United States v. Zebedee Richard Collins

HEANEY, Circuit Judge

(dissenting).

I respectfully dissent. The arresting officer did not have sufficient knowledge, at the time of the initial seizure of the appellant, to justify the stop.1

While the Supreme Court has held that the police may make investigatory stops, consistent with the Fourth Amendment, on less than probable cause, it has not held that the constitutional requirement of particularity is no longer required. Indeed, in Terry v. Ohio, 392 U.S. 1, 22 n.18, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889, 906 (1968), the Court carefully emphasized that the “demand for specificity * * * is the central teaching of this Court’s Fourth Amendment jurisprudence.” In Terry, the arresting officer was possessed with objective, specific and articulable facts that linked the .suspects with possible criminal activity. The facts possessed by the arresting officer in Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972), were of the same quality. In contrast, the facts possessed by officer Short in the instant cause were sufficient to warrant a man of reasonable caution to believe only that some black male driving a late model light brown Cadillac, but not necessarily appellant Collins, was involved in the robbery of the Bank of Lee’s Summit.

The potential abuse of investigatory stop procedures is real in a racially neutral society. That potential is aggravated in a society such as ours where race is often an integral part of police suspicion. See President’s Commission on Law Enforcement and the Administration of Justice, Task Force Report: Police 184 (1967). Strict adherence to the particularity requirement of the Fourth Amendment will insure that the “reasonable suspicion” of a police officer is not the product of an impermissible reliance on race.

The majority was correct in citing United States v. Brignoni-Ponce, 422 U.S. 873, 885-886, 95 S.Ct. 2574, 2582, 45 L.Ed.2d 607, 619 (1975), for the proposition that “the color of a person’s skin, be it black or white, is an identifying factor which, while insufficient by itself, assists the police in narrowing the scope of their identification procedure.” Supra at 82. But the majority did not go far enough in analyzing the implications of the statement.

While the factor of race eliminates from suspicion all persons of another race, it cannot be used to create suspicion of a particular person of that race. Officer Short had no more reason to suspect Collins of complicity in the crime than he had to suspect any other of the 25,000 black males between the ages of eighteen and sixty-five who live in the Kansas City, Missouri, metropolitan area.2 Nor do the additional facts known *86to the officer, that Collins was driving a late model light brown Cadillac and was seen three miles from the robbery scene shortly after its occurrence, have that quality of specificity that eliminates race as a factor in the officer’s decision to stop the appellant. These additional facts only narrow the class of black males who could be suspected.3 The government presented no evidence to support the conclusion that the likelihood of these facts combining is so remote that Collins could be suspected of the crime.4 The fact that the police were investigating a particular crime and that officer Short had some information concerning the getaway car and its occupants only begs the question. Was there specific, articulable facts sufficient to warrant a man of reasonable caution to believe that Collins was a participant to the crime? In my opinion, the answer must be in the negative. Only when the police reasonably believe a particular suspect to be involved in criminal activity can they make an investigatory stop under the Fourth Amendment.5 United States v. Brignoni-Ponce, supra 422 U.S. at 881, 95 S.Ct. at 2580, 45 L.Ed.2d at 616.

. The federal judiciary must be vigilant in its watch over the protections guaranteed by the Fourth Amendment. The observation of Mr. Justice Douglas need not be true. He said:

“Police power exercised without probable cause is arbitrary. To say that the police may accost citizens at their whim and may detain them upon reasonable suspicion is to say, in reality, that the police may both ac- ' cost and detain citizens at their whim.” Amsterdam, Perspectives on the Fourth Amendment, 58 Minn.L.Rev. 349, 395 (1974).

United States v. Brignoni-Ponce, 422 U.S. 873, 889, 95 S.Ct. 2574, 2584, 45 L.Ed.2d 607, 621 (1974) (Douglas, J., concurring) (emphasis original).

. The 1970 Census provides the following information: There are 52,553 black males in the Kansas City, Missouri, metropolitan area. Of these, 23,505 are under age eighteen and 3,744 *86are over age sixty-five. Hence, there are 25,-304 black males between the ages of eighteen and sixty-five in the metropolitan area of Kansas City.

.The majority states at 82: “there is no showing here that the arrest of this black defendant was in a predominantly black area.” This is irrelevant. Collins was driving in a well-traveled area, and no suspicion can attach to the fact that he was not driving in a “predominantly black area.” See United States v. Nicholas, 448 F.2d 622, 625 n.4 (8th Cir. 1971).

. According to information received from the Missouri Department of Motor Vehicles, there are 7,018 Cadillacs registered in the Kansas City metropolitan area of the model years 1960 to 1976. Officer Short testified that he considered a 1960 Cadillac to be a late model.

. United States v. Wickizer, 465 F.2d 1154 (8th Cir. 1972), and Carpenter v. Sigler, 419 F.2d 169 (8th Cir. 1969), do not support the majority decision. In each case, the police had reason to believe that the particular suspects were involved in criminal activity.