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D ock e t 97-1168

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### R e c omme nde d C it a t ion

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. e du/thir dc ir c uit_1998/7Filed January 12, 1998

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 97-1168

UNITED STATES OF AMERICA

v.

JESSE KITHCART, Appellant

ON APPEAL FROM THE

UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA (D.C. Crim. No. 96-00090-1)

Argued: August 11, 1997 Before: ALITO, LEWIS, and McKEE, Circuit Judges

(Opinion Filed January 12, 1998)

David L. McColgin (Argued)
Defender Association of Philadelphia
Federal Court Division

437 Chestnut Street Philadelphia, PA 19106

Counsel for Appellant

Howard L. Perzan (Argued)
Suite 1250
Office of United States
Attorney
615 Chestnut Street Philadelphia, PA 19106

Counsel for AppelleeOPINION OF THE COURT

ALITO, Circuit Judge:

Jesse Kithcart appeals from a judgment in a crimina l case. Kithcart pled guilty to one count of being a felon in possession of a firearm, in violation of 18 U.S.C.S 922(g)(1), but he reserved his right to appeal the district co urt's decision on his motion to suppress the firearm in q uestion. This appeal raises the question whether the officer s had probable cause to arrest and search Kithcart. Becau se we conclude that they did not have probable cause, we reverse the district court's denial of the suppression moti on on the grounds given, and we remand for further proceeding s in accordance with this opinion.

I.

On July 25, 1995, Bensalem Township Police Officer Teresa Nelson was assigned to a radio patrol car on the evening shift. Over the course of an hour, Officer Nelson received three radio transmissions, each reporting an armed robbery. The first two robberies occurred at motels in Bensalem Township, and the last transmission concerned a robbery in neighboring Bristol Township . The final report -- which was received at approximately 10:43 p.m. -- did not specify either the time or location of the Bristol robbery. Bristol is north of, and adjacent to, Bensalem Township.

The alleged perpetrators of these robberies were described as "two black males in a black sports car ." It was also reported that one of the perpetrators might ha ve been wearing white clothes, and the vehicle was describe d as a "possible Z-28, possible Camaro."1

At 10:53 p.m. -- approximately ten minutes after receiving the final radio transmission regarding th e Bristol robbery -- Officer Nelson spotted a black Nissan 30 0ZX, which she described as a sports car, traveling sout h on

___________________________________________________ ______________

1. The Z-28 is a type of Camaro.

2Route 13, approximately a mile or less from the bou ndary

of Bristol Township. The vehicle was driven by an A fricanAmerican male who appeared to be the only person in the
car. Officer Nelson testified that since the time w hen she
received the first radio transmission more than an hour earlier, this was the first occasion when she spott ed either a black vehicle or a black male driving a car. Offi cer Nelson also testified that immediately after she pulled up behind the vehicle, which had stopped at a red light, the driver drove the Nissan through the red light. Officer Nel son then flashed her dome lights, and the Nissan pulled over to the side of the road. At this point, Officer Nelson saw two sets of arms raised toward the roof of the car, and she realized that there were two people in the car.

Officer Nelson then called for backup and waited in her patrol car until Officers Christine Kellaher and Bi ll Williams arrived at the scene. Officer Williams found a gun in Kithcart's white nylon waist pouch, and Officer Kel laher found a gun under the driver's seat.

In moving to suppress the evidence seized by the po lice, Kithcart contended among other things, that the pol ice lacked reasonable suspicion for an investigatory st op pursuant to Delaware v. Prouse, 440 U.S. 648 (1979) , Terry v. Ohio, 392 U.S. 1 (1968), and related cases. See App. 95a. Consistent with this argument, Kithcart argued that Officer Williams had discovered his gun during a "pat down" or "frisk" but that the standard for conducting a "fri sk" under Terry had not been met. App. 97a. The government ar gued that the police were justified in stopping the car because the driver ran a red light. In addition, the govern ment's brief argued as follows:

[G]iven that Officers Nelson and Williams we re confronted with two black males in a black s ports car shortly after and in the vicinity of the rep orted robberies, and that the males had attempted to flee upon seeing Officer Nelson's car pull behind theirs, the totality of the circumstances established re asonable suspicion to support the pat-down of the def endant and his waist-pack. See Chimel v. California , 395 U.S. 752, 763 (1969) (lawful arrest creates a sit uation which justifies a contemporaneous search of arrest ee and

3immediate area, including area from within w hich

arrestee might gain possession of a weapon); Terry v. Ohio, 392 U.S. 1 1968 (limited pat-down of a suspect's exterior clothing and protective sweep of ar ea within immediate control are authorized during a la wful stop).

