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concluding that an officer asking each handcuffed suspect where a gun was during a stop was appropriate under Terry in part because its purpose was to reduce a safety risk to the community
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CRIMINAL ACTION No. 17-cr-00151-1 No. 17-cr-00151-2
10-30-2019
UNITED STATES of America, v. Joel Lee Quentin SCOTT and Jonathan Maurice Scott, Defendants.
Sarah T. Damiani, U.S. Attorney's Office, Philadelphia, PA, for United States of America.
Sarah T. Damiani, U.S. Attorney's Office, Philadelphia, PA, for United States of America.
MEMORANDUM AND ORDER
JOYNER, District Judge.
This Memorandum was previously entered in the above cases on September 26, 2019. Given that the Government's action against Defendant Jonathan Maurice Scott was then pending on appeal and thus this Court was then divested of jurisdiction, the Decision was effectively a nullity against that Defendant. In recognition of this, the Third Circuit in its Order of October 23, 2019 granting in part the unopposed motion for summary remand, directed that we re-enter this Memorandum on the docket and we therefore do so now.
Defendants Jonathan Scott and Joel Scott were charged with armed robbery in violation of 18 U.S.C. § 2113(a) and (d), and with Using, Carrying, Brandishing, and aiding and abetting the brandishing of, a Firearm During and in Relation to a Crime of Violence in violation of 18 U.S.C. § 924(c)(1). See Doc. No. 1, Indictment, Counts I and II. Both Defendants moved to suppress physical evidence, identification evidence, and statements derived as a result of a warrantless stop and search that led to the discovery of approximately $1800 in U.S. currency and confessions by both Defendants. After consideration of Defendant Joel Scott's Motion to Suppress Out-of-Court Identification (Doc. No. 38) and his Motion to Suppress Physical Evidence, Identification Evidence, and Statements (Doc. No. 39); as well as Defendant Jonathan Scott's Joinder thereto (Doc. No. 43), and following a suppression hearing with oral argument (Doc. No. 77), this Court denied Defendants' motions to suppress. We orally held that the physical evidence, identification evidence, and statements would be admissible at trial and that we would further supplement the record with findings of fact and conclusions of law which we neglected to do. See Doc. Nos. 57 and 58. Defendants then pled guilty to Counts I and II of the indictment. Their plea agreements reserved their right to appeal this Court's denial of their pre-trial motion to suppress. See Doc. Nos. 64 and 84 at ¶12(b)(4). After appealing our denial of their pre-trial motions to suppress, the Third Circuit vacated this Court's judgment as to Defendant Joel Scott and remanded his case for findings of fact and conclusions of law. See Doc. No. 115; Third Circuit No. 18-cr-1157. We find as follows with regard to both Defendants, Joel Scott and Jonathan Scott:
I. Findings of Fact
A. Armed Robbery at BB&T Bank Branch at 1201 Buck Road
At approximately 4:12 p.m. on December 29, 2016, two men, one visibly armed with a gun that was drawn and pointed, entered the BB&T Bank Branch at 1201 Buck Road in Feasterville, Pennsylvania. The armed robber was wearing a brown hooded sweatshirt, a black mask, black pants, and white sneakers with red trim. He jumped over the bank teller's counter and ordered the teller at gunpoint to give him money. The teller placed approximately $1,800 in U.S. cash into a green money bag and handed it to the gunman. He told her to kneel on the floor and she kept her head down during the remainder of the robbery.
Meanwhile, the branch manager, "J.G.," saw the gunman's movements through the transparent glass walls of her office, where she was seated between 20 and 25 feet away from the teller's counter. She noticed the gunman's build as the shorter of the two robbers. While the gunman demanded that the teller give him money from the cash drawer, the taller of the two robbers approached J.G.'s office, where she sat with a client while she was on the phone with an employee from another branch of the bank. As the taller man approached, J.G. was able to reach down and activate the hold up alarm. The taller robber walked into J.G.'s office, stood approximately six feet from her, then moved in closer to three feet. When J.G. stood up, he told her not to move and to shut-up, pointing his left hand at her face. The taller man stayed in J.G.'s office until the shorter man with the gun stole the money and started to exit the bank. In her 911 call, J.G. reported that the robbers left the bank on foot.
J.G. made a handwritten statement at the bank directly following the robbery. Her statement confirms both her description of the robbery suspects in her 911 call and her description of the suspects to police. In the statement she wrote that "[t]wo men came into the branch @ 10 after 4 – I saw them in the entryway where the atm is – hoods were already up – mouths covered. They walked in heads down yelling don't move. The man w/the brown hood & gun jumped over the counter pointing his gun at [the bank teller] telling her to give him all the money.... I watched the other man behind the teller line yell and follow [the teller] around. He told her to get on the ground." See Supp. Hear., Doc. No. 77, Ex. 8.
At approximately 4:13 p.m., the Lower Southampton Township Police Department ("LSTPD") received a call over the police radio regarding an armed bank robbery in progress at the BB&T Bank at 1201 Buck Road in Feasterville. The call described two perpetrators who were both black males. The first male was described as possessing a gun, wearing a brown hooded sweatshirt, and a mask over his face. The second male was described as wearing a black hooded sweatshirt and a turquoise scarf over his face.
B. Corporal Dougherty Stops Jonathan and Joel Scott on Penn Gate Circle Four Minutes After the Armed Robbery
At approximately 4:16 p.m. on the day of the robbery, Officer Dougherty ("Dougherty"), a Corporal with seventeen years of experience working for the LSTPD, responded to the radio dispatch reporting the armed robbery taking place at the BB&T bank branch at 1201 Buck Road. He was driving a marked police vehicle and was in full uniform (badge, vest, and duty firearm). At the suppression hearing, Dougherty testified that he was "extremely familiar" with the area since he had "worked there [his] whole career." Supp. Hear., Doc. No. 77 at 8. Officer DiLello ("DiLello") also responded to the dispatch. Once he had spoken with a witness to the robbery, branch manager J.G., DiLello sent a second description of the suspects over the police radio: "I sent over the Bucks County radio net that it was, in fact, two black males, and a handgun was, in fact, displayed." Id. at 141.
Within three minutes of the initial dispatch call, seeing that DiLello and Officer Engle ("Engle") had already arrived at the bank, Dougherty proceeded to drive in his marked police vehicle and full uniform (badge, vest, and duty firearm) off of Buck Road, where the bank is located, to the neighborhood directly behind the bank, onto Penn Gate Circle. Penn Gate Circle is a residential, dead end street, which also connects to Heritage Circle, another dead end street. Buck Road is the only street that is an entrance and exit from Penn Gate Circle. At the suppression hearing, Dougherty testified that the area does not get much foot or car traffic, aside from people who live there, "it's not a neighborhood that you could walk through and cut through. You would actually have to go through someone's yard if you wanted to get to another street," and "only the people that live in that neighborhood would have reason to drive there." Id. at 11.
The BB&T bank branch that was robbed is located in a shopping mall attached to the Buck Hotel called "The Shoppes at the Buck," which contains several other retail stores that share a parking lot with the hotel and the bank. Residential cul-de-sacs surround the bank to the north and east (Heritage Circle and Penn Gate Circle), and there are more heavily trafficked roads to the south (Bridgetown Pike) and west (Bustleton Pike). The bank is located at the eastern most end of the shopping mall, closest to the intersection of Penn Gate Circle and Buck Road.
