     Case: 09-60726 Document: 00511305328 Page: 1 Date Filed: 11/29/2010




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                         November 29, 2010

                                       No. 09-60726                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,


                                           Plaintiff-Appellee,
v.

CAHAFER BENJAMIN; KAO WOKOMA,

                                           Defendants-Appellants.


                   Appeal from the United States District Court
                     for the Northern District of Mississippi
                              USDC No. 3:08-CR-63


Before STEWART, PRADO, and ELROD, Circuit Judges.
PER CURIAM:*
       At issue is whether officers of the Oxford, Mississippi Police Department
had reasonable suspicion to stop Benjamin and Wokoma’s car as part of a
malicious-mischief investigation. The police did not; thus, we REVERSE the
district court’s denial of defendants’ motions to suppress, VACATE defendants’
convictions, and REMAND.
       At 3:45 a.m., Officer Jeff Kellum received a dispatch to investigate a
complaint of malicious mischief at an apartment complex. He arrived about five

       *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
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minutes later and then interviewed the complainants for the next ten minutes.
From the interview, he learned that someone had thrown something that had
broken the window of the complainants’ apartment. Next, Officer Kellum briefly
surveyed the area outside of the window before calling other officers for
assistance. Captain Libby Lytle and two other officers arrived within the next
ten minutes, and they began searching the area. The officers had no evidence
suggesting that the vandal was still at the apartment complex. Captain Lytle
testified that the officers had searched “pretty much” the whole area and “were
going towards” what later turned out to be defendants’ car, when they saw that
car pull out from a parking spot in the complex’s lot and leave. The car was
approximately fifty to sixty feet from the broken window. This occurred about
ten to fifteen minutes after Captain Lytle had arrived at the apartment complex,
and during that entire time, the officers had not seen any other activity. Captain
Lytle pursued the car in her patrol car and pulled it over about a quarter mile
from the apartment complex. When defendants rolled down their window,
Captain Lytle smelled marijuana and saw bags of crack cocaine in plain view.
After ordering defendants out of the car, the officers found additional crack
cocaine and a firearm.
      Defendants were indicted on drug and firearm charges. They moved to
suppress the drugs and firearm, and the district court held a suppression
hearing at which Captain Lytle and Officer Kellum testified. At the close of the
evidence, defendants first argued that the police did not have reasonable
suspicion for the stop because too much time had elapsed between the vandalism
and when the officers noticed their car pulling out of the parking lot. Therefore,
defendants contended that whoever had broken the window could have left long
before the officers had even arrived. Defendants also argued that there was no
evidence establishing that they were present when the vandalism occurred. The

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district court rejected these arguments and denied the motion. Defendants then
entered conditional guilty pleas, reserving their rights to appeal the suppression
ruling.
       When reviewing a denial of a motion to suppress evidence, we review
factual findings for clear error1 and the ultimate constitutionality of law
enforcement action de novo. Perez, 484 F.3d at 739. The court must view the
evidence presented at the suppression hearing “most favorably to the party
prevailing below, except where such a view is inconsistent with the trial court’s
findings or is clearly erroneous considering the evidence as a whole.” United
States v. Shabazz, 993 F.2d 431, 434 (5th Cir. 1993).
       Temporary, warrantless detentions of individuals constitute seizures for
Fourth Amendment purposes and must be justified by reasonable suspicion that
illegal activity has or is taking place; otherwise, evidence obtained through such
a detention may be excluded. United States v. Rodriguez, 564 F.3d 735, 740–41
(5th Cir. 2009). “[I]n justifying the particular intrusion the police officer must be
able to point to specific and articulable facts which, taken together with rational
inferences from those facts, reasonably warrant that intrusion.” Terry v. Ohio,
392 U.S. 1, 21 (1968). Reasonable suspicion “requires more than merely an
unparticularized hunch, but considerably less than proof of wrongdoing by a
preponderance of the evidence.” United States v. Gonzalez, 190 F.3d 668, 671
(5th Cir. 1999). Courts determine whether the stop was reasonable by
conducting a fact-intensive, totality-of-the-circumstances inquiry. United States
v. Jacquinot, 258 F.3d 423, 427 (5th Cir. 2001).

       1
          The court found that defendants were the only people in the parking lot except for the
officers and that the officers thought that defendants were either suspects or witnesses. In this
case, these factual findings are not clearly erroneous. United States v. Perez, 484 F.3d 735, 739
(5th Cir. 2007) (citation omitted). However, as explained in greater detail below, they are not
dispositive.

