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USCA1 Opinion
March 25, 1994 [NOT FOR PUBLICATION]
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 93-1191
UNITED STATES,
Appellee,
v.
GEORGE E. LOTT,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, U.S. District Judge]
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Before
Selya, Circuit Judge,
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Bownes, Senior Circuit Judge,
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and Stahl, Circuit Judge.
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Kevin S. Nixon for defendant, appellant.
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James D. Herbert, Assistant United States Attorney, with whom
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Donald K. Stern, United States Attorney, and Despena Fillios Billings,
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Assistant United States Attorney, were on brief for appellee.
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BOWNES, Senior Circuit Judge. Defendant was
BOWNES, Senior Circuit Judge.
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apprehended in a taxicab after robbing a bank. After a two-
count indictment was returned charging defendant with armed
bank robbery, he moved to suppress all evidence obtained as a
result of the stop and search of the taxicab in which he was
a passenger at the time of his arrest. The district court
held a hearing on the motion and denied it, making bench
findings and rulings. The next day defendant offered
conditional guilty pleas to both counts of the indictment,
reserving the right to appeal from the denial of the motion
to suppress. The court accepted the guilty pleas and
sentenced defendant to 180 months of incarceration to be
followed by 36 months of supervised release. Defendant's
claim on appeal is that the evidence failed to establish
reasonable suspicion for the stop and search of the taxi.
THE EVIDENCE
THE EVIDENCE
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Our evidentiary review begins during the afternoon
of September 19, 1991, in Robert's Bakery in Needham,
Massachusetts. The weather was overcast, threatening rain.
The owner of the bakery, Robert DiMarino, Jr., was in the
back room when his attention was drawn to a man on the
sidewalk shouting through the window at Marino's mother who
was in the customer area of the restaurant. Marino inquired
as to what was going on and she told him that the man wanted
her to call a taxi for him. Marino told his mother to make
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the call. She called Veteran's Taxi Company in Needham and
was asked by the dispatcher the passenger's destination. She
repeated the question to the man and was told that he wanted
to go to Newton Center.
After the call was completed, it started to rain
and the man who had requested the taxi came into the bakery
to wait for it. He was a tall, thin black male wearing
jeans, a brown striped pullover and an oversized black and
white knit cap. Within a few minutes a Veteran's taxicab
arrived to pick up the man. He came out of the bakery and
asked the cab driver if he would wait a few minutes so he
could find out if his wife was going to accompany him to
Newton Center. He then left the area.
Within a very short time, a man walked into the
Needham Cooperative Bank. The bank is located down the
street and around the corner from Robert's Bakery. He went
directly to teller stations two and three in the bank and
after a short conversation with the tellers proceeded to
scoop money out of the cash drawers. Surveillance photos
show him doing this. The assistant manager observed the
robber as did a young woman, Yvonne Welch, who was standing
next to him. During the robbery, the robber wore a ski mask.
While the robbery was proceeding, an officer of the
bank, Mr. McGeorge, was on the phone talking to his wife. He
told her that the bank was being robbed and asked her to call
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the police. Three other bank employees called the police to
report a robbery in progress. In at least one of the calls
the robber was described as a tall, thin black man wearing a
brown sweater and blue jeans with his face covered by a ski
mask. The Needham Police dispatcher radioed to all units in
Needham that an armed robbery was in progress at the Needham
Cooperative Bank involving a black male wearing a striped
brown sweater.
The robber left the bank on foot. He was followed
by the bank officer, McGeorge, through a parking lot leading
to the street on which the taxi was parked. The robber
either fortuitously or purposely eluded McGeorge. McGeorge,
however, got close enough to see the robber's face, the ski
mask having been removed. About ten minutes after the
robbery, the man who had called for the taxi, signalled the
taxi which had been waiting for him. He got into the taxi,
told the driver that his wife was not coming with him, that
he felt ill and was going to lie down on the back seat, which
he did.
Our exposition now brings us back to Robert's
Bakery. Within moments of the robbery, or during it, Needham
Police Officer Arthur Douglas walked into the bakery. He was
known to the proprietor, who told him about his mother's call
for a taxi for a man and the conversation between his mother
and the man requesting the call. As Douglas was going into
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the rear of the store for tea and a pastry, he heard on his
portable radio that there was a robbery at the Needham Bank.
Douglas immediately ran to the bank, obtained a description
of the robber and then ran back to the bakery to get a
description of the man who had used the proprietor's mother
to call a taxi. Both descriptions dovetailed. Douglas also
learned that the taxi's destination was Newton Center.