When Dougherty's marked police vehicle entered Penn Gate Circle he "immediately observed two black males walking on Heritage Circle." Id. He testified that the men "glanced over in my direction and ... changed their direction ... their bodies were motioning because they wanted to go right onto Penn Gate but when they saw me, they changed their direction to kind of go left onto Penn Gate from Heritage." Id. Dougherty continued to follow the men "at an extremely close distance. I actually put my bumper up only a couple feet off of the back of them. They continued to walk [in the middle of the street] and ignore my presence." Id. at 14-15.
The weather on December 29, 2016, was cold and damp, approximately "in the 30s." Id. at 16. Dougherty observed the men's clothing as he pulled up behind them. The taller of the two men was wearing a coat. The shorter subject was wearing a short-sleeved T-shirt. Neither man was wearing a scarf or hat.
Since he was alone, Dougherty called for backup. He said on the police radio that he had two subjects who matched the description of the individuals on the initial radio calls reporting the armed robbery. Dougherty continued to follow the men in his police vehicle closely as they turned toward the interior of the neighborhood. He put his car in park and exited the vehicle. He drew his service weapon and ordered both men to stop and put their hands up. The men immediately complied and turned around to face him. They were approximately 125 yards away from the bank. He drew his service weapon for safety because one of the suspects was reported to be armed, id. at 19, but kept it down, not pointed at the men. Id. at 20.
At that point, approximately five minutes after the robbery, and responding to Dougherty's radio call that he had stopped and detained two subjects, Sergeant Montalbano ("Montalbano") and Officer Engle ("Engle") arrived at the scene. DiLello arrived shortly thereafter. At the direction of Dougherty, uncertain whether the men were armed, Engle placed Jonathan Scott in handcuffs and Montalbano placed Joel Scott in handcuffs. Id. at 22. Dougherty then holstered his weapon.
C. Frisk by Sergeant Montalbano, Corporal Dougherty, Officer Engle, and Officer DiLello
The officers proceeded to conduct a pat-down search of the men. Engle began the pat-down search of Jonathan Scott. Montalbano began patting down Joel Scott. While the pat-down was ongoing, the officers asked the two subjects questions pertaining to why they were in the area. Jonathan Scott responded that his car had broken down. Id. at 22; Def. Mot. at ¶12. The record is unclear as to whether Montalbano saw or felt "a wad of cash in Joel [Scott's] front right pocket." Id. at 23. Dougherty testified that during the pat-down, Montalbano indicated to him by pointing and saying, "[h]e's got some money in his pocket." Id. DiLello's testimony confirmed this: "As we were doing the weapon search on [Joel Scott], there was a large bulge in the pocket of the shorter male." Id. at 144.
Dougherty took over the pat-down search of Joel Scott. "I could feel a considerable amount of cash in his pocket, like a stash of cash." Id. Dougherty squeezed the object in Joel Scott's pocket to rule out the possibility that a sharp weapon was behind it. He was confirming first, "that it was a wad of cash; and [second], there was nothing that could poke me as I go and get it." Id. at 83. He asked Joel Scott how much money he thought he had in his pocket. Joel Scott said he thought he "had a few dollars." Id. The officers proceeded to remove $789 in cash from Joel Scott's front right pocket. As they continued the pat-down, id. at 52, Dougherty felt "another significant lump in [Joel Scott's front left] pocket that was consistent with cash." Id. at 24. The officers next removed $1085 from Joel Scott's front left pocket and $10 in cash from his rear pockets. Id. at 84. Dougherty placed the money in a rubber glove, then in a paper bag, to secure and keep track of it.
At that point, the officers asked him "where he got so much cash," and Joel Scott said he "won it at the SugarHouse [casino]." Id. at 24-25. While the men were being detained, Dougherty asked both defendants where the gun was and whether they were involved in the armed robbery of the bank. Both men said that they were not involved in the robbery and that they did not know anything about the gun. Id. at 112.
Dougherty testified on cross-examination that his "sole goal" in asking about the location of the gun was to "find the gun for safety reasons ... to get a response to get a gun that was possibly sitting somewhere in the grass safe." Doc. No. 77 at 26, 112-113.
Within approximately 15 minutes of the robbery, after the money was seized, the suspects were placed in separate police vehicles; Joel Scott in the rear seat of Dougherty's police vehicle and Jonathan Scott in the rear seat of Engle's vehicle. Neither suspect was told that they were under arrest. They were advised, however, that a witness was being brought to the scene for an identification procedure. By then, a number of officers had arrived on the scene. This was "common," according to Dougherty, in situations "where there's a robbery at gunpoint, kind of all hands on deck." Id. at 60.
D. Eyewitness's Positive Identification of Both Defendants
While Joel and Jonathan Scott were being searched, DiLello returned to the bank to bring the witness, branch manager J.G., back to the scene for an identification procedure. He told her that officers had stopped two individuals and "if you can definitely positively identify these guys as being involved, then that's what we're looking for. But if they're not, you can say, ‘I don't know,’ or you can say ‘[i]t's not them,’ that's a fine answer." Id. at 149. J.G. agreed to go with DiLello for the identification. When DiLello pulled up to the scene, there were several marked police cars. J.G. was the only witness in DiLello's vehicle. DiLello pulled into a position approximately 10 to 12 feet from the subjects. J.G. had a clear view through the vehicle passenger window. Id. at 150.
The witness viewed each suspect separately, the taller suspect first, while he stood flanked by an officer on either side of him. She positively identified Jonathan Scott by telling DiLello that she was "pretty sure" he was involved in the robbery. Id. at 152. DiLello then drove his vehicle to a position that allowed J.G. to view the shorter suspect. J.G. positively identified Joel Scott, with officers at his sides, and indicated that she was sure in her identification. J.G. was immediately transported back to the bank, where she met with Detective Brookes ("Brookes") and gave him descriptions of the robbers.
Her description to Brookes was consistent with the description in her 911 call and with a written statement she made at the bank following the identification.
E. Confession after Miranda warnings
After J.G. positively identified both Jonathan and Joel Scott, the men were transported in separate police vehicles to the police station. Each suspect was given Miranda warnings and questioned separately by Detective Brookes and Detective Scott (no relation). Both Jonathan and Joel Scott confessed involvement in the armed robbery. After they confessed, Detective Brookes continued to ask each man about the location of the gun "for the safety of the public. We didn't want it just laying in that tree line for a kid to find." Doc. No. 77 at 215.
See Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) (prescribing "procedural safeguards effective to secure the privilege against self-incrimination.")
F. Discovery of Jonathan Scott's Vehicle and Additional Physical Evidence
After J.G. positively identified Jonathan and Joel Scott, officers continued to investigate the area near the bank for a gun. They found a 2007 Lincoln parked at the end of Heritage Circle, a dead end road that runs directly behind the bank and runs into Penn Gate Circle, the cul-de-sac on which the defendants were stopped. In plain view, in bushes between six to ten feet of the car, officers discovered a wool ski mask, white sneakers with red trim that matched the sneakers worn by the shorter male in the bank surveillance video of the robbery (see Gov. Ex. 6C), and a brown hooded sweatshirt. When officers picked up the brown sweatshirt, keys on a BB&T bank keychain fell out. Additionally, visible through the backseat passenger window of the vehicle was a black hooded sweatshirt, a turquoise scarf, and a green money bag.
