United States v. Muadhdhin Bey

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 17-2945
_____________
UNITED STATES OF AMERICA
v.
MUADHDHIN BEY,
Appellant
_
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D. C. Criminal No. 2-16-CR-00290-001)
District Judge: Honorable Wendy Beetlestone
_
Argued on July 19, 2018
Before: McKEE, VANASKIE, and RESTREPO, Circuit
Judges
(Opinion filed: December 21, 2018)
Brett G. Sweitzer, Esquire (Argued)
Kathleen Gaughan, Esquire
Federal Community Defender Office for the Eastern District
of Pennsylvania
601 Walnut Street
The Curtis Center, Suite 540 West
Philadelphia, PA 19106
Counsel for Appellant
Robert A. Zauzmer, Esquire (Argued)
Jonathan B. Ortiz, Esquire
Office of the United States Attorney
615 Chestnut Street
Suite 1250
Philadelphia, PA 19106
Counsel for Appellee
_
OPINION OF THE COURT
_
McKEE, Circuit Judge
Muadhdhin Bey appeals the district court’s denial of his
motion to suppress physical evidence seized from him during
a search incident to a Terry stop. Although we agree with the
district court’s conclusion that the initial stop was supported by
reasonable suspicion, we conclude that the continuation of that
stop, after police should have realized that Bey did not
resemble the fleeing suspect they were looking for, violated the
Fourth Amendment. Accordingly, we hold that the district
court erred in denying Bey’s motion to suppress. We will
therefore reverse the court’s denial of Bey’s motion to suppress
and vacate the judgment of conviction.
I.
A. Factual Background
Police Stop a Car Containing Amir Robinson
At around 10 p.m. on March 28, 2016, Philadelphia
Police Officers William Fritz and Brandon McPoyle saw a
white Buick fail to come to a complete stop at a stop sign. The
Buick continued into a neighborhood that officers described as
a “violent area,” known for drug distribution. After following
the car for three blocks, the officers turned on the overhead
lights of their marked patrol car and pulled the car over. The
car contained three men – the driver, a front passenger, and a
2
rear driver’s-side passenger. Amir Robinson was the front
passenger; Lionel Burke was the back seat passenger. Officer
Fritz would later describe Robinson as an average-sized Black
male who was wearing a “red hoodie or jacket.” (App. 60-61.)
Each of the three occupants produced identification,
which officers returned after a warrant check failed to disclose
any outstanding warrants. However, officers noticed the smell
of marijuana and saw marijuana residue on the car’s floor while
attempting to identify the passengers. Consequently, they
decided to remove the three men from the car to search for
drugs.
The rear passenger, Lionel Burke, was removed and
frisked first. After Burke was frisked, but before McPoyle
returned him to the car, Fritz noticed a gun on the floor of the
back seat where Burke had been sitting. Fritz recovered the
gun, verified that it was real, and told McPoyle to arrest Burke.
Before McPoyle could handcuff Burke, Burke “did a football
maneuver where he spun around” McPoyle and fled
northbound. (App 59.) Beginning at approximately 10:01
p.m., the officers broadcast their locations over police radio.1
Robinson Flees the Traffic Stop
When Fritz looked back toward the Buick, he noticed
that the front passenger door was open and Robinson (the front
passenger) had also fled. Fritz assumed that Robinson must
have “gone westbound,” which was opposite of Burke’s
direction of flight. (App. 63, 85.) Seconds after 10:02 p.m.,
McPoyle radioed that he had apprehended and arrested Burke. 2
At 10:03 p.m., Fritz radioed that they had recovered a gun, that
the driver of the car was in custody, and that the passenger had
fled.
At 10:04 p.m., approximately three minutes after Fritz
called for back-up, Officer John Madara arrived at the scene,
and Fritz briefly described Robinson to Madara. At 10:06
1
United States v. Bey, No. 16-CR-290, 2017 WL 875364, at
*2 (E.D. Pa. Mar. 6, 2017).
2
Id.
