United States v. Peter Bourrage , 358 F. App'x 776 ( 2010 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 08-3823
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Southern District of Iowa.
Peter Lenell Bourrage, *
* [UNPUBLISHED]
Appellant. *
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Submitted: October 23, 2009
Filed: January 7, 2010
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Before RILEY, SMITH and GRUENDER, Circuit Judges.
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PER CURIAM.
Peter Lenell Bourrage was indicted on one count of possession with intent to
distribute cocaine base, in violation of 21 U.S.C. § 841(a)(1), based on evidence
obtained when Bourrage was arrested at a Davenport, Iowa grocery store on August
5, 2007. Bourrage entered a conditional guilty plea pursuant to Federal Rule of
Criminal Procedure 11(a)(2), reserving the right to appeal the district court’s1 denial
1
The Honorable John A. Jarvey, United States District Judge for the Southern
District of Iowa.
of his motion to suppress. The district court sentenced Bourrage to 240 months’
imprisonment, and Bourrage now appeals.
Bourrage filed a motion to suppress and, after a hearing, the district court
denied the motion. The court then appointed Bourrage a new attorney, who obtained
a surveillance video from the grocery store and successfully moved to reopen the
suppression hearing. After reviewing the surveillance video and hearing additional
testimony, the district court again denied the motion to suppress.
We recount the following facts from the district court’s findings. On August
5, 2007, Sergeant Shawn Voigts of the Davenport Police Department was in the
parking lot of a Hy-Vee grocery store in Davenport, Iowa. Lisa Ann Warner, a bail
bondswoman, approached Sergeant Voigts with papers in her hand and told him that
an African-American man in the store named Jason Rickman was wanted on
outstanding misdemeanor and felony warrants. Warner briefly described Rickman as
an African American male in his thirties, wearing a white t-shirt and with his hair in
corn rows, but Sergeant Voigts primarily relied on her to accompany him inside the
store to help him locate the suspect. While searching the store with Sergeant Voigts,
Warner said either “There he is” or “There they go.” Fearing that Rickman would run
if he saw her, Warner then left the store. Sergeant Voigts turned and saw two young
African-American girls leaving an aisle. He followed the children and found them
with an African-American man, who appeared to be in his thirties, wearing a white t-
shirt and with his hair in corn rows. The man was Bourrage. However, Sergeant
Voigts believed the man was Rickman based on Warner’s statement and his own
observation that Bourrage generally matched the description Warner provided.
Sergeant Voigts asked Bourrage two or three times to state his name, but
Bourrage refused to provide it. Bourrage then abruptly began to walk away. Sergeant
Voigts ordered him to stop several times, but Bourrage then ran. Sergeant Voigts
subdued Bourrage with his taser gun and arrested him. He then read Bourrage his
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Miranda warnings. The children fled the store during the encounter, and Warner re-
entered. She found Sergeant Voigts standing over Bourrage and told him that
Bourrage was not the suspect for whom she was looking. Stunned by this
development, Sergeant Voigts asked Bourrage why he ran away if he was not wanted
on any warrants. Bourrage replied, “I’ve got some sh*t on me.” Sergeant Voigts had
already arrested Bourrage, so he performed a search incident to arrest and found crack
cocaine and marijuana in Bourrage’s pockets. On the basis of this evidence, Bourrage
was indicted for possession with intent to distribute cocaine base.
“We examine the factual findings underlying the district court’s denial of the
motion to suppress for clear error,” United States v. Williams, 577 F.3d 878, 880 (8th
Cir. 2009) (quoting United States v. Walsh, 299 F.3d 729, 730 (8th Cir. 2002)), and
“its legal conclusions about probable cause and reasonable suspicion de novo,”
United States v. Herrera-Gonzalez, 474 F.3d 1105, 1109 (8th Cir. 2007).
Bourrage argues that the district court clearly erred in finding that Warner was
in the store with Sergeant Voigts just before he approached Bourrage because the
surveillance footage shows that Warner had already left the store and could not have
pointed the sergeant in the direction of Bourrage. Although the surveillance footage
does not capture the encounter between Sergeant Voigts and Bourrage, it does show
Warner and Sergeant Voigts walking around the store together for approximately three
minutes. Shortly thereafter, Warner exits the store. A minute later, two young
African-American girls run from the store, after which Warner re-enters. Because this
evidence is not inconsistent with the district court’s finding that Warner walked
around the store with Sergeant Voigts immediately before the sergeant approached
Bourrage, we cannot conclude that the district court’s finding is clearly erroneous.
Bourrage also argues that the district court’s factual findings are clearly
erroneous because the testimonies of Sergeant Voigts and Warner were not fully
consistent. Although their testimonies were contradictory on certain points, the
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district court based each of its factual findings on facially plausible testimony from
either Sergeant Voigts or Warner. “[W]hen a trial judge’s finding is based on his
decision to credit the testimony of one of two or more witnesses, each of whom has
told a coherent and facially plausible story that is not contradicted by extrinsic
evidence, that finding, if not internally inconsistent, can virtually never be clear error.”