App. 107a-108a.

At the hearing on the motion, counsel for Kithcart, counsel for the government, and the court all refer red to the government's latter argument as concerning the question of "probable cause" (see e.g., App. 27a, 2 8a, 54a, 58a), and at the conclusion of the hearing,2 the di strict court orally ruled that the police had "probable ca use . . . for the stop." App. 60a. The court relied on "the d irection, the timing, the location of the vehicle, plus the f act it [was] a black sports car." App. 60a. The court noted the discrepancy between the radioed description of the perpetrators as two black males and Officer Nelson' s initial belief that there was only one black male in the ca r, but the
court held that the fact that Officer Nelson had no t seen any other black men driving cars since she received the initial radio transmission heightened the probabili ty that
the driver of the vehicle had been involved in the robberies. Because the court concluded that the officers had p robable cause, the court found it unnecessary to decide whe ther the alleged running of the red light provided an independent basis for Officer Nelson's stop and the subsequent actions of the officers.

Following this ruling, Kithcart pled guilty, subjec t to the condition that he be allowed to challenge on appeal the district court's denial of his motion to suppress.

___________________________________________________ ______________

2. Officer Nelson testified at the hearing. Officer s Kellaher and Williams did not testify. Officer Nelson's account of the tr affic violation was disputed by the defense. Co-defendant Carl Green-- the driver of the car and a cooperating witness against Kithcart -- told the government that he had not driven through a red light prior to the stop by Officer Nelson. The district court did not resolve this issue, rely ing instead on its finding that there was probable cause to arrest and search based on the radio
transmissions.

4II.

We turn first to the ground on which we understand the district court to have denied Kithcart's suppressio n motion, viz., that the officers had "probable cause" to arr est
Kithcart and to search him incident to the arrest. When a warrantless search is made pursuant to an arrest, " [t]he constitutional validity of the search . . . must de pend upon the constitutional validity of the . . . arrest." B eck v. Ohio, 379 U.S. 89, 91 (1964).

Whether that [warrantless] arrest was consti tutionally valid depends in turn upon whether, at the m oment the arrest was made, the officers had probab le cause to
make it -- whether at that moment the facts and circumstances within their knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in belie ving that the [suspect] had committed or was committin g an offense.

Id. See also Barna v. City of Perth Amboy, 42 F.3d 809, 819 (3d Cir. 1994) (test for probable cause is objectiv e test: did the police officer have a reasonable basis for beli eving that the suspect had committed or was committing a crime ).
Our review of a district court's determination that there was probable cause to effect a warrantless search is de novo. Ornelas v. United States, 116 S. Ct. 1657, 1659 (19 96).

Based on the standard set by the Supreme Court in Beck, the district court erred in concluding that t here was probable cause to arrest and search Kithcart prior to the discovery of the guns. The mere fact that Kithcart is black and the perpetrators had been described as two blac k males is plainly insufficient. As we have previousl y noted, a description of " `two negro males' and two `black males'
. . . without more . . . would not have been suffic ient to provide probable cause to arrest [the suspect]." Ed wards v. City of Philadelphia, 860 F.2d 568, 571 n.2 (3d Cir . 1988). Moreover, the match between the description of the perpetrators' car (a black sports car, "possible Z- 28, possible Camaro)" and the vehicle in which Kithcart was spotted (a black Nissan 300ZX) was far from precise

. Although the Camaro Z-28 and the Nissan 300ZX could be

5considered "sports cars," there was no evidence off ered at

the suppression hearing that the shapes of the two cars were sufficiently similar so as to warrant an infer ence that
a 300ZX could be mistaken for a Z-28.

