United States v. Kithcart

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

1-12-1998

United States v. Kithcart
Precedential or Non-Precedential:

Docket 97-1168

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Filed January 12, 1998

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 97-1168

UNITED STATES OF AMERICA

v.

JESSE KITHCART,
Appellant

ON APPEAL FROM THE
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
(D.C. Crim. No. 96-00090-1)

Argued: August 11, 1997
Before: ALITO, LEWIS, and McKEE, Circuit Judges

(Opinion Filed January 12, 1998)

David L. McColgin (Argued)
Defender Association of
Philadelphia
Federal Court Division
437 Chestnut Street
Philadelphia, PA 19106

Counsel for Appellant

Howard L. Perzan (Argued)
Suite 1250
Office of United States
Attorney
615 Chestnut Street
Philadelphia, PA 19106

Counsel for Appellee
OPINION OF THE COURT

ALITO, Circuit Judge:

Jesse Kithcart appeals from a judgment in a criminal
case. Kithcart pled guilty to one count of being a felon in
possession of a firearm, in violation of 18 U.S.C.S 922(g)(1),
but he reserved his right to appeal the district court's
decision on his motion to suppress the firearm in question.
This appeal raises the question whether the officers had
probable cause to arrest and search Kithcart. Because we
conclude that they did not have probable cause, we reverse
the district court's denial of the suppression motion on the
grounds given, and we remand for further proceedings in
accordance with this opinion.

I.

On July 25, 1995, Bensalem Township Police Officer
Teresa Nelson was assigned to a radio patrol car on the
evening shift. Over the course of an hour, Officer Nelson
received three radio transmissions, each reporting an
armed robbery. The first two robberies occurred at motels
in Bensalem Township, and the last transmission
concerned a robbery in neighboring Bristol Township. The
final report -- which was received at approximately 10:43
p.m. -- did not specify either the time or location of the
Bristol robbery. Bristol is north of, and adjacent to,
Bensalem Township.

The alleged perpetrators of these robberies were
described as "two black males in a black sports car." It was
also reported that one of the perpetrators might have been
wearing white clothes, and the vehicle was described as a
"possible Z-28, possible Camaro."1

At 10:53 p.m. -- approximately ten minutes after
receiving the final radio transmission regarding the Bristol
robbery -- Officer Nelson spotted a black Nissan 300ZX,
which she described as a sports car, traveling south on
_________________________________________________________________

1. The Z-28 is a type of Camaro.

2
Route 13, approximately a mile or less from the boundary
of Bristol Township. The vehicle was driven by an African-
American male who appeared to be the only person in the
car. Officer Nelson testified that since the time when she
received the first radio transmission more than an hour
earlier, this was the first occasion when she spotted either
a black vehicle or a black male driving a car. Officer Nelson
also testified that immediately after she pulled up behind
the vehicle, which had stopped at a red light, the driver
drove the Nissan through the red light. Officer Nelson then
flashed her dome lights, and the Nissan pulled over to the
side of the road. At this point, Officer Nelson saw two sets
of arms raised toward the roof of the car, and she realized
that there were two people in the car.

Officer Nelson then called for backup and waited in her
patrol car until Officers Christine Kellaher and Bill Williams
arrived at the scene. Officer Williams found a gun in
Kithcart's white nylon waist pouch, and Officer Kellaher
found a gun under the driver's seat.

In moving to suppress the evidence seized by the police,
Kithcart contended among other things, that the police
lacked reasonable suspicion for an investigatory stop
pursuant to Delaware v. Prouse, 440 U.S. 648 (1979), Terry
v. Ohio, 392 U.S. 1 (1968), and related cases. See App. 95a.
Consistent with this argument, Kithcart argued that Officer
Williams had discovered his gun during a "pat down" or
"frisk" but that the standard for conducting a "frisk" under
Terry had not been met. App. 97a. The government argued
that the police were justified in stopping the car because
the driver ran a red light. In addition, the government's
brief argued as follows:

[G]iven that Officers Nelson and Williams were
confronted with two black males in a black sports car
shortly after and in the vicinity of the reported
robberies, and that the males had attempted to flee
upon seeing Officer Nelson's car pull behind theirs, the
totality of the circumstances established reasonable
suspicion to support the pat-down of the defendant
and his waist-pack. See Chimel v. California, 395 U.S.
752, 763 (1969) (lawful arrest creates a situation which
justifies a contemporaneous search of arrestee and

3
 immediate area, including area from within which
arrestee might gain possession of a weapon); Terry v.
Ohio, 392 U.S. 1 1968 (limited pat-down of a suspect's
exterior clothing and protective sweep of area within
immediate control are authorized during a lawful stop).

