U.S. v. Holloway ( 1992 )

UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
______________________________
No. 91-8044
______________________________
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
versus
MICHAEL ANTHONY HOLLOWAY,
Defendant-Appellee.
___________________________________________________
Appeal from the United States District Court
for the Western District of Texas
___________________________________________________
(May 27, 1992)
Before DAVIS, JONES, and EMILIO M. GARZA, Circuit Judges.
EMILIO M. GARZA, Circuit Judge:
This case is an appeal of a district court order suppressing
cocaine found concealed in the undergarments of Michael Anthony
Holloway. Cocaine was seized when, acting on information
supplied by a reliable confidential informant, officers in an
unmarked vehicle pulled out in front of Holloway and forced him
to stop his vehicle. Holloway reversed, accelerated, and backed
into an unmarked police unit moving up behind him, damaging both
vehicles beyond repair. Officers then arrested Holloway and
found crack cocaine in a plastic bag tucked inside his underwear.
Prior to trial, Holloway moved to suppress this evidence on the
grounds that it was the finding of an illegal search. Following
a hearing, the district court granted Holloway's motion to
suppress. The government appeals. Finding that the search of
Holloway's person which revealed crack cocaine was incident to a
lawful arrest, we reverse the district court's order suppressing
the evidence and remand this case for trial.
I
The government's case rests in large part on the information
relayed to officers Staha and Thompson on August 21, 1989 from a
confidential informant--information officer Staha testified to at
trial:
A The confidential informant told us about a subject
that was selling "Crack" cocaine in the Rosewood
Projects [in Austin, Texas] and . . . [the] informant
told us his name, which was "Mike" Holloway; the car he
was driving, which was a Chrysler New Yorker; and told
us where we could find the vehicle, which was in the
Rosewood Projects.
Q Okay. Did he tell you anything about . . .
Holloway's possession of cocaine?
A Yes, sir. He told us that he was selling "Crack"
cocaine in the projects and he was in possession of
"Crack" cocaine, and he usually kept his "Crack"
cocaine in his underwear.
Q Had this confidential informant provided
information to you in the past?
A Yes, he has.
Q Was it regarding individuals who possessed and
sold "Crack" cocaine?
A That's correct.
Q And had that information then led to the arrest
and subsequent prosecutions of those people?
A Yes, sir.
Q All right. Did you know the person that was
identified to you as--or had been named to you as
Holloway?
A I'd known him when I used to work the
streets . . . in uniform. I knew Michael from an
establishment called Martin's Drive-in.
Q All right. What did you know about Holloway?
A Personal knowledge, from informants and other
sources of information, I knew he was a drug dealer out
in east Austin area.
Q Okay. Besides the confidential informant that you
first told the Court about, did other confidential
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2
informants give you information about Holloway being a
drug dealer?
A Yes, sir.
Q All right. And did you have information that
Holloway had recently--at least at the time that you
were on the streets out there in August--recently
gotten out of the penitentiary for selling narcotics?
A Yes.
Q Did the other officer and officers that were with
you working that day, were they also aware of Mr.
Holloway's prior drug dealing propensities?
A Oh, yes, sir.
Q All right. And did y'all talk about this?
A Holloway was--when we target an individual,
Holloway was a person that we had targeted in the past.
We never was able to make a case on him, but pretty
much the whole Repeat Offenders Program office knew
about Michael Holloway . . . .1
Acting within hours of receiving this information, officers
Staha and Thompson who were in an unmarked police unit arranged
for a marked unit to stop and investigate Holloway's Chrysler New
Yorker. Expecting that the investigation would turn up
narcotics, they also arranged for additional support and,
accordingly, they were soon joined by officers Clark and Duty--
two additional plainclothes officers in another unmarked unit.
At approximately 4:45 on a August 21, 1989, while waiting
for the marked unit, officers Staha and Thompson observed
Holloway and another individual get into a Chrysler New Yorker.
The vehicle pulled away from the curb and started to leave.
Deciding they had to act, Staha and Thompson drove their vehicle
into the street and blocked Holloway's direction of travel. The
1
Record on Appeal, vol. 3, at 4-6, United States v.
Michael Anthony Holloway, No. 91-8044 (5th Cir. filed Apr. 11,
1991) ["Record on Appeal"].
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officers then got out of the vehicle and--their guns drawn and
Staha displaying his badge--yelled "Police, police, police."