3
p.m., Madara relayed that description over the radio. 3 Madara
broadcast that Robinson was a Black male, approximately
6’0”-6’1”, 160-170 pounds, wearing dark blue pants and a red
hoodie and headed west from their location. Notably, the
description of Robinson did not mention a long beard or any
facial hair.
Officers Ernest Powell and Philip Cherry heard Officer
Fritz’s initial call for back-up and Officer Madara’s subsequent
broadcast of Robinson’s description. The officers arrived at
the scene just after 10:06 p.m., and Powell spoke with Madara
about the description of Robinson. Powell was able to view a
photographic picture of Robinson on the computer screen in
his patrol car (the Mobile Data Terminal or “MDT”). Having
viewed the MDT picture and with a full description including
name, address, age, ethnicity, approximate height and weight,
and clothing, Officers Powell and Cherry began searching for
Robinson in the general direction of his flight. 4 They started
their pursuit of Robinson at 10:07 p.m. 5 Given their experience
and knowledge of the area, as well as the very short time
interval involved, Powell and Cherry assumed Robinson may
be nearby at Lid’s Café, a local bar that was only one block
away, where he might try to blend in.
Officers Stop Bey, Believing Bey to be Robinson
Less than one minute after meeting with Officer
Madara, and mere seconds after seeing Robinson’s picture on
their MDT, Officers Powell and Cherry saw an individual, who
would later be identified as Muadhdhin Bey, walking out of
Lid’s Café.
Bey was a 32 year-old, dark-skinned African American
man with a long beard. He weighed about 200 pounds and was
wearing black sweatpants and a red puffer jacket with a hood.
Amir Robinson, the suspect officers were searching for, on the
other hand, was a 21 year-old, light-skinned African American
man with very little hair under his chin and a tattoo on his neck.
He weighed around 160-170 pounds and was wearing dark
blue pants and a red hoodie (or red jacket) when he fled from
3
Id.
4
Id. at *3.
5
Id.
4
the police. Although Bey’s clothing resembled the description
of Robinson’s clothing, Bey was more than a decade older,
much darker in complexion, much heavier and had
significantly more facial hair than Robinson.
When police noticed Bey walking out of Lid’s Café,
they could not see Bey’s face because he was facing away from
them, but they noticed his red, hooded puffer jacket and black
sweatpants. 6 Officer Powell testified that he could not identify
Bey’s race upon first seeing him, but he later testified that when
he saw Bey, he told Officer Cherry “[h]ey, that’s the red jacket,
the black guy, red jacket.” 7 (App. 115.) Both officers stated
that they drew their guns, approached Bey, and ordered him to
show his hands. Bey immediately put his hands in the air and
turned around to face the officers.
Officers Continue to Detain Bey After He Turns
Around
At this point, the officers’ testimony conflicted and the
district court rejected some of the testimony because the Court
found that Officer Powell was not completely credible. Officer
Powell testified that the scene was well-lit and his view of Bey
was unobstructed. At the suppression hearing, Powell testified
that he asked Bey if he had a weapon and Bey told him that he
had a gun on his waist, which Officer Cherry recovered. 8
6
As the district court noted, “the parties dispute the content
of the verbal description that Madara gave Powell. At the
suppression hearing Powell testified that Madara told him
Robinson was wearing a red jacket (as opposed to a hoodie).
The arrest report and all of Madara’s radio broadcasts
describe Robinson as wearing a red hoodie.” Bey, 2017 WL
875364, at *3 n.4.
7
The Government asked Officer Powell: “When you arrive at
[Lid’s café] and you saw the person who turned out to be
[Bey], did the person that appeared to you appear to be a
black male?” Officer Powell responded, “Yes.” (App. 169.)
8
Bey, 2017 WL 875364, at *5. The district court explained
why it did not believe this portion of Officer Powell’s
testimony:
5
However, Officer Powell also testified at that same hearing that
he told Bey to get on the ground, that Bey complied, and he
(Powell) “approached and removed from [Bey’s] front
waistband a black .45 caliber handgun” himself. (App. 119.)
