USA v. Cahafer Benjamin, et al

Filing

UNPUBLISHED OPINION FILED. [09-60726 Reversed in Part, Vacated in Part, and Remanded.] Judge: CES , Judge: ECP , Judge: JWE. Mandate pull date is 12/20/2010 for Appellant Cahafer Benjamin and Appellant Kao Wokoma [09-60726]

USA v. Cahafer Benjamin, :et al Case 09-60726

Document: 00511305328 Page: 1 Date Filed: 11/29/2010

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IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
November 29, 2010 N o . 09-60726 Lyle W. Cayce Clerk

U N IT E D STATES OF AMERICA,

P la in t if f -A p p e lle e , v. C A H A F E R BENJAMIN; KAO WOKOMA, D e fe n d a n t s -A p p e lla n t s .

A p p e a l from the United States District Court for the Northern District of Mississippi U S D C No. 3:08-CR-63

B e fo r e STEWART, PRADO, and ELROD, Circuit Judges. PER CURIAM:* A t issue is whether officers of the Oxford, Mississippi Police Department h a d reasonable suspicion to stop Benjamin and Wokoma's car as part of a m a lic io u s -m is c h ie f investigation. The police did not; thus, we REVERSE the d is t r ic t court's denial of defendants' motions to suppress, VACATE defendants' c o n v ic t io n s , and REMAND. A t 3:45 a.m., Officer Jeff Kellum received a dispatch to investigate a c o m p la in t of malicious mischief at an apartment complex. He arrived about five
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
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Case: 09-60726 Document: 00511305328 Page: 2 Date Filed: 11/29/2010

minutes later and then interviewed the complainants for the next ten minutes. F r o m the interview, he learned that someone had thrown something that had b r o k e n the window of the complainants' apartment. Next, Officer Kellum briefly s u r v e y e d the area outside of the window before calling other officers for a s s is t a n c e . Captain Libby Lytle and two other officers arrived within the next t e n minutes, and they began searching the area. The officers had no evidence s u g g e s t in g that the vandal was still at the apartment complex. Captain Lytle t e s t ifie d that the officers had searched "pretty much" the whole area and "were g o in g towards" what later turned out to be defendants' car, when they saw that c a r pull out from a parking spot in the complex's lot and leave. The car was a p p r o x im a t e l y fifty to sixty feet from the broken window. This occurred about t e n to fifteen minutes after Captain Lytle had arrived at the apartment complex, a n d during that entire time, the officers had not seen any other activity. Captain L y t le pursued the car in her patrol car and pulled it over about a quarter mile fr o m the apartment complex. When defendants rolled down their window, C a p t a in Lytle smelled marijuana and saw bags of crack cocaine in plain view. A fte r ordering defendants out of the car, the officers found additional crack c o c a in e and a firearm. Defendants were indicted on drug and firearm charges. They moved to s u p p r e s s the drugs and firearm, and the district court held a suppression h e a r in g at which Captain Lytle and Officer Kellum testified. At the close of the e v id e n c e , defendants first argued that the police did not have reasonable s u s p ic io n for the stop because too much time had elapsed between the vandalism a n d when the officers noticed their car pulling out of the parking lot. Therefore, d e fe n d a n t s contended that whoever had broken the window could have left long b e fo r e the officers had even arrived. Defendants also argued that there was no e v id e n c e establishing that they were present when the vandalism occurred. The 2

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district court rejected these arguments and denied the motion. Defendants then e n te r e d conditional guilty pleas, reserving their rights to appeal the suppression r u lin g . W h e n reviewing a denial of a motion to suppress evidence, we review fa c t u a l findings for clear error1 and the ultimate constitutionality of law e n fo r c e m e n t action de novo. Perez, 484 F.3d at 739. The court must view the e v id e n c e presented at the suppression hearing "most favorably to the party p r e v a ilin g below, except where such a view is inconsistent with the trial court's fin d in g s or is clearly erroneous considering the evidence as a whole." United S ta te s v. Shabazz, 993 F.2d 431, 434 (5th Cir. 1993). Temporary, warrantless detentions of individuals constitute seizures for F o u r t h Amendment purposes and must be justified by reasonable suspicion that ille g a l activity has or is taking place; otherwise, evidence obtained through such a detention may be excluded. United States v. Rodriguez, 564 F.3d 735, 740­41 (5 t h Cir. 2009). "[I]n justifying the particular intrusion the police officer must be a b le to point to specific and articulable facts which, taken together with rational in fe r e n c e s from those facts, reasonably warrant that intrusion." Terry v. Ohio, 3 9 2 U.S. 1, 21 (1968). Reasonable suspicion "requires more than merely an u n p a r t ic u la r iz e d hunch, but considerably less than proof of wrongdoing by a p r e p o n d e r a n c e of the evidence." United States v. Gonzalez, 190 F.3d 668, 671 (5 t h Cir. 1999). Courts determine whether the stop was reasonable by c o n d u c t in g a fact-intensive, totality-of-the-circumstances inquiry. United States v . Jacquinot, 258 F.3d 423, 427 (5th Cir. 2001).
The court found that defendants were the only people in the parking lot except for the officers and that the officers thought that defendants were either suspects or witnesses. In this case, these factual findings are not clearly erroneous. United States v. Perez, 484 F.3d 735, 739 (5th Cir. 2007) (citation omitted). However, as explained in greater detail below, they are not dispositive.
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The parties contend that two of our decisions govern this case, United S ta te s v. Jaquez, 421 F.3d 338 (5th Cir. 2005), and United States v. Bolden, 508 F .3 d 204 (5th Cir. 2007). Specifically, defendants analogize to Jaquez while the g o v e r n m e n t analogizes to Bolden. Thus, we begin our inquiry with a discussion o f these cases. In Jaquez, the officer responded to a "shots fired" incident. 421 F .3 d at 340. Prior to the stop, the officer knew only (1) the general proximity of t h e incident, (2) that a red vehicle had been involved in the reported incident, a n d (3) that the incident occurred approximately fifteen minutes before the stop. S e e id. at 341. The officer testified that these reasons, along with the fact that t h e incident took place late at night and in an area known for its high-crime r a t e , caused him to stop the defendant as he drove a red vehicle in that general v ic in it y . See id. at 340. "We conclude[d] that the scant facts known to [the officer] w h e n she stopped Jaquez were, as a matter of law, insufficient to support r e a s o n a b le suspicion." Id. at 341. In so holding, we explained that, although the o ffic e r knew that a red vehicle was involved, she did not know anything about t h e driver or the occupants. See id. In Bolden, two officers were leaving an apartment when they heard nearby g u n s h o t s . See 508 F.3d at 205. Seconds later, passengers in a vehicle coming fr o m the area where the shots had been fired told the officers that people were s h o o t in g guns around the corner. See id. The officers split up to find the s h o o t e r s . See id. One of the officers drove around the corner toward the gunshots a n d encountered a silver Jeep, with four passengers, moving quickly in his d ir e c t io n . See id. The officer stopped the Jeep. See id. Less than one minute had t r a n s p i r e d between the shots and that stop. See id. The officers found cocaine a n d firearms in plain view. See id. Under these circumstances, we concluded t h a t "when an officer sees a solitary vehicle containing more than one person