Holloway came to a momentary stop ten to fifteen feet in
front of the officers. Unaware that the unit occupied by
officers Duty and Clark was pulling up behind him, Holloway then
reversed his vehicle, accelerated, and rammed into the unit
occupied by Clark and Duty with enough force to damage both
vehicles beyond repair. The officers then helped Holloway out of
his vehicle, frisked him, and found a bag containing seven rocks
of crack cocaine concealed in his underwear.
A grand jury indicted Holloway for possessing more than 5
grams of cocaine base with intent to distribute--a violation of
21 U.S.C. § 841(a)(1). Holloway moved to suppress the plastic
bag containing crack cocaine as the product of an illegal search,
and, after a hearing during which testimony was taken and
exhibits were introduced, the district court granted that motion
suppressing the evidence. The government appeals.
II
The issues the government brings before us require us to
make two determinations: (a) when Holloway was "seized" for
Fourth Amendment purposes2 and, (b) whether, at the time of that
2
A seizure may constitute an arrest or merely an
investigatory detention, and there is no bright-line rule to
distinguish one from the other. We have held that such a
determination depends upon the "reasonableness" of the intrusion
in light of all the facts. See United States v. Martinez, 808
F.2d 1050, 1053 (5th Cir.), cert. denied, 481 U.S. 1032 (1987),
describing United States v. Sharpe, 470 U.S. 675, 105 S. Ct. 1568
(1985) (holding that--where officer drew his gun, ordered driver
out of truck, patted him down for weapons, and detained him for
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seizure, officers had the requisite reasonable suspicion to
initiate an investigatory detention of Holloway or probable cause
to arrest him.
Precisely when an arrest takes place is generally a question
of fact,3 and this court accepts a district court's purely
factual findings unless clearly erroneous.4 However, in
reviewing a district court's ruling on a motion to suppress based
on live testimony at a suppression hearing, we do not readily
accept a district court's factual findings if they are influenced
by an incorrect view of law. See United States v. Gallo, 927
fifteen minutes until DEA agent arrived, and suspect's vehicle
was then searched by DEA agent--detention was an investigative
stop that required only reasonable suspicion of criminal
activity); see also United States v. Watson, No. 91-3313, slip
op. at 2586 n. 1 (5th Cir. Jan. 31, 1992) (describing how, in
determining when a "seizure" has occurred, police-citizen contact
can be broken down into three tiers); United States v. Zukas, 843
F.2d 179, 181-82 (5th Cir. 1988) (describing three tiers of
citizen-police contact for purposes of Fourth Amendment
analysis), cert. denied, 490 U.S. 1019, 109 S. Ct. 1742 (1989).
Therefore, our determinations will vary from case to case,
depending on the facts presented. See Sibron v. New York, 392
U.S. 40, 59, 88 S. Ct. 1889, 1901 (1968) ("The constitutional
validity of a warrantless search is pre-eminently the sort of
question which can only be decided in the concrete factual
context of the individual case.").
3
See INS v. Delgado, 466 U.S. 210, 216-17, 104 S. Ct.
1758, 1762-63 (1984) (holding that one must look to circumstances
of encounter to determine whether detention under Fourth
Amendment took place); Florida v. Royer, 460 U.S. 491, 500, 103
S. Ct. 1319, 1325 (1983) ("The scope of the intrusion permitted
will vary to some extent with the particular facts and
circumstances of each case."); United States v. Worthington, 544
F.2d 1275, 1279 (5th Cir.), cert. denied, 434 U.S. 817 (1977).
4
See Anderson v. Bessemer City, 470 U.S. 564, 573-74,
105 S. Ct. 1504, 1511-12 (1985); United States v. Kohler, 836
F.2d 885, 888 (5th Cir. 1988); United States v. Fores, 816 F.2d
1006, 1010 (5th Cir. 1987).
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F.2d 815, 819 (5th Cir. 1991) ("In reviewing the district court's
ruling on a motion to suppress based on live testimony at a
suppression hearing, we must accept the district court's factual
findings unless they are clearly erroneous or influenced by an
incorrect view of the law.") (emphasis added); United States v.
Muniz-Melchor, 894 F.2d 1430, 1433-34 (5th Cir. 1990) (holding
that "the trial court's purely factual findings must be accepted
unless clearly erroneous, or influenced by an incorrect view of
the law, and the evidence must be viewed most favorable to the
party prevailing below . . . ."), cert. denied, 110 S. Ct. 1957
(1990), quoting United States v. Maldonado, 735 F.2d 809, 814
(5th Cir. 1984).