App. 107a-108a.

At the hearing on the motion, counsel for Kithcart,
counsel for the government, and the court all referred to
the government's latter argument as concerning the
question of "probable cause" (see e.g., App. 27a, 28a, 54a,
58a), and at the conclusion of the hearing,2 the district
court orally ruled that the police had "probable cause . . .
for the stop." App. 60a. The court relied on "the direction,
the timing, the location of the vehicle, plus the fact it [was]
a black sports car." App. 60a. The court noted the
discrepancy between the radioed description of the
perpetrators as two black males and Officer Nelson's initial
belief that there was only one black male in the car, but the
court held that the fact that Officer Nelson had not seen
any other black men driving cars since she received the
initial radio transmission heightened the probability that
the driver of the vehicle had been involved in the robberies.
Because the court concluded that the officers had probable
cause, the court found it unnecessary to decide whether
the alleged running of the red light provided an
independent basis for Officer Nelson's stop and the
subsequent actions of the officers.

Following this ruling, Kithcart pled guilty, subject to the
condition that he be allowed to challenge on appeal the
district court's denial of his motion to suppress.
_________________________________________________________________

2. Officer Nelson testified at the hearing. Officers Kellaher and Williams
did not testify. Officer Nelson's account of the traffic violation was
disputed by the defense. Co-defendant Carl Green-- the driver of the car
and a cooperating witness against Kithcart -- told the government that
he had not driven through a red light prior to the stop by Officer Nelson.
The district court did not resolve this issue, relying instead on its
finding
that there was probable cause to arrest and search based on the radio
transmissions.

4
II.

We turn first to the ground on which we understand the
district court to have denied Kithcart's suppression motion,
viz., that the officers had "probable cause" to arrest
Kithcart and to search him incident to the arrest. When a
warrantless search is made pursuant to an arrest, "[t]he
constitutional validity of the search . . . must depend upon
the constitutional validity of the . . . arrest." Beck v. Ohio,
379 U.S. 89, 91 (1964).

Whether that [warrantless] arrest was constitutionally
valid depends in turn upon whether, at the moment
the arrest was made, the officers had probable cause to
make it -- whether at that moment the facts and
circumstances within their knowledge and of which
they had reasonably trustworthy information were
sufficient to warrant a prudent man in believing that
the [suspect] had committed or was committing an
offense.

Id. See also Barna v. City of Perth Amboy, 42 F.3d 809, 819
(3d Cir. 1994) (test for probable cause is objective test: did
the police officer have a reasonable basis for believing that
the suspect had committed or was committing a crime).
Our review of a district court's determination that there was
probable cause to effect a warrantless search is de novo.
Ornelas v. United States, 116 S. Ct. 1657, 1659 (1996).

Based on the standard set by the Supreme Court in
Beck, the district court erred in concluding that there was
probable cause to arrest and search Kithcart prior to the
discovery of the guns. The mere fact that Kithcart is black
and the perpetrators had been described as two black
males is plainly insufficient. As we have previously noted,
a description of " `two negro males' and two `black males'
. . . without more . . . would not have been sufficient to
provide probable cause to arrest [the suspect]." Edwards v.
City of Philadelphia, 860 F.2d 568, 571 n.2 (3d Cir. 1988).
Moreover, the match between the description of the
perpetrators' car (a black sports car, "possible Z-28,
possible Camaro)" and the vehicle in which Kithcart was
spotted (a black Nissan 300ZX) was far from precise.
Although the Camaro Z-28 and the Nissan 300ZX could be

5
considered "sports cars," there was no evidence offered at
the suppression hearing that the shapes of the two cars
were sufficiently similar so as to warrant an inference that
a 300ZX could be mistaken for a Z-28.

