                                                                                                                           Opinions of the United
1998 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-29-1998

United States v. Brown
Precedential or Non-Precedential:

Docket 98-7057




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Recommended Citation
"United States v. Brown" (1998). 1998 Decisions. Paper 255.
http://digitalcommons.law.villanova.edu/thirdcircuit_1998/255


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Filed October 29, 1998

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 98-7057

UNITED STATES OF AMERICA,

v.

KENNETH C. BROWN,

       Appellant.

APPEAL FROM THE
UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

(D.C. No. 97-CR-00144)

ARGUED AUGUST 4, 1998

BEFORE: Nygaard, Alito, and Rendell, Circuit Judges.

(Filed October 29, 1998)

       Daniel I. Siegal
       Office of the Federal Public Defender
       Suite 306
       100 Chestnut Street
       Harrisburg, PA 17101

       Attorney for Appellant
       Theodore B. Smith, III
       Office of the U.S. Attorney
       Federal Building
       228 Walnut Street
       PO Box 11754
       Harrisburg, PA 17108

       Attorney for Appellee

OPINION OF THE COURT

NYGAARD, Circuit Judge.

Kenneth Brown appeals the district court's denial of his
motion to suppress evidence discovered during a stop and
frisk conducted by York City, Pennsylvania police officers.
Brown claims that the stop and subsequent "pat-down"
were not based on facts sufficient to support a warrantless
stop under Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868 (1968).
We have jurisdiction under 28 U.S.C. S 1291. We review the
factual findings of the district court for clear error. See
United States v. Roberson, 90 F.3d 75, 77 (3d Cir. 1996)
(citing Ornelas v. United States, 517 U.S. 690, 699-700, 116
S. Ct. 1657, 1662-63 (1996)). We review the district court's
conclusion that there was reason to conduct the Terry stop
de novo. See id. We will affirm.

I.

At approximately 1:30 a.m. on January 24, 1996, York
City police officers received a radio call of "shots fired" in
the 700 block of West King Street--an area known as a
"very high crime area." Shortly thereafter, a second radio
transmission reported that two victims of the shooting had
been taken away by a private vehicle. Officer Michael
Koltunovich, a uniformed police officer in a marked police
vehicle, immediately responded. As he approached the area,
he saw five African American men walking in the vicinity of
the reported crime scene along West Princess Street. Except
for these five men, the streets were deserted. Koltunovich
stopped his vehicle and asked the men to "hold up." Two
men stopped, were frisked for weapons, questioned and

                               2
released. The other three men continued walking.
Koltunovich radioed a description of the three men and
stated that one (Brown) wore a black leather jacket and
bright white knit cap.

Uniformed Officer Todd Ross was also on patrol that
night in a marked police vehicle. As Ross responded to the
"shots fired" call, he heard Koltunovich radio that three
potential suspects were walking east along West Princess
Street. Within seconds after receiving the radio
transmission, Ross saw Brown on West Princess Street
near the crime scene wearing a black leather jacket and
bright white knit cap. When Ross stopped his vehicle,
Brown turned and ran into an alley. Ross radioed this
information. Koltunovich then radioed that he saw Brown
enter Gus's Bar. Ross entered the bar and saw a white knit
cap next to a man wearing a black leather jacket. The man
stated that the cap was his and that he had a weapon.
Koltunovich entered the bar and identified Brown as the
person who had walked away from him earlier that night.
The police officers frisked Brown and found an unloaded,
sawed-off .22 caliber rifle. Brown was arrested and taken to
the police station where they conducted a thorough search
and found drugs, money and ammunition. A grand jury
indicted Brown for one count of possession of afirearm by
a convicted felon in violation of 18 U.S.C. S 922(g)(1) and
one count of possession of an unregistered sawed-off rifle in
violation of 26 U.S.C. S 5861(d). Brown was not charged
with the shootings.

Brown moved to suppress: (1) his statement admitting
possession of the firearm; (2) the firearm; (3) the
ammunition; and (4) the drugs. Brown claims that the
officers lacked the reasonable suspicion required to conduct
a warrantless stop and frisk. Brown argues that the only
basis for the stop and frisk was that he fled from police and
that this, without more, is insufficient to justify a Terry
stop. The district court found that reasonable suspicion
supported the Terry stop and denied the motion to
suppress. Brown now appeals that order.