No matter which account is true, it is clear that police recovered
a gun from Bey.
At 10:08 p.m., approximately eight minutes after
Robinson fled, Officer Powell broadcast “gun recovered, one
in custody.” 9 Officer Madara testified that when he heard
Powell first disclosed it during a meeting with
the U.S. Attorney and an FBI agent in December
2016—over eight months after Bey’s arrest. The
arrest memo, which was entered into evidence at
the suppression hearing, does not include
anything reflecting this alleged Statement. In
relevant part, it states:
Police ordered the male to stop and show his
hands to police. Police had their weapons drawn
because of the nature of the job, a person with a
gun. The male complied by dropping to the
ground as ordered by police. Police conducted a
safety frisk of the male, at that time police
recovered a black in color tenifer finished Glock
37 .45 ACP handgun from his front waistband.
Id. at *4. The court also found that Officer Powell did not
mention the alleged confession during the state preliminary
hearing either. Therefore, the court held:
Given the importance of the alleged admission
from Bey that a gun was in his waistband to any
prosecution, and the incriminating effect of such
an admission, the fact that it was not included in
the arrest memo or mentioned in Powell’s state
court testimony—and only surfaced eight
months after the arrest, during a meeting in
preparation for this case—undermines the
credibility of Powell’s testimony on this point.
Id. at *4–5.
9
Id. at *5.
6
Officer Powell’s 10:08 p.m. broadcast, he drove to Lid’s Café
to see if the person in custody was actually Robinson. Officer
Madara arrived at the bar between 10:08 p.m. and 10:09 p.m. 10
When he arrived, Officer Powell and Officer Cherry told him
that Bey was not Robinson. 11 Officer Madara then viewed
Robinson’s picture on his MDT. At 10:09 p.m., he broadcast
that police had arrested a different male and “[w]e’re still
looking for Amir Robinson.” 12
B. Procedural History
Bey was transported back to the police station and
charged with being a felon in possession of a firearm. He
subsequently moved to suppress the gun arguing that the
description that Officers Powell and Cherry were given was too
generic to support reasonable suspicion to seize him. He also
argued that even if police had reasonable suspicion to justify
the initial detention, that suspicion dissipated when Bey turned
around and the officers saw his face, his size, his facial hair,
and the age discrepancy between him and Robinson. Bey
argues that because police had seen a picture of Robinson
moments before seizing him, the officers therefore knew, or
should have known, that he (Bey) was not Robinson.
The district court correctly ruled that the seizure
occurred the moment Bey submitted to police authority by
raising his hands and turning to face the officers who had
drawn their guns. 13 The court found that the officers had
10
Id. at *6.
11
Id.
12
Id. Officer Powell’s version of events following the arrest
of Bey differed. Powell claimed that after arresting Bey, he
and Officer Cherry drove Bey back to the initial location for
an identification. Given that Officer Madara’s account
matched the radio dispatch records, however, the district
court concluded that Officer Madara’s testimony was true.
Id.
13
Bey, 2017 WL 875364, at *7 (“Bey’s compliance was not
momentary; he continued to comply with police commands
throughout the stop and frisk. Therefore, Bey submitted to the
officers’ show of authority, and was seized for Fourth
Amendment purposes, when he turned around with his hands
raised.”).
7
reasonable suspicion to justify that seizure based on numerous
factors including the reliability of the description, the physical
and temporal proximity of the detention to the vehicle stop, and
Bey’s initial appearance. 14 The court found that “[t]he
description was sufficiently particularized to permit the police
to be reasonably selective in determining whom to stop for
investigation.” 15
The district court also ruled that reasonable suspicion
did not dissipate when Bey turned to face the officers, even
though they then were able to get a good look at his face and
features. 16 While acknowledging that Bey is darker-skinned,
much heavier, and significantly older than Robinson, the court
noted that those comparisons came not from the photo that
officers saw on the MDT at the scene, but from a photo of
Robinson that was taken six months later when he was finally
arrested. 17 Therefore, in the court’s eyes, the post-hoc
comparison of the physical features of Robinson and Bey was
of little probative value because it did not address whether the
photo officers saw sufficiently resembled Bey the night of the
incident. 18
At the conclusion of the suppression hearing, the court
denied Bey’s motion to suppress, and this appeal followed. 19
II.
