United States Court of Appeals
For the First Circuit
No. 04-1787
UNITED STATES OF AMERICA,
Appellee,
v.
JOSEPH BURHOE,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Reginald C. Lindsay, U.S. District Judge]
Before
Boudin, Chief Judge,
Lynch and Lipez, Circuit Judges.
Syrie D. Fried, Federal Defender Office, for appellant.
Paul R. Moore, Assistant United States Attorney, with whom
Michael J. Sullivan, United States Attorney, was on brief, for
appellee.
May 23, 2005
LYNCH, Circuit Judge. Joseph Burhoe was arrested for and
confessed to armed bank robbery. After the district court found
probable cause justifying Burhoe's arrest and denied Burhoe's
motion to suppress evidence found on his person at the time of his
arrest and his post-arrest statements, Burhoe entered a conditional
plea of guilty to the robbery. The court then sentenced him to a
term of 151 months' imprisonment, 3 years of supervised release,
and $20,023.68 in restitution under the then-mandatory Sentencing
Guidelines.
Burhoe appeals. We affirm the denial of the motion to
suppress but remand for resentencing in light of United States v.
Booker, 125 S. Ct. 738 (2005). See United States v.
Antonakopoulos, 399 F.3d 68, 75 (1st Cir. 2005).
I.
On September 7, 2001, two men robbed a Citizens Bank
branch located in a Shaw's Supermarket in Medford, Massachusetts.
At approximately 10:19 AM the Medford Police Department's (MPD)
radio dispatcher broadcast information about the robbery. The
dispatcher described the two robbers as males who had committed the
robbery with a knife and fled in a stolen black car. MPD Officer
Sheila Quinn reported over the radio that she was behind the stolen
car (the license plate number had also been broadcast) and chasing
it down Riverside Avenue towards the Fellsway. Officer Quinn
reported over the radio that the robbers were two white males, and
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one wore a black baseball cap. As she gave chase, she continued to
give updates over the police radio as to the location of the
robbers.
MPD Detective Michael Fahey was on duty at the Medford
Police Headquarters at the time of the initial dispatches about the
robbery and heard the radio report. He was in plainclothes and
displayed his official badge on his belt. After he heard about the
robbery, he drove an unmarked police car to the area of Riverside
Avenue and the Fellsway to help in the chase, continuing to follow
Officer Quinn's updates over the police radio. Detective Fahey
heard that the black car had crashed near the Osgood School on
Fourth Street, a cross street, and the suspects escaped on foot.
Detective Fahey drove to the Fellsway and turned onto St. James
Road, parallel and next to Fourth Street. Fahey parked his car,
and got out to search on foot.
Fahey saw a white male (whom he later identified to the
court as the defendant) emerge from a private yard on the north
side of St. James Road -- i.e., from the direction of Fourth
Street, where the getaway car was abandoned -- diagonally across
from where Fahey was parked. It was about 10:30 in the morning.
The area was a predominantly white residential neighborhood.
Fahey testified that Burhoe "came out of the yard, and he
was moving slowly towards the sidewalk, towards the road. He was
looking around side to side, ducking, crouching a little bit."
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Burhoe "slow jog[ged], fast shuffle[d]" across St. James Road to
the side of the road where Fahey was parked and went behind a
garage next to Fahey's car. Fahey followed Burhoe behind the
garage. Fahey saw Burhoe crouching in the private yard and looking
out at the intersection of Riverside and the Fellsway, then filled
with police sirens and other activity. Fahey testified that Burhoe
"was sneaking along the side of the house, basically, like someone
playing hide-and-seek." Fahey continued to follow Burhoe as Burhoe
jumped off a short wall into the intersection of Riverside and
Fellsway.
Fahey followed and also jumped off the wall. At this
point Burhoe turned around and made eye contact with Fahey. Burhoe
was wearing a light-colored shirt and sweat pants, and his clothing
was a bit dirty. Burhoe looked "disheveled" and "very unshaven,"
and according to Fahey, like "someone who's been on a long cocaine
binge." Fahey thought Burhoe appeared to be under the influence of
alcohol or drugs. Fahey saw a large bulge across the front of
Burhoe's sweat pants, like a small towel rolled up and tucked into
the waist area. Fahey walked towards Burhoe, saying, "Come here.