See Supp. Hear., Det. Brookes Direct, Doc. No. 77 at 206-207 ("Q: Is the area where the car was found an area where you as the detective would have searched absent any other information about the armed robbery? A: Yes. Q: Why would you have searched that area? A: We would have searched from the area where the subjects were stopped and anywhere in between the bank, the shopping center, any route that they could have taken to look for any evidence discarded.").
The keys were later identified as belonging to the victim BB&T bank branch. See Gov. Ex. 15.
Brookes received a search warrant for the 2007 Lincoln found on Heritage Circle. Doc. No. 77 at 217. Running the registration revealed the car was registered to Jonathan Scott. Pursuant to the search warrant, Brookes recovered the green money bag into which the teller had placed the money when the gunman ordered her to do so. Next, from the glove box of the car, he recovered a six-shot revolver that was loaded, minus one. The revolver was "consistent with the gun [seen] on the [bank] surveillance video" and "with the gun the witnesses described." Id. at 213.
II. Discussion
Legal Standard
"The Fourth Amendment, made applicable to the States by way of the Fourteenth Amendment, guarantees ‘the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.’ " Minnesota v. Dickerson, 508 U.S. 366, 372, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993) (citing Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961) ). " ‘Generally, for a seizure to be reasonable under the Fourth Amendment, it must be effectuated with a warrant based on probable cause.’ " United States v. Brown, 448 F.3d 239, 244 (3d Cir. 2006) (quoting United States v. Robertson, 305 F.3d 164, 167 (3d Cir. 2002) ). See also United States v. Harrison, 689 F.3d 301, 306 (3d Cir. 2012) (citing Califonia v. Acevedo, 500 U.S. 565, 580, 111 S.Ct. 1982, 114 L.Ed.2d 619 (1991) ).
The Supreme Court has recognized limited exceptions to the general rule that warrantless searches and seizures are "per se" violations of the Fourth Amendment. See Dickerson, 508 U.S. at 373, 113 S.Ct. 2130 (citing Thompson v. Louisiana, 469 U.S. 17, 19-20, 105 S.Ct. 409, 83 L.Ed.2d 246 (1984) (per curiam)). " ‘[W]here a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot ...,’ the officer may briefly stop the suspicious person and make ‘reasonable inquiries’ aimed at confirming or dispelling his suspicions." Id. at 372, 113 S.Ct. 2130 (quoting Terry v. Ohio, 392 U.S. 1, 20, 30, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) ). Further, "when an officer is justified in believing that the individual whose suspicious behavior he is investigating at close range is armed and presently dangerous to the officer or to others," the officer may conduct a pat-down search – without a warrant – in order to "determine whether the person is in fact carrying a weapon." Terry, 392 U.S. at 24, 88 S.Ct. 1868.
The scope of a pat-down search incident to the Terry-stop is limited to the "initial justification" for the stop, in other words, "what is necessary" to rule out whether the subject is armed. Dickerson, at 373, 113 S.Ct. 2130. However, evidence seized during a search that oversteps the bounds of the search for weapons, must be suppressed because it is tainted as a fruit of a violation of a subject's Fourth Amendment rights. United States v. Brown, 448 F.3d 239, 244 (3d Cir. 2006) (citing Wong Sun v. United States, 371 U.S. 471, 487-88, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963) ).
The defendant who seeks to suppress evidence bears the burden of proof, a preponderance of the evidence standard. United States v. Bey, No. 16-290, 2017 WL 875364, 2017 U.S. Dist. LEXIS 30999 (E.D. Pa. Mar. 6, 2017) (rev. on other grounds) (citing United States v. Johnson, 63 F.3d 242, 245 (3d Cir. 1995) ). " ‘However, once the defendant has established a basis for his motion, i.e., the search or seizure was conducted without a warrant, the burden shifts to the government to show that the search or seizure was reasonable.’ " Id. (quoting United States v. Matlock, 415 U.S. 164, 178, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974) ).
A. Corporal Dougherty's Stop and Frisk of Defendants Joel and Jonathan Scott
Defendants Joel and Jonathan Scott argue that Corporal Dougherty arrested them without probable cause when he ordered them to stop, ordered that they be handcuffed, and conducted a pat-down search. Defendants argue that even if this stop was not a custodial arrest, Dougherty lacked specific facts to form reasonable suspicion. Based on these alleged Fourth Amendment violations, both Defendants argue that physical evidence seized and any statements made during the stop and search are tainted as fruit of an illegal search. Both Defendants contend in the alternative that even if they were not formally arrested, they were questioned during the detention without first receiving Miranda warnings, and that their statements should be suppressed on that ground.
In opposition, the Government argues that Corporal Dougherty had reasonable suspicion to stop and investigate both men. Furthermore, the government argues that Defendants' statements during the stop are admissible because Dougherty's questions were investigatory and the statements were not testimonial. Moreover, the Government argues that the officers had probable cause to arrest both Defendants by the time they were transported to the police station.
Based on the record, we find that Dougherty had reasonable suspicion to stop and search both Defendants. We also find his questions did not convert the stop into a custodial arrest. We find Dougherty's and DiLello's testimony credible that during the officers' search for weapons, they observed what they had reason to believe was cash in one of the suspect's pockets, and therefore they had probable cause to continue to search the subjects' pockets for non-threatening contraband even after they had confirmed neither man was armed.
To assess whether the Defendants were subject to a custodial arrest requiring probable cause at the time they were stopped and handcuffed, "[w]e begin by determining when the seizure...occurred, [if the Defendants were ever seized] as that is the moment ‘the Fourth Amendment becomes relevant.’ " United States v. Brown, 448 F.3d 239, 245 (3d Cir. 2006) (quoting Terry, at 16, 88 S.Ct. 1868 ). "A seizure occurs when there is either (a) ‘a laying on of hands or application of physical force to restrain movement, even when it is ultimately unsuccessful,’ or (b) submission to ‘a show of authority.’ " Brown, 448 F.3d at 245 (quoting California v. Hodari D., 499 U.S. 621, 626, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991) ). "[T]he test for existence of a ‘show of authority’ is an objective one: not whether the citizen perceived that he was being ordered to restrict his movement, but whether the officer's words and actions would have conveyed that to a reasonable person.’ " Id. at 628, 111 S.Ct. 1547.
Terry v. Ohio established that the "police can stop and briefly detain a person for investigative purposes if the officer has a reasonable suspicion supported by articulable facts that criminal activity ‘may be afoot,’ even if the officer lacks probable cause." United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989) (citing Terry, at 30, 88 S.Ct. 1868 ). Even when officers are making a Terry-stop they are permitted to use a "reasonable amount of force." Using reasonable force within the scope of a protective search for weapons does not convert the stop into an arrest. United States v. Fields, 449 F. App'x 146, 148 (3d Cir. 2011). "The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments – in circumstances that are tense, uncertain, and rapidly evolving – about the amount of force that is necessary in a particular situation." Graham v. Connor, 490 U.S. 386, 396-97, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989).