14
Id. at *10.
15
Id. (“It is not unreasonable that a police officer would
perform an investigatory seizure of a black male wearing a
red hooded jacket and dark pants under these circumstances,
given the geographic and temporal proximity of the seizure to
the car stop, and the fact that the location was a high crime
area.”).
16
Id. at *11–12.
17
Id. at *11.
18
Id.
19
We review de novo the district court’s conclusion that the
detention and arrest were consistent with Fourth Amendment
limitations; we review for clear error the court’s findings of
fact. United States v. Harple, 202 F.3d 194, 196 (3d Cir.
1999).
8
The Fourth Amendment prohibits “unreasonable searches and
seizures.” 20 Evidence obtained through unreasonable searches
and seizures must be suppressed as “fruit of the poisonous
tree.” 21 Generally, for a search or seizure to be reasonable
under the Fourth Amendment, it must be effectuated with a
warrant based upon probable cause. 22 Warrantless searches
and seizures are presumptively unreasonable unless the
Government satisfies its burden of establishing that one of the
exceptions to the warrant requirement applies. 23 In Terry v.
Ohio, 24 the Supreme Court created one such exception. Under
Terry, police may “conduct a brief investigatory stop when the
officer has a reasonable, articulable suspicion that criminal
activity is afoot.” 25 However, in order to lawfully detain
someone under Terry – even briefly – the Government must
establish by a preponderance of the evidence that “each
individual act constituting a search or seizure” was reasonable.
More specifically, each aspect of the detention must be
justified by a reasonable suspicion. 26
As we noted at the outset, Bey argues that the district
court erred in finding that the officers had reasonable suspicion
20
U.S. CONST. amend. IV.
21
United States v. Brown, 448 F.3d 239, 244 (3d Cir. 2006).
22
Id. (citing United States v. Robertson, 305 F.3d 164, 167
(3d Cir. 2002)).
23
See California v. Acevedo, 500 U.S. 565, 580 (1991) (“It
remains a cardinal principle that searches conducted outside
the judicial process, without prior approval by judge or
magistrate, are per se unreasonable under the Fourth
Amendment-subject only to a few specifically established and
well-delineated exceptions.”) (internal quotations omitted).
24
392 U.S. 1 (1968).
25
Illinois v. Wardlow, 528 U.S. 119, 123 (2000).
26
United States v. Ritter, 416 F.3d 256, 261 (3d Cir. 2005)
(“On a motion to suppress, the government bears the burden
of showing that each individual act constituting a search or
seizure under the Fourth Amendment was reasonable.”); see
also United States v. Matlock, 415 U.S. 164, 177 n.14 (1974)
(“[T]he controlling burden of proof at suppression hearings
should impose no greater burden than proof by a
preponderance of the evidence.”).
9
to seize him under Terry v. Ohio. 27 We determine if police had
reasonable suspicion by considering the totality of the
circumstances. 28 This standard requires us to credit reasonable
deductions drawn by police in light of their experience and
training. 29 However, reasonable suspicion unequivocally
demands that the detaining officers must have a particularized
and objective basis for suspecting the particular person stopped
for criminal activity. 30 The ultimate question is whether the
record is sufficient to establish that police had a reasonable
suspicion based on
articulated facts that would justify the search or seizure of the
individual in question. 31
The record here is sufficient to establish by a
preponderance of the evidence that officers had reasonable
suspicion to initially stop Bey. However, the Government
failed to produce sufficient evidence to justify his continued
detention once he turned around and they could compare him
to the description of Robinson that had just been broadcast.
A.
