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Date: 11-04-2021
Case Style:
United States of America v. Robert S. Williams
Case Number: 19-3265
Judge: Harris L Hartz
Court: UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT
On appeal from The United States District Court for the District of Kansas - Topeka
Plaintiff's Attorney: United States Attorney’s Office
Defendant's Attorney:
Description:
Denver, CO - Criminal defense lawyer represented defendant with a trafficking illegal narcotics and firearms charge.
Beginning in the spring of 2018, several different law-enforcement agencies—
the federal Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), the federal
Drug Enforcement Administration (DEA), the Federal Bureau of Investigation (FBI),
and the Topeka Police Department (TPD)—initiated a joint investigation of persons
including McCoy who were believed to be involved in trafficking illegal narcotics
and firearms. They identified several residences that they believed to be “associated”
with McCoy’s drug trafficking and other crimes.
On April 10, 2018, officers surveilling one of those residences, located at 3443
Southeast Indiana (the Indiana Address) in Topeka, observed Defendant arrive in a
white GMC Denali SUV, enter, and then exit the residence. Agents followed him as
he drove from there to 2312 Southeast Pennsylvania (the Pennsylvania Address) in
Topeka—another residence associated with McCoy—where he was observed “exiting
the vehicle with something in his hands and walking into the residence.” R., Vol. III
at 15. Defendant was not observed with McCoy on this, or any other, occasion.
1 Unless otherwise specifically noted, the facts we summarize in this section are
consistent with the district court’s findings and undisputed by the parties on appeal.
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3
A little more than a month later, on May 13, 2018, a woman named Patricia
Sanders was shot to death in Topeka. The TPD investigated the shooting as a
homicide and identified McCoy as a suspect. On the morning of May 17, Task Force
Officer (TFO) Patrick Salmon and FBI Special Agent (SA) Ian Knooihuizen led a
multi-agency briefing at which they discussed information pertinent to the hunt for
McCoy. That evening, TFO Salmon and SA Knooihuizen were surveilling the
Paradise Plaza complex, consisting of 75–100 townhome units, because a woman
believed to be McCoy’s girlfriend had one of the units and McCoy was known to
frequent her address and to stay there. After observing Defendant’s Denali exiting
the complex (there was no testimony placing the vehicle specifically at the
girlfriend’s townhome), they notified TPD officers in the area “that the [Denali]
might be a vehicle to follow and that it could be associated with Justin McCoy.” R.,
Vol. III at 18; see id. at 23 (Salmon hearing testimony: “We did not know who was
inside it, but we knew that vehicle was associated to that house and that it would be a
good opportunity to check that vehicle to make sure that Mr. McCoy wasn’t inside
that vehicle.”).
B. The Stop2
In response to the notification, TPD Officers Barry Nelson and Brady Qualls
pursued Defendant’s Denali after it exited the apartment complex, watching for a
2
Our recitation of the circumstances of the May 17, 2018 stop is based on testimony
from the suppression hearing, as well as footage from the TPD officers’ AXON
bodycam videos, which were received into evidence at the hearing.
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traffic violation that would provide the basis for a stop. Shortly after beginning their
pursuit, Officers Nelson and Qualls saw the driver of the Denali merge into the right
lane without signaling 100 feet in advance, in apparent violation of Kan. Stat. § 8-
1548. The officers initiated a traffic stop, engaging the lights on their police cruiser.
Because they were looking for a suspected murderer, Officers Nelson and
Qualls decided to conduct what is commonly known as a “felony car stop” or a
“high-risk car stop.” R., Vol. III at 40–41. In such a stop the officers, rather than
approach the stopped vehicle, stay back and order the occupants of the vehicle to
show their hands, exit the vehicle, and walk back to the officers’ position. It is also
typical during felony stops for officers to unholster their guns. These measures are
meant to ensure the safety of everyone involved—the occupants of the vehicle, the
officers, and the public.