Nor is probable cause established by either the loc ation or time of the stop. There was no evidence presente d as to where in Bristol Township the final robbery occurre d; nor was there evidence presented that the Bristol robbe ry occurred shortly before Officer Nelson stopped the car carrying Kithcart. Although the radio transmission regarding the Bristol robbery came approximately 10 minutes before the vehicle was stopped, Officer Nel son testified that she did not recall that the radio tr ansmission revealed when the Bristol robbery occurred, other t han that it occurred that same evening. Compare Edwards, 860 F.2d at 571 n.2 (although the description "two negro mal es" was insufficient by itself to provide probable cause to arrest suspect, other evidence closely linking suspect to scene of reported crime was sufficient). In sum, we think th at it is
clear that the facts and circumstances within Offic er Nelson's knowledge at the time she stopped the Niss an were insufficient to allow a prudent person to believe t hat the car and its occupants had committed or were committing an offense. In other words, armed with information tha t two black males driving a black sports car were believe d to have
committed three robberies in the area some relative ly short time earlier, Officer Nelson could not justifiably arrest any African-American man who happened to drive by in an y type of black sports car.

III.

The finding of no probable cause, however, does not end the inquiry. In Terry v. Ohio, supra, the Supreme C ourt held that law enforcement officers may stop and temporarily detain persons short of arrest without violating the Fourth Amendment. A Terry stop is justified whe n an officer has a reasonable suspicion that "criminal a ctivity may be afoot." Id. at 30. The officer's suspicion m ust be based on articulable facts and not merely the offic er's subjective good faith. Id. at 21. An officer may al so conduct a "reasonable search for weapons for the protection of the

6police officer, where he has reason to believe that he is

dealing with an armed and dangerous individual . . .." Id. at 27. The test is "whether a reasonably prudent ma n in
the circumstances would be warranted in the belief that his safety or that of others was in danger." Id. As not ed, this question was briefed by the parties in the district court, but
the district court did not base its decision on thi s ground.

On remand, the district court should examine whethe r Officer Nelson had a reasonable suspicion sufficien t to warrant an investigative stop. The court should con sider both of the government's asserted grounds for the s top: (1) the alleged traffic infraction and (2) the informat ion regarding the armed robbery suspects discussed in S ection II, infra. The district court should also consider whether the events leading to the discovery of the weapon in Ki thcart's pouch can be justified as a Terry "pat-down" We off er no opinion at this juncture on any of these questions.

IV.

For the foregoing reasons, we conclude that the dis trict court erred in finding that Officer Nelson had prob able
cause to arrest and search Kithcart. We therefore r everse the denial of the suppression motion and remand for further proceedings to consider whether the officer s had reasonable suspicion for an investigative stop and weapons search of Kithcart's person.

7McKEE, Circuit Judge, dissenting in part, and concu rring

in part.

I agree with the majority's conclusion that the prosecution did not establish that Officer Nelson h ad probable cause to arrest the defendant. However, th e same testimony that requires us to reverse the district court's determination that the government had probable caus e also
establishes that Officer Nelson did not have reason able suspicion to stop and detain the occupants of the c ar. Therefore, I disagree with the majority's decision to remand
this matter so that the district court can determin e if the stop was authorized under Terry v. Ohio, 392 U.S. 1 (1968). It clearly was not, and I would so rule as a matter of law. Thus, I dissent from that portion of the opinion th at allows reconsideration under Terry on remand.

I.

Terry v. Ohio created a very limited exception to t he general warrant requirement of the Fourth Amendment to
the United States Constitution. See 392 U.S. at 21. Although Terry allows an investigative stop, it sti ll requires reasonable suspicion before the government can just ify
even this limited intrusion. "It is well establishe d that an investigatory stop short of an arrest is valid base d upon a reasonable suspicion that criminal activity is afoo t." United States v. Rickus, 737 F.2d 360, 365 (3d Cir. 1994) "Reasonable suspicion must be based upon `specific and articulable facts which, taken together with ration al inferences from those facts reasonably warrant that intrusion.' " Id. (quoting Terry, 392 U.S. at 21).