Bey argues that the broadcast description of Robinson
was so excessively general that it could not support reasonable
suspicion and the district court’s contrary conclusion is
inconsistent with our opinion in United States v. Brown. 32
In Brown, we invalidated a purported Terry stop that
was based only on a generalized description of the suspect.
There, police were given a description of two suspects who
allegedly attempted a robbery. 33 The victim identified the
27
392 U.S. at 30 (holding that an officer may, consistent with
the Fourth Amendment, conduct a brief, investigatory stop
when the officer has a reasonable, “articulable suspicion” that
criminal activity is afoot).
28
United States v. Arvizu, 534 U.S. 266, 273 (2002).
29
Id.
30
See United States v. Cortez, 449 U.S. 411, 417–18 (1981).
31
See Johnson v. Campbell, 332 F.3d 199, 206 (3d Cir.
2003).
32
448 F.3d 239 (3d Cir. 2006).
33
Id. at 241–42.
10
suspects as two African American males between fifteen and
twenty years of age, wearing dark, hooded sweatshirts and
running south on 22nd street. 34 One male was described as
5’8” and the other as 6’0”. 35 On the basis of this description,
police stopped and frisked two men: both African American
males, both approximately the same height as the suspects. 36
The men who were stopped and frisked, however, were twenty-
seven years old and thirty-one years old, and both had full
beards. 37 In holding that the defendants’ seizure went beyond
the limitations of Terry, we explained that the description was
so “wildly wide of target” compared to the appearance of the
two men who were detained that it was not reasonable under
Terry to stop them. 38 We explained, “even the less stringent
standard of reasonable suspicion cannot be met by a
description that paints with this broad a brush.” 39 We
concluded that “[b]y no logic does [this description], by itself,
support reasonable suspicion.”40
The situation here is different. When these officers
approached Bey, they could see that he was an African
American man wearing clothing similar to that worn by the
fleeing suspect and he was where police expected to find that
suspect. Officers could not see Bey’s face when they initially
detained him. The totality of the circumstances, including
Bey’s temporal and physical proximity to the traffic stop, the
description of Robinson’s clothing, the direction of Robinson’s
flight, the officers’ familiarity with the neighborhood and their
belief that the fleeing suspect may have tried to blend in at
Lid’s Café, coalesce to justify the police officers’ initial
approach to investigate Bey. Police also had reason to suspect
that the person they were looking for was armed. Accordingly,
police were justified in drawing their guns and ordering Bey to
raise his hands and turn around. However, the validity of the
initial Terry stop does not end our inquiry.
34
Id.
35
Id.
36
Id. at 242.
37
Id.
38
Id. at 248.
39
Id. at 248.
40
Id.
11
B.
Bey argues that he, unlike Robinson, had a long beard,
is more than a decade older than Robinson, much heavier, and
significantly darker. Moreover, he did not appear to be
sweating or short of breath. Therefore, nothing suggested that
he had just run a block from pursuing police officers. Bey
asserts that these factors would have dissipated the officers’
reasonable suspicion when he turned, and they saw his face.
We agree.
The brief investigative stop allowed under Terry, is just
that; a brief stop to allow police to investigate. 41 The initial
stop does not justify an arrest, prolonged detention, or a stop
that lasts any longer than is reasonably necessary to
investigate. As the Supreme Court has explained: “[A]n
investigative detention must be temporary and last no longer
than is necessary to effectuate the purpose of the stop.” 42
Moreover, “[i]t is the State’s burden to demonstrate that the
seizure it seeks to justify on the basis of a reasonable suspicion
was sufficiently limited in scope and duration to satisfy the
conditions of an investigative seizure.” 43 “Once reasonable
suspicion has been dispelled, even a very brief extension of
detention without consent or reasonable suspicion violates the
Fourth Amendment.” 44 An investigative stop must therefore
cease once reasonable suspicion dissipates. 45 “[W]ithout
41
See Wardlow, 528 U.S. at 123 (“[A]n officer may,
consistent with the Fourth Amendment, conduct a brief,
investigatory stop when the officer has a reasonable,
articulable suspicion that criminal activity is afoot.”)