Thus, once the Denali came to a stop, Officer Nelson ordered the driver
(Defendant) to exit the vehicle and walk back to the cruiser, where he was
handcuffed by Officer Qualls. During this time, additional TPD officers arrived at
the scene and took positions next to Officers Nelson and Qualls. One of those laterarriving officers, Officer Scott McEntire, ordered the passenger (Defendant’s fiancée,
Tara Wharton) to exit the Denali and walk back to the police vehicles, where she too
was placed in handcuffs. By then at least five TPD officers were on the scene.
Several of them had a gun in the low-ready position, where it was “not actively
pointed at anybody,” but one could “draw it up quickly” if need be. Id. at 89. Once
Ms. Wharton was secured, four TPD officers converged on the Denali to “clear” it
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and ensure that there were no remaining occupants. Only then did the officers holster
their guns.
During these activities one officer had smelled the odor of marijuana on
Defendant and another had seen raw marijuana in the vehicle. The officers searched
the vehicle, finding more illicit drugs as well as a gun in a safe.
C. Procedural History
Defendant was indicted in the United States District Court for the District of
Kansas on charges of (1) possession with intent to distribute MDMA (Ecstasy), see
21 U.S.C. § 841(a)(1); (2) possession of a firearm in furtherance of a drug-trafficking
crime, see 18 U.S.C. § 924(c)(1)(A); and (3) possession of a firearm by a convicted
felon, see 18 U.S.C § 922(g)(1). He moved to suppress the evidence obtained during
the stop. Among other things, he argued that his alleged association with McCoy was
insufficient to justify the stop, and that the officers’ use of the aggressive felony-stop
procedures exceeded the reasonable scope of a stop based on the traffic violation
alone, transforming the stop into an illegal arrest and requiring suppression of the
evidence.
At the suppression hearing the court heard testimony from TFO Salmon and
TPD Officers Nelson, Qualls, Palumbo, and McEntire. The court also admitted into
evidence bodycam footage from each of the four TPD officers. During the argument
following the introduction of evidence, the following exchange occurred:
PROSECUTOR: [T]he government understands that if you find the stop
at its inception was bad, we lose everything. If you find that the felony
car stop was bad, we lose everything.
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. . . .
THE COURT: Okay. So I think you just -- so if the court was to find
that the stop was bad or the court was to find that there wasn’t a basis
for the high-risk execution, you agree that you lose everything.
PROSECUTOR: Yeah, yeah, that seems inherent.
R., Vol. III at 151–52 (emphases added).
The district court denied Defendant’s motion, holding that the stop was
justified at its inception and that the use of force was reasonable in light of “the facts
known to the TPD officers” regarding Defendant’s possible association with McCoy,
and thus the stop was not converted into an arrest requiring probable cause. United
States v. Williams, No. 5:18-CR-40069-HLT, 2019 WL 1244961, at *4 (D. Kan.
March 18, 2019). In support of its ruling the court quoted and apparently relied on
hearing testimony that “[f]ederal investigators had informed officers that Mr. McCoy
was ‘known to ride around in’ the Denali and told Officer Qualls and others at a
briefing that ‘[Defendant] was somebody that [Mr. McCoy] had possibly been
staying with recently.’” Id. (quoting testimony from TPD Officers Palumbo and
Qualls, respectively). The court also rejected various additional arguments raised by
Defendant against the search of the vehicle and the safe. See id. at *5–6.
Defendant then pleaded guilty to the felon-in-possession charge in exchange
for dismissal of the remaining counts. The plea agreement preserved his right to
appeal the court’s denial of his suppression motion. He was sentenced to 26 months’
imprisonment to be followed by three years’ supervised release.
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II. DISCUSSION
To resolve this appeal, we need consider only Defendant’s argument that the
felony-stop procedures employed by the TPD officers—including the use of guns and
handcuffs—were unreasonable based on the information they had, and therefore the
stop became a de facto arrest for which there was no probable cause.
3 He contends
that the information available to the officers regarding the possible association
between McCoy and Defendant or his vehicle was “woefully insufficient” to support
the level of force used. Aplt. Br. at 21. Because of the concessions by the
government, we assume that the felony-stop procedures used here can be justified
only if the officers had reasonable suspicion that McCoy was in the Denali at the
time of the stop.
