United States v. Arthur

United States Court of Appeals
For the First Circuit

No. 13-1892

UNITED STATES OF AMERICA,

Appellee,

v.

LYNCH E. ARTHUR,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Denise J. Casper, U.S. District Judge]

Before

Kayatta, Baldock* and Selya,
Circuit Judges.

Elizabeth Prevett, Federal Defender Office, with whom Jennifer
C. Pucci, Federal Defender Office, was on brief, for appellant.
Kelly Begg Lawrence, Assistant United States Attorney, with
whom Carmen M. Ortiz, United States Attorney, was on brief, for
appellee.

August 22, 2014

*
Of the Tenth Circuit, sitting by designation.
 SELYA, Circuit Judge. The reasonable suspicion that is

needed to justify a minimally intrusive police stop is hard to

quantify, and there is sometimes a fine line between that degree of

suspicion and mere paranoia or a hunch plucked out of thin air.

This case requires us to examine that line. After conducting such

an examination, we conclude that the district court did not err in

finding that the police conduct in this case fell on the right side

of the line. We further conclude that the court committed no error

in refusing to suppress proffered eyewitness identification

evidence. Based on these conclusions, we affirm the denial of the

appellant's motions to suppress.1

I. BACKGROUND

We briefly sketch the genesis and travel of the case. On

October 31, 2011, two armed men robbed a MetroPCS cell phone store

in Boston, Massachusetts. Within a matter of minutes, a Boston

police officer, Timothy Golden, spotted two men matching the

culprits' general description. He stopped the pair, later

identified as Ronald Brown and defendant-appellant Lynch E. Arthur,

and questioned them. During this conversation, Officer Golden

received additional information from other officers that bolstered

his suspicions. The men were brought to the scene of the crime and

1
To be precise, the district court granted the motions to
suppress in part and denied them in part. This appeal deals only
with those requests for suppression that the district court denied.
We affirm that denial and do not comment on the other aspects of
the motions.

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identified by the store clerk in a "show-up" procedure. Arrests

followed.

A federal grand jury sitting in the District of

Massachusetts subsequently returned an indictment charging both men

with Hobbs Act robbery, see 18 U.S.C. § 1951; possessing firearms

and ammunition after felony convictions, see id. § 922(g)(1); and

carrying firearms during and in relation to a crime of violence,

see id. § 924(c)(1)(A). A superseding indictment changed the

sequence of the charges against the appellant but not their

substance.2

The appellant moved to suppress. After an evidentiary

hearing, the district court concluded that the stop was justified

by reasonable suspicion. See United States v. Arthur, No. 12-

10025, 2012 WL 6531928, at *7 (D. Mass. Dec. 12, 2012). The court

further concluded that, even though the show-up procedure was

impermissibly suggestive, the clerk's identification was reliable

and therefore admissible. See id. at *10.

The appellant entered a conditional guilty plea to all

three of the charged counts, see Fed. R. Crim. P. 11(a)(2),

reserving the right to challenge the district court's refusal to

suppress the challenged evidence. The court sentenced the

2
Because Brown's case followed a somewhat different path and
is not now before us, we do not discuss the charges against him.

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appellant to a total of 228 months of immurement. This timely

appeal ensued.

II. ANALYSIS

The appellant musters two assignments of error. First,

he argues that there was no reasonable suspicion supporting Officer

Golden's initial stop and that the district court's contrary

finding was insupportable. Second, he argues that the district

court erred in concluding that the store clerk's identification was

reliable under the totality of the circumstances. We address these

arguments in turn, "accepting the district court's findings of fact

to the extent they are not clearly erroneous and subjecting its

legal conclusions to de novo review." United States v. Romain, 393

F.3d 63, 68 (1st Cir. 2004). This means that, "[a]bsent an error

of law, we will uphold a refusal to suppress evidence as long as

the refusal is supported by some reasonable view of the record."

United States v. Lee, 317 F.3d 26, 29-30 (1st Cir. 2003).

A. Reasonable Suspicion.

In this case, as in virtually every such case, the

existence vel non of reasonable suspicion is factbound.

Consequently, "[w]e recount the relevant facts as the trial court

found them, consistent with record support." Id. at 30. Our

canvass here is limited to the facts known to Officer Golden at the

time of the stop.

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 The robbery of the cell phone store took place in mid-

day, and the robbers fled on foot. The store clerk (whom they had

bound) hopped to the front counter, hit the panic alarm, and

initiated a 911 call. This call prompted a radio dispatch that

alerted police in the area to the robbery.3

Officer Golden, who was on patrol in his marked cruiser

near the robbery scene, headed for the store. He then monitored a

second dispatch informing him that two black men were involved in

the robbery and were fleeing on foot down Moultrie St. (a street in

close proximity to the robbed store). The officer proceeded down

Moultrie St. and saw a resident raking leaves. The leaf-raker told

Officer Golden that he had just seen two black men running down the

street and heading away from the store. A third dispatch noted

that the robbers were armed and wearing dark, heavy clothing.

