1 Mr. Burbridge comm i tted the firearm offense, was released on

bond, then committed the bank robbery one month later.

1 UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 00-50006

UNITED STATES OF AMERICA,

Plaintiff - Appellee

VERSUS

WAYNE BURBRIDGE, also known as Edward Cabral,

Defendant - Appellant

Appeal from the United States District Court

For the Western District of Texas

May 28, 2001

Before REYNALDO G. GARZA, STEWART, and DENNIS, Circuit Judges.

DENNIS, Circuit Judge:

A single jury convicted the defendant-appellant, Mr. Wayne

Burbridge, of two crimes committed o n separate occasions:

possession of a fir earm by a previously-convicted felon and bank

robbery

. 1 He appeals both convictions on the ground that the

district court failed to suppress evidence obtained in violation of2

the Constitution. For the following reasons, we reject Mr.

Burbridge’s c o nstitutional challenges to the evidence used to

convict him and AFFIRM his convictions.

I. Standard of Review

We apply a two -pronged standard of review to a district

court’s denial of a motion to suppress: factual findings are

reviewed under the clearly erroneous standard, and legal

conclusions are reviewed de novo. U nited States v. ChavezVillareal

, 3 F.3d 124, 126 (5 th Cir. 1993). The evidence must be

viewed in the light most favorable to the party prevailing on the

motion to suppress in the district court, the Government. United

States v. Castro , 166 F.3d 728, 731 (5 th Cir. 1999).

II. The Firearm Conviction

A. Facts

On October 6, 1998, a husband and wife, Mr. and Mrs. Andrew

Celovsky, were in a store parking lot when they witnessed Burbridge

carrying a pistol “in his h and” in a grocery sack. Considering

Burbridge’s conduct suspicious, the Celovskys followed him in their

car as he drove away on a black BMW motorcycle.

Mrs. Celovsky called 911 on her c ellular phone and reported

what the couple had seen. She told the dispatcher that she and her

husband presently were following Burbridge, who was headed east on

Southeast Military Drive, and she described what he was wearing–“an3

aqua t-shirt and blue jeans.” Mrs. Celovsky told the dispatcher

that she thought “the man put the gun in the compartment on the

side of the motorcycle,” but that he “may have the gun between his

legs.”

The 911 dispatcher notified San Antonio Police Officer Robert

Handowski that a man was riding on a motorcycle through traffic

with a gun. Near an intersection along the suspect’s reported

route, Officer Handowski spotted a man on a motorcycle and pulled

in behind him. The Celovskys, who were still following Burbridge

and communicating with 911 on their cellular phone, saw the police

car pull in behind Burbridge’s motorcycle. They told the

dispatcher, w ho in turn told Officer Handowski, that the officer

“had the right guy.” They flashed their car’s headlights to signal

their affir mation directly to Handowski. Officer Handowski

testified t hat upon receiving the communication from the citizen

witnesses, he “knew right away th at was the motorcycle.” He

turned on his emergency lights and directed Burbridge, who had been

waiting at a red light, to pull over to the shoulder of the road.

Handowski handcuffed Burbridge and frisked him, but did not

find a weapon on his person. Another officer arrived and the two

searche d the motorcycle’s fiberglass saddlebag, which was within

reaching distance of a seated motorcycle driver. The officers

found a loaded .38 caliber pistol.

The citizen witnesses, the Celovskys, had pulled to the side

of the road and watched as the police searched Burb ridge’s2 Carrying a handgun in public is a crime in Texas. T E X

. P ENAL C ODE

§ 46.02. According to § 46.02, “A person commits an offense [of

unlawful carrying of a weapon] if he intentionally, knowingly, or

recklessly carries on or about his person a handgun, illegal knife,

or club.”

3 While there are legal exceptions to the Texas prohibition

against publicly carrying a handgun, § 46.02, the officers had

probable cause to believe that Burbridge’s conduct d id not fall

within any of the exceptions.

4 motorcycle. After Burbridge was Mirandized and placed under arrest

for unlawfully carrying a firearm, the Celovskys gave statements to

the police. Subsequently they testified at Burbridge’s suppression

hearing.

B. Probable Cause

The Celovskys’ citizen eyewitness accounts of Burbridge’s

illegal conduct, 2 as communicated to Officer Handowski through the

911 dispatcher, along with their identification of Burbridge as the

handgun violato r both through the 911 dispatcher and by directly

signali n g Handowski with their car’s headlights, provided the

officers with pro bable cause to believe that Burbridge had

committed the offense of publicly carrying a handg un. 3 Burbridge

did not have the weapon on his person when he was stopp e d.

However, 911 had relayed Mrs. Celovsky’s report of seeing Burbridge

put the weapon between his legs on the motorcycle . Also, the

Celovskys had not reported seeing him dispose of the handgun.