The government has no quarrel with the district court's
factual findings in this case and challenges the district court's
determination that the officers did not have probable cause to
conduct a warrantless search and arrest of Holloway--a mixed
question of law and fact5--on the grounds that the district
court's determination was influenced by an incorrect view of law.
Id. ("Accepting [the district court's] facts, however, the
ultimate determination as to probable cause for a warrantless
search seems to be a question of law for this Court to decide.");
United States v. Basey, 816 F.2d 980, 988 (5th Cir. 1987) ("The
ultimate determination of reasonableness in investigatory stop
cases is, however, a conclusion of law."). Accordingly, the
5
Muniz-Melchor, 894 F.2d at 1439 n.9 ("The determination
whether law enforcement officers had probable cause to conduct a
warrantless search involves a mixed question of law and fact.").
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government's appeal is limited to pure questions of law and the
legal element of a mixed question of law and fact--questions this
court may freely review. See Muniz-Melchor, 894 F.2d at 1439 n.
9; Basey, 816 F.2d at 988.
A
The district court found that:
This was not an investigatory stop as the Government
insists, because, as Officer Howard Staha testified,
the officers' intent at all times was to arrest the
Defendant. As Staha testified, the Austin officers had
a strong desire to arrest Holloway for a long time.
Upon receiving the information from the confidential
informant, they immediately moved to arrest Holloway;
not to obtain a warrant; not to investigate, but to
arrest. Holloway's actions after he was accosted by
the officers is, unfortunately, irrelevant.6
The government challenges this determination, asserting that the
officers' intention was to stop Holloway so as to either dispel
their reasonable suspicion or, should their suspicion prove valid
enough to establish probable cause, arrest him. The government
asserts that the officers never had an opportunity to dispel
their suspicion and that they seized Holloway only after he
attempted to escape--a time when the officers allegedly had
probable cause to arrest him.7
Our determination of when Holloway was seized for Fourth
Amendment purposes is guided by a series of recent Supreme Court
6
Record Excerpts for the United States of America at tab
14, pp. 3-4, United States v. Michael Anthony Holloway, No. 91-
8044 (5th Cir. filed June 7, 1991) (Order Granting Defendant's
Motion to Suppress) (emphasis added) ["Record Excerpts"].
7
See infra Part II.B, which establishes that reasonable
suspicion is the prerequisite for a valid investigatory stop
while probable cause is required for a valid arrest.
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decisions culminating in California v. Hodari D., __ U.S. __, 111
S. Ct. 1547 (1991).8 The facts in Hodari D. are somewhat
analogous to those now before us: upon a showing of authority by
police officers, Hodari D., a juvenile, attempted to flee and was
pursued. Ultimately, Hodari D. was tackled by a police officer,
but not until after he had discarded a small rock--a rock which
the officers retrieved and determined to be crack cocaine. The
Court held that Hodari was not seized until tackled and that the
cocaine he abandoned while fleeing--prior to his seizure--was not
the fruit of an illegal seizure. __ U.S. at __, 111 S. Ct. at
1551. Specifically, the Court held that "[a]n arrest requires
either physical force . . . or, where that is absent, submission
to the assertion of authority." Id. (emphasis in original).
Officers Staha and Thompson did carry out a proper show of
authority9--a show of authority to which Holloway ultimately
8
We note that the district court issued its opinion on
July 9, 1990 and entered an order denying the government's motion
for reconsideration of its order to suppress the cocaine on
December 7, 1990. Since Hodari D. was not decided by the Supreme
Court until April 23, 1991, the district court did not have the
benefit of its guidance in ruling on these motions. Hodari D.'s
predecessors include Alabama v. White, 496 U.S. 325, __, 110 S.
Ct. 2412, 2415-17 (1990) (defining and distinguishing the
government's burdens regarding reasonable suspicion and probable
cause); Brower v. Inyo County, 489 U.S. 593, 596, 109 S. Ct.
1378, 1381-83 (1989) (where a suspect was caught when stolen car
he was driving at high speeds to elude pursuing police crashed
into police roadblock, holding there was not a "stop" until the
suspect crashed into a blockade); United States v. Sokolow, 490
U.S. 1, 9, 109 S. Ct. 1581, 1586 (1989) (holding that factors
that ordinarily constitute innocent behavior may provide a
composite picture sufficient to raise reasonable suspicion).
9
See Brower v. County of Inyo, 489 U.S. 593, 596, 109 S.