When Officer Golden reached the end of Moultrie St., he

turned left on Allston St. and immediately left again onto Kenwood

St. (heading back toward the store). Just as he turned onto

Kenwood St. — approximately an eighth of a mile from the store —

Officer Golden noticed two black pedestrians walking in a direction

that led away from the crime scene. The heavier-set man, later

identified as the appellant, was wearing a black pea coat and blue

jeans. The leaner man, later identified as Brown, was wearing a

3
While we include the facts set out in this paragraph as
helpful background, we note that they were unknown to Officer
Golden at the time.

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maroon or purple hooded sweatshirt and black pants. About five

minutes had elapsed since the first dispatch, and Officer Golden

had seen no other people afoot in the area.

The officer stopped his marked cruiser in the middle of

the street, emergency lights flashing, and approached the two men.

He did not draw his weapon, but he placed his hand on his holster.

He told the duo that a robbery had taken place at a nearby cell

phone store and explained that they matched the description of the

suspects. He ordered them to show their hands and they complied.

The parties agree that, at this juncture, the men were seized

within the meaning of the Fourth Amendment.

It is against this factual backdrop that we turn to the

contention that Officer Golden lacked the quantum of suspicion

required to effect an investigatory stop. The Fourth Amendment

protects persons from "unreasonable searches and seizures." U.S.

Const. amend. IV. This prophylaxis extends to temporary

investigatory detentions falling short of arrest. See Terry v.

Ohio, 392 U.S. 1, 19 (1968); United States v. Chhien, 266 F.3d 1,

5-6 (1st Cir. 2001). Such a detention, commonly called a Terry

stop, does not offend the Fourth Amendment as long as it is

"justified at [its] inception" and reasonable in scope, accounting

for the "emerging tableau" of information known to the detaining

officer. Chhien, 266 F.3d at 6.

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 In this instance, the appellant challenges only the

justification for the initial stop, not its scope. To be justified

at its inception, a Terry stop must be accompanied by "a

reasonable, articulable suspicion of an individual's involvement in

some criminal activity." United States v. Ruidíaz, 529 F.3d 25, 28

(1st Cir. 2008). The reasonable suspicion standard is a protean

one; it defies strict boundaries, requiring "more than a visceral

hunch about the presence of illegal activity, [but] less than

probable cause." United States v. Brown, 500 F.3d 48, 54 (1st Cir.

2007). "In the last analysis, reasonable suspicion is more a

concept than a constant: it deals with degrees of likelihood, not

with certainties or near certainties." United States v. Arnott,

___ F.3d ___, ___ (1st Cir. 2014) [No. 13-1881, slip op. at 7].

The Supreme Court has explained that a detaining officer

has reasonable suspicion if the totality of the circumstances give

rise to "a particularized and objective basis for suspecting the

particular person stopped of criminal activity." United States v.

Cortez, 449 U.S. 411, 417-18 (1981). The factual mosaic "must be

evaluated through a broad-based consideration of all the attendant

circumstances." Brown, 500 F.3d at 54. Thus, "reasonable

suspicion can flourish in the absence of a direct evidentiary link

between the suspect and the suspected crime." Id. The focus is on

what a reasonable officer, armed with the same knowledge, would

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have thought. See United States v. Espinoza, 490 F.3d 41, 47 (1st

Cir. 2007).

After careful perscrutation, we uphold the finding that

the stop effected by Officer Golden was accompanied by reasonable

suspicion. At the time of the initial seizure, Officer Golden had

received a reliable, though generic, description of the number of

suspects and their race, gender, clothing, and approximate

location, as well as information about the direction in which they

were heading. The location and direction information was

corroborated by an unconnected witness (the leaf-raker). Just

minutes had elapsed since the robbery when the suspects, who mostly

matched the description, were encountered just an eighth of a mile

from the crime scene, heading in the expected direction. There

were, moreover, no other persons afoot in the area. Taken in the

ensemble, these facts were sufficient to give rise to a reasonable

suspicion that the appellant and his companion were the robbers.

We think it virtually unarguable that a reasonably

prudent police officer, standing in Officer Golden's shoes and

knowing what he knew, would have harbored such a suspicion. In

light of the attendant circumstances, a failure to stop the men and

question them briefly would have verged on a dereliction of duty.