Anderson v. City of Bessemer City, 470 U.S. 564, 575 (1985). Because “credibility
determinations are not an all-or-nothing proposition,” United States v. Cassidy, 6 F.3d
554, 557 (8th Cir. 1993), the district court was permitted to credit each witness’s
testimony in whole or in part. Based on our review of the record, we cannot say that
the district court’s factual findings are clearly erroneous.
“A Terry investigatory stop allows an officer briefly to detain a citizen if the
officer has a reasonable suspicion that ‘criminal activity may be afoot.’” United
States v. Ortiz-Monroy, 332 F.3d 525, 528 (8th Cir. 2003) (quoting Terry v. Ohio, 392
U.S. 1, 30 (1968)). “[I]f police have a reasonable suspicion, grounded in specific and
articulable facts, that a person they encounter . . . is wanted in connection with a
completed felony, then a Terry stop may be made to investigate that suspicion.”
United States v. Hensley, 469 U.S. 221, 229 (1985). “In making reasonable-suspicion
determinations, reviewing courts must look at the totality of the circumstances of each
case to see whether the detaining officer has a particularized and objective basis for
suspecting legal wrongdoing.” United States v. Martinez-Cortes, 566 F.3d 767, 769
(8th Cir. 2009) (internal quotation marks omitted) (quoting United States v. Arvizu,
534 U.S. 266, 273 (2002)). “To satisfy the Fourth Amendment, officers must be able
to articulate some minimal, objective justification for a Terry stop.” United States v.
Griffith, 533 F.3d 979, 984 (8th Cir. 2008) (citing United States v. Fuse, 391 F.3d 924,
929 (8th Cir. 2004)). In this case, the district court concluded, on the basis of its
factual findings, that Sergeant Voigts had a reasonable suspicion to conduct a brief
Terry stop when he approached Bourrage in the store. Bourrage challenges this
conclusion on two grounds.
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First, Bourrage argues that the information Warner provided to Sergeant Voigts
was not sufficient to create a reasonable suspicion that there was a man in the grocery
store named Rickman who was wanted in connection with a completed felony.
Sergeant Voigts testified at the initial suppression hearing that he believed Warner
worked for the Department of Corrections because she was wearing a lanyard with an
identification badge. In its first order denying Bourrage’s motion to suppress, the
district court found that Warner was wearing a lanyard with an identification badge
based on Sergeant Voigts’s testimony, but it reversed this finding after reviewing the
surveillance video in which no lanyard is visible. Bourrage argues that because
Warner was not wearing a lanyard, Sergeant Voigts could not have formed a
reasonable suspicion that Rickman was wanted in connection with a completed felony
based on her tip. We reject this argument. “The ultimate test . . . is not what the
searching officer actually believed but what a hypothetical officer in exactly the same
circumstances reasonably could have believed.” United States v. Roggeman, 279 F.3d
573, 580 n.5 (8th Cir. 2002). The Fourth Amendment does not require police officers
to rely exclusively on information provided by other government officials. See, e.g.,
United States v. Jacobsen, 391 F.3d 904, 906 (8th Cir. 2004). “Reasonable suspicion
may be based on an informant’s tip as long as it is sufficiently reliable.” United States
v. Hill, 91 F.3d 1064, 1069 (8th Cir. 1996) (quoting United States v. Quarles, 955
F.2d 498, 501 (8th Cir. 1992)).
Here, Warner was carrying papers as she approached Sergeant Voigts. She told
him that a man inside the grocery store named Rickman was wanted on misdemeanor
and felony warrants and she provided a brief description of Rickman. Sergeant Voigts
“could assess [Warner’s] credibility because the information was provided in person.”
See United States v. Carpenter, 422 F.3d 738, 744 (8th Cir. 2005); see also United
States v. Kent, 531 F.3d 642, 648-49 (8th Cir. 2008); United States v. Salazar, 945
F.2d 47, 50-51 (2d Cir. 1991) (stating that “a face-to-face informant must, as a general
matter, be thought more reliable than an anonymous telephone tipster, for the former
runs the greater risk that he may be held accountable if his information proves false”).
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Moreover, if the tip turned out to be false, Warner could be charged with knowingly
providing false information to a police officer. See Iowa Code § 718.6(1); see also
Adams v. Williams, 407 U.S. 143, 146-47 (1972). Nevertheless, Warner not only
provided the information in person but accompanied Sergeant Voigts into the store to
search for the suspect. After searching the store with Sergeant Voigts, Warner
suddenly indicated that the suspect was in the store when she said either “There he is”
or “There they go.” Under these circumstances, we hold that the district court did not
err in concluding that Sergeant Voigts had a reasonable suspicion that Rickman was
wanted in connection with a completed felony.