Ct. 1378, 1381 (1989). In Brower, police cars with flashing
lights chased decedent for 20 miles before he fatally crashed
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refused to submit. The question before us is, therefore,
narrowed to determining whether Holloway was subjected to
physical force prior to his attempted escape.10 According to
Holloway, Hodari D. does not require physical touching to affect
an "application of physical force with lawful authority to
restrain movement"11 and, therefore, blocking Holloway's path of
direction constituted such an application of physical force.
into a police-erected blockade. The issue before the Court was
whether this person's death was the consequence of an
unreasonable seizure. The Court, finding that the officers' show
of authority did not result in a seizure since the show of
authority did not stop decedent, held that:
a Fourth Amendment seizure does not occur whenever
there is a governmentally caused termination of an
individual's freedom of movement (the innocent
passerby), nor even whenever there is a governmentally
caused and governmentally desired termination of an
individual's freedom of movement (the fleeing felon),
but only when there is a governmental termination of
freedom of movement through means intentionally
applied.
Id. at 596-97, 109 S. Ct. at 1381 (emphasis in original).
Applying Brower, the Court later held that "the 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." Hodari
D., __ U.S. at __, 111 S. Ct. at 1551. In the case before us,
officer Staha displayed his badge and both officer Staha and
officer Thompson verbally identified themselves as police when
Holloway was no more than fifteen feet away and facing them.
Accordingly, we find that this constitutes a proper show of
authority.
10
Specifically, for incidents where a suspect refuses to
submit to an assertion of authority or no such assertion is made,
Hodari D. defines the term "seizure" as "a laying on of hands or
application of physical force to restrain movement, even when it
is ultimately unsuccessful." __ U.S. at __, 111 S. Ct. at 1550.
11
Appellee's Brief in Response at 8, United States v.
Michael Anthony Holloway, No. 91-8044 (5th Cir. filed Aug. 22,
1991). We are not persuaded, however, that Hodari D necessarily
applies to an investigatory stop.
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9
Hodari D. is not explicit as to whether touching is an essential
element of "application of physical force," but we have found no
post-Hodari D. cases supporting Holloway's proposition that
touching is not required.12 To the contrary, the emphasis on
touching within Hodari D.'s analysis suggests that the Court may
have assumed touching to be an element of "application of
physical force." Hodari D., __ U.S. at __, 111 S. Ct. at 1550
("If, for example [the officer] had laid his hands upon Hodari to
arrest him, but Hodari had broken away and had then cast away the
cocaine, it would hardly be realistic to say that disclosure had
been made during the course of an arrest.") (emphasis in
original).13 Applying the Court's Hodari D. analysis to
12
Holloway cites Terry v. Ohio, 392 U.S. 1, 19 n.16, 88
S. Ct. 1868, 1879 n.16 (1968), in support of this proposition.
This Terry footnote does not define "physical force" and, in
fact, Terry involved touching: "Officer McFadden `seized'
petitioner and subjected him to a `search' when he took hold of
him and patted down the outer surfaces of his clothing." Id. at
21, 88 S. Ct. at 1879.
13
In Hodari D., the Court also held that:
To constitute an arrest, however--the quintessential
`seizure of the person' under our Fourth Amendment
jurisprudence--the mere grasping or application of
physical force with lawful authority, whether or not it
succeeded in subduing the arrestee, was
sufficient. . . . As one commentator has described it:
"There can be constructive detention, which
will constitute an arrest, although the party
is never actually brought within the physical
control of the party making an arrest. This
is accomplished by merely touching, however
slightly, the body of the accused, by the
party making the arrest and for that purpose,
although he does not succeed in stopping or
holding him even for an instant; as where the
bailiff had tried to arrest one who fought
him off by the fork, the court said, `If the
bailiff had touched him, that had been an
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10
Holloway, Staha and Thompson never laid their hands upon
Holloway--they never even came within fifteen feet of Holloway's
person until after he attempted to flee and damaged his vehicle
beyond repair14--and, in fact, Holloway was able to break away
from officers Staha and Thompson and travel far enough to pick up
enough speed to irreparably damage both his vehicle and the one
occupied by officers Duty and Clark. Only then was Holloway's
movement restrained--meaning under the officers' control.
This court has held that:
arrest. . . .'" A. CORNELIUS, SEARCH AND SEIZURE
163-164 (2d ed. 1930) (footnote omitted)
Id. (citations omitted) (emphasis added).