Nor is probable cause established by either the location
or time of the stop. There was no evidence presented as to
where in Bristol Township the final robbery occurred; nor
was there evidence presented that the Bristol robbery
occurred shortly before Officer Nelson stopped the car
carrying Kithcart. Although the radio transmission
regarding the Bristol robbery came approximately 10
minutes before the vehicle was stopped, Officer Nelson
testified that she did not recall that the radio transmission
revealed when the Bristol robbery occurred, other than that
it occurred that same evening. Compare Edwards, 860 F.2d
at 571 n.2 (although the description "two negro males" was
insufficient by itself to provide probable cause to arrest
suspect, other evidence closely linking suspect to scene of
reported crime was sufficient). In sum, we think that it is
clear that the facts and circumstances within Officer
Nelson's knowledge at the time she stopped the Nissan were
insufficient to allow a prudent person to believe that the car
and its occupants had committed or were committing an
offense. In other words, armed with information that two
black males driving a black sports car were believed to have
committed three robberies in the area some relatively short
time earlier, Officer Nelson could not justifiably arrest any
African-American man who happened to drive by in any
type of black sports car.

III.

The finding of no probable cause, however, does not end
the inquiry. In Terry v. Ohio, supra, the Supreme Court
held that law enforcement officers may stop and
temporarily detain persons short of arrest without violating
the Fourth Amendment. A Terry stop is justified when an
officer has a reasonable suspicion that "criminal activity
may be afoot." Id. at 30. The officer's suspicion must be
based on articulable facts and not merely the officer's
subjective good faith. Id. at 21. An officer may also conduct
a "reasonable search for weapons for the protection of the

6
police officer, where he has reason to believe that he is
dealing with an armed and dangerous individual . . .." Id.
at 27. The test is "whether a reasonably prudent man in
the circumstances would be warranted in the belief that his
safety or that of others was in danger." Id. As noted, this
question was briefed by the parties in the district court, but
the district court did not base its decision on this ground.

On remand, the district court should examine whether
Officer Nelson had a reasonable suspicion sufficient to
warrant an investigative stop. The court should consider
both of the government's asserted grounds for the stop: (1)
the alleged traffic infraction and (2) the information
regarding the armed robbery suspects discussed in Section
II, infra. The district court should also consider whether the
events leading to the discovery of the weapon in Kithcart's
pouch can be justified as a Terry "pat-down" We offer no
opinion at this juncture on any of these questions.

IV.

For the foregoing reasons, we conclude that the district
court erred in finding that Officer Nelson had probable
cause to arrest and search Kithcart. We therefore reverse
the denial of the suppression motion and remand for
further proceedings to consider whether the officers had
reasonable suspicion for an investigative stop and weapons
search of Kithcart's person.

7
McKEE, Circuit Judge, dissenting in part, and concurring
in part.

I agree with the majority's conclusion that the
prosecution did not establish that Officer Nelson had
probable cause to arrest the defendant. However, the same
testimony that requires us to reverse the district court's
determination that the government had probable cause also
establishes that Officer Nelson did not have reasonable
suspicion to stop and detain the occupants of the car.
Therefore, I disagree with the majority's decision to remand
this matter so that the district court can determine if the
stop was authorized under Terry v. Ohio, 392 U.S. 1 (1968).
It clearly was not, and I would so rule as a matter of law.
Thus, I dissent from that portion of the opinion that allows
reconsideration under Terry on remand.

I.

Terry v. Ohio created a very limited exception to the
general warrant requirement of the Fourth Amendment to
the United States Constitution. See 392 U.S. at 21.
Although Terry allows an investigative stop, it still requires
reasonable suspicion before the government can justify
even this limited intrusion. "It is well established that an
investigatory stop short of an arrest is valid based upon a
reasonable suspicion that criminal activity is afoot." United
States v. Rickus, 737 F.2d 360, 365 (3d Cir. 1994)
"Reasonable suspicion must be based upon `specific and
articulable facts which, taken together with rational
inferences from those facts reasonably warrant that
intrusion.' " Id. (quoting Terry, 392 U.S. at 21).

