ROBERT LEE BALTIMORE v. COMMONWEALTH OF KENTUCKY
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RENDERED:
October 31, 2003; 10:00 a.m.
TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2002-CA-002304-MR
ROBERT LEE BALTIMORE
APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE JOHN R. ADAMS, JUDGE
INDICTMENT NO. 02-CR-00727
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** ** ** ** **
BEFORE: EMBERTON, Chief Judge; McANULTY, Judge; HUDDLESTON,
Senior Judge.1
HUDDLESTON, Senior Judge:
Fayette
Circuit
imprisonment
Kentucky
on
Rules
Court
a
of
Robert Lee Baltimore appeals from a
judgment
conditional
Criminal
sentencing
plea
Procedure
of
him
to
guilty,
(RCr)
8.09,
ten
years’
pursuant
to
to
several
counts of fraudulent use of a credit card and being a persistent
1
Senior Judge Joseph R. Huddleston sitting as Special Judge by
assignment of the Chief Justice pursuant to Section 110(5)(b) of the
Kentucky Constitution and KRS 21.580.
felony
offender
guilty
plea,
in
the
Baltimore
first
degree.
preserved
Under
his
right
the
to
conditional
challenge
the
denial of his motion to suppress evidence seized by the police
during an investigatory stop.
On
members
of
Lexington
April
the
30,
West
Police
2002,
Officer
Sean
Sector
Special
Assignment
Department,
received
Ray,
one
of
Unit
information
seven
of
from
the
Kelly
Grandee that several of her credit cards had been stolen from
her
vehicle
when
it
was
broken
into
while
her
attending a movie the previous Sunday night.
family
was
Grandee provided
Officer Ray with documents of her account activity showing that
the stolen credit cards had been used to purchase merchandise
between April 28-29, 2002, at various locations including the KMart
Store
Officer
on
Ray
Nicholasville
contacted
videotapes
of
develop
specific
a
the
illegal
and
two
stores
those
Road,
and
obtained
purchases,
identification
of
but
the
Wal-Mart
he
surveillance
was
black
Stores.
unable
male
to
suspect
because of the poor quality of the videotapes.
On May 3, 2002, Mr. Baker, the loss prevention officer
at
the
Nicholasville
K-Mart
Store,
notified
Officer
Ray
at
approximately 4:00 p.m. that the same person who had purchased
items at the store earlier using Ms. Grandee’s credit card was
at the store with a receipt seeking to receive a cash refund for
return
of
the
merchandise.
The
2
loss
prevention
officer
videotaped
the
recorder.
suspect’s
activities
using
a
high
quality
When he was told that the store would not refund cash
but could only provide a credit to Ms. Grandee’s credit card
account,
the
merchandise
black
and
left
arrive at the store.
p.m.,
Officer
male
Ray
suspect
on
bicycle
a
decided
before
to
retain
Officer
Ray
the
could
A few hours later at approximately 6:30
retrieved
the
videotape
of
this
incident,
which was of much better quality than the earlier videotapes.
When the rest of the officers in the unit arrived for
duty that evening, they viewed the May 3rd K-Mart videotape and
discussed the case.
They decided to patrol the area surrounding
K-Mart in search of the suspect.
At approximately 10:10 p.m.,
Officers A. Cain and Brian Maynard saw a person fitting the
description of the suspect riding a bicycle near Lowry Road.
They
stopped
the
person,
who
identified
himself
as
Robert
Baltimore, and Officer Maynard notified Officer Ray that they
had stopped the potential suspect.
asked
for
and
received
search his person.
from
When Officer Ray arrived, he
Baltimore
voluntary
consent
to
Officer Ray found a marijuana cigarette in
Baltimore’s front shirt pocket and Officer Maynard recovered a
K-Mart sales receipt from his wallet.
The sales receipt dealt
with the April purchase of merchandise and the attempted return
of that merchandise to K-Mart earlier that day.
3
Baltimore was
then arrested for fraudulent use of a credit card and possession
of marijuana.