This Hodari D. holding appears determinative for our
purposes. The only obvious distinction between the Hodari D.
facts and those in Holloway is that, while attempting to back
away from officers Staha and Thompson, another police vehicle
moved up from behind Holloway, thereby boxing him in and giving
Holloway a lesser opportunity to escape than that enjoyed by
Hodari D. However, Holloway was still not under the officers'
control--an observation evidenced by the fact that Holloway was
able to slam into the unit behind him, travelling far enough to
pick up enough speed to damage both vehicles beyond repair. In
fact, Holloway hit with enough force to buckle the driver's seat
he occupied. A photograph of the totalled vehicles, entered into
evidence as "Government Exhibit G-2," reveals that the entire
trunk of Holloway's vehicle is virtually resting on the ground.
14
Officer Staha testified as follows:
Q So then when you say you were--"you were 10 feet
away," you were 10 feet away from the bumper?
A In front of the bumper, right.
Q All right. So it was actually maybe 15 or 17 feet
to actually where the Defendant was sitting, is that
correct?
A Approximately.
* * *
Q All right. So the windows, then, were all the way
up on this vehicle, and you were maybe 15 feet away
from the driver, and your partner was maybe just a
little--
A About the same.
Record on Appeal, vol. 3, at 25 (testimony of officer Staha)
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11
The line between a valid investigatory stop and an
arrest requiring probable cause is a fine one. United
States v. Hanson, 801 F.2d 757 (5th Cir. 1986).
Although there is no litmus test for making this
determination, an investigation detention must last no
longer than is necessary to effect the purposes of the
stop and should employ the least intrusive means
reasonably available to verify or dispel the officer's
suspicion in a short period of time. Florida v. Royer,
460 U.S. 491, 500, 103 S. Ct. 1319, 1325, 75 L. Ed. 2d
229 (1983). See also United States v. Sharpe, 470 U.S.
675, 105 S. Ct. 1568, 84 L. Ed. 2d 605 (1985).
United States v. Zukas, 843 F.2d 179, 182 (5th Cir. 1988), cert.
denied, 490 U.S. 1019, 109 S. Ct. 1742.15 Applying this holding
to Holloway, officers Staha and Thompson had reason to suspect
that Holloway was carrying drugs,16 and they acted to stop him
from driving away before they had an opportunity to dispel their
suspicion. The officers did block Holloway's path of travel and
bring him to a complete stop which lasted long enough for them to
fully and directly confront Holloway and identify themselves, and
15
The Zukas facts at least loosely parallel those now
before us. Officers observed their suspects and, when it became
apparent that the suspects were making final flight preparations,
the officers parked their car in front of the suspects' plane so
as to block its access to the runway. The officers then
approached the pilot and asked for identification and
registration papers which they retained and, after questioning
the suspects further, the officers then obtained consent to
search the plane and found a bag containing cocaine. Id. at 181.
We held that:
Although both sides agree that the search was
voluntary, it cannot be justified if the preceding
level of intrusion made the seizure a de facto arrest
before the consent was given, as Zukas argues was the
case. We hold, however, that, based upon the totality
of the circumstances, the level of intrusion prior to
the consent search was no more than was necessary to
dispel the officers' legitimate suspicions.
Id. at 183.
16
See supra note 1; see generally infra Part II.B.
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long enough for officers Clark and Duty to approach Holloway from
behind, thereby limiting Holloway's mobility.17 However, the
initial stop by Staha and Thompson was extremely brief and never
approached being intrusive since, rather than allowing the
officers to conduct their investigation, Holloway decided to
flee.
Finally, in accepting Holloway's contention that "assertion
of physical force" includes officers Thompson and Staha blocking
his path of travel, the district court was apparently influenced
by its own determination that the officers had the subjective
intent to arrest Holloway.18 The law on this point is well-
settled: courts are precluded from giving weight to the
subjective intent of the police officers.19
17
These facts somewhat distinguish Holloway from Hodari
D., __ U.S. __, 111 S. Ct. 1547 (1991). Specifically, Hodari D.
was one of a pack of youths who fled as he saw an officer's car
approaching. Accordingly, the Court held that Hodari D. was not
seized for Fourth Amendment purposes until tackled by the officer
pursuing him. Id. at __, 111 S. Ct. at 1552.
18
See supra note 6 and accompanying text.
19
For example, in United States v. Robinson, 414 U.S.