See Graham v. Connor, 490 U.S. 386, 396, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989) (holding that an officer has a "right to use" a "threat" of "physical coercion" in order to make a lawful investigative stop). Accord United States v. Bonner, 363 F.3d 213, 217 (3d Cir. 2004) (citing Graham v. Connor, 490 U.S. 386, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989) ). The "reasonableness" test is a case-based factual inquiry. Graham v. Connor, 490 U.S. 386, 396, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). See also United States v. Laville, 480 F.3d 187, 194 (3d Cir. 2007) (reasonableness of force used to effect an investigative stop and search is judged from the perspective of a "reasonable officer on the scene"); Myers, 308 F.3d at 255 (reasonable force judged by "objective facts available to the officer[ ] at the time"); United States v. Fernandez, 652 Fed.Appx. 110, 114-15 (3d Cir. 2016) ("sufficiency of the objective facts available to the officer [at the time of the stop] should be judged based upon the totality of the circumstances.").
A district court considers the "totality of the circumstances" when determining whether an officer's warrantless investigative stop is supported by sufficient reasonable suspicion to make it permissible under Terry. United States v. Lewis, 672 F.3d 232, 239-40 (3d Cir. 2012). " ‘The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent [person] in the circumstances would be warranted in the belief that his safety or that of others was in danger.’ " United States v. Yamba, 506 F.3d 251, 255 (3d Cir. 2007) (quoting Terry, at 27, 88 S.Ct. 1868 ). "We must allow ‘officers to draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that might well elude an untrained person.’ " Brown, 448 F.3d at 246 (quoting United States v. Arvizu, 534 U.S. 266, 273, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002) ). See also Fields, 449 F. App'x at 148 (quoting United States v. Cortez, 449 U.S. 411, 417-18, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981) ) ("The totality of the circumstances approach to questions of reasonable suspicion includes consideration of an officer's ‘particularized and objective basis for suspecting the particular person stopped of criminal activity’ as well as, a trained officer's commonsense judgments and inferences about human behavior."). See also Brown, at 247 (quoting Arvizu, 534 U.S. at 274, 122 S.Ct. 744 ) (the court must consider the factors an officer relied on in deciding to make an investigative stop not ‘in isolation from each other,’ but ... as part of the ‘totality of the circumstances’ "); United States v. Rickus, 737 F.2d 360, 365 (3d Cir. 1984) (whether a stop was justified requires considering the "circumstances surrounding the stop in their entirety, giving due weight to the experience of the officers.").
Reasonable suspicion to stop a suspect must be supported by " ‘specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant the intrusion’ " into the subject's privacy. Terry, at 21-22, 88 S.Ct. 1868. "The officer must be able to articulate more than an ‘inchoate and unparticularized suspicion’ or ‘hunch’ of criminal activity." Illinois v. Wardlow, 528 U.S. 119, 123-124, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000) (citing Terry, at 27, 88 S.Ct. 1868 )).
The following factors are used by the Third Circuit to determine if an officer had reasonable suspicion to make a warrantless investigative stop: "(1) Presence of a suspect in a high crime area. (2) A suspect's presence on a street at a late hour. (3) A suspect's ‘nervous, evasive behavior,’ or flight from police. (4) A suspect behaves in a way that conforms to police officers' specialized knowledge of criminal activity." Id. at 125 (internal citations omitted). Additionally, "the possibility that the persons subject to police action are themselves violent or dangerous, ... [and] the possibility that the suspect may be armed" are also relevant factors to a district court's analysis of reasonable suspicion. Sharrar v. Felsing, 128 F.3d 810, 822 (3d Cir. 1997). "Moreover, knowledge that a suspect was recently armed can support a reasonable suspicion that the suspect is presently armed and dangerous." United States v. Bey, No. 16-290, 2017 WL 875364, at *13, 2017 U.S. Dist. LEXIS 30999 at *32 (E.D. Pa. Mar. 6, 2017) (emphasis in original) (rev. on other grounds). See Dickerson, at 373, 113 S.Ct. 2130 (1993) "a protective search – permitted without a warrant and on the basis of reasonable suspicion less than probable cause – must be strictly ‘limited to that which is necessary for the discovery of weapons which might be used to harm the officer or others nearby’ " (quoting Terry, at 26, 88 S.Ct. 1868 (citing Michigan v. Long, 463 U.S. 1032, 1049 (1983) ; Ybarra v. Illinois, 444, U.S. 85, 93-94 (1979) ).
We note that "legal, innocent behavior at times corroborates other information to raise reasonable suspicion." Brown, at 252. Nonetheless, "under a totality of the circumstances test, even factors independently ‘susceptible to innocent explanation’ can collectively amount to reasonable suspicion." Id. (quoting Arvizu, at 274, 275, 122 S.Ct. 744 ).
Here, the factors that informed Corporal Dougherty's decision to stop, ask brief investigatory questions of, and frisk Joel and Jonathan Scott for weapons were: (a) a police radio dispatch describing the armed robbery suspects as two African American males, both wearing hooded sweatshirts, one wearing a turquoise scarf, and one armed with a gun; (b) the men's physical behavior when Dougherty's police vehicle pulled up behind them (ignoring him, then motioning to change their direction away from him), which "raised [his] suspicion because most people would turn around and wonder why there's either a regular car or a police car riding right up on their butts there," Doc. No. 77 at 15; (c) the proximity in time and location to the robbery (he observed the men three minutes after the robbery, within 125 yards of the bank, walking on a dead end street directly behind the bank); (d) the suspects' "unusual" clothing considering the weather that day, id. at 16, (he observed one man wearing short sleeves on a cold, wet, late December day, and neither man wearing protective outerwear such as scarfs or hats); (e) the suspects' answers to his questions (Joel Scott said he had a few dollars in his pockets, which Dougherty did not believe based on "the amount of money that [he] could feel on the outside of his pants," id. at 23; he also said the men won the money from the SugarHouse casino, which Dougherty found suspicious since the SugarHouse is at least a 40-minute drive from where the men were stopped on foot. See id. at 25.
Dougherty further testified on cross-examination that finding money in Joel Scott's pockets factored into his suspicion that these two men might have been the robbery perpetrators: "The bank was just robbed.... of cash. I happened to have two subjects, one who has a large amount of cash in each pocket. We proceeded with investigating whether that was them or not. [The money] was a clue." Doc. No. 77 at 110.
The radio dispatch Dougherty responded to was the first factor we considered in our totality of the circumstances assessment of whether he had reasonable suspicion to stop and investigate Jonathan and Joel Scott. The broadcast identified the suspects as two African-American males, one wearing a brown hooded sweatshirt, a mask over his face, and wielding a gun; and the other suspect wearing long sleeves and a turquoise scarf over his mouth.
We acknowledge the discrepancy between the radio description of the suspects' clothes, and the individuals' lack of protective outerwear at the time Dougherty observed them walking on Heritage Circle. Joel Scott was wearing a short-sleeved shirt, no mask; Jonathan Scott was not wearing a hooded sweatshirt, nor a turquoise scarf. In United States v. Brown, the discrepancy between the "general radio description" and the defendants' "appearance when they were stopped by an officer, besides the single fact that they were two African-American men," defeated the reasonableness of the officers' suspicion to stop them. 448 F.3d at 248. In that case, the Third Circuit noted that "[m]oreover, both [defendants] had full beards and the description of the suspects included no mention of any facial hair." Id. Implied in the Third Circuit's distinction is the Court's inference that the defendants could not have shaved their beards within the span of time between the attempted robbery and being stopped.