It follows that the district court's decision upholding the

lawfulness of the investigatory stop was free from error.

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 To be sure, the stop occurred in a majority-minority

neighborhood; and the physical description of a black man in dark,

heavy clothing might fit a significant percentage of the local

population on a late October day. We agree with the appellant that

such a description, standing alone, would likely be insufficient to

give rise to reasonable suspicion. But everything depends on

context and, in this instance, the description did not stand alone.

Officer Golden was entitled to rely on the description in

combination with other clues: the precise number of robbers, the

immediacy of the robbery, the suspects' close proximity to the

crime scene, the direction in which the men were headed, and the

dearth of others in the critical two-block area. The totality of

the circumstances supported a logical inference that the appellant

and his companion were the robbers. See Lee, 317 F.3d at 31 ("The

two men were not only in the right place at the right time, but

also fit the suspects' descriptions."); see also United States v.

Pontoo, 666 F.3d 20, 28-29 (1st Cir. 2011) (concluding that

reasonable suspicion existed to detain the only person walking at

3:30 a.m. in the vicinity of a reported murder where that person

fit the general description of the suspect).

The appellant resists this conclusion. He makes much of

what he views as discrepancies between the information available to

Officer Golden and the actual appearance of the appellant and his

companion at the time of the stop. For example, he points out that

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he and Brown were walking, not running; that they were on Kenwood

St., not Moultrie St.; and that Brown's maroon hoodie was neither

"dark" nor "heavy." But to the extent these distinctions have any

bite at all, they are not enough to show that Golden lacked

reasonable suspicion. We think it entirely plausible (as did the

district court) that the robbers might proceed to a nearby street

and shed identifying clothing.4 We are satisfied that, taking into

account the totality of the circumstances and the modest burden

required to satisfy the reasonable suspicion standard, Officer

Golden could plausibly conclude that the men matched the

description.

In an effort to blunt the force of this reasoning, the

appellant cherry-picks the case law. This approach has limited

utility because, as we have said, the presence or absence of

reasonable suspicion is apt to be "case-specific." Arnott, ___

F.3d at ___ [No. 13-1881, slip op. at 7]. At any rate, the cases

hawked by the appellant do not aid his cause.

To begin, the appellant offers a cramped interpretation

of our decision in United States v. Carrigan, 724 F.3d 39 (1st Cir.

2013). He asserts that Carrigan stands for the proposition that

the police cannot stop someone based solely on a generic physical

description but first must corroborate their suspicions with

4
In point of fact, dark, heavy clothing was later found
strewn in the wake of the suspects' flight.

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observations of erratic or suspicious behavior. But Carrigan

involved a 911 report of somewhat dubious veracity, leading the

court to suggest that the defendant's "argument [in favor of

suppression] might be stronger had police relied solely on the

caller's information" without any corroboration. Id. at 46. That

dictum has little bearing where, as here, there was not the

faintest reason to believe that the store clerk's description

lacked credibility and circumstances other than suspicious behavior

lent credence to it.5

The appellant's attempt to draw an analogy between this

case and United States v. Camacho, 661 F.3d 718 (1st Cir. 2011), is

equally unpersuasive. There, we held that police lacked reasonable

suspicion where the sole basis for detaining the defendant was that

he was "observed in a high crime area walking away from the

vicinity of a street fight that one caller reported as involving

the Latin Kings." Id. at 726 (internal quotation mark omitted).

That scenario is at a considerable remove from the facts at hand.

Unlike Officer Golden, the police in Camacho were lacking even a

basic description of the suspects, and the defendant was simply one

among many people walking near the scene of the crime. See id. at

722, 726.

5
The decision in United States v. Brown, 448 F.3d 239 (3d
Cir. 2006), is similarly unhelpful to the appellant. There, the
police arrested the only two black men at an intersection based on
an unreliable location tip and a generic description that the men
did not match. See id. at 248, 251. That is simply not this case.

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 Let us be perfectly clear. Ubiquitous or vague physical

descriptions or general locations, without more, are not enough to

support reasonable suspicion. But there is more in this case, and

we decline the appellant's invitation to view each fact in splendid

isolation. Events occur in a context, and balkanization of the

facts serves only to "distort[] reality." Pontoo, 666 F.3d at 29.

The generic physical description of the suspects in this case, when

considered in light of all the attendant circumstances, was

constitutionally sufficient to justify an investigatory stop.