218, 94 S. Ct. 467 (1973), the defendant challenged his search on
the ground that the officers' motivation for the search did not
coincide with the officers' legal justification for carrying it
out. The Supreme Court rejected defendant's argument and held
that the courts must examine challenged searches under a standard
of objective reasonableness without regard to the underlying
intent or motivation of the officers involved. Id. at 235, 94 S.
Ct. at 477; see also Maryland v. Macon, 472 U.S. 463, 470-71, 105
S. Ct. 2778, 2782-83 (1985); United States v. Villamonte-Marquez,
462 U.S. 579, 584 n.3, 103 S. Ct. 2573, 2577 n.3 (1983); Scott v.
United States, 436 U.S. 128, 138, 98 S. Ct. 1717, 1723 (1978);
United States v. Zukas, 843 F.2d 179, 183 (5th Cir. 1988)
("[officer's] subjective intent is not important in determining
whether an arrest was made"), cert. denied, 490 U.S. 1019, 109 S.
Ct. 1742; United States v. Causey, 834 F.2d 1179, 1184 (5th Cir.
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In sum, we find that, (i) since Holloway was in the process
of driving away, stopping Holloway was the least intrusive means
available for officers Thompson and Staha to dispel their
suspicion (see Zukas, 843 F.2d at 183), (ii) Holloway was fully
stopped and confronted by officers Thompson and Staha but failed
to submitted to their initial show of authority, (iii) Holloway
was never under the officers' physical control even though his
mobility was limited by officers closing in on him, and (iv) that
this stop--an effort by officers Staha and Thompson to search
Holloway for drugs to dispel their suspicion--was, due to
Holloway's attempted escape, extremely brief and nonintrusive.
Accordingly, we hold that the initial stop of Holloway by
officers Staha and Thompson was not a de facto arrest20 and,
applying the Supreme Court's holding in Hodari D., we further
1987) (en banc) ("[S]o long as police do no more than they are
objectively authorized and legally permitted to do, their motives
in doing so are irrelevant and hence not subject to inquiry.")
(footnote omitted).
20
In a situation where an officer's suspicion was
supported only by a receipt indicating that the suspect had
purchased chemicals known to be used in the manufacture of
controlled substances, this court held:
Agent Harr's suspicions were aroused for the first time at
the offices of Aldrich and as the two were driving off.
Because he did not know their names or where they were
heading, the stop on the highway was a reasonable means of
confirming or dispelling his suspicions. The method of the
stop--blocking the Oldsmobile, ordering the occupants out of
the car, and patting them down for weapons--is a reasonable
means of effecting the stop and ensuring the safety of the
officers and does not convert the stop into a de facto
arrest.
United States v. Martinez, 808 F.2d 1050, 1053 (5th Cir. 1987)
(footnote omitted); see also supra note 2.
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hold that Holloway was not arrested until after he attempted to
flee and ended up under the officers' physical control.
B
Having applied Hodari D. to the facts before us and
determined that the initial contact between Holloway and officers
Staha and Thompson does not constitute an arrest but, rather,
constitutes an effort by these officers to investigate their
suspicion that Holloway was carrying drugs, we now must consider
whether the officers had the requisite reasonable suspicion to
initiate that detention.21 "The ultimate determination of
reasonableness in investigatory stop cases is . . . a conclusion
of law." United States v. Basey, 816 F.2d 980, 988 (5th Cir.
1987). Therefore, this court may freely review such district
court conclusions.
This court has defined an investigatory stop as "a brief
seizure that must be supported by reasonable suspicion, that
is[,] `specific and articulable facts, which taken together with
rational inferences from these facts reasonably warrant an
intrusion.'" United States v. Zukas, 843 F.2d 179, 181 (5th Cir.
1988), cert. denied, 490 U.S. 1019, 109 S. Ct. 1742 (1989),
quoting Terry, 392 U.S. at 21, 88 S. Ct. at 1880 (1968). The
Supreme Court has been even more specific:
The officer, of course, must be able to articulate
something more than an "inchoate and unparticularized
21
Under Terry and its progeny, a temporary investigatory
stop is proper if the stop is based on reasonable suspicion "that
criminal activity may be afoot . . . ." 392 U.S. at 30, 88 S.
Ct. at 1884.
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suspicion or `hunch'." The Fourth Amendment requires
"some minimal level of objective justification" for
making the stop. That level of suspicion is
considerably less than proof of wrongdoing by a
preponderance of the evidence. We have held that
probable cause means "a fair probability that
contraband or evidence of a crime will be found," and
the level of suspicion required for a Terry stop is
obviously less demanding than that for probable cause.