On July 8, 2002, a Fayette County grand jury indicted
Baltimore on four felony counts of fraudulent use of a credit
card over $100.00,2 one misdemeanor count of fraudulent use of a
credit card under $100.00,3 one count of criminal possession of a
forged instrument in the second degree,4 one misdemeanor count of
possession of marijuana,5 and being a persistent felony offender
in the first degree (PFO I).6
On
August
9,
2002,
Baltimore’s
attorney
orally
requested a suppression hearing, which was followed by a written
motion to suppress involving the stop and search of Baltimore on
May 3rd.
On September 19, 2002, the circuit court conducted a
suppression hearing with Officers Ray and Maynard as the only
witnesses.
motion
to
At the end of the hearing, the court denied the
suppress
after
orally
2
findings
of
fact
and
Ky. Rev. Stat. (KRS) 434.650.
3
making
KRS 434.650.
4
KRS 516.060. The five counts of fraudulent use of a credit card
involved purchases using the credit cards stolen from Kelly Grandee.
The criminal possession of a forged instrument count involved the
cashing of a $268 check in February 2002 drawn on the bank account of
a different party apparently unrelated to the credit card offenses.
5
KRS 218A.1422.
6
KRS 532.080.
4
holding
that
the
police
action
was
supported
by
reasonable
suspicion and probable cause.
Given the circuit court’s ruling on the suppression
motion, Baltimore decided to enter a conditional plea of guilty
pursuant to an agreement with the Commonwealth to three felony
counts of fraudulent use of a credit card, the one misdemeanor
count of fraudulent use of a credit card, an amended count of
criminal possession of a forged instrument in the third degree,7
and PFO I.
The Commonwealth moved to dismiss one count of
fraudulent use of a credit card and possession of marijuana.
Under the plea agreement, the Commonwealth recommended sentences
of two years on one count of fraudulent use of a credit card
over $100.00 enhanced to ten years for being a PFO I, one year
on each of the two remaining felony counts of fraudulent use of
a credit card, twelve months in jail on each of both misdemeanor
counts
of
criminal
possession
of
a
forged
instrument
in
the
third degree and fraudulent use of a credit card under $100.00,
all
to
run
Baltimore
concurrently
reserved
his
for
right
a
total
to
ruling on the suppression motion.
sentence
appeal
the
of
ten
circuit
years.
court’s
On October 30, 2002, the
circuit court entered a final judgment sentencing Baltimore to
7
KRS 516.070.
5
serve ten years’ imprisonment consistent with the Commonwealth’s
recommendation.
This appeal followed.
There are three types of interaction between police
and
citizens:
generally
consensual
referred
to
as
encounters,
Terry8
temporary
stops,
and
detentions
arrests.
The
protection against search and seizure provided by the Fourth
Amendment to the United States Constitution applies only to the
latter two types.
official
seizure
Generally, under the Fourth Amendment, an
of
a
person
must
be
supported
by
probable
cause, even if no formal arrest of the person is made.9
However,
there are various narrow exceptions based on the extent and type
of intrusion of personal liberty and the government interest
involved.
In the seminal case of Terry v. Ohio,10 the Supreme
Court held that a brief investigative stop, detention and frisk
for weapons short of a traditional arrest based on reasonable
suspicion
does
not
violate
the
Fourth
Amendment.
Terry
recognized that as an initial matter, there must be a “seizure”
before the protections of the Fourth Amendment requiring the
8
See infra note 10.
9
See Dunaway v. New York, 442 U.S. 200, 208, 99 S.Ct. 2248, 2254,
60 L.Ed.2d. 824 (1979); United States v. Saperstein, 723 F.2d 1221,
1229 (6th Cir. 1983).
10
392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).
6
lesser standard of reasonable suspicion are triggered.
officer
may
approach
a
person,
identify
himself
as
A police
a
police
officer and ask a few questions without implicating the Fourth
Amendment.11
A
“seizure”
occurs
when
the
police
detain
an
individual under circumstances where a reasonable person would
feel that he or she is not at liberty to leave.12
Where a
seizure has occurred, “if police have a reasonable suspicion
grounded in specific and articulable facts, that a person they
encounter was involved in or is wanted in connection with a
completed
felony,”
then
they
investigate that suspicion.13
may
make
a
Terry
stop
to
Evaluation of the legitimacy of an
investigative stop involves a two-part analysis.
