Opinion
Criminal Action Nos. 00-20041-01-KHV, 00-20041-02-KHV, 00-20041-03-KHV.
June 13, 2000.
MEMORANDUM AND ORDER
On March 29, 2000, a grand jury returned a five-count indictment which charged defendants with knowingly possessing and using counterfeit access devices, i.e. credit cards, and conspiracy to use counterfeit access devices to obtain merchandise. This matter is before the Court on Defendant's [Wa's] Motion To Suppress Evidence (Doc. #48) filed April 26, 2000, in which defendants Lee and Wang have joined. On May 31, 2000, the Court held an evidentiary hearing. For reasons set forth below, defendants' motion is overruled.
Factual Background
On March 12, 2000, a customer at J.C. Penney's at the Oak Park Mall in Overland Park, Kansas used a credit card to purchase a diamond ring. Although he paid approximately $4,000.00, the customer did not wait for the store clerk to issue a diamond certificate. Another store clerk became suspicious and contacted the J.C. Penney loss prevention office. In response, Carla Swartz, a loss prevention officer, watched the customer on a closed circuit color monitor. After the customer left the jewelry area, Swartz followed him and observed that he was talking on a two-way radio. Officer Richard Medley of the Overland Park Police Department, who was at the store for an unrelated shoplifting incident, also observed the customer talking on a two-way radio. The suspect reentered the store, then exited once again. Anthony Caravella, a J.C. Penney loss prevention officer, called the credit card company and the issuing bank for the credit card which the customer had used, and confirmed that it was stolen. Caravella relayed this information to Swartz and Officer Medley as they observed the customer approach a green minivan with two individuals inside. One of the two individuals got out of the van and opened the sliding door for the customer, who got inside the van. As the van left the parking lot, Swartz observed the license plate — Missouri 140 CMZ.
Based on conversations with Swartz and Officer Medley, Officer Jackson of the Overland Park Police Department learned that the suspect who had purchased the diamond ring was an Asian male with a black leather coat, that the suspect was talking on a two-way radio as he left the store, that he got into a green minivan with license plate Missouri 140 CMZ, that two other Asian males were in the van, and that one individual in the group was wearing glasses.
Shortly thereafter, J.C. Penney personnel advised police that the suspects, i.e. the "individuals that were talking on the walkie talkies," were downstairs at the Nordstrom's store, being stalled by a store clerk. See Exhibit 400: Tape Of Police Radio. At approximately 12:53 p.m., a police officer announced this information over the police radio. See id. Officer Jackson responded to the call and walked into the lower level of Nordstrom's. He testified that the only customers in the store were two Asian males, defendants Wa and Lee. They were near a cosmetics counter. One was wearing glasses and one was wearing a black leather jacket. Officer Jackson watched the two individuals for three or four minutes. They were "milling around" the counter, waiting for something or someone; they periodically went back to talk to each other.
At approximately 12:58 p.m., Officer Jackson approached the two individuals and observed a third Asian male, defendant Wang, on the floor near the counter. Wang was loading large amounts of cologne into a shopping bag. As Officer Jackson approached, Wa turned quickly to exit the store. Officer Jackson ordered him to stop, but Wa did not comply. Officer Jackson grabbed his arm and turned him around. Officer Jackson noticed that Wa's hand was cupped and he appeared to be trying to get rid of something. Jackson ordered him to turn over his hand but he refused. After a second refusal, Jackson turned Wa's hand over and discovered an American Express card and a phone card. For his safety, Jackson lifted up Wa's blazer and he discovered another American Express card sticking out of Wa's back pocket. Jackson told Wang and Lee to stand against the wall. After performing a pat down search of Wang and Lee, Jackson told the three individuals that they were under arrest.
Defendants claim that Officer Jackson did not have reasonable suspicion to stop them or probable cause to arrest them. Defendants seek to suppress all evidence obtained as a result of their arrests.
Analysis
I. Investigative Detention Of Defendants
Defendants first claim that Officer Jackson did not have a reasonable suspicion of wrongdoing to justify stopping them at Nordstrom's. The Tenth Circuit has set forth the following standards to determine whether an investigative detention is justified:
To determine whether an investigative detention was constitutionally permitted, we must ask both "whether the officer's action was justified at its inception, and whether it was reasonably related in scope to the circumstances which justified the interference in the first place." Terry v. Ohio, 392 U.S. 1, 20 (1968). A law enforcement officer may stop and briefly detain a person for investigative purposes "if the officer has a reasonable suspicion . . . that criminal activity `may be afoot.'" United States v. Sokolow, 490 U.S. 1, 7 (1989). Once the concern that justified the initial stop is dispelled, further detention will violate the Fourth Amendment unless the additional detention is supported by a reasonable suspicion of criminal activity. See United States v. Alarcon-Gonzalez, 73 F.3d 289, 292-93 (10th Cir. 1996). In other words, reasonable suspicion must exist at all stages of the detention, although it need not be based on the same facts throughout.
An officer must be able to point to "specific and articulable facts" to support a finding of reasonable suspicion; an "inchoate and unparticularized suspicion or `hunch'" is insufficient. Terry, 392 U.S. at 21, 27, 88 S. Ct. at 1880, 1883. "Whether . . . an investigative detention is supported by an objectively reasonable suspicion of illegal activity does not depend on any one factor but on the totality of the circumstances." United States v. Soto, 988 F.2d 1548, 1555 (10th Cir. 1993).United States v. Soto-Cervantes, 138 F.3d 1319, 1322 (10th Cir. 1998).