This record establishes only that three armed robberies
had occurred -- two in Bensalem Township and one in
Bristol -- sometime during the evening of July 25, 1995,
and that two Black males in a black sports car that was
probably a Camero Z28 were involved. Officer Nelson did
not know which direction nor road the car was last reported
traveling. Although the car in which the defendant was
riding was a black sports car, it was not a Camero Z28.
Rather, the defendant was traveling in a Nissan Model
300ZX. As the majority correctly notes, the record contains

8
no evidence that these two cars are so similar that they can
easily be confused with each other or that Officer Nelson
believed the Nissan to be a Camero. Officer Nelson's focus
was not on a particular model sports car. Instead, it was on
the color of the sports car and the race of its occupants.

The car that Officer Nelson stopped was not only a
different make and model than the one most likely involved
with the armed robberies, but the number of occupants it
contained appeared to be inconsistent with the radio
broadcast as well. The majority points out that it was only
after Officer Nelson initiated the stop and saw a second pair
of hands go into the air that she realized that the car did
in fact contain two males.1 At the suppression hearing,
Officer Nelson was asked, "from the time you pulled directly
behind the vehicle and the time you pulled the vehicle over,
you thought initially that there was one black male in that
vehicle?" She answered: "Correct." App. 47a. Therefore,
disregarding the allegation of a traffic violation, Officer
Nelson stopped this car solely because it was a black sports
car driven by an African American male near Bristol
Township shortly after she learned that two African
American males had committed a series of armed robberies
in that area. Based on this record, the majority correctly
concludes that "Officer Nelson could not justifiably arrest
any African American man who happened to drive by in any
type of black sports car." Majority Op. at 6. However, the
majority then allows the government an opportunity to
establish that Officer Nelson's stop was appropriate under
Terry v. Ohio, rather than following the obvious extension of
its own logic. Just as this record fails to establish that
Officer Nelson had probable cause to arrest any Black male
who happened to drive by in a black sports car, it also fails
to establish reasonable suspicion to justify stopping any
and all such cars that happened to contain a Black male.
See Terry, 392 U.S. at 30.

The majority states "on remand the district court should
examine whether Officer Nelson had a reasonable suspicion
sufficient to warrant an investigative stop." Majority Op. at
_________________________________________________________________

1. I do not mean to suggest that Officer Nelson would have been justified
in stopping this Nissan even if she had seen the passenger.

9
7. However, it is clear that she did not. "In determining
whether a stop is justified, the court must view the
circumstances surrounding the stop in their entirety, giving
due weight to the experience of the officers." Rickus, 737
F2d at 365. The district court explained the discrepancy
between the radio broadcast of two Black males and Officer
Nelson's observation of a different model black sports car
containing only one Black male as follows:

Now, the issue of one black male versus two black
males. She testified that she had not seen cars driven
by other black males for the time she had been looking,
and she sees a black sports car driven by one black
male. I do believe its still supported by probable cause
that there is another black male in the car, or that
perhaps they had split up or whatever.

But even so, I think the probable cause is heightened
by the fact that she had not seen a lot of cars driven
by black males in this area. . . .

App. at 60a.

However, there is nothing on this record to suggest that
the perpetrators "had split up" following the robbery, or
that someone other than the driver was in the car when
Officer Nelson stopped it. Unsupported conjecture of this
type would allow a stop of a car containing any number of
Black males as one could always speculate that the car
stopped and perpetrators got in or out of the car. This
speculation renders the radio information regarding the
number of suspects irrelevant and allows police officers to
stop any Black person riding in any car that is"similar" to
one involved in a crime even where, as here, that car does
not match the likely description that has been broadcast on
police radio. Conclusions based upon possibilities, no
matter how remote or speculative, are inconsistent with the
need to justify an investigative stop with reasonable
suspicion based upon specific and articulable facts.
Accordingly, any attempt to justify the instant stop under
Terry would elevate speculation and conjecture to the level
of articulable facts.

[T]he types of articulable facts that can provide
reasonable suspicion cannot include `circumstances

10
 [which] describe a very large category of presumably
innocent travelers, who would be subject to virtually
random seizures' were the circumstances accepted as
reasons for the investigation.

Karnes v. Skrutski, 62 F.3d 485, 492 (3d Cir. 1995)
(quoting Reid v. Georgia, 448 U.S. 438 (1980)). That is what
happened here. Absent a traffic violation, Officer Nelson's
stop is little more than a random stop of an African
American male in a black sports car.

II.