Here, by contrast, as Dougherty testified, the discrepancy between the description he heard over the police radio and the suspects' appearance when he observed them walking outdoors, Joel Scott in short sleeves, was a reasonable basis for suspicion. Added, the weather on December 29, 2016 was cold and wet. As captured in photographs and video from the investigation of the robbery, other people outside that day were wearing jackets and protective outerwear. Outer clothing such as a woolen mask, scarf, and sweatshirt, can be discarded within a few seconds, in contrast from the amount of time it would have taken the defendants in Brown to shave their facial hair. Therefore, we find that the Defendants' lack of weather-appropriate outerwear and the mismatch between the dispatch description and what Dougherty noticed when he stopped them supported his inference that these two individuals could have discarded the items – in an attempt to evade attention from law enforcement or witnesses – within the few minutes between leaving the bank on foot and walking on Heritage Circle, approximately 125 yards from the bank.
See also United States v. Bey, 911 F.3d 139, 146 (3d Cir. 2018) (upholding the District Court's finding of reasonable suspicion to stop the defendant, Bey, based on the apparent match between the description of the suspect's race, clothing, and build, and Bey's; along with the proximity to where the police expected the suspect to be, the officers' familiarity with the neighborhood, their suspicion that the suspect may have tried to evade their notice by blend[ing] in with a nearby café. The Third Circuit found that all of these factors "coalesce to justify the police officers' initial approach to investigate Bey." Similarly to the police in this case, the police who stopped Bey had reason to suspect that the person they were looking for was armed. These factors together led the Court to find that "police were justified in drawing their guns" and stopping Bey.).
The Defense has argued that the description that Dougherty was responding to at the time he stopped the subjects was so general that he could not have formed reasonable suspicion to stop them. We disagree. Dougherty observed two men – the number of suspects in the description; both of whom were African American – the race of the suspects in the description; noticeably not wearing protective outerwear on a cold and wet late December day when everyone else in the area wore jackets. Furthermore, Dougherty observed the two men on foot within three minutes of the robbery, less than 125 yards from the bank. See Sharrar, 128 F.3d at 818, (the "close proximity [of the suspects] to the alleged [assault], both in time and distance," supported reasonable suspicion to stop defendants). Thus, although the description was general, it still provided ample information to allow an experienced officer responding to a dispatch describing two suspects, at least one of whom was reported to be armed with a gun, to develop reasonable suspicion to stop the subjects as they walked in close proximity to the time and location of the robbery and to investigate further.
Additional factors that informed Dougherty's reasonable suspicion: The Defendants' evasive behavior on noticing his marked police vehicle. As Dougherty saw it, the men first tried to avoid contact with him by ignoring his vehicle; then they motioned to change their direction. And, like the officers in Bey, Dougherty "had reason to suspect that [at least one of the people he was] looking for was armed." Bey, 911 F.3d at 146. Even if these factors, considered each in isolation, did not justify reasonable suspicion to stop the Defendants, " ‘the relevant inquiry is not whether particular conduct is ‘innocent’ or ‘guilty,’ but the degree of suspicion that attaches to particular types of noncriminal acts.’ " Brown, at 252 (quoting United States v. Sokolow, 490 U.S. 1, 10, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989) (internal citations omitted)). See id. (quoting Arvizu, at 274-75, 122 S.Ct. 744 ) ("under a totality of the circumstances test, even factors independently ‘susceptible to innocent explanation’ can collectively amount to reasonable suspicion."). Dougherty testified at the Suppression Hearing that "[b]ased upon their behavior with me, seeing me, redirecting, the short sleeve, I still wanted to stop them and investigate because it's easy to change clothing ... in the amount of time [between the robbery and walking on the streets directly behind the bank]. You can shed articles. You can put articles on fairly quickly." Doc. No. 77 at 17.
Accordingly, we find that based on Dougherty's experience and familiarity with the area, and the totality of the circumstances known to him as he responded to a dispatch describing two African American males at least one of whom was armed, he had reasonable suspicion to stop and conduct a pat-down search of two African American men walking on a road just behind the victim bank a few minutes after the robbery, one wearing short sleeves, neither wearing hooded sweatshirts or scarves or hats, on a cold and wet December day.
As to the Defendants' argument that Dougherty used unreasonable force in ordering officers to handcuff both men during the stop, we find that the fact that Dougherty was alone and responding to a call describing an armed robbery at a nearby bank minutes earlier in broad daylight supports his testimony that he reasonably believed the men could be armed. Thus, he had a reasonable basis for ordering them to be handcuffed during the stop and search in a residential neighborhood. We find this was a limited use of force to protect himself and the public as he and the other officers searched the suspects for weapons.
B. Investigative Questions During the Protective Pat-Down Search
Defendants argue that their statements during the pat-down search should be suppressed because they were not given Miranda warnings before being questioned. They assert that being handcuffed while officers asked them how they came to the location, how much money they had in their pockets, and what they did with the gun, was the functional equivalent of "custody."
Under the Fourth Amendment, police officers with reasonable suspicion that an individual has committed or is about to commit a crime may detain that individual, using some force if necessary, for the purpose of asking investigative questions. They may ask their questions in a way calculated to obtain an answer. But they may not compel an answer, and they must allow the person to leave after a reasonably brief period of time unless the information they have acquired during the encounter has given them probable cause sufficient to justify an arrest.
Kolender v. Lawson, 461 U.S. 352, 366, 103 S.Ct. 1855, 75 L.Ed.2d 903 (1983) (Brennan, J., concurring) (emphasis in original). " ‘[The] person may be briefly detained against his will while pertinent questions are directed to him. Of course, the person stopped is not obliged to answer, answers may not be compelled, and refusal to answer furnishes no basis for an arrest, although it may alert the officer to the need for continued observation.’ " Kolender, 461 U.S. at 364-365, 103 S.Ct. 1855 (quoting Terry, at 34, 88 S.Ct. 1868 ) (White, J., concurring). "Failure to observe these limitations converts a Terry encounter into the sort of detention that can be justified only by probable cause to believe that a crime has been committed." Id. "In assessing whether a detention is too long in duration to be justified as an investigative stop, we consider ...whether the police diligently pursued a means of investigation that was likely to confirm or dispel their suspicions quickly, during which time it was necessary to detain the defendant." United States v. Sharpe, 470 U.S. 675, 686, 105 S.Ct. 1568, 84 L.Ed.2d 605 (1985).
A "custodial interrogation" is marked by "(a) conduct intentionally designed to evoke a confession, as well as (b) any conduct an officer should reasonably have foreseen would elicit an inculpatory response." United States v. Bonner, 469 F. App'x 119, 126 (3d Cir. 2012) (citing Rhode Island v. Innis, 446 U.S. 291, 301-02, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980) ). A suspect is in custody when there is a formal arrest or restraint on freedom of movement of the degree associated with a formal arrest. United States v. Leese, 176 F.3d 740, 743 (3d Cir. 1999) (quoting California v. Beheler, 463 U.S. 1121, 1125, 103 S. Ct. 3517, 77 L. Ed. 2d 1275 (1983) ). Miranda warnings are required when a suspect is subject to "questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way." Rhode Island v. Innis, 446 U.S. 291, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980) (quoting Miranda, 384 U.S. at 444, 86 S.Ct. 1602 ). See United States v. Dupree, 617 F.3d 724, 731 n. 7 (3d Cir. 2010).