I want to talk to you." Burhoe walked backwards away from Fahey,
holding his arms out, saying, "What do you want with me? What do
you want with me?" Fahey closed in on Burhoe until they were face
to face, when Burhoe "took a quick turn to the right to move away
from [Fahey] and to run away from [Fahey]." Detective Fahey then
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forced Burhoe to the ground, with his body on top of one of
Burhoe's arms. Burhoe said, "You'll have no problem with me,
Officer. You'll have no problem with me. You know me." Fahey
asked, "Who are you?" Burhoe replied, "It's me, Jojo." Fahey, who
did not personally know Burhoe but did know of his reputation for
being involved in bank robberies, said, "Jojo Burhoe. I would
shake your hand, but we are kind of tied up right now."
Other officers then arrived, and Burhoe was handcuffed.
As Burhoe was being brought to his feet to be patted down, Fahey
saw that one of Burhoe's pockets had some money and surgical gloves
hanging out of it. Another officer reached into Burhoe's waist
band and retrieved a white plastic shopping bag, which was filled
with approximately $1,700 in cash. Burhoe was then taken to the
police station and booked.
After Burhoe's arrest, FBI Special Agent Laurence
Travaglia, who knew Burhoe, went to MPD headquarters. After having
been advised of his rights under Miranda v. Arizona, 384 U.S. 436
(1966), Burhoe waived them and confessed to the robbery.1
II.
After indictment for bank robbery in violation of 18
U.S.C. § 2113(a), Burhoe moved to suppress the physical evidence
the police obtained at the time of his arrest (including the
1
The factual circumstances surrounding the arrest of Burhoe's
co-defendant, Lawrence Maguire, are discussed in United States v.
Maguire, 359 F.3d 71 (1st Cir. 2004).
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plastic bag, the cash, and other items) as well as his statements
to the police afterwards. He primarily argued that his seizure by
Detective Fahey was a warrantless arrest without probable cause and
that he had not offered a knowing and intelligent waiver of his
Miranda rights before making his post-arrest statements.
The district court held a two-day evidentiary hearing and
oral argument on the motion to suppress, and denied the motion.
The court ruled that Burhoe's statements were made after a knowing,
intelligent and voluntary waiver of his Miranda rights. Burhoe
does not challenge this aspect on appeal. The district court also
found that at the time Detective Fahey "took hold of Burhoe and
forced him to the ground," that constituted an arrest of Burhoe (as
opposed to an investigatory stop under Terry v. Ohio, 392 U.S. 1
(1968), which the government had argued in the alternative). Given
the totality of the circumstances and the knowledge Fahey had at
the time concerning the robbery, the district court found the
arrest was justified by probable cause.
After the denial of his motion to suppress, Burhoe
entered a conditional guilty plea to the indictment, reserving the
right to appeal the denial of the motion to suppress.
In Burhoe's Presentence Report (PSR), his base offense
level was computed to be 32 based on his career offender status and
the 20-year statutory maximum term of imprisonment for bank
robbery. See U.S.S.G. § 4B1.1; 18 U.S.C. § 2113(a). After a
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three-level reduction for acceptance of responsibility, Burhoe's
total offense level was 29. That, combined with his criminal
history category of VI, gave him a Guidelines range of 151 to 188
months' imprisonment. U.S.S.G. Ch. 5 Pt. A.
Burhoe moved the court to depart downwards to a sentence
of 84 months, arguing that he suffered from a diminished mental
capacity at the time of the bank robbery. See U.S.S.G. § 5K2.13.
Burhoe presented psychological reports that he suffered from "post-
traumatic stress disorder and major depressive disorder, . . . with
an overlay of polysubstance abuse." The sentencing court explained
that under its reading of U.S.S.G. § 5K2.13, a defendant cannot
have the benefit of the departure if a disqualifying factor such as
a crime of violence is present. See U.S.S.G. § 5K2.13.2 The
2
Section 5K2.13 provides:
A sentence below the applicable guideline
range may be warranted if (1) the defendant
committed the offense while suffering from a
significantly reduced mental capacity; and (2)
the significantly reduced mental capacity
contributed substantially to the commission of
the offense. Similarly, if a departure is
warranted under this policy statement, the
extent of the departure should reflect the
extent to which the reduced mental capacity
contributed to the commission of the offense.