This record establishes only that three armed robbe ries had occurred -- two in Bensalem Township and one in Bristol -- sometime during the evening of July 25, 1995, and that two Black males in a black sports car that was probably a Camero Z28 were involved. Officer Nelson did
not know which direction nor road the car was last reported traveling. Although the car in which the defendant was riding was a black sports car, it was not a Camero Z28. Rather, the defendant was traveling in a Nissan Mod el 300ZX. As the majority correctly notes, the record contains

8no evidence that these two cars are so similar that they can

easily be confused with each other or that Officer Nelson
believed the Nissan to be a Camero. Officer Nelson' s focus was not on a particular model sports car. Instead, it was on the color of the sports car and the race of its occ upants.

The car that Officer Nelson stopped was not only a different make and model than the one most likely i nvolved with the armed robberies, but the number of occupan ts it contained appeared to be inconsistent with the radi o broadcast as well. The majority points out that it was only after Officer Nelson initiated the stop and saw a s econd pair of hands go into the air that she realized that the car did in fact contain two males.1 At the suppression hear ing, Officer Nelson was asked, "from the time you pulled directly behind the vehicle and the time you pulled the vehi cle over, you thought initially that there was one black male in that vehicle?" She answered: "Correct." App. 47a. Theref ore, disregarding the allegation of a traffic violation, Officer Nelson stopped this car solely because it was a bla ck sports car driven by an African American male near Bristol Township shortly after she learned that two African
American males had committed a series of armed robb eries in that area. Based on this record, the majority co rrectly concludes that "Officer Nelson could not justifiabl y arrest any African American man who happened to drive by i n any type of black sports car." Majority Op. at 6. Howev er, the majority then allows the government an opportunity to establish that Officer Nelson's stop was appropriat e under Terry v. Ohio, rather than following the obvious ex tension of its own logic. Just as this record fails to establi sh that Officer Nelson had probable cause to arrest any Bla ck male who happened to drive by in a black sports car, it also fails to establish reasonable suspicion to justify stoppi ng any and all such cars that happened to contain a Black male. See Terry, 392 U.S. at 30.

The majority states "on remand the district court s hould
examine whether Officer Nelson had a reasonable sus picion sufficient to warrant an investigative stop." Major ity Op. at

___________________________________________________ ______________

1. I do not mean to suggest that Officer Nelson wou ld have been justified in stopping this Nissan even if she had seen the pa ssenger.

97. However, it is clear that she did not. "In deter mining

whether a stop is justified, the court must view th e circumstances surrounding the stop in their entiret y, giving due weight to the experience of the officers." Rick us, 737 F2d at 365. The district court explained the discre pancy between the radio broadcast of two Black males and Officer Nelson's observation of a different model black spo rts car containing only one Black male as follows:

Now, the issue of one black male versus two black
males. She testified that she had not seen c ars driven by other black males for the time she had be en looking, and she sees a black sports car driven by on e black male. I do believe its still supported by pr obable cause that there is another black male in the car, or that perhaps they had split up or whatever.

But even so, I think the probable cause is h eightened by the fact that she had not seen a lot of c ars driven by black males in this area. . . .

App. at 60a.

However, there is nothing on this record to suggest that the perpetrators "had split up" following the robbe ry, or that someone other than the driver was in the car w hen Officer Nelson stopped it. Unsupported conjecture o f this type would allow a stop of a car containing any num ber of Black males as one could always speculate that the car stopped and perpetrators got in or out of the car. This speculation renders the radio information regarding the number of suspects irrelevant and allows police off icers to stop any Black person riding in any car that is"sim ilar" to one involved in a crime even where, as here, that c ar does not match the likely description that has been broa dcast on police radio. Conclusions based upon possibilities, no matter how remote or speculative, are inconsistent with the need to justify an investigative stop with reasonab le suspicion based upon specific and articulable facts

. Accordingly, any attempt to justify the instant sto p under Terry would elevate speculation and conjecture to t he level
of articulable facts.

[T]he types of articulable facts that can pr ovide reasonable suspicion cannot include `circums tances

10[which] describe a very large category of pr esumably

innocent travelers, who would be subject to virtually
random seizures' were the circumstances acce pted as reasons for the investigation.

Karnes v. Skrutski, 62 F.3d 485, 492 (3d Cir. 1995) (quoting Reid v. Georgia, 448 U.S. 438 (1980)). Tha t is what happened here. Absent a traffic violation, Officer Nelson's stop is little more than a random stop of an Africa n American male in a black sports car.

II.