(emphasis added).
42
Fla. v. Royer, 460 U.S. 491, 500 (1983).
43
Id. (emphasis added).
44
United States v. De La Cruz, 703 F.3d 1193, 1197 (10th
Cir. 2013) (internal quotations omitted); see also United
States v. Davis, 430 F.3d 345, 357 (6th Cir. 2005) (“The
Fourth Amendment allows police to detain a suspect on
reasonable suspicion only for as long as it takes for the police
to test the validity of their suspicions.”).
45
See, e.g., United States v. Babwah, 972 F.2d 30, 34 (2d Cir.
1992) (holding that agents’ continued detention of suspect
12
additional reasonable suspicion, [an] officer must allow the
seized person to depart once the purpose of the stop has
concluded.” 46 We have stressed that, “[i]t is the State’s burden
to demonstrate that the seizure it seeks to justify on the basis
of a reasonable suspicion was sufficiently limited in scope and
duration to satisfy the conditions of an investigative seizure.” 47
The Government must satisfy that burden by a preponderance
of the evidence. 48
For the reasons that we explained in part A, the district
court correctly concluded that “[t]he initial stop of Bey was
justified . . . . When Powell and Cherry seized Bey, they had
reasonable suspicion to believe that he [may have been]
Robinson.” 49 But the seizure should have terminated once that
suspicion was no longer reasonable. 50 Thus, once Bey turned
around, officers should have noticed the clear differences in
appearance and age between the two men.
The district court did appreciate the extent to which
Bey’s appearance differed from the description of Robinson
that had been broadcast. The court explained:
[the] photograph of Robinson that was entered
into evidence revealed that Robinson is a light-
skinned black male of youthful appearance, with
a tattoo covering the front of his neck, a short
moustache, narrow sideburns, and a small
amount of facial hair underneath his chin. 51
became illegal once their reasonable suspicion proved
unfounded).
46
Rodriguez v. United States, 135 S. Ct. 1609, 1614 (2015).
47
See Royer, 460 U.S. at 500.
48
Matlock, 415 U.S. at 177 n.14 (“[T]he controlling burden
of proof at suppression hearings should impose no greater
burden than proof by a preponderance of the evidence.”).
49
Bey, 2017 WL 875364, at *11.
50
See Rodriguez, 135 S. Ct. at 1614 (“[W]ithout additional
reasonable suspicion, [an] officer must allow the seized
person to depart once the purpose of the stop has
concluded.”).
51
Bey, 2017 WL 875364, at *3.
13
The court discounted the apparent differences between Bey
and Robinson, however, because the Government’s
photograph of Robinson was not the MDT image that officers
saw that night, but rather a photograph taken six months later.
The court therefore concluded that it “c[ould not] evaluate the
differences between the photograph that Powell saw of
Robinson and what Bey looked like when [Powell] saw him
exiting Lid’s [Café].” 52 Consequently, the court held that “the
probative value of the photograph was questionable,” 53 and
apparently concluded that Bey had therefore failed to prove
that reasonable suspicion did not continue after he turned
around. However, that conclusion punished Bey for the
Government’s failure to introduce the MDT image that police
viewed at the time of the incident.
The court’s analysis required Bey to prove that his
appearance was not reasonably close to Robinson’s the night
of the incident. However, it was the Government’s burden to
prove that Bey did sufficiently resemble Robinson to justify
the continued detention, and the Government had to do so by a
preponderance of the evidence. 54 Based on the available
evidence – the photograph that the government did submit –
the differences between the two men are as obvious as they are
significant. 55 For reasons known only to the Government,
Robinson’s MDT image was not introduced, but Bey cannot be
prejudiced by the Government’s failure of proof.
We explained how a similar discrepancy between
description and actual appearance fatally undermined
reasonable suspicion to conduct a Terry stop in Brown. There
52
Id. at *11.
53
Id.