Here, Officer Jackson had an objectively reasonable suspicion that defendants were involved with the stolen credit card purchase at J.C. Penney's or were shoplifting at Nordstrom's. The suspicion regarding the stolen credit card purchase was based on this information: (1) the customer at J.C. Penney's was described as an Asian male wearing a black leather jacket; (2) the customer at J.C. Penney's used a two-way radio and shortly thereafter got into a green minivan with two other Asian males, one of whom was wearing glasses; (3) the same green minivan was located in the parking lot near the entrance to the bottom level of Nordstrom's; (4) J.C. Penney personnel reported that the "individuals that were talking on the walkie talkies" were downstairs at Nordstrom's being stalled by a store clerk; and (5) approximately one minute after police relayed this report from J.C. Penney's, Officer Jackson observed no customers in the bottom level of Nordstrom's except Wa and Lee. The suspicion of shoplifting was based on the fact that Wa and Lee appeared to be looking out while Wang, who was on the floor, loaded "exorbitant" amounts of cologne into a sack with no sales associate nearby. Based on the facts known to Officer Jackson, his initial stop of defendants was justified. For these reasons, defendants' motion to suppress based on their investigative detention is overruled.
II. Arrest Of Defendants
A warrantless arrest must be supported by probable cause. See United States v. Dozal, 173 F.3d 787, 792 (10th Cir. 1999). "Probable cause to arrest exists when an officer has learned of facts and circumstances through reasonably trustworthy information that would lead a reasonable person to believe that an offense has been or is being committed by the person arrested." United States v. Anchondo, 156 F.3d 1043, 1045 (10th Cir. 1998). Probable cause requires "more than mere suspicion." Dozal, 173 F.3d at 792 (citation omitted). "Association with persons suspected of criminal conduct or nearness to the site of illegal activity does not alone suffice." Id. (citation omitted). Some additional circumstances from which it is reasonable for the police officer to infer participation in criminal enterprise must be shown. See United States v. Hillison, 733 F.2d 692, 697 (9th Cir. 1984) (cited approvingly in United States v. Vazquez-Pulido, 155 F.3d 1213, 1217 (10th Cir. 1998)). In assessing the significance of the association of an individual with a suspect, courts consider the following factors: (1) "whether the known criminal activity was contemporaneous with the association,"Hillison, 733 F.2d at 697; (2) "whether the nature of the criminal activity is such that it could not normally be carried on without the knowledge of all persons present," id.; (3) the nature of the place in which the intrusion occurred, that is, public or private, United States v. Tehrani, 49 F.3d 54, 59 (2d Cir. 1995); and (4) "whether the individual himself was behaving suspiciously or whether he was tainted by the behavior of another," id.
Here, Officer Jackson thought that multiple individuals were involved in the stolen credit card purchase at J.C. Penney's because the suspect used a two-way radio and shortly thereafter got into a minivan with two other Asian males. In addition to this fact and those outlined above for reasonable suspicion, Officer Jackson had probable cause to arrest Wa based on (1) Wa's attempt to flee; (2) Wa's attempt to conceal and get rid of an American Express card and phone card after he saw Officer Jackson; (3) the presence of another American Express card in Wa's back pocket; (4) the fact that Wa and Lee appeared to be look outs while Wang loaded large amounts of cologne into a sack; and (5) the fact that Wa was with Lee, who matched the description of the customer at J.C. Penney's, i.e. an Asian male wearing a black leather jacket who left with two other Asian males.
In addition to the facts outlined above for reasonable suspicion, Officer Jackson had probable cause to arrest Lee because (1) he matched the description of the customer at J.C. Penney's, i.e. an Asian male wearing a black leather jacket who left with two other Asian males; (2) Wa and Lee appeared to be look outs while Wang loaded large amounts of cologne into a sack; and (3) he was with Wa, who attempted to flee and conceal credit cards.
In addition to the facts outlined above for reasonable suspicion, Officer Jackson had probable cause to arrest Wang because (1) he was on the floor loading large amounts of cologne into a sack while Wa and Lee appeared to be "looking out;" (2) he was with Wa, who attempted to flee and conceal credit cards; and (3) he was with Lee, who matched the description of the customer at J.C. Penney's, i.e. an Asian male wearing a black leather jacket who left with two other Asian males.
Based on the information available to Officer Jackson, it was reasonable for him to infer that all three defendants were participating in the scheme to purchase merchandise with stolen credit cards. See Hillison, 733 F.2d at 697 (cited in Vazquez-Pulido, 155 F.3d at 1217); United States v. Wai-Keung, 115 F.3d 874, 876 (11th Cir. 1997); see also United States v. Ramirez, 963 F.2d 693, 698-99 (5th Cir.) (probable cause existed where defendant seen in company of drug suspects, met with suspects while they engaged in drug conspiracy, and exhibited behavior which was consistent with inference that he was part of conspiracy), cert. denied, 506 U.S. 944 (1992) (cited approvingly in Vazquez-Pulido, 155 F.3d at 1217);United States v. Martinez-Molina, 64 F.3d 719, 729 (1st Cir. 1995) ("criminals rarely welcome innocent persons as witnesses to serious crimes and rarely seek to perpetrate felonies before larger-than-necessary audiences") (citation omitted). Accordingly, defendants' motion to suppress based on their arrests is overruled.
IT IS THEREFORE ORDERED that Defendant's [Wa's] Motion To Suppress Evidence (Doc. #48) filed April 26, 2000, in which defendants Lee and Wang have joined, be and hereby is OVERRULED.