United States v. Sokolow, 490 U.S. 1, 7, 109 S. Ct. 1581, 1585
(1989) (citations omitted).
To determine whether officers Staha and Thompson had
reasonable suspicion to stop Holloway, we must consider the
"totality of the circumstances," meaning that "[b]oth factors--
quantity and quality [of information relied upon]--are considered
in the `totality of the circumstances--the whole picture,' United
States v. Cortez, 449 U.S. 411, 417, 101 S. Ct. 690, 695 (1981),
that must be taken into account when evaluating whether there is
reasonable suspicion." Alabama v. White, 496 U.S. 325, __, 110
S. Ct. 2412, 2416 (1990). Factors that ordinarily constitute
innocent behavior may provide a composite picture sufficient to
raise reasonable suspicion in the minds of experienced22 officers
such as Staha and Thompson. See Sokolow, 490 U.S. at 9, 109 S.
22
We must consider the collective knowledge and
experience of the officers involved--that is we must look at "the
sum total of layers of information and the synthesis of what the
police have heard, what they know, and what they observed as
trained officers. We weigh not the individual layers but the
`laminated' total." United States v. Edwards, 577 F.2d 883, 895
(5th Cir.), cert. denied, 439 U.S. 968, 99 S. Ct. 458 (1978)
(citation omitted); see also United States v. Gerry, 845 F.2d 34,
37 (1st Cir. 1988).
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Ct. at 1586-87 (1989).23 Moreover, "[t]he reasonableness of the
officer's decision to stop a suspect does not turn on the
availability of less intrusive investigatory techniques." Id. at
11, 109 S. Ct. at 1587.24
The totality of information available to officers Staha and
Thompson justifies their reasonable suspicion that Holloway was
involved in criminal activity:
-- A reliable informant--that is, an informant who had
provided reliable information to officers in the past
regarding individuals who possessed and sold crack
cocaine--stated that Holloway was a crack dealer;25
-- The informant described Holloway's possession of
cocaine as part of an ongoing activity (specifically,
the informant told the officers that Holloway often
sold crack cocaine at the corner of Rosewood and
Poquito Streets), and stated that he had just been with
Holloway and seen him in possession of and selling
crack cocaine;26
23
For example, a tip from a confidential informant which
is sufficiently corroborated, as is true in Holloway, may furnish
the requisite reasonable suspicion to make and investigative
stop. See United States v. Rodriquez, 835 F.2d 1090, 1092 (5th
Cir. 1988); United States v. Gomez, 776 F.2d 542, 546-48 (5th
Cir. 1985).
24
The defendant in Sokolow was stopped as he was about to
get into a cab and later asserted that, rather than forcibly
detaining him, agents should have opted for the "least intrusive
means reasonably available to dispel their suspicion" and simply
approached and spoken with him. The Court disagreed, holding
that "[s]uch a rule would unduly hamper the police's ability to
make swift on-the-spot decisions . . ." Id. This is especially
true in a situation such as that in Holloway where the defendant
was actually in a vehicle and in the process of driving away.
25
See supra note 1 and accompanying text.
26
Id.; see also Record on Appeal, vol. 3, at 13-20
(testimony of officer Staha):
Q . . . . [The confidential informant] was debriefed
on the street. And at that time, he indicated to you
that he had seen the Defendant in possession of "Crack"
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-- The informant's credibility was enhanced by his
ability to provide supportive details: he told
officers (i) exactly where Holloway could be found,
(ii) the color, style, and license plate number of the
car Holloway would be driving, and (iii) exactly where
on Holloway's person cocaine was hidden;27
-- Officer Staha confirmed the informant's information
through personal knowledge--information collected from
other informants and sources--gained while working the
streets as a uniformed officer;28 and
cocaine a time before -- a brief time before that, is
that correct?
A Yeah, just moments before we went to the area.
Q All right. How long, an hour, a half hour?
* * *
Q . . . . Officer Thompson indicated that the
confidential informant reported the possession to take
place approximately a half hour before the debriefing?
A I can--I would agree with that.
* * *
Q [The informant] had seen him actually selling a
half hour before, is that correct?
A That's correct.
Q All right. And your debriefing took approximately
how long, Officer?
A Oh, 15 minutes.
Q And then after that debriefing, what did you do?