54
See Ritter, 416 F.3d at 261. (“On a motion to suppress, the
government bears the burden of showing that each individual
act constituting a search or seizure under the Fourth
Amendment was reasonable.”).
55
In addition, reasonable suspicion is also undermined by the
district court’s finding that “Bey did not appear to be out of
breath” when police saw him and approached him mere
minutes after he would have had to have sprinted away from
Officer Fritz if he were Robinson. Bey, 2017 WL 875364, at
*4.
14
we noted the generic nature of the description that was
broadcast for two robbery suspects and compared it to the
appearance of Brown and his codefendant when police stopped
them pursuant to Terry. We explained:
[T]he match of [the defendants] to even [the]
most general of descriptions was hardly close.
Among other things, the robbery suspects were
described as between 15 and 20 years of age, but
on the date of the stop Brown was 28 years old
and Smith was 31 years old. Moreover, both
Brown and Smith had full beards and the
description of the suspects included no mention
of any facial hair. Indeed, about the only thing
Brown and Smith had in common with the
suspects was that they were [B]lack. What we
have is a description that, while general, is wildly
wide of target. By no logic does it, by itself,
support reasonable suspicion.56
Once Bey turned around and police had a good look at
his face and features, the situation here was analogous to the
situation in Brown.
Bey’s continued detention once he turned around is also
analogous to the circumstances analyzed by the Court of
Appeals for the Second Circuit in United States v. Watson. 57
There, two officers were searching for a man named Chauncy
Butler. 58 The officers had a description of Butler and a
photograph of Butler from a previous arrest. 59 Butler was
described as a nineteen year-old black male; 5’10” to 6’0” tall;
black hair; 155 to 180 pounds. 60 While searching for Butler,
the officers spotted the defendant, Watson. 61 Watson was then
twenty-five years old, 6’2” tall, and weighed 180 pounds.62
The officers stopped and frisked Watson, based on his
56
Brown, 448 F.3d at 248.
57
787 F.3d 101 (2d Cir. 2015).
58
Id. at 102.
59
Id. at 103.
60
Id.
61
Id.
62
Id.
15
purported resemblance to the actual suspect. 63 There, as here,
the police recovered a gun during that search. 64 Watson moved
to suppress, arguing that no reasonable officer could have
continued to believe he was Butler after getting a good look at
him (Watson). 65 The district court agreed with Watson,
finding that as was “evident from a comparison of the
photographs” of the two men, “Butler and Watson do not look
[a]like.” 66 The district court held that the differences in the
men’s age, skin tone, weight and facial features were clear:
In addition to their different facial features, skin
tone, height, and weight, Watson is over five
years older than Butler. Vaccaro's generic
description of the similarities between Watson
and Butler undermines the contention that he
reasonably believed them to be the same
person. 67
On appeal, the Court of Appeals for the Second Circuit
agreed. The court held that “the search of Watson was
objectively unreasonable” because “a reasonable officer, once
he had had a chance to view Watson up close, could not have
reasonably believed he was Butler.” 68 The court held that the
“material differences [between the men] would have been
apparent to any reasonable officer[.]” 69
Here, the distinction between Robinson and Bey is even
more pronounced because there is a greater age disparity in
addition to the other differences in skin tone, facial hair, height
and weight. Because officers recovered the gun after they had
a good look at Bey and should have known that he was not
Robinson, the district court should have granted the motion to
suppress. To the extent that the MDT image police had of
Robinson may have more closely resembled Bey than the
image the Government introduced at the suppression hearing,
63
Id. at 103–04.
64
Id.
65
Id. at 102–04.
66
Id. at 104.
67
Id.
68
Id. at 105.
69
Id.
16
the Government’s failure to produce that image fatally
undermines its attempt to prove that the police acted
reasonably in detaining Bey after they had a good look at him.
The two men “simply do not look [a]like.” 70
III. CONCLUSION.
For the foregoing reasons, we will reverse the district
court’s denial of Bey’s motion to suppress and vacate the
judgment of conviction.
70
Id.
17