Therefore, the officers had probable cause to believe that the

handgun was somewhere on the motorcycle or in one of its

compartments, making the search of the saddlebag constitutionally4 In Ross

, the Supreme Court held that a warrantless search of an

automobile’s containers is constitutional under the Fourth

Amendment, so long as the searching officers have probable cause to

believe that (1) evidence or contraband is with in the automobile

and (2) it may be in the container. See id. at 824. (“The scope

of a warrantless search o f an automobile . . . is defined by the

object of the search and the places in which the re is probable

cause to believe that it may be found.”) S ee also United States v.

McSween , 53 F.3d 686 (5 th Cir. 1995).

5 permissible under United States v. Ross

, 456 U.S. 798, 809-824

(1982). 4

An ordinary citizen’s eyewitness account of criminal activity

and identification of a perpetrator is normally sufficient to

supply probable cause to stop the suspect. S ee J.B. v. Washington

County

, 12 7 F.3d 919, 930 (10 t h Cir. 1997); Gramenos v. Jewel

Companies, Inc. , 797 F.2d 432, 439 (7 th Cir. 1986). We agree with

the Sixth Circuit that

[a]n eyewitness identification will constitute sufficient

probable cause unless, at the time of the arrest, there

is an apparent reason for the officer to believe that the

eyewitness was lying, did not accurately describe what he

had seen, or was in some fashion mistaken regarding his

recollection of the confrontation. This comports with

the general notion that, since eyewitnesses’ statements

are based on firsthand observations, they are generally

entitled to a presumption of reliability and veracity.

Ahlers v. Schebil

, 188 F.3d 365, 370 (6 th Cir. 1999)(internal

quotations and citations omitted). C f. Tangwall v. Stuckey

, 135

F.3d 510, 516 (7 t h Cir. 1998) (“[O]nce a putative victim, l ike

Smit h, has positively identified her attacker to the police and

they have no reason to disbelieve her, the officers need not take

any additional steps to corroborate the information regarding the6

crime before taking action.”) (Quotations and citations omitted).

As this court has stated, “[W]hen an average citizen tenders

information to the police, the police should be permitted to assume

that they are dealing with a credible person in the absence of

special circumstances suggesting that such might not be the case.”

Uni ted States v. Fooladi , 703 F.2d 180, 183 (5 t h Cir.

1983)(quotation and citation omitted). The citizen eyewitness’s

account is credible because eyewitnesses “are seldom involved with

the miscreants or the crime. Eyewitnesses by definition are not

passing along idle rumor, for they either have been the victims of

the crime or have otherwise seen some portion of it.” United

States v. Bell

, 457 F.2d 1231, 1238-39 (5 th Cir. 1972).

Furthermore, identified persons who claim to have been witnesses of

the offense may be held accountable if the information turns out to

be inaccurate. The Celovskys were present during the

identification, stop, and search of Burbridge and his motorcycle.

That the Celovskys, ordinary citizens, remained available in person

throughout the encounter ensured the credibility of the information

they provided.

Based on the credible information from the Celovskys (who had

followed Burbridge without repo rting that he had discarded the

weapon) and Officer Handowski’s determination that the handgun was

not on Burbridge’s person, the officers had probable cause to

believe that evidence of the crime reported by the Celovskys was

inside a compartment of the motorcycle. Also, the dispatcher had7

told Officer Handowski that the citizens witnessed Burbridge with

the firearm on or about his person shortly before the officer

stopped Bur bridge. Because Burbridge did not have immediate

possession of the weapon, it was reasonable for the officers to

believe that Burbridge had put the weapon in the saddlebag--which

was within his reach--while he rode the motorcycle.

III. The Bank Robbery Conviction

A. Facts

Bennie Rodriguez and Jennifer Quesnot worked as bank tellers

at the IBC bank in San Antonio on N ovember 7, 1998, the day they

were robbed at gunpoint. According to Rodriguez and Quesnot, the

robber entered the bank, walked up to the counter, passed a note to

Rodriguez, and demanded, “Right now.” Then the robber lifted his

shirt and exposed the handle of a gun. Rodriguez went into the

vault, called Quesnot in, and handed her the note. Rodriguez then

put his cash drawer on the counter in front of the robber for him

to take what he wanted. Rodriguez was no more than two feet from

the robber during the robbery, while Quesnot was only five feet

away. Both had a good opportunity to observe his face.

Shortly after the robbery, Rodriguez and Quesnot gave separate

descriptions of the robber to the police. Both described the

robber as a white man who was 30-40 years old with a medium build,

weari ng a t-shirt and a dark jacket or overshirt. Rodriguez and

Quesnot also said the robber wore a long white bandana with8

lettering or a design on it around his head.