First, whether
there
on
is
a
proper
basis
for
the
stop
based
the
police
11
See United States v. Drayton, 536 U.S. 194, 122 S.Ct. 2105, 155
L.Ed.2d 242 (2002); Florida v. Royer, 460 U.S. 491, 103 S.Ct. 1319, 75
L.Ed.2d 229 (1983); Commonwealth v. Banks, Ky., 68 S.W.3d 347 (2001).
12
Terry, 392 U.S. at 19 n.16, 88 S.Ct. at 1829 n.16; United States
v. Mendenhall, 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980);
Drayton, supra; Baker v. Commonwealth, Ky., 5 S.W.3d 142 (1999).
A
consensual encounter maybe transformed into a seizure implicating the
Fourth Amendment when the detainee no longer reasonably feels at
liberty to leave. See, e.g., United States v. Shareeb, 100 F.3d. 1491
(10th Cir. 1996); Weaver v. Shadoan, 340 F.3d 398 (6th Cir. 2003);
United States v. Ushery, 968 F.2d 575 (6th Cir. 1992).
13
United States v. Hensley, 469 U.S. 221, 229, 105 S.Ct. 675, 680,
83 L.Ed.2d 604 (1985); Adkins v. Commonwealth, Ky., 96 S.W.3d 779
(2003).
Police may also make a Terry stop if they have reasonable
suspicion that criminal activity is afoot. Terry, 392 U.S. at 30, 88
S.Ct. at 1884-85; United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct.
1581, 1585, 104 L.Ed.2d 1 (1989).
7
officer’s
awareness
of
specific
rise to reasonable suspicion.14
and
articulable
facts
giving
Second, whether the degree of
intrusion was reasonably related in scope to the justification
for the stop.15
Meanwhile,
search
weapons
of
the
Terry authorized
person
regardless
of
for
purposes
probable
only
of
cause.16
a
limited
uncovering
The
pat-down
potential
purpose
of
the
limited Terry search is not to discover evidence of a crime, but
rather to allow the officer to pursue the investigation without
fear of violence or physical harm.17
A warrantless search more
extensive or intrusive than a pat-down for weapons is illegal
unless it is supported by probable cause or one of the other
exceptions such as consensual search, a plain view search, a
14
See United States v. Martin, 289 F.3d 392, 397 (6th Cir.
2002)(citing United States v. Garza, 10 F.3d 1241, 1245 (6th Cir.
1993)); United States v. Jones, 269 F.3d 919, 924 (8th Cir. 2001).
15
Id., See also United States v. Brignoni-Ponce, 422 U.S. 873, 95
S.Ct. 2574, 45 L.Ed.2d 607 (1975); United States v. Bueno, 21 F.3d 120
(6th Cir. 1994); United States v. Wood, 106 F.3d 942 (10th Cir. 1997);
United States v. Orsolini, 300 F.3d 724 (6th Cir. 2002).
16
Terry, 392 U.S. at 27, 88 S.Ct. at 1883; United States v. Menard,
95 F.3d 9, 10-11 (8th Cir. 1996); United States v. Casado, 303 F.3d 440
(2d Cir. 2002); Commonwealth v. Crowder, Ky., 884 S.W.2d 649, 651
(1994).
17
Commonwealth v. Whitmore, Ky., 92 S.W.3d 76, 78 (2002)(citing
Minnesota v. Dickerson, 508 U.S. 366, 113 S.Ct. 2130, 124 L.Ed.2d 334
(1993)); Adams v. Williams, 407 U.S. 143, 146, 92 S.Ct. 1921, 1923, 32
L.Ed.2d 612 (1972); United States v. Walker, 181 F.3d 774 (6th Cir.
1999).
8
search
incident
to
an
arrest,
a
search
circumstances or an inventory search.18
based
on
exigent
Probable cause involves
whether the known facts provide reasonable grounds or a fair
probability that a circumstance exists supported by less than
prima facie proof but more than mere suspicion.19
Probable cause
for a search exists when the facts are sufficient to warrant a
man
of
reasonable
prudence
in
the
evidence of a crime will be found.20
belief
that
contraband
or
Similarly, probable cause
for arrest involves reasonable grounds for the belief that the
suspect has committed, is committing, or is about to commit an
offense.21
The
standard
for
reasonable
suspicion
is
less
18
See, e.g., Colbert v. Commonwealth, Ky., 43 S.W.3d 777 (2001);
Stewart v. Commonwealth, Ky. App., 44 S.W.3d 376, 379 (2000); O’Brien
v. City of Grand Rapids, 23 F.3d 990, 997 (6th Cir. 1994); United
States v. Garcia, 205 F.3d 1182 (9th Cir. 2000)(seizure after
investigatory stop justified by plain view); United States v. FelixFelix, 275 F.3d 627 (7th Cir. 2001)(search justified by consent);
United States v. Jackson, 300 F.3d 740 (7th Cir. 2002)(search justified
as incident to arrest).