Although I agree that it would normally be importan t to determine if the car that was stopped went through a red light, I question the propriety of allowing that in quiry in this case. At the beginning of the suppression hear ing, an issue arose as to Officer Nelson's credibility. The prosecutor stated that he was going to call Officer Nelson, an d that she was going to testify that the driver of the car in which defendant was riding disregarded a red light when s he pulled up behind the car. The prosecutor also infor med the district court that Carl Green, the driver of that car, had already entered a guilty plea in front of a differe nt judge. As part of his plea agreement, Green had agreed to "co operate, and provide truthful testimony" in the government's prosecution of Kithcart. App. at 13a. Although Gree n's testimony apparently implicated Green in the armed robberies, the government stipulated that if he wer e called to testify at Kithcart's suppression hearing, Green would testify that he did not go through the red light wh en Officer Nelson pulled up behind his car.

Essentially the bottom line is, that Carl Gr een, if called to testify at this hearing, would say that i t was his recollection that he did not go through a re d light immediately prior to being stopped by Office r Nelson.

And I discussed this matter with [defense co unsel] and he felt that if the government would enter i nto a stipulation that it would be Mr. Green's tes timony, that

there would be no need to have Mr. Green as a witness in the hearing and that Police Officer Nelso n's

11testimony would be the only evidence the gov ernment

would put forward.

App. at 22a.

However, the district court was justifiably concern ed about making a credibility determination that requi red it to judge the live testimony of Officer Nelson against contradicting testimony that was to be admitted by way of stipulation. The court told defense counsel:

I guess the problem I have is that you want me to assess credibility, and you want me to do it in a vacuum. In other words, assess this police o fficer's credibility compared to nothing, compared to the fact that Mr. Green wouldn't be testifying, but t hat he would say. And yet for the purpose of credib ility, that makes it very difficult, are you certain thi s is the way you want me to proceed?

App. at 25a.

The government responded that its position was that Officer Nelson had reasonable suspicion when she pu lled up behind Green's car, but that the government's ar gument was two prong. The government argued that the car w as stopped for a traffic violation but, regardless of the alleged violation, Officer Nelson still had reasonable susp icion to stop the car based upon the radio transmissions she received regarding armed robberies in a neighboring township. App. at 26a. The prosecutor stated "even if your
Honor were to discount . . . Officer Nelson's testi mony [about the traffic violation] in its entirety, ther e was still reasonable suspicion" to stop the car. App. at 26a. No doubt out of a desire to adjudicate this case fairl y and expeditiously, the district court agreed to hear Gr een's testimony outside the presence of the jury during t he course of his trial testimony and to reserve any is sue of credibility until that point. This would have allow ed the trial to proceed while still affording both sides a fair opportunity to litigate the credibility issues that related to the suppression motion. The court then reemphasized :"I would be very reluctant to make a decision without hearing from [Green]." The trial judge told the prosecutor, "I believe the ball is in your court." App. at 29a. Almost imm ediately

12thereafter, the government called Officer Nelson to testify

about the circumstances leading up to the arrest of the defendant. However, at the conclusion of Officer Ne lson's testimony the district court upheld the arrest base d upon its belief that Officer Nelson's testimony establis hed probable cause regardless of any traffic violation, and the defendant entered his conditional guilty plea immed iately thereafter. Accordingly, the matter never proceeded to trial, and the district court never had an opportunity to hear Green's testimony and make a finding of fact about the alleged traffic violation.

Officer Nelson would clearly have been justified in stopping Green's car to enforce the traffic laws if Green drove through a red light. See United States v. Moo refield, 111 F.3d 10, 12 (3d. Cir. 1997) ("It is well-establ ished that a traffic stop is lawful under the Fourth Amendment where a police officer observes a violation of the sate t raffic regulations."). The police would also have been jus tified in ordering Green and Kithcart out of the car if that is what happened. See Pennsylvania v. Mimms, 434 U.S. 106, 111 (1977) (concluding that ordering a driver out of th e car after a traffic violation is a justifiable, de minimis in trusion). However, the record does not allow a court to deter mine what happened after the car was stopped. The prosec utor apparently thought that the gun that was seized fro m Kithcart would automatically be admitted if he esta blished the legality of the initial stop. However, the traf fic violation would not necessarily allow the prosecution to admi t the gun into evidence merely because it justified the t raffic stop. This record is devoid of evidence to support a conclusion that any search of Kithcart's person aft er the stop was reasonable under the Fourth Amendment.