However, the court may not depart below the
applicable guideline range if (1) the
significantly reduced mental capacity was
caused by the voluntary use of drugs or other
intoxicants; (2) the facts and circumstances
of the defendant's offense indicate a need to
protect the public because the offense
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sentencing court denied the downward departure on the ground that
Burhoe's offense of conviction "involved actual violence or serious
threat of violence and indicates a need to protect the public."
The court then sentenced Burhoe at the bottom of the Guidelines
range to 151 months' imprisonment and 3 years of supervised
release, and ordered him to pay $20,023.68 in restitution.3
Burhoe timely appealed to this court.
III.
Denial of the Motion to Suppress
We review de novo the district court's probable cause
determination; subsidiary factual findings are reviewed for clear
error, "giv[ing] due weight to inferences drawn from those facts by
resident judges and local law enforcement officers." Ornelas v.
United States, 517 U.S. 690, 699 (1996); see also United States v.
involved actual violence or a serious threat
of violence; (3) the defendant's criminal
history indicates a need to incarcerate the
defendant to protect the public; or (4) the
defendant has been convicted of an offense
under chapter 71, 109A, 110, or 117, of title
18, United States Code.
U.S.S.G. § 5K2.13 (2003 ed.). Section 5K2.13 was amended slightly
in November of 2004, after the sentencing hearing in this case,
without significant change in meaning.
3
The defendant also argued that a departure is justified under
U.S.S.G. § 5H1.3 because Burhoe "committed this offense while
suffering from extremely deleterious mental conditions." The
sentencing court denied that ground as well, finding that Burhoe's
case did not take it out of the heartland of § 5H1.3. Burhoe does
not base his arguments on appeal on § 5H1.3.
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Capelton, 350 F.3d 231, 240 (1st Cir. 2003). "Probable cause
exists when police officers, relying on reasonably trustworthy
facts and circumstances, have information upon which a reasonably
prudent person would believe the suspect had committed or was
committing a crime." United States v. Young, 105 F.3d 1, 6 (1st
Cir. 1997). Probable cause is also a "commonsense, nontechnical
conception[] that deal[s] with the factual and practical
considerations of everyday life on which reasonable and prudent
men, not legal technicians, act." Ornelas, 517 U.S. at 695
(internal quotations marks and citations omitted).
Burhoe does not seriously challenge any of the district
court's factual findings, only the conclusion drawn. Burhoe's
argument is that there was nothing suspicious about where he was or
how he was behaving. We disagree. There was ample evidence of
probable cause for his arrest.
When Detective Fahey saw Burhoe on St. James Road, he
knew: (1) a bank robbery had just taken place minutes earlier by
two white males; (2) the suspects' getaway car had been abandoned
on Fourth Street, the next street north of St. James Road; (3) the
suspects were escaping on foot in the immediate vicinity; (4)
Burhoe, a white male, emerged from a private yard, consistent with
the route of a fugitive escaping from the abandoned car on Fourth
Street one block to the north; (5) Burhoe did not look like he
belonged there -- at 10:30 on a workday morning, Burhoe was
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disheveled, dirty, and possibly intoxicated, not the usual sight in
a residential neighborhood; (6) Burhoe behaved strangely: his
furtive, "hide-and-seek" movements, quick dash across the road, and
his attempt to remain hidden; (7) Fahey noticed an abnormal bulge
in Burhoe's waist; and (8) to boot, Burhoe attempted to run away
from Fahey. A "reasonably prudent person would believe [Burhoe]
had committed or was committing a crime." Young, 105 F.3d at 6.
