United States v. Raymond Thomas ( 2001 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 00-2563
___________
United States of America, *
*
Plaintiff/Appellee, * Appeal from the United States
* District Court for the
* Western District of Missouri
v. *
*
Raymond G. Thomas, *
*
Defendant/Appellant. *
Submitted: January 10, 2001
Filed: May 2, 2001
___________
Before RICHARD S. ARNOLD and BOWMAN, Circuit Judges, and KYLE, District
Judge.1
KYLE, District Judge.
Defendant/Appellant Raymond G. Thomas appeals from a final judgment entered
in the United States District Court for the Western District of Missouri pursuant to
Thomas's conditional guilty plea to armed bank robbery, in violation of 18 U.S.C.
§ 2113(a) and (d), and to the use of a firearm during a crime of violence, in violation
1
The Honorable Richard H. Kyle, United States District Judge for the
District of Minnesota, sitting by designation.
of 18 U.S.C. § 924(c). Thomas was sentenced to ninety-three months' imprisonment.
He appeals from the district court's2 denial of his motion to suppress evidence. We
affirm.
I.
On July 7, 1999, an off-duty Independence, Missouri, police officer, Michael
Barber, was in the drive-through lane of the United Consumers Credit Union when he
observed a person inside the bank going through the bank's money drawers, and two
female bank employees with their hands in the air. He then observed the person walk
over to the drive-through counter, take something out of money drawers located near
the drive-through, and exit the bank.
Officer Barber, using his cellular phone, called and advised the police dispatcher
that there was a robbery in progress. He then pulled his car around to the front of the
bank where he observed the person drive away on a white motorcycle. He followed
the motorcycle to what he knew to be an enclosed parking lot. Upon entering the
parking lot, Officer Barber lost sight of the motorcycle and approximately fifteen
seconds later saw a white van pull out of the area where he had last seen the
motorcycle and head towards the only exit in the lot. Based on his having knowledge
of the use of secondary vehicles in bank robberies, and having observed no other traffic
in the parking lot, Officer Barber advised dispatch that the suspect was now driving a
white van.
Based on the information Officer Barber gave the dispatcher, two on-duty police
2
The Honorable Fernando J. Gaitan, Jr., United States District Judge for
the Western District of Missouri, adopting the Report and Recommendation of the
Honorable John T. Maughmer, Chief United States Magistrate Judge, for the
Western District of Missouri.
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officers, Steven Warren and Scott McKee, pulled the van over and ordered the driver
out of the van by gunpoint. The driver exited the van and was ordered to the ground
by Officer Warren. Officer McKee then searched the inside of the van in order to
ensure that there were no other occupants in it. In that search, Officer McKee and
another officer, Brett Duncan, had to pull down a white sheet, located behind the front
seats, in order to see what was in the back of the van. The officers did not find any
occupants but did find a white and blue motorcycle, a ramp, a rain slicker, a
camouflage hunter's mask, a net, a Bearcat police scanner, a fanny pack, currency, and
a gun.
After Officer McKee informed Officer Warren that the van was “clear” of any
occupants, Officer Warren asked the suspect if he knew why he had been stopped, and
the suspect responded “Yeah, I just committed a robbery.”3 Officer McKee also
informed Officer Warren of what he had found in the van and Officer Warren placed
the suspect (later identified as Thomas) under arrest. After the arrest, Thomas told
Officer Warren that he had committed the robbery because of a medical condition.
Once Thomas was placed in the back of Officer McKee's squad car, Thomas asked
Officer McKee how they had “come on to him.” Officer McKee did not respond.
Detective Michael Johan arrived shortly after Thomas was placed under arrest.
The detective asked Thomas what his name was and Thomas replied that he went by
Greg, and that he had committed the robbery because of terrible headaches. Detective
Johan did not respond. Thomas also requested on the ride to the police station that the
detective inform the tellers that he was sorry. Detective Johan
responded that he had some pen and paper and Thomas could write the tellers a note
3
The parties dispute whether Officer Warren asked the question of Thomas
before Officer McKee had searched the van or following the search. The district
court found that the search of the van preceded the question by Officer Warren.
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of apology, but Thomas stated he would do it later.4
Thomas was not advised of his Miranda v. Arizona, 384 U.S. 436 (1966)
(hereinafter Miranda), rights until he arrived at the police station where Detective Johan
intended to ask him direct questions regarding the robbery. Thomas refused to sign a
form waiving his Miranda rights, and later invoked his rights.
Prior to trial, Thomas filed a motion to suppress his incriminating statements and
the physical evidence found in the van. Thomas argued before the magistrate judge that
the stop was unlawful, and that Thomas's statements and the physical evidence found
in the van were the fruit of the unlawful stop. The district court, adopting the
magistrate judge's Report and Recommendation, denied Thomas's motion.
II.
Thomas now argues that the district court erred in refusing to suppress his
statements because the statements were made while in custody and in response to
interrogation without a Miranda warning.5 Thomas further contends that his Miranda-
tainted statement provided the probable cause to search his van and, therefore, the
search was the fruit of the unlawful statement. It appears, however, that Thomas no
longer asserts that the stop was unlawful. We review the district court's factual findings
for clear error and its determinations of probable cause and reasonable suspicion de
novo. United States v. Beck, 140 F.3d 1129, 1133 (8th Cir. 1998).
4
In this appeal, Thomas does not dispute the use by the government of
these statements.