A We proceeded to the area with the informant, he
pointed out the car to us, and then as I recall, the
informant was released at the scene--
27
See supra note 1 and accompanying text.
28
Id.; see also Record on Appeal, vol. 3, at 11
(testimony of officer Staha):
Q So now, after you've seen this wreck, what's the
next thing that happens?
A Thompson and I approached the car, Thompson--the
seat buckled from the wreck. . . . There's no doubt
that Holloway knew who I was, knew I was a police
officer.
Q Now, why is there no doubt?
A Well, unfortunately when I worked east Austin, I
was titled with a nickname. . . . Besides saying my
last name, Staha, he said the nickname to me, too.
Q Tell the Judge, to the best of your memory, what
the Defendant said when he was taken out of the car.
A He said, "Staha, why are you always messing with
me?" And then he said--which is the nickname--he said,
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-- The officers knew that Holloway had recently been
released from the penitentiary after serving time on a
conviction involving possession of narcotics.29
In short, "[a]ny one of these factors is not by itself proof of
any illegal conduct . . . . [b]ut we think taken together they
amount to reasonable suspicion." Sokolow, 490 U.S. at 9, 109 S.
Ct. at 1586. Accordingly, we hold that the officers had
reasonable suspicion and that the investigatory stop of
Holloway's car was proper.30
Finally, we must consider whether, after his attempt to
escape, the officers had probable cause to arrest Holloway.
"Probable cause for an arrest exists when reasonably trustworthy
facts and circumstances are within the knowledge of the arresting
officers to warrant a reasonable belief that an offense has been
or is being committed." Costner, 646 F.2d at 236. To make such
a determination, this court must embark upon an objective
assessment of the officers' actions in light of the facts and
"`Fathead,' why you"--and he cursed at me--"why are you
always fuckin' with me?"
29
See supra note 1 and accompanying text.
30
In United States v. Costner, 646 F.2d 234 (5th Cir.
1981), we held:
The officers had been given descriptions of both robbers and
knew the license plate numbers of the getaway truck. The
license plate check directed the officers to Baldwin's
residence at which time a car was seen heading for Baldwin's
driveway. The officers decided to inquire into the
identities of the passengers since two of the occupants fit
the general physical descriptions of the robbers. These
factors were more than sufficient to create reasonable
suspicion in the minds of the officers to stop the Plymouth.
Id. at 236. Officers Staha and Thompson had at least this much
reason to suspect Holloway of criminal activity.
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19
circumstances confronting them at the time. See United States v.
Basey, 816 F.2d 980, 990-91 (5th Cir. 1987). We have held that,
where police officers clearly identify themselves, an attempt to
flee "ordinarily supplies another element to the reasonable
suspicion calculus" and "may occasionally serve as the catalyst
to convert mere reasonable suspicion to probable cause." United
States v. Amuny, 767 F.2d 1113, 1124 (5th Cir. 1985).31 Applying
these principles to the case before us, we find that Holloway's
attempt to escape from officers Staha and Thompson, irreparably
damaging his vehicle and a police unit in the process, was a
sufficient additional factor to push the officers' reasonable
suspicion over the threshold of probable cause. See Costner, 646
F.2d at 236.32
31
Specifically, in Amuny we held that:
If a police officer identifies himself while
approaching a suspect and the suspect flees, the
suspect's conduct suggests that he knowingly seeks to
evade questioning or capture. Such conduct ordinarily
supplies another element to the reasonable suspicion
calculus . . . but may occasionally serve as the
catalyst to convert mere reasonable suspicion to
probable cause.
Id. (but ultimately holding that defendant's flight from scene
was ambiguous conduct and insufficient to support finding of
probable cause); see also Sibron v. New York, 392 U.S. 40, 66-67,
88 S. Ct. 1889, 1904 (1968) ("[D]eliberately furtive actions and
flight at the approach of strangers or law officers are strong
indicia of mens rea, and when coupled with specific knowledge on
the part of the officer relating the suspect to the evidence of
crime, they are proper factors to be considered in the decision
to make an arrest.").
32
In fact, even without Holloway's attempt to escape, the
totality of information available to officers Staha and Thompson
may have constituted probable cause. See infra notes 25-29 and
accompanying text.
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III
Finding that Holloway's arrest was lawful, that the search
of his person revealing cocaine was incident to that lawful
arrest, and that the cocaine found concealed in Holloway's
undergarments should not be suppressed, we REVERSE the district
court's order suppressing that evidence and REMAND this case for
trial.
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