However, Miranda warnings are not required where a suspect has been detained briefly as part of an investigative stop, since officers are permitted to ask limited questions to help them assess whether the individual should be allowed to leave, or whether there are grounds to investigate further. The Supreme Court in Berkemer v. McCarty held that within the scope of a non-coercive Terry-stop, an officer is permitted to "ask a detainee a moderate number of questions to ... try to obtain information confirming or dispelling the officer's suspicions," noting the "absence of any suggestion in our opinions that Terry stops are subject to the dictates of Miranda." 468 U.S. 420, 438-39, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984). When the suspect is not under formal arrest, we consider whether a reasonable person in the suspect's situation would feel free to end the questioning and leave. See Yarborough v. Alvarado, 541 U.S. 652, 662-63, 124 S.Ct. 2140, 158 L.Ed.2d 938 (2004) ; United States v. Jacobs, 431 F.3d 99, 105 (3d Cir. 2005). See United States v. Long Tong Kiam, 343 F. Supp. 2d 398, 403 (E.D. Pa. 2004) (quoting Reinert v. Larkins, 379 F.3d 76, 86 (3d Cir. 2004) ("[w]hen the individual has not been openly arrested when the statements are made, something must be said or done by the authorities, either in their manner of approach or in the tone or extent of their questioning, which indicates they would not have heeded a request to depart or to allow the suspect to do so.’ ").
The Third Circuit has articulated a range of factors that other circuits use when "determining if a person was in custody including: (1) whether the officers told the suspect he/she was under arrest or free to leave; (2) the location or physical surroundings of the interrogation; (3) the length of the interrogation; (4) whether the officers used coercive tactics such as hostile tones of voice, the display of weapons, or physical restraint of the suspect's movement; and (5) whether the suspect voluntarily submitted to questioning." United States v. Killingsworth, 118 F. App'x 649, 651 (3d Cir. 2004) (internal citations omitted).
During the stop in this case, Dougherty asked each suspect where the gun was, with the purpose of reducing the safety risk to the community. See Arizona v. Mauro, 481 U.S. 520, 528, 107 S.Ct. 1931, 95 L.Ed.2d 458 (1987) ("there were legitimate reasons, unrelated to securing incriminating statements, for [asking the questions]."). Here as well, as in United States v. Bonner, 469 F. App'x 119, 126 (3d Cir. 2012), "nothing suggests that an interrogation or its functional equivalent took place." "The police did not subject [either Defendant] to a ‘lengthy harangue,’ nor did they make ‘comments [that] were particularly evocative.’ " See also Sharpe, at 697, 105 S.Ct. 1568 (noting that " Terry's brevity requirement is not to be judged by a stopwatch but rather by the facts of particular stops," and rejecting a per se rule that a 20 minute investigative stop is unreasonable.").
We acknowledge that unlike the respondent in Berkemer, who was detained after a traffic stop, the Defendants here were handcuffed and surrounded by at least two police officers at the time Dougherty asked questions as to how they came to be walking there, how much money Joel Scott had in his pockets, and where the gun was. Yet here, as in Berkemer, "only a short period of time elapsed between the stop and the arrest," (approximately 15 to 20 minutes), 468 U.S. at 441, 104 S.Ct. 3138, and neither Defendant was told they were under arrest ("at no point during that interval [were Defendants] informed that [their] detention would not be temporary." Id. at 441-442, 104 S.Ct. 3138. Overall, as in Berkemer, "a single police officer asked respondent[s] a modest number of questions," during the scope of an investigative Terry-stop to help confirm whether there were reasonable grounds to suspect that these two individuals were involved in the armed robbery that took place five minutes earlier within 125 yards of the scene. Id. at 442, 104 S.Ct. 3138.
Further, in marked contrast to cases where questioning took place in an interrogation room at a police station or inside a police vehicle, with their attendant indicia of coercion and signals that the suspect was not free to leave, here, Defendants were asked limited questions in an investigative tone on a public street in broad daylight.
Thus, after examining the circumstances, we find that the questioning was part of an investigative inquiry within the scope of Terry. The duration of questioning and detainment was brief and lacked evidence of compulsion. Once the Defendants answered the officers' questions, no additional force was applied and the questioning did not intensify in tone, it stopped. Thus, Defendants' statements are admissible.
C. Seizure of Cash from Joel Scott's Pockets
Defendants next argue that the even if Dougherty's stop was supported by reasonable suspicion, the scope of the protective search exceeded the bounds of Terry. Defendants aver that physical evidence seized during the portion of the pat-down search that took place after Dougherty had confirmed that Joel Scott was unarmed should be suppressed. In opposition, the Government argues that Dougherty's search for weapons was justified by his reasonable suspicion, based on the dispatch, that at least one subject was armed. Further, the Government posits that the physical evidence seized during the pat-down search is admissible because by the time Dougherty confirmed that Joel Scott was unarmed, the officers had discovered a "wad" of U.S. cash, providing probable cause to continue to search both Defendants for nonthreatening contraband.
"[I]f police are lawfully in a position from which they view an object, if its incriminating character is immediately apparent, and if the officers have a lawful right of access to the object, they may seize it without a warrant. If, however, the police lack probable cause to believe that an object in plain view is contraband without conducting some further search of the object—i.e., if its incriminating character is not immediately apparent—the plain-view doctrine cannot justify its seizure. Yamba, 506 F.3d at 257-258 (3d Cir. 2007) (quoting Dickerson, at 375, 113 S.Ct. 2130 ). See Texas v. Brown, 460 U.S. 730, 738-739, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983) (clarifying that the "plain view" doctrine is not an independent exception to the warrant clause, but simply ... an extension of whatever the prior justification for an officer's access to an object may be.").
The Third Circuit in Yamba followed Dickerson's approach of applying the "plain view" doctrine to "permit the admission of evidence discovered with other sensory faculties." 506 F.3d at 258. The "plan feel" doctrine allows an officer to seize non-threatening contraband detected during an otherwise lawful pat-down search so long as it was "immediately apparent," Dickerson, at 375-76, 113 S.Ct. 2130, or "spontaneously discovered," Yamba, at 259 within the scope of a Terry-search for weapons. "The proper question ... is not the immediacy and certainty with which an officer knows an object to be contraband or the amount of manipulation required to acquire that knowledge, but rather what the officer believes the object is by the time he concludes that it is not a weapon. That is, a Terry search cannot purposely be used to discover contraband, but it is permissible that contraband be confiscated if spontaneously discovered during a properly executed Terry search." Id.
To determine whether the contraband was "spontaneously discovered" within the permissive bounds of a Terry-search, "the area of focus should be whether the officer had probable cause to believe an object was contraband before he knew it was not a weapon and whether he acquired that knowledge in a manner consistent with a routine frisk." Id.
"Regardless of whether the officer detects the contraband by sight or by touch, however, the Fourth Amendment's requirement that the officer have probable cause to believe that the item is contraband before seizing it ensures against excessively speculative seizures." Id. at 376, 113 S.Ct. 2130. Where "probable cause existed before [an officer's] search [goes] beyond the bounds of Terry," Id. at 260 (emphasis added), the fruit of the search is admissible even if the search exceeds the limited scope of a weapons-search.