19
See, e.g., Smith v. Thornburg, 136 F.3d 1070, 1074 (6th Cir.
1998)(quoting United States v. Bennett, 905 F.2d 931, 934 (6th Cir.
1990)); United States v. Padro, 52 F.3d 120, 122-23 (6th Cir. 1995).
20
Ornelas v. United States, 517 U.S. 690, 696, 116 S.Ct. 1657,
1661, 134 L.Ed.2d 911 (1996)(citing Brinegar v. United States, 338
U.S. 160, 175-176, 69 S.Ct. 1302, 1310-11, 93 L.Ed.2d 1879 (1949));
Dunn v. Commonwealth, Ky. App., 689 S.W.2d 23, 28 (1984).
21
See, e.g., Gerstein v. Pugh, 420 U.S. 103, 111, 95 S.Ct. 854,
862, 43 L.Ed.2d 54 (1975); United States v. Caico, 85 F.3d 1184, 1191
(6th Cir. 1996); Eldred v. Commonwealth, Ky., 906 S.W.2d 694, 705
(1994).
9
demanding
than
“Although
an
insufficient
the
grounds
officer’s
to
justify
necessary
reliance
a
stop,
for
on
the
a
probable
mere
likelihood
cause.22
‘hunch’
of
is
criminal
activity need not rise to the level required for probable cause,
and it falls considerably short of satisfying a preponderance of
the evidence standard.”23
Both
the
reasonable
suspicion
and
probable
cause
objective standards are flexible concepts to be applied in a
commonsense manner based on the totality of the circumstances in
each case.24
In determining the totality of the circumstances, a
reviewing court should not view the factors relied upon by the
police officer(s) to create reasonable suspicion in isolation
but must consider all of the officer(s) observations and give
due regard to inferences and deductions drawn by them from their
experience and training.25
22
Sokolow, 490 U.S. at 7, 109 S.Ct. at 1585; Weaver, supra at 407;
Commonwealth v. Banks, Ky., 68 S.W.3d 347, 351 (2001).
23
United States v. Arvizu, 534 U.S. 266, 274, 122 S.Ct. 744, 751,
151 L.Ed.2d 740 (2002)(citations omitted); Banks, supra.
24
See, e.g., United States v. Cortez, 449 U.S. 411, 417-18, 101
S.Ct. 690, 695, 66 L.Ed.2d 621 (1981); Ornelas, 517 U.S. at 696, 116
S.Ct. at 1661; Dunn, supra.
25
See Arvizu, 534 U.S. at 273-74, 122 S.Ct. at 750-51; Cortez, 449
U.S. at 418, 101 S.Ct. at 690; McCurdy v. Montgomery County, Ohio, 240
F.3d 512, 517 (6th Cir. 2001).
10
Kentucky has adopted the standard of review set out by
the United States Supreme Court in Ornelas v. United States.26
Under that approach, the decision of the circuit court on a
motion to suppress based on an alleged illegal search following
a hearing is subject to a two-part analysis.
First, factual
findings of the court involving historical facts are conclusive
if
they
are
not
clearly
evidence.27
substantial
erroneous
Second,
and
the
are
supported
ultimate
issue
of
by
the
existence of reasonable suspicion or probable cause is a mixed
question
of
conducting
law
this
and
fact
analysis,
subject
the
to
de
reviewing
novo
court
review.28
must
give
In
due
weight to inferences drawn from the facts by the trial court and
law enforcement officers and to the circuit court’s findings on
the officers’ credibility.29
In the current case, Baltimore contends that the trial
court
erred
encounter
in
with
denying
the
his
police
motion
violated
26
to
the
suppress
search
because
and
517 U.S. 690, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996).
Whitmore, supra at 79.
his
seizure
See
27
See 517 U.S. at 699, 116 S.Ct. at 1663; Whitmore, supra; Banks,
supra.