The prosecution informed the district court that th e only evidence it planned to present during the suppressi on hearing was Officer Nelson's testimony. The followi ng exchange occurred during that testimony:

Q. Did any officer recover a gun from the de fendant,
Jesse Kithcart?

A. Yes.

Q. Who was that?

13A. That was Officer Bill Williams.

* * *

Q. I was given [by Officer Williams] a 32 re volver and I was given a white nylon pouch.

Q. Have you spoken to Officer Williams about where they recovered the gun from Mr. Kithcart?

A. Yes.

Q. What did Officer Williams say?

A. Officer Williams stated to me that the gu n was recovered from the nylon pouch.

Q. And where was the nylon pouch?

A. It was on Mr. Kithcart's waist.

App. at 40a-41a. The prosecution never planned to c all Officer Williams, or any other witness, (other than Carl Green) and there is nothing to suggest that additio nal testimony was unavailable. Officer Nelson neither s earched the car nor the seized weapon in question. She may have seen other officers conduct the search and/or seize the gun, but that was not her testimony. There is nothi ng on this record to inform the suppression court whether Kithcart's gun was discovered during a pat down sea rch or whether it was in plain view - though inside the po uch. The fact finder must guess about how the gun was seized and any basis for the reasonable suspicion that may hav e been necessary to justify the seizure.2

I appreciate that any police officer approaching th is car would be apprehensive. That is true whether or not the driver had gone through a red light. Indeed, the no rmal experience of a police officer would dictate cautio n in approaching any stopped car whether or not the offi cer believed the car to contain armed suspects. "The Su preme Court has repeatedly recognized that traffic stops are dangerous encounters that result in assaults and mu rders

___________________________________________________ ______________

2. There were several police officers on the scene, and it is unclear whether Officer Williams seized the gun from Kithca rt, or if he merely received it from another officer and gave it to Off icer Nelson.

14of police officers." Moorefield. 111 F.3d at 13. (i nternal

quotation marks and citations omitted). However, al though the exigencies and dangers that are endemic to any such confrontation are part of the analysis of whether t he resulting intrusion is "reasonable" under the Fourt h Amendment, they do not remove all of the protection afforded under it. Accordingly, a police officer ca n conduct a pat down search of the occupants of a stopped car "where the officer is `able to point to specific and artic ulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.' " Id. (q uoting Terry, 392 U.S. at 27). The reasonable inferences t hat arise from the circumstances of a traffic stop are such t hat it does not require a "leap of faith" to conclude that the instant seizure was justified if there was a traffi c violation. However, the interests protected by the Fourth Amen dment are too important to allow Officer Nelson's testimo ny to bridge the void in this record. The prosecutor here made no effort to have an appropriate witness articulate th e circumstances surrounding the seizure of the gun. Accordingly, I am reluctant to assume that the gove rnment should now be allowed to produce a witness on reman d that it should have, and could have, called during the initial suppression hearing.

I would leave it to the trial court's discretion to decide whether the prosecutor should be allowed to produce the testimony that I think is needed to bridge the inte rstices in this transcript. That court will be in the best pos ition to determine whether or not the government should be allowed a second the bite of the Terry apple by pro ducing testimony beyond that which is necessary to rule up on the issue of the alleged traffic violation. If there wa s no traffic violation, Officer Nelson was not justified in stop ping the car in which Kithcart was riding. If the suppressio n court concludes that there was a traffic violation, then it should determine the propriety of allowing testimony regar ding the circumstances of the seizure after considering any explanation as to why that testimony was not produc ed initially.

I do not think it is asking too much to expect atto rneys to attempt to meet their burdens of proof when issu es are

15first litigated. A court should not have to connect the dots

of inferences scattered as far apart as the ones on this record to construct a picture of what occurred duri ng the stop. Accordingly, although I join the majority opi nion
insofar as it reverses the order of the district co urt, I must, however, respectfully dissent from the remainder of my colleagues' opinion.

A True Copy:

Teste:

Clerk of the United States Court of Appeals
for the Third Circuit

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