II.

In Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 1880
(1968), the Supreme Court held that a police officer may

                               3
conduct a warrantless stop and frisk if specific and
articulable facts, together with all rational inferences,
suggest that the suspect was involved in criminal activity.
This investigatory stop is short of an arrest and can be
justified by "less than the probable cause necessary for an
arrest." Roberson, 90 F.3d at 77. However, a mere "hunch"
or "inchoate and unparticularized suspicion" cannot justify
a stop and frisk under Terry. See Terry, 392 U.S. at 27, 88
S. Ct. at 1883. Deference, however, is given to the officer's
conclusions based on the officer's experience. See United
States v. Rickus, 737 F.2d 360, 365 (3d Cir. 1984) (citing
United States v. Cortez, 449 U.S. 411, 418, 101 S. Ct. 690,
695 (1981)). An officer cannot conduct a Terry stop simply
because criminal activity is afoot. See Terry, 392 U.S. at 29,
88 S. Ct. at 1884. Instead, the officer must have a
particularized and objective basis for believing that the
particular person is suspected of criminal activity. See
United States v. Cortez, 449 U.S. 411, 417-18, 101 S. Ct.
690, 695 (1981).

Brown contends that his flight from police is insufficient
to support a Terry stop and frisk. We disagree.* We have
held that flight combined with other factors may support a
warrantless stop and frisk. See United States ex rel.
Richardson v. Rundle, 461 F.2d 860, 863-64 (3d Cir. 1972).
These other factors, apropos to Brown's stop include: (1)
the reputation of an area for criminal activity, see Rickus,
737 F.2d at 365; (2) a suspect's flight upon seeing his
companion questioned and frisked by officers, see United
States v. Embry, 546 F.2d 552, 555 (3d Cir. 1976); and (3)
_________________________________________________________________

* Brown relies on LaFave, Search and Seizure, S 3.6(e) (3d Ed. 1997)
(citing United States v. Margeson, 259 F. Supp. 256, 265 (E.D. Pa. 1966))
(stating that "[t]he flight of a person from the presence of police is not
standing alone sufficient to establish probable cause"), and United States
v. Young, 598 F.2d 296, 304 (D.C. Cir. 1979) (Robinson, J., concurring)
(commenting that "association with a supposed criminal does not
necessarily blossom into probable cause, simply because of subsequent
flight from oncoming police"), for the proposition that flight, alone,
cannot justify a Terry stop and frisk. These authorities, however, discuss
flight in the context of establishing probable cause for an arrest.
Additionally, United States v. Duffy, 796 F. Supp. 1252, 1258 (D. Minn.
1992), which does hold that flight from police officers, without more, is
insufficient to support a Terry pat-down, is not binding on us.

                               4
a suspect's attempts to elude police officers, see Rundle,
461 F.2d at 864 (citing Sibron v. New York, 392 U.S. 40,
66, 88 S. Ct. 1889, 1904 (1966)).

In Rundle, we noted that

       "deliberately furtive actions and flight at the approach
       of strangers or law officers are strong indicia of mens
       rea, and when coupled with specific knowledge on the
       part of the officer relating the suspect to evidence of
       crime, they are proper factors to be considered in the
       decision to make an arrest."

461 F.2d at 864 (quoting Sibron, 392 U.S. at 66, 88 S. Ct.
at 1904). Rundle involved police officers on routine patrol in
a high crime area who witnessed four youths running from
a drug store around closing time. See id. at 862-64. The
officers also knew that robberies generally occurred when
stores opened or closed. See id. at 863. Therefore, based on
their observances and experience, they concluded that "a
crime was either being perpetrated or about to be
perpetrated." Id. We held that the officers could have
reasonably suspected that the youths committed a robbery
and that the evidence obtained was admissible. See id. at
864.

This stop and frisk is similar. Koltunovich noticed five
men walking in the vicinity of a reported crime scene. It
was the middle of the night in the dead of winter and the
streets were otherwise deserted. When Koltunovich
approached, three men disregarded the officer's request to
"hold up" and continued walking. Koltunovich then radioed
a description of the men over the radio, stating that one
man wore a black leather jacket and a bright white knit
cap. Ross heard the broadcast and immediately saw a man
fitting the description in the vicinity. When Ross began to
approach, Brown ran away and attempted to elude him by
ducking into an alleyway and a bar. These actions
combined with the radioed information and surrounding
circumstances are sufficient to justify an investigatory stop
under Terry.