28
Id. See also Adcock v. Commonwealth, Ky., 967 S.W.2d 6, 8
(1998); Stewart, 44 S.W.3d at 380.
29
Ornelas, 517 U.S. at 699, 116 S.Ct. at 1663; Whitmore, supra.
11
provision of the Fourth Amendment and the standards established
in Terry v. Ohio.
police
did
not
have
investigative stop.
the
search
of
More specifically, he maintains that the
his
reasonable
suspicion
to
support
the
Baltimore asserts that the items seized in
person
should
be
suppressed
exclusionary rule as fruit of the poisonous tree.30
under
the
Under the
fruit of the poisonous tree doctrine, evidence derived from the
exploitation of an illegal seizure must be suppressed, unless
the government shows that there was a break in the chain of
events sufficient to refute the inference that the evidence was
a product of the Fourth Amendment violation.31
In the present case, Baltimore consented to the search
of his person and consent to search may - but not necessarily dissipate the taint of an illegal detention.32
of
the
challenged
evidence
involves
a
The admissibility
two-part
test:
(1)
whether the consent was voluntary and (2) whether the consent
30
See, e.g., United States v. Miller, 84 F.3d 1244, 1250 (10th Cir. 1996);
Northrop v. Trippett, 265 F.3d 372, 383 (6th Cir. 2001); United States v.
Betermit, 899 F.Supp. 255, 263 (E.D. Va. 1995).
31
See, e.g., Wong Sun v. United States, 371 U.S. 471, 488, 83 S. Ct. 407,
417, 9 L.Ed.2d 441 (1963); United States v. Rivas, 157 F.3d 364, 368 (5th Cir.
1998).
32
See United States v. Santa, 236 F.3d 662, 676 (11th Cir. 2000); United
States v. Beason, 220 F.3d 964, 967 (8th Cir. 2000).
United States v.
Hernandez, 279 F.3d 302, 307 (5th Cir. 2002).
12
was an independent act of free will.33 “Voluntariness focuses on
coercion, and the second prong considers the causal connection
between the ‘consent’ and the prior constitutional violation.”34
In addition, Officer Raymond testified that when he arrived, he
positively
facial
This
identified
appearance
fact
Baltimore
from
provided
the
probable
as
K-Mart
cause
the
suspect
video
to
based
surveillance
support
an
on
his
tape.35
arrest
of
Baltimore and a search of his person incident to an arrest for
items possibly related to the offense, such as the stolen credit
33
See Florida v. Royer, 460 U.S. 491, 103 S.Ct. 1319, 75 L.Ed.2d
229 (1983); United States v. Chavez-Villareal, 3 F.3d 124, 127 (5th
Cir. 1993); United States v. Richardson, 949 F.2d 851, 858 (6th Cir.
1991); Santa, supra; United States v. Goodrich, 183 F. Supp.2d 135,
145 (D. Mass. 2001).
United States v. Dortch, 199 F.3d 193, 201 (5th Cir. 1999). See
also Chavez-Villareal, supra at 127; United States v. PortilloAguirre, 311 F.3d 647 (5th Cir. 2002).
Factors relevant to
voluntariness of consent include:
(1) the voluntariness of the
defendant’s custodial status; (2) the presence of coercive police
procedures; (3) the extent and level of the defendant’s cooperation;
(4) the defendant’s awareness of his right to refuse consent; (5) the
defendant’s education and intelligence; and (6) the defendant’s belief
that no incriminating evidence will be found. Portillo-Aguirre, supra
at 658-59 (citing United States v. Shabazz, 993 F.2d 431, 438 (8th Cir.
1993); United States v. Boone, 245 F.3d 352, 361-62 (4th Cir. 2001);
United States v. Purcell, 236 F.3d 1274, 1281 (11th Cir. 2001).
Factors relevant to whether consent was an independent act of free
will include:
(1) the temporal proximity of the illegal conduct and
the consent; (2) the presence of intervening circumstances; and (3)
the purpose and flagrancy of the initial misconduct.