Burhoe cites United States v. Kithcart, 134 F.3d 529 (3d
Cir. 1998), for his argument that there was no probable cause at
the time of his arrest. This comparison is unavailing. Kithcart
concluded that the arresting officer had no probable cause to make
an arrest under very different circumstances: the make and model of
the defendants' car did not match the radio reports of robberies
from earlier in the night; there was no indication that the last
reported robbery occurred near where the arrest took place because
the robbery was in an unspecified location in a neighboring town;
and the number of suspects in the radio reports of the robberies
(two black males in one car) did not match the arresting officer's
initial observation of the defendant (a single black male in one
car). 134 F.3d at 531-32. These facts are easily distinguished
from the present case.
IV.
Burhoe also brings a challenge to his sentence under
United States v. Booker, 125 S. Ct. 738 (2005). Burhoe concedes
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that he did not preserve the error below, and we review his claim
of Booker error under the plain error standard. United States v.
Antonakopoulos, 399 F.3d 68, 75 (1st Cir. 2005).
Because Burhoe did not preserve his objection, he must
show a reasonable probability of a more lenient sentence under
advisory Guidelines. See id. at 75. Burhoe relies on statements
by the trial judge that the mandatory Guidelines scheme meant that
the judge believed he could not grant the downward departure Burhoe
sought. During sentencing, the following exchange took place
between counsel for the defendant and the sentencing court:
Defendant counsel: My recommendation was for a
departure down to a sentence not to exceed 84
months. That's a seven-year sentence.
The court: I think I understand your position
. . . and your position is one I started with
yesterday, that a sentence less than what the
guidelines call for here can be imposed even
with a departure. But I -- I reviewed
[U.S.S.G. § 5K2.13], the language, the plain
language of the guideline, and it says to me
that you just don't get the departure if you
have these disqualifying factors, like a
criminal history, suggest the need to protect
the public if the offense of conviction is a
crime of violence involving an actual crime of
violence or a serious threat of violence, you
don't get this departure.
In other words, I don't believe the
language of the guidelines permit me to tailor
this -- in other words, we compared this
yesterday with contributory to comparative
negligence. In the old days when there was
contributory negligence, one bit of evidence
prevents you from getting -- now I read this
guideline that way.
. . .
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I read it that you don't get the
departure if I find there's a need to protect
the public.
(emphasis added). Given this exchange and others in the transcript
similar in tenor, it is clear that the district court felt
compelled by the language of the Guideline not to consider Burhoe
for a downward departure. And there is some indication that absent
this compulsion, it may have considered the question of departure
differently. "[W]e are not inclined to be overly demanding as to
proof of probability where, either in the existing record or by
plausible proffer, there is reasonable indication that the district
judge might well have reached a different result under advisory
guidelines." United States v. Heldeman, 402 F.3d 220, 224 (1st
Cir. 2005).4
The government's primary argument is that there is no
possibility of a different outcome because "Burhoe's sentence was
dictated by a congressional directive that career offenders receive
a sentence at or near the statutory maximum." This argument is
premised upon 28 U.S.C. § 994(h), which directs the Sentencing
Commission to "assure that the guidelines specify a sentence to a
term of imprisonment at or near the maximum term authorized for
4
Burhoe also makes other arguments against his sentence such
as an alleged unfairness due to the disparity between his sentence
and that of his co-defendant (who Burhoe argues was not sentenced
as a career offender). Since we are remanding based on the
district court's statements during the sentencing hearing, we do
not need to address these other arguments.
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categories of defendants" including career offenders like Burhoe.
28 U.S.C. § 994(h). We have consistently refused to speculate on
what the district court will do, if anything, on remand. Of course
we intimate no view either as to the merits of the government's
statutory arguments or to whether the court should visit a new
sentence upon Burhoe. See United States v. Bourgeois, No. 04-2203,
2005 U.S. App. LEXIS 6599, at *5 (1st Cir. Apr. 18, 2005); United
States v. Mercado Irizarry, No. 02-1105, 2005 U.S. App. LEXIS 5892,
at *14 (1st Cir. Apr. 11, 2005).
V.
We affirm the district court's denial of Burhoe's motion
to suppress and remand under Booker for resentencing consistent
with this opinion. So ordered.
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