Further, Officer Koltunovich did not make his original
assessment of the suspects based solely on the fact that the
men were coming from the area of the reported shooting.

                                5
The record indicates that the area was known as a "very
high crime" area. The men were in close proximity to the
crime scene a few minutes after the call of "shots fired" was
received. It was late at night and these men were the only
persons in the area. These factors, when considered in
combination with the officers' experience, are also sufficient
to warrant in investigative stop under Terry. See Rickus,
737 F.2d at 365.

III.

Several specific and articulable factors contributed to the
officers' decision that Brown could be a suspect in the West
King Street shooting. Therefore, the evidence obtained
during the Terry stop and frisk and subsequent police
station search is admissible. Accordingly, we will affirm the
district court's denial of Brown's motion to suppress.

                               6
RENDELL, Circuit Judge, dissenting:

I must respectfully dissent because the majority opinion
approves a stop-and-frisk of Mr. Brown based on "nothing
more substantial than inarticulate hunches" as proscribed
by Terry v. Ohio, 392 U.S. 1, 22 (1968). Mr. Brown was
merely near the wrong place at the wrong time. The
evidence established that, at 1:30 a.m., the defendant and
four other males were spotted walking south on Belvedere
and turned onto Princess Street, "one block over" from the
area of 700 West King Street, where the shootings were
reported to have occurred.* There was no evidence to
connect these men to the crime other than their having
been the only ones seen by the police on the street in the
general vicinity. The record contained no evidence as to
when the shootings had occurred, how much time had
elapsed between the shootings and the sighting of the five
black males, and no evidence that the perpetrators were
black, male, or that they were on foot. In fact, all the police
knew was that "shots had been fired in the 700 block of
West King Street," and "two victims of the shooting had
been taken by a private vehicle to City Hall." For all the
police knew at the time, the incident could have been a
shootout with no perpetrators other than those injured.

Further, Brown did not flee when two of his companions
were questioned; rather, two stopped, and the other three,
including Brown, kept walking. He ran only later, when a
police car kept pursuing him. While the majority opinion
sidesteps the issue, flight alone, under these
circumstances, should not provide probable cause for a
Terry stop, because flight can be the result of legitimate
concerns on the part of the person being pursued, and, on
its own, does not indicate that criminal activity is afoot.
See, e.g., United States v. Young, 598 F.2d 296, 304 (D.C.
Cir. 1979) (Robinson, J., concurring); United States v.
_________________________________________________________________

* Interestingly, a street map of York City shows the relevant portion of
West King Street to be separated from Princess Street by several streets
-- Light Alley, West Poplar Street, and School Place. See Mapquest,
http://city.net/cgi/maps>. The record, however, contains only the
officer's statement as to the geographic layout of the area. Appendix,
p. 63.

                               7
Duffy, 796 F. Supp. 1252, 1258-59 (D. Minn. 1992); United
States v. Margeson, 259 F. Supp. 256, 264 (E.D. Pa. 1966).
While flight with more can justify a Terry stop, here there is
nothing more.

Law enforcement officers made Brown a suspect merely
by virtue of reporting the color of his hat and coat. The
instant situation is clearly distinguishable from both United
States v. Embry and United States ex rel. Richardson v.
Rundle, on which the majority rely. In those cases there
were facts which, when taken together with reasonable
inferences drawn from those facts, justified an intrusion.
Here, not only are there no facts that connect Brown with
criminal activity, but, moreover, there are no inferences
which can reasonably be drawn from facts of record which
could do so. As Judge Seitz cautioned in his dissent from
the majority opinion in United States v. Embry:

       Terry and its progeny do not license the police to stop
       individuals in public places on a bare suspicion or an
       intuition that they may be criminals, and it certainly
       does not permit random stops in an effort to turn
       something up. In every case, "the police officer must be
       able to point to specific and articulable facts which,
       taken together with reasonable inferences from those
       facts, reasonably warrant the intrusion."

546 F.2d 552, 558-59, citing Terry, 392 U.S. at 21.

Here, there are no such facts. We take a giant step
backward in our Fourth Amendment jurisprudence in
giving our stamp of approval to the police conduct in this
case.

I would reverse.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

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