See United
States v. Becker, 333 F.3d 858, 861-62 (8th Cir. 2003); United States
v. Santiago, 310 F.3d 336, 343 (5th Cir. 2002); United States v.
Pedroza, 269 F.3d 821, 827 (7th Cir. 2001).
34
35
Officer Maynard testified that he was unable to identify
Baltimore.
13
cards or purchase receipts.36
Accordingly, in addition to the
consent, the search of Baltimore’s person was justified based on
a search incident to arrest.37
validity
of
his
consent
to
Baltimore has not challenged the
search
or
his
arrest,
but
the
Commonwealth has not argued that the consent or arrest cured the
taint of any alleged illegal detention and the circuit court
made no rulings on those issues.
As a result, we will address
only the question of the validity of the investigative stop.
During
the
suppression
hearing,
the
police
officers
testified that they developed a profile of the suspect involved
in
the
fraudulent
use
of
Grandee’s
credit
cards
through
interviews with store employees and video surveillance tapes of
36
Police may search a person fully and the area under his
immediate control as a search incident to arrest while a search based
on reasonable suspicion is limited to a pat-down search for weapons.
See, e.g., United States v. Childs, 277 F.3d 947 (7th Cir. 2002). A
search incident to arrest includes not only the purpose of safety of
the police but also the preservation of evidence. See, e.g., United
States v. Robinson, 414 U.S. 218, 234, 94 S.Ct. 467, 476, 38 L.Ed.2d
427 (1973); United States v. McKissick, 204 F.3d 1282, 1296 (10th Cir.
2000). Moreover, the fact that Baltimore was not technically placed
under arrest prior to the search is not determinative of its validity.
A warrantless search preceding an arrest is a valid search incident to
arrest as long as a legitimate basis existed before the search and the
arrest followed shortly after the search. See, e.g., Rawlings v.
Kentucky, 448 U.S. 98, 111, 100 S.Ct. 2556, 2564, 65 L.Ed.2d 633
(1980); United States v. Goddard, 312 F.3d 1360, 1364 (11th Cir. 2002);
United States v. Bizier, 111 F.3d 214, 217 (1st Cir. 1997).
37
We note that a valid arrest may constitute an intervening event
that cures the taint of an illegal detention sufficient to rebut the
application of the exclusionary rule to evidence recovered in a search
incident to an arrest.
See, e.g., United States v. Green, 111 F.3d
515 (7th Cir. 1997).
14
the suspect.
The circuit court credited the police officers’
testimony in finding that they developed a description of the
suspect
as
a
black
male
of
medium
build
with
braided
hair
wearing a gray Nike jacket with a black strip across the back
who had been seen riding a bicycle at approximately 4:00 p.m. on
May 3rd.
The videotapes showed the same person who had used one
of the stolen credit cards had returned to K-Mart on May 3rd in
an unsuccessful attempt to obtain cash for merchandise purchased
at that store a few days earlier.
Baltimore
maintains
that
the
description
of
the
suspect relied upon by Officer Maynard for his action was not
sufficiently distinctive to justify the investigative stop.
He
asserts that a large number of black males have braided hair and
medium
physical
thousands,
builds.
perhaps
a
Baltimore
million
gray
strip probably have been produced.
prevention
officer
did
not
also
Nike
postulates
jackets
with
a
that
black
He states that K-Mart’s loss
give
the
police
a
specific
description of the bicycle that the suspect was riding and that
riding a bicycle itself is not suspicious.
Baltimore’s argument constitutes a faulty analysis of
the Terry standard.
Arvizu,38
38
the
Supreme
In the recent case of United States v.
Court
reiterated
that
in
534 U.S. 266, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002).
15
determining
whether reasonable suspicion exists, reviewing courts “must look
at
the
whether
‘totality
the
of
the
detaining
circumstances’
officer
has
of
a
each
case
to
‘particularized
objective basis’ for suspecting legal wrongdoing.”39
see
and
The Court
specifically rejected Baltimore’s atomistic approach focusing on
individual
factors
in
isolation
and
indicated
that
a
determination of reasonable suspicion “need not rule out the
possibility of innocent conduct.”40
The [lower] court’s evaluation and rejection of seven
of the listed factors in isolation from each other
does
not
take
circumstances,”
phrase.
into
as
account
our
the
cases
“totality
have
of
understood
the
that
The court appeared to believe that each
observation by [Border Patrol Agent] Stoddard that
was
by
itself
readily
susceptible
to
an
explanation was entitled to “no weight.”