As police at the crime scene interviewed witnesses, a caller

reported that a suspicious character had run through yards and shed

clothing in a neighborhood just one block from the bank. The

description of the suspicious individual ma tched that of the

robber. An officer was dispatched to investigate. He apprehended

the individual and placed him under arrest; the suspect was Wayne

Burbridge. The discarded clothing was recovered and linked by

forensic evidence to the tennis shoes, jeans, and t-shirt Burbridge

was wearing when he was arrested. The recovered clothing matched

the bank tellers’ descriptions of t he robber’s garb, including a

white bandana with pinkish lettering. Another pair of witnesses

described seeing a man, on the day of the robbery, park a

motorcycle in the neighborhood near the bank, look around, and tie

a t-shirt bandana around his head. The motorcycle, belonging to

Burbridge, was later found abandoned in the neighborhood.

Rodriguez and Quesnot each independently identified Burbridge

as the bank robber with in two hours of the robbery at separate

“show-ups.” Rodriguez immediately positively identified Burbridge,

stating that “he had the same look, the same eyes, the same

reactions

. . . and he did the exact same like mov ements of his

head that I had remembered him doing.” Without knowledge of

Rodriguez’s identification of the suspect, Quesnot viewed Burbridge

at a separate show-up and identified him as the robber, stating

that the lower portio n of Burbridge’s face was the same as the5 Burbridge objects to the use of this line-up as impermissibly

suggestive because he was the only suspect depicted wearing a black

t-shirt. (He was arrested in and identified by Rodriguez and

Quesnot at the show-ups wearing a black t-shirt.) However, almost

five months had passed between the show-ups and the photog raphic

line-up, and the black t-shirt was barely visib le in Burbridge’s

photo. Furthermore, FBI agent Walter Henry testified at trial that

a photo-technician put th e line-up photos together by assembling

photographs of individuals similar in appearance to Burbridge.

Bur bridge’s argument does not persuade us that the black t-shirt

was impermissibly suggestive under all of these circumstances.

9 robber’s. Later, she testified that as soon as she saw Burbridge,

she recognized him as the robber. Rodriguez testified that his incourt identification was based on Burbridge’s distinct fac i al

features.

Approximately five months later, Quesnot and Rodriguez again

separately identified Burbridge as the bank robber in a six-person

photographic line-up. 5 They also identified Burbridge in court as

the robber during his criminal trial.

B. Applicable Law

When a defendant appeals his conviction on the basis that an

improper pretrial identification was made, the conviction must be

set aside if the identification “was so impermissibly suggestive as

to give rise to a very substantial likelihood of ir reparable

misidentification.” Simmons v. United States , 390 U.S. 377, 384

(1968); U.S . v. Sanchez , 988 F.2d 1384, 1389 (5 t h Cir. 1993). A

two-step analysis is used to determine whether the district court

erred in admitting identificati on evidence: first, we determine

whether the identification procedure was impermissibly suggestive;10

if it was, we determine whether, under the totality of the

circumstances, the suggestiveness led to a substantial likelihood

of irreparable misidentification. U

. S. v. Fletcher

, 121 F.3d 187,

194 (5 th Cir . 1997); H errera v. Collins

, 904 F.2d 944 (5 th Cir.

1990); U.S. v. Shaw , 894 F.2d 689, 692 (5 th Cir. 1990)

.

Even if t he one-on-one show-ups were suggestive, under the

totality of the circumstances we conclude that an irreparable

misidentification did not result. The Supreme Court enumerated

f ive factors in Neil v. Biggers

, 409 U.S. 188, 199 (1972), fo r

determining whether irreparable misidentification resulted from an

impermissibly suggestive identification procedure: the opportunity

of the witness to view the criminal at the time of the crime, the

witness’s degree of attention, the accuracy of the witness’s prior

description of the criminal, the level of certainty demonstrated at

the confrontat ion, and the time between the crime and the

confrontation. See also Herrera , 904 F.2d at 947. Rodriguez and

Quesnot had ample opportunity to view the robber as he stood facing

thema few feet away for at least 15 seconds with his face

unmasked. Rodriguez and Quesnot stated that they closely observed

Burbridge’s face during the crime. Because Burbridge committed an

open armed robbery of them, they were very attentive to him. While

the pre-identification descriptions of Burbridge’s apparel given by

Rodriguez and Quesnot contained minor differences, the major

aspects of his appearance and attire they described were

consistent. Furthermore, both Rodriguez and Quesnot were certain6 Rodriguez was immediately certain, and while Quesnot took

several minutes to examine his face before declaring that Burbridge

was the robber during the show up, she testified lat er that she

knew it was him “as soon as she saw him.”

11that Burbridge was the perpetrator when they saw him at the showups. 6 Finally, less that two hours had passed between the robbery

and the show-ups, and the witnesses’ memories were still fresh at

the time the y made their positive identifications. Under these

circumstances, the district court did not err in admitting the

identification evidence.

The district court’s judgment of con viction and sentence is

AFFIRMED.