Although I agree that it would normally be important to
determine if the car that was stopped went through a red
light, I question the propriety of allowing that inquiry in
this case. At the beginning of the suppression hearing, an
issue arose as to Officer Nelson's credibility. The prosecutor
stated that he was going to call Officer Nelson, and that she
was going to testify that the driver of the car in which
defendant was riding disregarded a red light when she
pulled up behind the car. The prosecutor also informed the
district court that Carl Green, the driver of that car, had
already entered a guilty plea in front of a different judge. As
part of his plea agreement, Green had agreed to "cooperate,
and provide truthful testimony" in the government's
prosecution of Kithcart. App. at 13a. Although Green's
testimony apparently implicated Green in the armed
robberies, the government stipulated that if he were called
to testify at Kithcart's suppression hearing, Green would
testify that he did not go through the red light when Officer
Nelson pulled up behind his car.

Essentially the bottom line is, that Carl Green, if called
to testify at this hearing, would say that it was his
recollection that he did not go through a red light
immediately prior to being stopped by Officer Nelson.

And I discussed this matter with [defense counsel] and
he felt that if the government would enter into a
stipulation that it would be Mr. Green's testimony, that
there would be no need to have Mr. Green as a witness
in the hearing and that Police Officer Nelson's

11
 testimony would be the only evidence the government
would put forward.

App. at 22a.

However, the district court was justifiably concerned
about making a credibility determination that required it to
judge the live testimony of Officer Nelson against
contradicting testimony that was to be admitted by way of
stipulation. The court told defense counsel:

I guess the problem I have is that you want me to
assess credibility, and you want me to do it in a
vacuum. In other words, assess this police officer's
credibility compared to nothing, compared to the fact
that Mr. Green wouldn't be testifying, but that he
would say. And yet for the purpose of credibility, that
makes it very difficult, are you certain this is the way
you want me to proceed?

App. at 25a.

The government responded that its position was that
Officer Nelson had reasonable suspicion when she pulled
up behind Green's car, but that the government's argument
was two prong. The government argued that the car was
stopped for a traffic violation but, regardless of the alleged
violation, Officer Nelson still had reasonable suspicion to
stop the car based upon the radio transmissions she
received regarding armed robberies in a neighboring
township. App. at 26a. The prosecutor stated "even if your
Honor were to discount . . . Officer Nelson's testimony
[about the traffic violation] in its entirety, there was still
reasonable suspicion" to stop the car. App. at 26a. No
doubt out of a desire to adjudicate this case fairly and
expeditiously, the district court agreed to hear Green's
testimony outside the presence of the jury during the
course of his trial testimony and to reserve any issue of
credibility until that point. This would have allowed the
trial to proceed while still affording both sides a fair
opportunity to litigate the credibility issues that related to
the suppression motion. The court then reemphasized:"I
would be very reluctant to make a decision without hearing
from [Green]." The trial judge told the prosecutor, "I believe
the ball is in your court." App. at 29a. Almost immediately

12
thereafter, the government called Officer Nelson to testify
about the circumstances leading up to the arrest of the
defendant. However, at the conclusion of Officer Nelson's
testimony the district court upheld the arrest based upon
its belief that Officer Nelson's testimony established
probable cause regardless of any traffic violation, and the
defendant entered his conditional guilty plea immediately
thereafter. Accordingly, the matter never proceeded to trial,
and the district court never had an opportunity to hear
Green's testimony and make a finding of fact about the
alleged traffic violation.

Officer Nelson would clearly have been justified in
stopping Green's car to enforce the traffic laws if Green
drove through a red light. See United States v. Moorefield,
111 F.3d 10, 12 (3d. Cir. 1997) ("It is well-established that
a traffic stop is lawful under the Fourth Amendment where
a police officer observes a violation of the sate traffic
regulations."). The police would also have been justified in
ordering Green and Kithcart out of the car if that is what
happened. See Pennsylvania v. Mimms, 434 U.S. 106, 111
(1977) (concluding that ordering a driver out of the car after
a traffic violation is a justifiable, de minimis intrusion).
However, the record does not allow a court to determine
what happened after the car was stopped. The prosecutor
apparently thought that the gun that was seized from
Kithcart would automatically be admitted if he established
the legality of the initial stop. However, the traffic violation
would not necessarily allow the prosecution to admit the
gun into evidence merely because it justified the traffic
stop. This record is devoid of evidence to support a
conclusion that any search of Kithcart's person after the
stop was reasonable under the Fourth Amendment.