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leaving the precise spot where that officer has good reason to believe that m u lt ip le persons were shooting less than a minute before, it is more than a `h u n c h ' that those in the vehicle may be involved in the shooting." Id. at 206. We a ls o distinguished Jaquez by noting, T h e key difference from this case is the amount of time between le a r n in g of the shootings and responding, coupled with the p r o x i m it y between the stop and where the shootings occurred. In J a q u e z , more than fifteen minutes had passed. In that amount of t im e , a car can take a shooter many miles away from the scene of v io le n c e , so merely driving a red car in the relative vicinity of the s h o o t in g was not enough. Id . T h is case falls somewhere between Bolden and Jaquez. The facts here are c e r t a in ly less compelling for the government than the facts in Bolden. Although t h e geographic proximities in both cases are comparable--approximately fifty to s ix ty feet here and "around the corner" in Bolden, 508 F.3d at 205--the temporal p r o x im it ie s are not. In Bolden, the time between the shootings and the stop was le s s than a minute. Here, at least fifteen minutes had transpired between when th e vandalism had occurred--assuming that the vandalism occurred

im m e d ia t e ly before 3:45 a.m. when Officer Kellum had received the d is p a t c h -- a n d when Officer Kellum began searching the parking lot after in t e r v ie w in g the witnesses. And we have explained that perpetrators may drive m a n y miles away in fifteen minutes. A comparison with Jaquez is more instructive. On the one hand, there are m a n y aspects of this case that make it less compelling for the government than t h e facts of Jaquez. Even viewing the facts in the light most favorable to the g o v e r n m e n t , at least fifteen minutes had transpired. Moreover, in contrast to J a q u e z , there is no evidence suggesting that this neighborhood in Oxford,

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Mississippi was a high-crime area. In addition, the officers here had even less in fo r m a t io n about the suspect than the officer had in Jaquez: They knew nothing a b o u t the individual who had broken the window. In fact, they did not even k n o w how many people were involved. They also did not know whether the v a n d a l or vandals had come in a car (or on foot), let alone the color of the car. F u r t h e r m o r e , they had no information even suggesting that the vandal was still a t the complex. O n the other hand, three facts bring this case closer to reasonable s u s p ic io n than the facts in Jaquez. First, defendants' car was presumably closer t o the broken window--fifty to sixty feet--than Jaquez's car was from the shots fir e d -- t h e "general vicinity." United States v. Jaquez, 421 F.3d 338, 340 (5th Cir. 2 0 0 5 ). Second, the officers testified that, until defendants drove away, there was n o other activity in the parking lot. There was no such evidence in Jaquez. See id . Third, when defendants drove away, the officers had already searched much o f the parking lot and were going toward the area where defendants' car was lo c a t e d . Jaquez did not present such a scenario. W h e n viewed "in the context of the totality of circumstances," however, t h e s e three facts do not establish reasonable suspicion. Id. at 340­41. As e x p la in e d , the officers knew absolutely nothing about the vandal or vandals o t h e r than that he, she, or they had broken a window. Unlike Jaquez, this w in d o w breaking did not occur in a high-crime neighborhood. Also, more than e n o u g h time had elapsed for the vandal to have departed by car or on foot after b r e a k in g the window. Finally, the officers' suspicion necessarily rested on an u n r e a s o n a b le assumption--that the vandal would have remained in the vicinity o f the window that he had just broken, even after the police had arrived. Officer K e llu m first arrived around 3:50 a.m. He spent the next ten minutes inside the

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apartment, interviewing the complainants. If the vandal had not already fled, o n e would certainly expect that he would have done so during that ten-minute p e r io d , knowing that the police had arrived on the scene. I n sum, the totality of the circumstances demonstrate that the officers did n o t have reasonable suspicion to stop defendants' car. As a result, the drugs and fir e a r m should have been suppressed as products of an unlawful search and s e iz u r e in violation of the Fourth Amendment. Accordingly, we REVERSE the d i s t r ic t court's denial of defendants' motions to suppress, VACATE their c o n v ic t io n s , and REMAND for further proceedings consistent with this opinion.

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