In this case we find that Dougherty developed probable cause to seize the cash from Joel Scott's pocket before the moment at which he confirmed that Joel Scott did not have some kind of weapon in his pocket, behind the wad of cash that Dougherty either felt or saw.
As part of Terry's authorization to an officer to confirm that a suspect is not armed, an officer is allowed to slide or manipulate an object in a suspect's pocket, consistent with a routine frisk, until the officer is able reasonably to eliminate the possibility that the object is a weapon. If, before that point, the officer develops probable cause to believe, given his training and experience, that an object is contraband, he may lawfully perform a more intrusive search. If, indeed, he discovers contraband, the officer may seize it, and it will be admissible against the suspect.
Id. at 259. Here, "though [the officer] admitted to manipulating the object even after forming the belief that it was not a weapon, he only did so to ‘mak[e] sure it was what [he] knew it to be.’ In other words, by that point Officer [Dougherty] already had probable cause to conduct a more intrusive search than that authorized by Terry alone." Id. at 260. We find Dougherty's testimony credible that while he manipulated the object in Joel Scott's pocket to rule out the presence of a knife or something sharp behind it, he had already developed probable cause to believe that Joel Scott's pocket contained contraband in the form of cash stolen from the bank during the armed robbery. Therefore, the cash he seized from Joel Scott's pockets after continuing to search is admissible.
What's more, as to Defendants' arguments that Dougherty and Montalbano gave "inconsistent testimony" as to how they perceived the contraband in Joel Scott's pocket – by site or touch, it is well-established that witnesses perceiving the same event from different vantage points have different recollections of the same event. The slight differences in the officers' testimony as to whether Montalbano first perceived the cash by "seeing" it or by "feeling" it during the Terry-search for weapons does not discredit their testimony. Indeed, it enhances the credibility of their accounts because each officer was testifying to his recollection of the events, not reciting a storyline of how the cash was discovered.
See Delaney v. Superior Court, 50 Cal. 3d 785, 822, 268 Cal.Rptr. 753, 789 P.2d 934 (1990) (noting the "well-established fact that there are often major discrepancies between different eyewitness accounts of the same event, owing to distortions and biases in both perception and memory.") See also, Did Your Eyes Deceive You: Expert Psychological Testimony on the Unreliability of Eyewitness Identification, Note, 29 Stan. L. Rev. 969, 971-989 (1977) (establishing evidence that "discrepancies often exist between different eyewitness accounts of the same event."). See United States v. Stevens, 935 F.2d 1380 at n.15 (3d Cir. 1991) (citing id. ).
D. Identification
The bank manager, "J.G.," who witnessed the armed robbery, positively identified both Defendants within 15 minutes of the crime. Defendants argue that the identification evidence should be suppressed as the product of an impermissibly suggestive show-up procedure, and that even if the officers can establish some good reason for conducting the show-up at the scene of the Terry-stop, that J.G. was not sufficiently reliable as a witness. On the other hand, the Government argues that the show-up identification was not unduly suggestive when considered within the totality of the circumstances. United States v. Diaz, 444 F. App'x 551, 555 (3d Cir. 2011) ; United States v. Brownlee, 454 F.3d 131, 138 (3d Cir. 2006). Further, the Government avers that here, there was "some good reason [ (or motivation) ] for the failure to resort to [a] less suggestive procedure," id., and that the exigency of the circumstances (that the police were looking for two men – at least one of whom was believed to be armed – involved in a bank robbery in broad daylight, in a commercial area bordered by residential neighborhoods) justified the officers' immediate tactic of confirming the identity of the Defendants through a show-up identification while the witness's memory was fresh. (Gov. Opp. at 9). The Government next argues that even if the identification procedure was unnecessarily suggestive, J.G.'s identification is sufficiently reliable to be admitted.
Identification evidence is admissible when the procedures used to procure it were not unduly suggestive or if the identification is sufficiently reliable. United States v. Emanuele, 51 F.3d 1123 (3d Cir. 1995). A district court should consider the totality of the circumstances when assessing whether to admit identification testimony. Neil v. Biggers, 409 U.S. 188, 199, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972). The totality of the circumstances analysis is two-fold: First, the defendant has the burden of proving that the identification procedure was impermissibly suggestive. Neil, 409 U.S. at 198-99, 93 S.Ct. 375. See also Reese v. Fulcomer, 946 F.2d 247, 259 (3d Cir. 1991). Two factors inform this determination (a) the suggestiveness of the identification, and (b) whether there was "some good reason for the failure to resort to less suggestive procedures." United States v. Stevens, 935 F.2d 1380, 1389 (3d Cir. 1991). If the defendant establishes that the procedure was impermissibly suggestive, we proceed to considering whether it created a "substantial likelihood of misidentification" so that admitting the evidence would deny due process. In that case, the evidence should be suppressed. Brownlee, 454 F.3d at 137-138 ; United States v. Stevens, 935 F.2d 1380, 1389 (3d Cir. 1991) ; Emanuele, 51 F.3d at 1128.
Still, reliability of the identification can mitigate the risk of misidentification; nullifying the need for suppression. Emanuele, 51 F.3d at 1128 (citing Gov't of V.I. v. Riley, 973 F.2d 224, 228 (3d Cir. 1992) ). "A ‘suggestive and unnecessary identification procedure does not violate due process so long as the identification possesses sufficient aspects of reliability." Brownlee, at 139 (3d Cir. 2006) (citing Manson v. Brathwaite, 432 U.S. 98, 97, 106, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977) ). Whether the witness's identification is sufficiently reliable is analyzed by the totality of the circumstances. See id. (citing Neil, 409 U.S. at 199-200, 93 S.Ct. 375 ) (articulating five factors for assessing identification reliability: "(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 criminal; (4) the level of certainty demonstrated by the witness at the confrontation; and (5) the length of time between the crime and confrontation."). Accord United States v. Atkinson, 316 F. App'x 93, 96 (3d Cir. 2008).
In this case, a show-up identification procedure was conducted within 15 minutes of the robbery on a street directly behind the victim bank. Even though a show-up identification is "inherently suggestive," it may still be admissible if there was "some good reason [ (or motivation) ] for the failure to resort to [a] less suggestive procedure," Diaz, 444 F. App'x at 555. "Good reason" for conducting a show-up procedure exists when the identification is conducted proximate to the time and scene of a crime and would enable police to quickly release the suspect if he were not identified as the perpetrator. Id. Defendant Joel Scott argues that the show-up was unduly suggestive because the witness positively identified him after identifying Jonathan Scott, then watching the officers search him and put him into a police vehicle. Therefore, Scott argues, J.G.'s identification of him was not based on "something that she independently remembers from the incident." Doc. No. 77 at 250-251.
On the contrary, we find that the witness was able to help the police conduct a standard identification procedure in a way that swiftly minimized detaining the wrong suspects, thereby diminishing a safety threat to the officers and the community. Also, an alternative procedure – bringing J.G. to the police station after the men were arrested – would not have promised a less suggestive procedure, nor minimized the risk of misidentification; it could have increased the risk of unnecessary detainment. Last, as we noted at the Suppression Hearing, since J.G. did not testify as to the basis for positively identifying Joel Scott, "we don't know" "based on the record that's here" that J.G. did not identify him based on something she remembered from the incident – independent of her identification of Jonathan Scott. Id.