F.3d at 1249-1251.
observed
the
See 232
Terry, however, precludes this
sort of divide-and-conquer analysis.
Terry
innocent
petitioner
and
The officer in
his
companions
repeatedly walk back and forth, look into a store
window, and confer with one another.
Although each
39
Id. at 273, 122 S. Ct. at 750 (citations omitted).
40
Id. at 277, 122 S. Ct. at 753.
16
of the series of acts “perhaps innocent in itself,”
we held that, taken together, they “warranted further
investigation.”
392 U.S., at 22, 88 S. Ct. 1868.
See also Sokolow, supra [490 U.S.]
1581
[104
which
by
L.Ed.2d
1
at 9, 109 S. Ct.
(1989)](holding
themselves
were
“quite
that
factors
consistent
with
innocent travel” collectively amounted to reasonable
suspicion.41
The
Court
further
emphasized
that
the
totality
of
the
circumstances analysis “allows officers to draw on their own
experience and specialized training to make inferences from and
deductions about the cumulative information available to them
that ‘might well elude an untrained person.’”42
Applying the analysis described in Arvizu, we agree
with
the
circuit
court
that
suspicion to stop Baltimore.
Officer
Maynard
had
reasonable
The police officers testified that
they conducted the patrol search in the area near the K-Mart
store based on their educated belief that the suspect may live
near
or
frequent
that
area.
The
physical
description
and
41
See also United States v.
42
See also United States v.
Id. at 274, 122 S. Ct. at 751.
Robertson, 305 F.3d 164 (3rd Cir. 2002).
Id. at 273, 122 S. Ct. at 750-51.
Hernandez, 313 F.3d 1206 (9th Cir. 2002).
17
clothing
of
the
characteristics.
suspect
included
several
differentiating
Baltimore’s appearance was consistent with all
of the physical characteristics, he was in the target area and
he was riding a bicycle, which was consistent with the suspect’s
mode
of
transportation
a
few
hours
earlier.
Viewing
these
factors cumulatively rather than in isolation, we hold that the
police presented sufficient specific and articulable facts to
constitute reasonable suspicion to conduct an investigatory stop
into
Baltimore’s
offenses.
Baltimore
arrive
at
potential
Officer
his
name
the
Maynard
and
to
location.
involvement
testified
wait
He
until
stated
in
that
the
credit
card
he
merely
asked
Officer
Raymond
could
that
Baltimore
was
cooperative and Officer Raymond arrived in approximately 10-15
minutes.
Although Baltimore does not challenge the degree of
the intrusion, the scope of the detention was reasonable.43
43
See, e.g., United States v. Sharpe, 470 U.S. 675, 105 S.Ct.
1568, 84 L.Ed.2d 605 (1985)(stating there is no rigid time limit while
finding 20 minute detention waiting for another police officer to
arrive was not unreasonable); Orsolini, supra (finding 35 minute
detention waiting for arrival of drug canine unit reasonable); United
States v. Sturgis, 238 F.3d 956 (8th Cir. 2001)(2 hour waiting period);
United States v. Villa-Chaparro, 115 F.3d 797 (10th Cir. 1997)(40
minute waiting period); United States v. Maio, 182 F. Supp.2d 1025 (D.
Kan. 2001)(15-30 minute waiting period).
See also United States v.
Hernandez-Hernandez, 327 F.3d 703, 706 (8th Cir. 2003)(police may ask
moderate number of questions to determine person’s identity and try to
obtain information confirming or dispelling the officer’s suspicions);
United States v. Swanson, 341 F.3d 524, 528 (6th Cir. 2003)(same).
18
In
factual
conclusion,
findings
conclusion
that
were
the
we
not
hold
that
clearly
investigatory
reasonable suspicion was correct.
the
circuit
erroneous
stop
was
and
court’s
its
supported
by
Consequently, the court did
not err in denying Baltimore’s motion to suppress.
The judgment is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Alicia A. Sneed
Lexington, KY
Albert B. Chandler III
Attorney General
Courtney J. Hightower
Assistant Attorney General
Frankfort, KY
19
legal
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