Douglas then radioed to Newton Police Sergeant Albert Droney,
gave him a description of the bank robber, and told him that
the bank robber was in a red Veteran's cab headed to Newton
Center. Droney, in turn, called the Newton Police
dispatcher, gave him a description of the bank robber, told
him to give this information to the Newton Police and to tell
them that the robber was in a red Veteran's taxicab heading
down Highland Avenue in Needham towards Newton.
Newton Police Officer David Richard was sitting in
his cruiser on Center Street in Newton, which is a
continuation of Highland Avenue, when the Newton Police
broadcast the robbery information. Immediately after hearing
the broadcast, Richard saw and stopped the taxi. The robber
was found on the rear floor of the taxi on top of his beret,
which contained the money stolen from the bank. The Needham
Police subsequently arrived with witnesses to the robbery who
unhesitatingly identified defendant as the bank robber. This
ends our recitation of the relevant facts.
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There is, however, a humorous episode that bears
re-telling. During the time that the information about the
bank robber travelling in a Veteran's cab to Newton Center
was being broadcast, another Veteran's cab was travelling
from Needham Junction to Needham Heights. It was carrying as
passengers two Amtrak engineers. As the cab approached a
traffic light intersection, the light turned yellow. The
driver, neverthe- less, proceeded through the intersection.
As he did so, one of the passengers informed him that a
police cruiser with its blue lights flashing was following
them. The driver pulled the cab over to the side of the
road. The cruiser came alongside and police officers jumped
out with weapons drawn. The driver got out of his cab with
his hands raised and said, "I'll never go through a red light
again."
DISCUSSION
DISCUSSION
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There is no need to tarry long on the analysis
required. It is familiar terrain.
The constitutionality of the officers'
stop and search must be evaluated
according to the now familiar two-prong
test articulated by the Supreme Court in
Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868,
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20 L.Ed.2d 889. Determining that the
Fourth Amendment regulates but does not
prohibit temporary detentions that fall
short of a full-scale arrest, the Court
in Terry held that such encounters must
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be justified by reasonable suspicion
proportional to the degree of intrusion.
Thus, in reviewing the reasonableness of
a Terry stop, the court must first
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consider whether the officer's action was
justified at its inception; and, second,
whether the action taken was reasonably
related in scope to the circumstances
which justified the interference in the
first place. United States v. Sharpe,
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470 U.S. 675, 682, 105 S.Ct. 1568, 1573,
94 L.Ed.2d 605 (1985) (quoting Terry, 392
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U.S. 1, 20, 88 S.Ct. 1868, 1879, 20
L.Ed.2d 889). The circumstances "are not
to be dissected and viewed singly; rather
they must be considered as a whole."
United States v. Trullo, 809 F.2d 108,
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111 (1st Cir.), cert. denied, 482 U.S.
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916, 107 S.Ct. 3191, 196 L.Ed.2d 679
(1987).
United States v. Stanley, 915 F.2d 54, 55 (1st Cir. 1990).
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Defendant's argument boils down to this:
Because the Needham police officer who
issued the radio bulletin lacked a
reasonable suspicion concerning the
taxicab stopped in Newton, and because
Officer Richard had insufficient
information to justify stopping the taxi,
the District Court erred when it denied
the motion to suppress.
Defendant's Brief at 14. The facts establish the contrary.
The Needham police officer who issued the radio bulletin had
been given a description of the bank robber by a fellow
police officer. This officer had obtained the description
from eye witnesses to the robbery. The same officer
(Douglas) determined that this description matched that of
the man who had used the clerk in Robert's Bakery (the mother
of the proprietor) to obtain a taxi. It did not take a
Sherlock Holmes to deduce that the bank robber and the man
who requested the taxi were one and the same. It was more
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than a reasonable suspicion; it was a perfectly logical
deduction. The bank robber had told the woman who made the
taxi call for him that his destination was Newton Center.
This information was also given to the Needham police
dispatcher who passed it along to the Newton Police. The
Newton Police Officer who saw and stopped the taxi containing
the robber had been informed that the robber was in a red
Veteran's taxicab which was proceeding to Newton Center from
Needham. The cab he stopped and searched was of the type
described, and was proceeding from Needham to Newton Center.
On the basis of the information he had, his duty was clear:
stop the cab and check its passenger. No amount of forensic
skill can erase the clear reasonable suspicion that resulted
in the stop and search of the taxi in which defendant hoped
to make his getaway.
Although the facts of this case are unique, the
application of the law to the facts dictate that the judgment
below be
Affirmed.
Affirmed.
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Document Info
Docket Number： 93-1191
Filed Date： 3/28/1994
Precedential Status： Precedential
Modified Date： 9/21/2015