold Reservation. There are
approximately 1500 to 1700 people who reside in the area.
There is also a casino just outside of New Town that is
open 24 hours a day. According to Tribal Police Officer
Samuel James Lincoln, there are cars entering and leaving
the casino area all the time, even at four o’clock in the
morning. Transcript of Suppression Hearing (“Transcript”)
at 24.
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Dragswolf Village is an area located about five miles
west of New Town. Dragswolf Village is a separate
community with an estimated population of approximately
two hundred. At approximately 3:10 a.m. on March 30,
1997, Officer Lincoln received a dispatch in his squad car
that “a man in [Dragswolf Village] had broken out a window
to a vehicle and that he had gotten into a gray vehicle
and that he had a gun.” Id. at 8. Officer Lincoln then
informed Officer Frank Felix, the driver of
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the squad car, of the report and they both proceeded to
Dragswolf Village to investigate the call.
According to Officer Lincoln, the only information
that they possessed at that point was that the suspect was
a man in a gray car; they had no license plate number or
house number for the location of the incident. Id. at 10.
Officer Lincoln testified that they tried to obtain a
house number, but did not receive any additional
information. Id. Officers Lincoln and Felix then looked
around Dragswolf Village for about 15 minutes, but did not
see any gray cars.
At approximately 3:49 a.m., Officer Lincoln received
a dispatch stating that “there was a guy at the
SuperPumper and he brandished a weapon and had gotten into
a gray vehicle.” Id. at 11-12. (The SuperPumper is a gas
station/convenience store in New Town.) According to
Officer Lincoln’s testimony that was the only information
he and his partner received regarding the SuperPumper
incident; the attendant at SuperPumper who reported the
incident did not provide a license plate number. Id. at
12.
At 3:51 a.m., Officer Lincoln called the dispatch for
more information. Specifically, he and Officer Felix
wanted to know if the person who reported the incident
actually worked at the SuperPumper and if that person
could better describe the perpetrator and the vehicle.
The officers did not receive any additional information.
(It was later revealed that Darwin Morsett, a SuperPumper
employee, was the person who had reported the incident
from the SuperPumper.)
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At approximately 3:56 a.m., Officer Lincoln was
driving eastbound from Dragswolf Village on Main Street
when he observed a gray vehicle making a U-turn in a
commercial parking lot about one and one-half to two
blocks from the SuperPumper. He informed Officer Felix
that “that was a gray car and that [they] should check it
out.” Id. at 15. The gray car exited the parking lot
onto Main Street,
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turned left heading southbound on West Avenue, and
accelerated. The officers followed the vehicle in their
marked squad car. The squad car has door decals for
“Bureau of Indian Affairs Police” on each side and has a
visible red light bar on the roof.
Halfway down the block on West Avenue, Officer Felix
activated the squad car’s red lights. According to the
officers, when the squad car pulled up behind the gray
car, the gray car made a quick left onto Second Street
South for a short distance and then stopped. The
officers believed, based on their experience, that the
gray car’s quick turn and acceleration, when there was no
other traffic, seemed suspicious and that these driving
tactics were to evade the police. Officer Lincoln
testified, however, that the vehicle did not do anything
illegal before it was pulled over. Officer Felix further
admitted that, at the point at which the car was stopped,
the only descriptions that they had received were of a
gray car and a man with a gun.
When Officers Lincoln and Felix approached the
vehicle, TK was in the front passenger seat and his
brother, Sheldon K, was the driver. Jason S, a friend of
theirs, was in the back seat. Officer Felix recognized TK
as the nephew of his (Officer Felix’s) ex-wife. The
officers also noted that TK and Jason S appeared to be
intoxicated and, as juveniles, were violating the 11:00
p.m. curfew established under the Tribal Code and New Town
City Code. Both TK and Jason S were arrested for
violating the curfew law and for public intoxication. TK
was searched and two packs of Marlboro cigarettes were
seized from his person. After Sheldon K was ordered out
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of the car and brought to the police cruiser for a license
check, he (Sheldon K) ran off on foot. No weapon was ever
discovered.