The prosecution informed the district court that the only
evidence it planned to present during the suppression
hearing was Officer Nelson's testimony. The following
exchange occurred during that testimony:

Q. Did any officer recover a gun from the defendant,
Jesse Kithcart?

A. Yes.

Q. Who was that?

13
 A. That was Officer Bill Williams.

* * *

Q. I was given [by Officer Williams] a 32 revolver and
I was given a white nylon pouch.

Q. Have you spoken to Officer Williams about where
they recovered the gun from Mr. Kithcart?

A. Yes.

Q. What did Officer Williams say?

A. Officer Williams stated to me that the gun was
recovered from the nylon pouch.

Q. And where was the nylon pouch?

A. It was on Mr. Kithcart's waist.

App. at 40a-41a. The prosecution never planned to call
Officer Williams, or any other witness, (other than Carl
Green) and there is nothing to suggest that additional
testimony was unavailable. Officer Nelson neither searched
the car nor the seized weapon in question. She may have
seen other officers conduct the search and/or seize the
gun, but that was not her testimony. There is nothing on
this record to inform the suppression court whether
Kithcart's gun was discovered during a pat down search or
whether it was in plain view - though inside the pouch. The
fact finder must guess about how the gun was seized and
any basis for the reasonable suspicion that may have been
necessary to justify the seizure.2

I appreciate that any police officer approaching this car
would be apprehensive. That is true whether or not the
driver had gone through a red light. Indeed, the normal
experience of a police officer would dictate caution in
approaching any stopped car whether or not the officer
believed the car to contain armed suspects. "The Supreme
Court has repeatedly recognized that traffic stops are
dangerous encounters that result in assaults and murders
_________________________________________________________________

2. There were several police officers on the scene, and it is unclear
whether Officer Williams seized the gun from Kithcart, or if he merely
received it from another officer and gave it to Officer Nelson.

14
of police officers." Moorefield. 111 F.3d at 13. (internal
quotation marks and citations omitted). However, although
the exigencies and dangers that are endemic to any such
confrontation are part of the analysis of whether the
resulting intrusion is "reasonable" under the Fourth
Amendment, they do not remove all of the protection
afforded under it. Accordingly, a police officer can conduct
a pat down search of the occupants of a stopped car"where
the officer is `able to point to specific and articulable facts
which, taken together with rational inferences from those
facts, reasonably warrant that intrusion.' " Id. (quoting
Terry, 392 U.S. at 27). The reasonable inferences that arise
from the circumstances of a traffic stop are such that it
does not require a "leap of faith" to conclude that the
instant seizure was justified if there was a traffic violation.
However, the interests protected by the Fourth Amendment
are too important to allow Officer Nelson's testimony to
bridge the void in this record. The prosecutor here made no
effort to have an appropriate witness articulate the
circumstances surrounding the seizure of the gun.
Accordingly, I am reluctant to assume that the government
should now be allowed to produce a witness on remand
that it should have, and could have, called during the
initial suppression hearing.

I would leave it to the trial court's discretion to decide
whether the prosecutor should be allowed to produce the
testimony that I think is needed to bridge the interstices in
this transcript. That court will be in the best position to
determine whether or not the government should be
allowed a second the bite of the Terry apple by producing
testimony beyond that which is necessary to rule upon the
issue of the alleged traffic violation. If there was no traffic
violation, Officer Nelson was not justified in stopping the
car in which Kithcart was riding. If the suppression court
concludes that there was a traffic violation, then it should
determine the propriety of allowing testimony regarding the
circumstances of the seizure after considering any
explanation as to why that testimony was not produced
initially.

I do not think it is asking too much to expect attorneys
to attempt to meet their burdens of proof when issues are

15
first litigated. A court should not have to connect the dots
of inferences scattered as far apart as the ones on this
record to construct a picture of what occurred during the
stop. Accordingly, although I join the majority opinion
insofar as it reverses the order of the district court, I must,
however, respectfully dissent from the remainder of my
colleagues' opinion.

A True Copy:
Teste:

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

16