5
Although Thomas's counsel stated at the suppression hearing that Thomas
was only asserting the theory of an unlawful stop to suppress the evidence,
Thomas's counsel contends that it became clear at the hearing that Thomas was also
challenging the incriminating statements on the grounds that they were the result of
an unlawful custodial interrogation.
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The district court found that the stop of the van was lawful based on the
information received from the off-duty officer who had witnessed the robbery, and that
concern for officer safety justified the protective sweep of the van. The district court
did not address whether Thomas's statement in response to Officer Warren's question
“Do you know why you were stopped?” was the product of an unlawful custodial
interrogation, as the government indicated that it did not intend to use this statement in
its case-in-chief.
An investigatory, or Terry, stop without a warrant is valid only if police officers
have a reasonable and articulable suspicion that criminal activity may be afoot. Terry
v. Ohio, 392 U.S. 1, 21 (1968). During a Terry stop, officers can check for weapons
and may take any additional steps that are "reasonably necessary to protect their
personal safety and to maintain the status quo during the course of the stop." United
States v. Hensley, 469 U.S. 221, 232 (1985); see also United States v. Doffin, 791 F.2d
118, 120 (8th Cir. 1986). In deciding whether to conduct a Terry stop, an officer may
rely on information provided by other officers as well as any information known to the
team of officers conducting the investigation. See United States v. Robinson, 119 F.3d
663, 666-67 (8th Cir. 1997).
After reviewing the evidence, we find that the officers had sufficient reasonable
suspicion to stop Thomas. Reasonable suspicion “is a 'particularized and objective
basis' for suspecting the person stopped of criminal activity.” Ornelas v. United States,
517 U.S. 690, 696 (1996) (quoting United States v. Cortez, 449 U.S. 411, 417-18
(1981)). The officers were acting on information from an off-duty police officer who
had witnessed a robbery, followed the suspect to an enclosed parking lot, observed no
other activity in the lot, observed a white van leaving from the same part of the lot the
motorcycle entered, and, based on his familiarity with the practice of robbers using
secondary vehicles as part of their get-away, was reasonably certain that the suspect
had switched vehicles in the parking lot, and was driving a white van. The on-duty
officers, having located a white van with the vehicle of the off-duty officer following
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it, had sufficient reasonable suspicion that the driver of the van had just committed a
crime. Accordingly, the district court did not err in concluding that the stop was based
on reasonable suspicion.
III.
Once the officers stopped the van and had the driver detained, Officers McKee
and Duncan executed a search of the van for additional occupants. Thomas argues on
appeal that the search of the van followed the question by Officer Warren regarding
why Thomas had been stopped; thus, probable cause to search the van was dependent
on Thomas's answer. The district court, however, found that Officer Warren's question
to Thomas occurred after Officer McKee stated that the van was “clear,” and that the
search of the van was a lawful protective sweep for the officers' personal safety. We
review the district court's factual finding that Officer Warren's question came after the
protective sweep for clear error and its determination that the search of the van was a
lawful protective sweep de novo. Beck, 140 F.3d at 1133.
The district court's finding that Officer McKee's search of the van preceded
Officer Warren's question is supported by the record below. Officer Warren testified
at the suppression hearing that “after we had cleared the van to make sure there was
no other occupants in the van, . . . , I had holstered my gun, and I had just looked down
at the suspect, and I'd asked him, 'Do you know why you've been stopped.'” (T. 46.)
We conclude that this testimony is sufficient to support the district court's factual
finding.
Having found that Thomas's statement to Officer Warren occurred after the
search of the van, the district court concluded that the search of the van was a lawful
protective sweep. The court further found that concerns for the officers' personal safety
clearly justified the search of the van to confirm there was no one else inside the
vehicle. After stopping a suspect, officers may take such “additional steps as are
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'reasonably necessary to protect their personal safety and to maintain the status quo
during the course of the stop.'” Doffin, 791 F.2d at 120 (quoting Hensley, 469 U.S. at
236).
Based on the information provided by the off-duty officer, the officers had
reasonable suspicion to believe that Thomas had just committed an armed bank
robbery. In order to protect their safety while they stopped Thomas, the officers
needed to ensure that others would not be emerging from the van. Unlike the typical
vehicle, the officers could not see inside the van from the outside, making it necessary
to enter the van to determine if it contained additional occupants. In sweeping the van
it became necessary to push aside a sheet hanging behind the driver and front passenger
van seats. The area hidden by the sheet was large enough to hide other occupants in
the van. Upon moving the sheet, the officers did not find a person but observed instead
a blue and white motorcycle and additional evidence from the bank robbery.
We agree with the district court that the search of the van was reasonably
necessary for the officers' personal safety in conducting the stop because other
occupants in the van could pose a significant danger to the officers. Thus, having
lawfully been in the van searching for occupants, the items that were in plain view of
the officers could be seized as evidence without a warrant.6 See United States v.
Hughes, 940 F.2d 1125, 1126-27 (8th Cir. 1991).
For these reasons, we affirm the district court's denial of Thomas's motion to
suppress.
6
Thomas also challenges the use of his statement, “Yeah, I just committed
a robbery,” on the grounds that it was a custodial interrogation without first being
advised of his Miranda rights. The government, however, responded at the
suppression hearing that it did not intend to use Thomas's statement in its case-in-
chief. The district court, therefore, did not reach the merits of Thomas's claim. We,
likewise, need not reach the merits of this claim.
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A true copy.
ATTEST:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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