Early in the morning on March 29th, Darwin Morsette,
the SuperPumper attendant who had reported the robbery,
identified TK as the man with the gun who had taken a pack
of cigarettes at the SuperPumper in a line-up conducted at
the police department. Earlier, but after the
investigative stop, the police had obtained a written
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description of the perpetrator from Morsette which matched
TK. TK denied that he was involved in either of the
reported incidents.
TK was later charged by information with juvenile
delinquency in violation of 18 U.S.C. §§ 5031-5042 for
committing robbery under 18 U.S.C. §§ 1153 and 2111,
assault with a dangerous weapon under 18 U.S.C. §§
113(a)(3) and 1153, and possession of a handgun by a
juvenile under 18 U.S.C. § 922(x)(2)(a). TK moved to
suppress any evidence seized or gathered at the time he
was taken into custody on March 29th on the ground that
the police officers did not have reasonable suspicion to
stop the car in which he was riding. He also moved to
suppress statements that he made to an officer on March
31, claiming that the statements were given without
Miranda warnings and were involuntary. A suppression
hearing was held on June 4, 1997. By order of June 19,
1997, the district court denied the motion in its
entirety.2
On July 7, 1997, by way of an Alford plea,3 TK made a
conditional guilty plea to count one (robbery) of the
juvenile delinquency information, reserving his right to
appeal the denial of his suppression motion. On August 8,
1997, TK received a juvenile disposition of 30 months
probation and restitution of two dollars.
2
TK appeals the denial of the motion to suppress as to the investigative stop only.
3
Under North Carolina v. Alford, 400 U.S. 25 (1970), a court may accept a guilty
plea from and impose a sentence on a defendant who maintains his or her innocence,
provided that the court finds an adequate factual basis for the plea.
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An officer may conduct a Fourth Amendment stop to
investigate a crime only if the officer has a reasonable
suspicion that that person had committed or was committing
a crime. Terry v. Ohio, 392 U.S. 1, 30 (1968) (A police
officer may “stop and briefly detain a person for
investigative purposes if the officer has a reasonable
suspicion supported by articulable facts that criminal
activity ‘may be afoot.’”).
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“‘[T]he police must point to particular facts and
inferences rationally drawn from those facts that, when
viewed under the totality of the circumstances and in
light of the officer’s experience, create a reasonable
suspicion of criminal activity.’” Marti v. City of
th
Maplewood, 57 F.3d 680, 685 (8 Cir. 1995) (Marti)
(quoting United States v. Weaver, 966 F.2d 391, 394 (8th
Cir.), cert. denied, 506 U.S. 1040 (1992)).
This court reviews the district court’s findings of
historical fact for clear error and reviews the
determination of whether there was reasonable suspicion de
novo. See Ornelas v. United States, 116 S. Ct. 1657, 1663
(1996); United States v. Payne, 119 F.3d 637, 642 (8th Cir.
1996), cert. denied, 118 S. Ct. 454 (1997). In conducting
its de novo review, this court must give due weight to
inferences drawn by resident judges and local law
enforcement officers from historical facts. Ornelas, 116
S. Ct. at 1663.
In the instant case, the district court made eight
express findings of fact4 and considered the entire record
before it, including the evidence presented at the
suppression hearing. District Order at 1 (June 19, 1997).
In his reply brief, TK contests the government’s reliance
on certain evidence presented at the suppression hearing.
Reply Brief at 6. Specifically, TK challenges the
officers’ testimony that the car in which he was stopped
was the only one in the area. TK maintains that there is
local and tourist vehicular traffic at all hours of the
night in New Town, particularly because of the 24-hour
4
Of these eight findings, only two pertain to events which occurred prior to the
investigative stop. Hence, the remaining six findings are not relevant to our analysis.
See Ornelas v. United States, 116 S. Ct. 1657, 1661-62 (1996) (emphasis added) (“The
principal components of a determination of reasonable suspicion or probable cause will
be the events which occurred leading up to the stop or search, and then the decision
whether these historical facts . . . amount to reasonable suspicion or probable cause.”).