B. Identification.

We turn next to the district court's refusal to suppress

the store clerk's eyewitness identification testimony. We begin

with first principles: the Due Process Clause is implicated by the

introduction of eyewitness identifications tainted by "suggestive

and unnecessary" identification procedures. Perry v. New

Hampshire, 132 S. Ct. 716, 724 (2012). The resulting prohibition,

however, cannot be applied with too heavy a hand. Identification

evidence should be suppressed on due process grounds only in

"extraordinary cases" in which the court "is persuaded that there

was a very substantial likelihood of irreparable

misidentification." United States v. Rivera-Rivera, 555 F.3d 277,

282 (1st Cir. 2009) (internal quotation marks omitted). Unless

"the indicators of [a witness'] ability to make an accurate

identification are outweighed by the corrupting effect of law

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enforcement suggestion," the evidence, if otherwise admissible,

should go to the jury. Perry, 132 S. Ct. at 725 (alteration in

original) (internal quotation marks omitted).

The courts have orchestrated a two-step pavane for

considering whether due process requires the exclusion of

identification evidence. See Rivera-Rivera, 555 F.3d at 283.

First, the court must ask whether the identification procedure was

impermissibly suggestive. See id. If not, the inquiry ends. But

if impermissible suggestiveness is found, the second step of the

pavane requires the court to appraise the totality of the

circumstances and decide whether the identification was

nevertheless reliable. See id.

Courts typically employ five factors to aid in assessing

reliability under the totality of the circumstances. See Neil v.

Biggers, 409 U.S. 188, 199-200 (1972); United States v. Henderson,

320 F.3d 92, 100 (1st Cir. 2003). These factors are "(1) the

opportunity of the witness to view the criminal at the time of the

crime; (2) the witness' degree of attention; (3) the accuracy of

the witness' prior description of the defendant; (4) the level of

certainty demonstrated by the witness at the confrontation; (5) the

length of time between the crime and the confrontation."

Henderson, 320 F.3d at 100. Our appraisal here starts with the

facts supportably found by the district court.

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 As previously noted, two men entered the cell phone store

to rob it. The leaner of the two approached the store clerk and

inquired about a phone. His heavier-set companion walked behind

the counter and raised his shirt to display a gun in his waistband.

He asked the clerk, "Where's the money?" He added, "Do what we

tell you to do and you won't get hurt, we just want the money."

The clerk, who was working alone, got her best look at the men when

they entered the store; from that point forward, she looked down to

avoid eye contact because she was frightened.

The men escorted her into the back room, where the leaner

man displayed a gun and told her to get the money. The clerk

replied that the money was in the cash register at the front of the

store. She was ordered to bring the cash register to the back

room, and she complied. Upon her return, the heavier-set man

instructed her to place the money in a bag.

With the purloined funds in hand, the robbers tied up the

clerk and fled. Within a few minutes, Detective Connolly responded

to the crime scene, interviewed the clerk, and obtained a

description of the robbers. The clerk was visibly upset but the

detective was able to understand her.

After a brief hiatus, Detective Connolly told the clerk

that the police "were going to bring somebody back to her to

possibly identify; the person may or may not be involved in the

incident; it's just as important to clear the innocent as it is to

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identify the guilty parties; and regardless of whether or not [you]

make[] an identification, [the police] will continue to investigate

the incident." The clerk acknowledged that she understood these

admonitions.

At some point prior to or during the identification

procedure, the clerk told Detective Connolly that she wore glasses

"for distance." Because she did not have her glasses with her,

Detective Connolly arranged for the suspects to be viewed in close

proximity to the store's plate glass window. The court below found

that the clerk was able to see the suspects. See Arthur, 2012 WL

6531928 at *10 n.9.

The identification procedure was conducted along the

following lines. First, the police brought Brown onto the sidewalk

outside the store's plate glass window. He stood 10 or 12 feet

from the window, with two uniformed officers several feet behind

him. After a minute or so, the clerk (who was inside the store

near the window) identified Brown as one of the robbers, noting

that she recognized his boots and braids.

Next came the appellant's turn. Detective Connolly again

instructed the clerk on identification procedures. The police then

placed the appellant on the sidewalk some 15 to 20 feet outside the

window. Two uniformed police officers stood three to four feet

behind him. The clerk and Detective Connolly remained just inside

the front window of the store. Upon seeing the appellant, the

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clerk immediately shouted, "that's him, that's him." At that

point, her knees began to buckle.6

The district court found that the show-up identification

procedure was impermissibly suggestive. See Arthur, 2012 WL

6531928, at *10. It cited the presence of uniformed police

flanking the suspects and the store clerk's subjective belief that

the appellant was in handcuffs. See id. at *9. The court

nonetheless refused to suppress the clerk's identification, holding

that the Biggers factors and the totality of the circumstances

militated in favor of admissibility. Id. at *10.