Bourrage also argues that even if Sergeant Voigts had a reasonable suspicion
to believe that Rickman was a wanted felon, he did not have a reasonable suspicion
that Bourrage was Rickman. Bourrage points out that Rickman is 5’7” tall and weighs
approximately 170 pounds, but that Bourrage is 6’6” tall and weighs approximately
310 pounds. He also asserts that Rickman has tattoos under his eyes, but Bourrage
does not. The district court did not credit Warner’s testimony that she told Sergeant
Voigts about these physical differences and showed him a picture of Rickman.
Rather, it found that Warner gave a brief description of Rickman but that Sergeant
Voigts primarily relied on Warner to visually identify the suspect in the store. The
district court also found that Bourrage generally matched the brief description Warner
gave Sergeant Voigts; both are African American males in their thirties who were
wearing white t-shirts and had similar hairstyles. Again, we cannot say these factual
findings are clearly erroneous. Moreover, we conclude that Sergeant Voigts had a
reasonable suspicion that Bourrage was Rickman based on Warner’s description of
Rickman, her statement, “There they go,” and the sergeant’s visual confirmation that
Bourrage generally matched Warner’s description of Rickman. Accordingly, Sergeant
Voigts conducted an appropriate Terry stop when he confronted Bourrage and briefly
detained him “to investigate that suspicion,” see Hensley, 496 U.S. at 229, by asking
“a moderate number of questions to determine his identity,” see United States v.
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Rodriguez-Arreola, 270 F.3d 611, 617 (8th Cir. 2001) (quoting Berkemer v. McCarty,
468 U.S. 420, 439 (1984)).
Bourrage was not required to answer Sergeant Voigts’s questions, see
Berkemer, 468 U.S. at 439, but he has not contested the Government’s argument that
he committed a crime by running away during the investigatory stop and refusing to
comply with Sergeant Voigts’s orders to halt. See Iowa Code § 719.1(1) (“A person
who knowingly resists . . . anyone known by the person to be a peace officer . . . in the
performance of any act which is within the scope of the lawful duty or authority of
that officer . . . commits a simple misdemeanor.”); United States v. Pelayo-Ruelas,
345 F.3d 589, 592 (8th Cir. 2003) (“One is not free to leave a Terry stop until the
completion of a reasonably brief investigation, which may include limited
questioning.”). Therefore, we conclude that Sergeant Voigts had the authority to
arrest Bourrage. See Iowa Code § 804.7(1); Atwater v. City of Largo Vista, 532 U.S.
318, 354 (2001) (“If an officer has probable cause to believe that an individual has
committed even a very minor criminal offense in his presence, he may, without
violating the Fourth Amendment, arrest the offender.”).
Because Sergeant Voigts read Bourrage his Miranda warnings after lawfully
arresting him, the district court did not err in denying Bourrage’s motion to suppress
his incriminating statement. See United States v. Fellers, 397 F.3d 1090, 1095 (8th
Cir. 2005) (“Because the Miranda warnings give the suspect the information he needs
to choose whether to exercise his right to remain silent, the suspect’s choice to speak
after receiving Miranda warnings is normally viewed as an ‘act of free will.’”)
(quoting Oregon v. Elstad, 470 U.S. 298, 311 (1985)). We also hold that the search
incident to arrest was lawful because Sergeant Voigts had probable cause to arrest
Bourrage, see United States v. Mendoza, 421 F.3d 663, 668 (8th Cir. 2005), and that
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the district court therefore did not err in denying Bourrage’s motion to suppress the
evidence obtained during the search.2
For the foregoing reasons, we affirm the judgment of the district court.
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2
We also reject Bourrage’s argument that Sergeant Voigts violated the Fourth
Amendment’s guarantee against unreasonable seizures by using a taser gun to subdue
him. “We analyze Fourth Amendment excessive force claims under a reasonableness
standard to determine whether, in light of the facts and circumstances, the officer’s
actions were objectively reasonable.” Gill v. Maciejewski, 546 F.3d 557, 562 (8th Cir.
2008). In this case, Bourrage was attempting to evade a lawful arrest by continuing
to run away from Sergeant Voigts and to ignore orders to stop. To prevent Bourrage
from getting away, Sergeant Voigts used a single taser blast to subdue him. Under the
circumstances, this use of force was objectively reasonable and did not violate the
Fourth Amendment. Brown v. City of Golden Valley, 574 F.3d 491, 496 (8th Cir.
2009) (“Circumstances relevant to the reasonableness of the officer’s conduct include
‘the severity of the crime at issue, whether the suspect poses an immediate threat to
the safety of the officer or others, and whether he is actively resisting arrest or
attempting to evade arrest by flight.’”) (emphasis added) (quoting Graham v. Connor,
490 U.S. 386, 396 (1989)). Because we conclude that Sergeant Voigts’s use of force
was reasonable, we need not address Bourrage’s argument that suppression is an
appropriate remedy for the use of excessive force in effecting an arrest.
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