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casino in operation. TK relies heavily upon the following
statement of the district judge for support: “The Court
can almost take judicial notice that there’s usually lots
of things going on on a Friday night in New Town . . . .”
Transcript at 27. This statement, however, does not
constitute judicial notice that there
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was a high volume of vehicular traffic in the surrounding
area as TK contends.5 Moreover, the district judge’s
observation does not necessarily support TK’s theory of
the case, especially in light of the arresting officers’
testimony to the contrary.
In addition, while TK does not deny that the gray car
made quick turns in an apparent effort to evade police, he
argues that this allegation is controverted by the
officers’ testimony that the car did not violate any
traffic laws before it was stopped. Moreover, TK notes
that the district court did not make an express finding of
fact as to this issue. However, we have held that both
innocent and criminal acts can create reasonable
suspicion. See United States v. Sokolow, 490 U.S. 1, 9
(1989) (holding that several innocent activities may
create reasonable suspicion under the totality of the
circumstances); United States v. Condelee, 915 F.2d 1206,
1209 (8th Cir. 1990) (holding that even innocent actions
may give rise to reasonable suspicion if they warrant
consideration under the totality of the circumstances).
Furthermore, police are entitled to be suspicious of
vehicular movement that, while not illegal, may be
reasonably perceived as evasive. See, e.g., United States
v. Raino, 980 F.2d 1148, 1149-50 (8th Cir. 1992) (finding
reasonable suspicion where police, responding to late-
night reports of fired shots, saw vehicle parked in closed
parking lot and observed evasive and suspicious
movements), cert. denied, 507 U.S. 1011 (1993). Such
5
Rule 201 of the Federal Rules of Evidence permits courts to take judicial notice
of adjudicative facts not subject to reasonable dispute in that the facts are either
“(1) generally known within the territorial jurisdiction of the trial court or (2) capable
of accurate and ready determination by resort to sources whose accuracy cannot
reasonably be questioned.” Id. Without determining whether the general traffic
conditions in New Town are subject to judicial notice in this context, this court finds
that the district judge’s statement clearly falls short of taking judicial notice.
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conduct in conjunction with other factors may form a basis
for reasonable suspicion. Id.Finally, this court’s de novo review permits us to
consider the totality of the circumstances in determining
whether reasonable suspicion exists. United States v.
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Dodson, 109 F.3d 486, 488 (8th Cir. 1997); United States v.
Bloomfield, 40 F.3d 910, 918 (8th Cir. 1994) (en banc),
cert. denied, 514 U.S. 1113 (1995). We find it
unnecessary to rely on the contested facts. We focus our
analysis on the temporal and geographic proximity of the
car to the scene of the crime, the matching description of
the vehicle, and the time of the stop. TK does not
challenge the district court’s implicit reliance on these
facts; rather TK argues that the vague description of the
vehicle and the perpetrator from an unreliable informant,
coupled with the absence of any observation of illegal
activity by the officers, is insufficient to support a
finding of reasonable suspicion under the Fourth
Amendment. More specifically, TK emphasizes that the
vehicle was doing nothing illegal when it was stopped and
that the officers did not have the license number, make,
model, year of manufacture of the car, or any physical
description of the suspect other than that he was a man.
Moreover, TK maintains that, given the amount of traffic
that is generally in the area, there was no reason to
single out the gray vehicle in which he was a passenger.
TK relies primarily on three cases for support. The
first case, United States v. Jones, 998 F.2d 883 (10th Cir.