We assume for argument's sake, favorably to the

appellant, the accuracy of the district court's conclusion that the

show-up procedure was impermissibly suggestive.7 We proceed,

6
Although the clerk believed that both suspects were in
handcuffs during the identification procedure, there was police
testimony to the contrary. The district court found it unnecessary
to resolve this contradiction. See Arthur, 2012 WL 6531928, at *9.
7
Withal, we note that the district court did not clearly
address whether the suggestive nature of the identification was
necessary under the circumstances. See United States v. Holliday,
457 F.3d 121, 125 (1st Cir. 2006) ("The first prong of the test —
whether the identification procedure was impermissibly suggestive
— can be broken down into two constituent parts: that concerning
the suggestiveness of the identification, and that concerning
whether there was some good reason for the failure to resort to
less suggestive procedures." (internal quotation marks omitted));
United States v. Watson, 76 F.3d 4, 6 (1st Cir. 1996) ("Show-ups
that take place immediately after the offense has been committed
may be necessary in order to avoid the mistaken apprehension of the
wrong person." (citing cases)). Whether and to what extent this
factor, if explicitly considered, might have affected the court's
decisional calculus is open to question.

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therefore, directly to the Biggers factors and the totality of the

circumstances.

The appellant does not gainsay either that the clerk gave

an accurate prior description of the suspects or that the crime and

the confrontation were close in time. His ire is focused

exclusively on the district court's application of the remaining

three Biggers factors: opportunity to view the suspect, attention

paid, and certainty. He asserts that the court placed too little

weight on the witness's fragile mental state and uncorrected

vision, and gave too much weight to the witness's confidence in

identifying the appellant. We probe these assertions, mindful that

the accuracy of the clerk's prior description and the close timing

of the crime and the confrontation — two factors that the appellant

does not contest — provide strong support for a finding of

admissibility.

Turning first to opportunity, we endorse the district

court's determination that this factor favors admissibility. See

Arthur, 2012 WL 6531928, at *10. The record makes manifest that

the clerk had a reasonably good chance to view the appellant during

the robbery. This tees up the next factor: the district court

supportably found that the clerk paid close attention to the

robbers' appearance (as demonstrated by her ability to provide an

accurate description). See id. Relatedly, we discern no clear

error in the lower court's finding that the unavailability of the

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clerk's glasses did "not cut against any conclusion about the

reliability of her identification where . . . the [suspects] were

brought closer to her for the purposes of identification and

there's no suggestion that her lack of glasses for distance

impaired her ability to view the robbers during the robbery." Id.

at *10 n.9.

As for certainty, the record reveals that the clerk

recognized the appellant immediately, evincing a stark and visceral

reaction. Even so, the district court appears to have considered

the certainty factor as weighing only marginally in favor of

reliability. See id. at *10; see also United States v. Jones, 689

F.3d 12, 18 (1st Cir. 2012) ("[A] witness' lack of confidence is

certainly a reliable warning sign, while the presence of confidence

is probably closer to a neutral factor."), cert. denied, 133 S. Ct.

1278 (2013). We discern nothing amiss in the modest weight

accorded this factor by the district court.

The appellant has a broader argument against the

admission of the challenged testimony. This argument is premised

on emerging social science theory to the effect that stress can

hamper eyewitness identification and, concomitantly, that an

eyewitness, though highly certain, may sometimes be mistaken. See

Perry, 132 S. Ct. at 727; id. at 739 (Sotomayor, J., dissenting).

This social science gives pause to any knee-jerk assumption that

eyewitness identification testimony, no matter how confidently

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expressed, is necessarily reliable. See id. at 732. That does not

mean, however, that such testimony must perforce be excluded — and,

in all events, the able district court appears to have been

sensitive to these concerns.

We discern no error. Suppressing evidence as a matter of

due process is generally thought to be necessary "[o]nly when

evidence is so extremely unfair that its admission violates

fundamental conceptions of justice." Perry, 132 S. Ct. at 723

(internal quotation marks omitted). Where no such extreme

unfairness exists, the Constitution "protects a defendant against

a conviction based on evidence of questionable reliability, not by

prohibiting introduction of the evidence, but by affording the

defendant means to persuade the jury that the evidence should be

discounted as unworthy of credit." Id. On this record, we cannot

say that the admission of the clerk's identification testimony

threatened to work unfairness so egregious as to demand

suppression.

That ends this aspect of the matter. We hold that the

district court did not err in refusing to suppress the store

clerk's eyewitness identification testimony.

III. CONCLUSION

We need go no further. For the reasons elucidated above,

we affirm the district court's denial of the appellant's motions to

suppress and, therefore, affirm his conviction.

Affirmed.

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