Further, we find the witness's identification to be sufficiently reliable to override any suggestiveness of the show-up procedure. We assess her reliability using the Neil v. Biggers factors. First, J.G. had ample opportunity to view the suspects at the time of the crime: she observed the gunman, Joel Scott's, build and movements as he jumped over the teller counter and demanded money while pointing a gun at the teller; she observed the taller male suspect, Jonathan Scott, as he approached and entered her office, stood within three feet of her, pointed his hand at her and told her not to move and to shut up. Second, J.G. was alert enough during the entire robbery to immediately activate the hold-up alarm, to describe the suspects to the 911 dispatcher, and to lock the bank doors once the suspects left on foot. Third, J.G.'s descriptions of the suspects match. The witness's explanation for her identification of the subjects, as related to Detective Brookes and memorialized in his incident report, was consistent with what she was able to observe during the robbery; i.e. that she recognized the shorter individual's build and black pants as he jumped over the teller counter, and that she recognized the taller individual's pants as he stood in her office. Doc. No. 77 at 196. Fourth, J.G. expressed certainty in her positive identifications. She told DiLello that she was "pretty sure" that the first suspect, Jonathan Scott, was the taller of the two subjects; and she indicated to Detective Brookes that she was "very confident" that the man she identified as the shorter of the two robbers was Joel Scott. Id. at 197. Finally, she positively identified the subjects shortly after witnessing the crime. Therefore, in the totality of the circumstances, we find J.G.'s identification sufficiently reliable to overcome any risk of unnecessary suggestiveness posed by the show-up procedure.
E. Probable Cause to Arrest Jonathan and Joel Scott
Defendants argue that the officers lacked probable cause to arrest the Defendants after J.G. positively identified them as the suspects involved in the armed bank robbery.
"Probable cause exists whenever reasonably trustworthy information or circumstances within a police officer's knowledge are sufficient to warrant a person of reasonable caution to conclude that an offense has been committed by the person being arrested. United States v. Myers, 308 F.3d 251, 255 (3d Cir. 2002) (citing Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964) ). Probable cause requires a " ‘fair probability’ that the person committed the crime at issue," and is supported when the "facts and circumstances within the arresting officer's knowledge are sufficient ... to warrant a reasonable person to believe that an offense has been or is being committed by the person to be arrested." Wilson v. Russo, 212 F.3d 781, 789 (3d Cir. 2000).
Here, the officers detained the Defendants after Dougherty observed two men walking in close proximity to the bank, within three minutes of the armed robbery; the suspects' appearance was consistent with the police radio description of the suspects as two African American men – and whose lack of outerwear on a cold and wet December day, coupled with their proximity to the site of the crime, drew the officer's suspicion. The arrest took place only after the officers lawfully discovered over $1800 in U.S. currency, a sufficient basis for the officers' reasonable belief that these men were involved in robbing the nearby bank a few minutes prior. Finally, the officers also relied on a witness's positive identification of the suspects within 15 minutes of the robbery. Therefore, under the totality of the circumstances, we find that the officers had probable cause to arrest the Defendants.
As we discussed supra, the inconsistency between the dispatch call's description of the suspects as wearing hooded sweatshirts and Joel Scott's short sleeves at the time Dougherty observed him walking behind the bank, supports, not detracts from, the reasonableness of Corporal Dougherty's suspicion to stop him – if he had a hoody, why would he not wear it once he was outside – the absence of protection from the weather that day would reasonably lead to the inference that the individual had discarded the hoody so as to avoid being identified as the person who was involved in committing the robbery a few minutes earlier.
F. Inevitable Discovery of Additional Physical Evidence
Last, the Government maintains that evidence found contemporaneously with the stop and later arrest of the Defendants inevitably would have been discovered. The Government adds that not only is this evidence admissible but it also provides an independent basis for probable cause to arrest the Defendants. We agree.
Namely, a car registered to Jonathan Scott found parked on a street behind the bank; in the bushes near the car: a brown sweatshirt, white sneakers with red trim; in plain view through the back passenger-side window of the car: a black sweatshirt, turquoise scarf, and green money bag; all matching the witness's description the suspects' clothing as well as the bank surveillance footage of the suspects during the robbery.
Evidence that may otherwise have been subject to exclusion may be admissible under an exception to the exclusionary rule, inevitable discovery. In Nix v. Williams, 467 U.S. 431, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984), the Supreme Court held that where " ‘the prosecution can establish by a preponderance of the evidence that the information ultimately or inevitably would have been discovered by lawful means...the deterrence rationale has so little basis that the evidence should be received.’ " United States v. Denson, No. 06-75, 2006 WL 3144857, at *6, 2006 U.S. Dist. LEXIS 79430, at *16 (W.D. Pa. Oct. 31, 2006) (citing Nix, 467 U.S. at 444, 104 S.Ct. 2501 ). The burden is on the prosecution to prove "that the subject evidence would have been inevitably discovered." Id. (citing United States v. De Reyes, 149 F.3d 192, 195 (3d Cir. 1998).
In this case, the record shows that the following evidence was found through an independent investigation of the area near the bank: First, a car registered to Jonathan Scott parked on Heritage Circle, the road that runs behind the bank. Next, within six to ten feet of the car, officers found a brown hooded sweatshirt, a pair of white sneakers with red trim, and a black woolen mask, all consistent with the description of shorter male gunman's attire during the crime. Further, a set of keys on a BB&T Bank keychain fell out of the brown sweatshirt when officers picked up the hoody from the ground near the car. And, in plain view through the window of the car registered to Jonathan Scott, officers found a black hooded sweatshirt consistent with the description of the taller male's clothing during the robbery, along with the green money bag from the victim bank. Finally, once Brookes received a search warrant for the car, he discovered a gun in the glovebox, loaded minus one, matching the witnesses' descriptions of the revolver they saw in the shorter male's hand as he ordered the teller to give her the money from the bank's cash drawer.
Detective Brookes testified at the Suppression Hearing that he would have run the registration on this car as standard investigative procedure, notwithstanding any statement by Jonathan Scott during the preceding protective stop and search as to a vehicle.
We find the officers' testimony credible that independent of the Defendants' statements and cash seized during the protective search, officers would have searched the area surrounding the bank and discovered the following physical evidence: a car registered to Jonathan Scott, Joel Scott's clothing (containing the bank keys) in the bushes near the car, Jonathan Scott's clothing inside the car, the green money bag from the bank inside the car, and after obtaining a warrant, the gun brandished during the robbery in the glovebox. Thus, the additional physical evidence is admissible.
G. Statements
Defendants argue that their post-arrest confession should be suppressed because it was tainted by violations of their Fourth Amendment and due process rights, and that no intervening circumstance (including being given Miranda warnings), "cur[ed] the taint of the constitutional violation." U.S. v. Rivera-Padilla, 365 Fed. Appx. 343, 347-348 (3d Cir. 2010) (citing Taylor v. Alabama, 457 U.S. 687, 102 S.Ct. 2664, 73 L.Ed.2d 314 (1982) ). For the reasons discussed supra, we find that the Defendants' post-arrest Mirandized confession is admissible since it is not tainted.
III. Conclusion
For the foregoing reasons, the Defendants' motions to suppress physical evidence, statements, and identification evidence are DENIED pursuant to the attached Order.