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      The parties contend that two of our decisions govern this case, United
States v. Jaquez, 421 F.3d 338 (5th Cir. 2005), and United States v. Bolden, 508
F.3d 204 (5th Cir. 2007). Specifically, defendants analogize to Jaquez while the
government analogizes to Bolden. Thus, we begin our inquiry with a discussion
of these cases. In Jaquez, the officer responded to a “shots fired” incident. 421
F.3d at 340. Prior to the stop, the officer knew only (1) the general proximity of
the incident, (2) that a red vehicle had been involved in the reported incident,
and (3) that the incident occurred approximately fifteen minutes before the stop.
See id. at 341. The officer testified that these reasons, along with the fact that
the incident took place late at night and in an area known for its high-crime
rate, caused him to stop the defendant as he drove a red vehicle in that general
vicinity. See id. at 340. “We conclude[d] that the scant facts known to [the officer]
when she stopped Jaquez were, as a matter of law, insufficient to support
reasonable suspicion.” Id. at 341. In so holding, we explained that, although the
officer knew that a red vehicle was involved, she did not know anything about
the driver or the occupants. See id.
      In Bolden, two officers were leaving an apartment when they heard nearby
gunshots. See 508 F.3d at 205. Seconds later, passengers in a vehicle coming
from the area where the shots had been fired told the officers that people were
shooting guns around the corner. See id. The officers split up to find the
shooters. See id. One of the officers drove around the corner toward the gunshots
and encountered a silver Jeep, with four passengers, moving quickly in his
direction. See id. The officer stopped the Jeep. See id. Less than one minute had
transpired between the shots and that stop. See id. The officers found cocaine
and firearms in plain view. See id. Under these circumstances, we concluded
that “when an officer sees a solitary vehicle containing more than one person



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leaving the precise spot where that officer has good reason to believe that
multiple persons were shooting less than a minute before, it is more than a
‘hunch’ that those in the vehicle may be involved in the shooting.” Id. at 206. We
also distinguished Jaquez by noting,

       The key difference from this case is the amount of time between
       learning of the shootings and responding, coupled with the
       proximity between the stop and where the shootings occurred. In
       Jaquez, more than fifteen minutes had passed. In that amount of
       time, a car can take a shooter many miles away from the scene of
       violence, so merely driving a red car in the relative vicinity of the
       shooting was not enough.
Id.
       This case falls somewhere between Bolden and Jaquez. The facts here are
certainly less compelling for the government than the facts in Bolden. Although
the geographic proximities in both cases are comparable—approximately fifty to
sixty feet here and “around the corner” in Bolden, 508 F.3d at 205—the temporal
proximities are not. In Bolden, the time between the shootings and the stop was
less than a minute. Here, at least fifteen minutes had transpired between when
the   vandalism    had   occurred—assuming      that   the   vandalism   occurred
immediately before 3:45 a.m. when Officer Kellum had received the
dispatch—and when Officer Kellum began searching the parking lot after
interviewing the witnesses. And we have explained that perpetrators may drive
many miles away in fifteen minutes.
       A comparison with Jaquez is more instructive. On the one hand, there are
many aspects of this case that make it less compelling for the government than
the facts of Jaquez. Even viewing the facts in the light most favorable to the
government, at least fifteen minutes had transpired. Moreover, in contrast to
Jaquez, there is no evidence suggesting that this neighborhood in Oxford,


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Mississippi was a high-crime area. In addition, the officers here had even less
information about the suspect than the officer had in Jaquez: They knew nothing
about the individual who had broken the window. In fact, they did not even
know how many people were involved. They also did not know whether the
vandal or vandals had come in a car (or on foot), let alone the color of the car.
Furthermore, they had no information even suggesting that the vandal was still
at the complex.
      On the other hand, three facts bring this case closer to reasonable
suspicion than the facts in Jaquez. First, defendants’ car was presumably closer
to the broken window—fifty to sixty feet—than Jaquez’s car was from the shots
fired—the “general vicinity.” United States v. Jaquez, 421 F.3d 338, 340 (5th Cir.
2005). Second, the officers testified that, until defendants drove away, there was
no other activity in the parking lot. There was no such evidence in Jaquez. See
id. Third, when defendants drove away, the officers had already searched much
of the parking lot and were going toward the area where defendants’ car was
located. Jaquez did not present such a scenario.
      When viewed “in the context of the totality of circumstances,” however,
these three facts do not establish reasonable suspicion. Id. at 340–41. As
explained, the officers knew absolutely nothing about the vandal or vandals
other than that he, she, or they had broken a window. Unlike Jaquez, this
window breaking did not occur in a high-crime neighborhood. Also, more than
enough time had elapsed for the vandal to have departed by car or on foot after
breaking the window. Finally, the officers’ suspicion necessarily rested on an
unreasonable assumption—that the vandal would have remained in the vicinity
of the window that he had just broken, even after the police had arrived. Officer
Kellum first arrived around 3:50 a.m. He spent the next ten minutes inside the



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apartment, interviewing the complainants. If the vandal had not already fled,
one would certainly expect that he would have done so during that ten-minute
period, knowing that the police had arrived on the scene.
      In sum, the totality of the circumstances demonstrate that the officers did
not have reasonable suspicion to stop defendants’ car. As a result, the drugs and
firearm should have been suppressed as products of an unlawful search and
seizure in violation of the Fourth Amendment. Accordingly, we REVERSE the
district court’s denial of defendants’ motions to suppress, VACATE their
convictions, and REMAND for further proceedings consistent with this opinion.




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