1993) (Jones), involves facts somewhat similar to those in
the instant case. In Jones, police received a call on a
weekday afternoon from an apartment manager that one of
his tenant’s had reported that two African-American men
had pounded hard on the door of a neighbor’s apartment and
that one of the men was holding a gun. Id. at 884. The
tenant then came on the line and told the police that the
men had left without entering the apartment, driving a
black Mercedes westbound. Id. The tenant further stated
that both men were wearing a lot of jewelry and that one
was wearing a purple sweater. Id. The Tenth Circuit held
that such statements were “very meager evidence” to
justify a stop of two African-American men in a black
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Mercedes at 4:00 p.m. when their clothes were not seen by
the officers before the stop. Id. Moreover, the court
noted that the information came from an informant with
whom the police had no experience. Id. at 886.
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In the second case, Thompson v. Reuting, 968 F.2d 756,
759 (8th Cir. 1992) (Thompson), this court held that an
experienced officer who conducted an investigative stop of
a brown Chevy Nova in a high-crime, low-traffic area at
night, did not have reasonable suspicion based on reports
that “a suspicious brown Chevy Nova” was seen in the area.
Id. This court reasoned that “[t]hese facts as a matter
of law do not establish . . . an objectively reasonable
suspicion that the occupants were engaged in criminal
activity in order to justify stopping it under Terry v.
Ohio.” Id. (citation omitted). In short, there was no
reason to suspect that criminal activity was afoot.
Similarly, in Brown v. Texas, 443 U.S. 47 (1979), the
Supreme Court reversed a conviction where officers stopped
and searched the defendants only after viewing them in an
area notorious for drug trafficking and were unable to
articulate any basis for their conclusion that the
defendants “looked suspicious.” Id.These cases are easily distinguishable from the case
at bar. Here, the officers had reasonable suspicion based
on the two dispatches released approximately forty minutes
apart in the very early morning hours, identifying a male
with a gun in a gray vehicle engaging in clearly criminal
activity and, more important, the vehicle’s temporal and
geographic proximity to the crime scenes. Indeed, the
gray car was spotted no more than two blocks away from the
scene of the robbery and within five minutes of the second
dispatch. By contrast, in Jones, the vehicle was seen a
mile and a half west of the alleged disturbance, the
alleged disturbance was not definitively criminal in
nature, and the court made no mention of the traffic
conditions. Brown is similarly distinguishable based on
the time of day of the stop and the lack of unusual
activity. Moreover, in both Thompson and Brown there was
no report that the defendants were even involved in a
crime.
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Several apposite cases in this circuit support a
finding of reasonable suspicion based on comparable
evidence. See Marti, 57 F.3d at 685 (holding that police
had reasonable suspicion where defendants were stopped
because they and their vehicles matched the description of
suspects who had moments before caused a drunken
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disturbance at a local convenience store and who appeared
to be driving recklessly when they left the store); Raino,
supra, 980 F.2d 1148; United States v. Wright, 565 F.2d
486 (8th Cir. 1977) (holding that police were justified in
stopping defendants who were near to scene of robbery,
unusually-dressed, and behaved suspiciously upon viewing
the officers); Orricer v. Erickson, 471 F.2d 1204 (8th Cir.
1973) (holding that officers who stopped car bearing out-
of-state license plates during early morning hours, within
hour of reported burglary, in small town with little
vehicular and pedestrian traffic had reasonable suspicion
for investigative stop). Although there is no evidence
that the police had any experience with either informant
in the instant case, this fact alone is not dispositive
where there are independent indicia of reasonable
suspicion. See United States v. Dawdy, 46 F.3d 1427, 1429
(8th Cir.) (holding that “[f]actors that may reasonably
lead an experienced officer to investigate include time of
day or night, location of the suspect parties, and the
parties’ behavior when they become aware of the officer's
presence.”), cert. denied, 116 S. Ct. 195 (1995).
Thus, in light of the totality of the circumstances
in the instant case and, in particular, the short distance
between the location of the stop and the crime scene, the
short period of time between the stop and the officers’
reception of the second dispatch, the time of the stop,
and the allegations of conduct that was clearly criminal,
we hold that there was reasonable suspicion to support the
investigative stop.
Conclusion
For the reasons stated in this opinion, we hold that
the district court did not err in denying the motion to
suppress and accordingly affirm the district court’s
judgment.
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A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH
CIRCUIT.
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