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United States v. Bey

United States Court of Appeals, Third Circuit

December 21, 2018


          Argued on July 19, 2018

          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

          Brett G. Sweitzer, Esquire (Argued) Kathleen Gaughan, Esquire Federal Community Defender Office for the Eastern District of Pennsylvania Counsel for Appellant

          Robert A. Zauzmer, Esquire (Argued) Jonathan B. Ortiz, Esquire Counsel for Appellee

          Before: McKEE, VANASKIE, and RESTREPO, Circuit Judges



         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.


         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 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 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 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] 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 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 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]


         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 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.


         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 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 ...

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