“When reviewing the denial of a motion to suppress, we view the evidence in
the light most favorable to the government, accept the district court’s findings of fact
unless clearly erroneous, and review de novo the ultimate determination of
reasonableness under the Fourth Amendment.” United States v. Eckhart, 569 F.3d
1263, 1270 (10th Cir. 2009) (internal quotation marks omitted).
In assessing whether the officers had sufficient information to support a
reasonable suspicion that McCoy was in the Denali, we assume without deciding that
we can consider all information known to the officers named in this opinion. See
Felders ex rel. Smedley v. Malcolm, 755 F.3d 870, 881 (10th Cir. 2014)
3
Mr. Williams does not challenge the district court’s determination that the stop
itself was justified by the observed traffic violation.
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(summarizing the collective-knowledge doctrine, which can “allow officers as part of
a common investigation to pool their collective knowledge in establishing probable
cause”).
The government has identified only two observations supporting a connection
between McCoy and Defendant or his vehicle. First, on April 10, 2018, Defendant
was seen arriving at the Indiana Address in his Denali, entering, and then exiting.
Defendant was then followed to the Pennsylvania Address, where he was observed
“exiting the vehicle with something in his hands and walking into the residence.” R.,
Vol. III at 15. Both addresses were known to law enforcement as being connected to
drug dealing by McCoy and his brother. TFO Salmon testified that because the two
addresses were associated with trafficking, the officers “knew that individuals could
not enter 2312 Pennsylvania unless [they] knew the subjects operating that -- that
house for the purposes of what they were doing. So we knew that there was some
association between [Defendant] and the McCoys.” Id. at 26. Second, on the night
of the stop, TFO Salmon and SA Knooihuizen observed Defendant’s vehicle exiting
the same townhome complex where McCoy’s girlfriend lived, and which McCoy was
known to frequent.
4
The agents did not see Defendant at the girlfriend’s townhome
in the complex, nor did they see McCoy at the complex that evening. Indeed, McCoy
was never seen with Defendant or his vehicle, and the Government has conceded that
4
Although TFO Salmon’s testimony was unclear on whether he was aware at the
time that Defendant himself was a resident of the same townhome complex, we will
view the evidence in the government’s favor and assume that he was not aware.
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it has no evidence that McCoy or his brother was present at either the Indiana or
Pennsylvania Addresses when Defendant visited them on April 10, 2018.
We recognize that the district court pointed to testimony at the suppression
hearing that indicated that officers had additional information tying McCoy to
Defendant and his Denali. Its opinion states: “Federal investigators had informed
officers that Mr. McCoy was ‘known to ride around in’ the Denali and told Officer
Qualls and others at a briefing that ‘[Defendant] was somebody that [Mr. McCoy]
had possibly been staying with recently.’” Williams, 2019 WL 1244961, at *4. This
sentence accurately reflects testimony by Officers Palumbo and Qualls at the hearing.
But the government has acknowledged that the universe of information tying
Defendant or the Denali to McCoy consists of the two items described in our prior
paragraph. Thus, Palumbo and Qualls either misheard or misremembered what
others had told them, or those speaking had misspoken. There are circumstances in
which an officer’s mistake of fact may still support reasonable suspicion or probable
cause, see United States v. Herrera, 444 F.3d 1238, 1246 (10th Cir. 2006); but the
government has not argued the point. And, much to its credit, it did not argue in its
appellate brief or at oral argument that this part of the testimony of Palumbo and
Qualls can be used to support reasonable suspicion that McCoy was in the Denali.
We therefore do not consider it.
The only question that remains, then, is whether the two pieces of information
discussed above sufficed to furnish reasonable suspicion that McCoy was in the
Denali at the time of the stop. Reasonable suspicion requires “something more than
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an inchoate and unparticularized suspicion or hunch.” United States v. Moore, 795
F.3d 1224, 1229 (10th Cir. 2015) (internal quotation marks omitted). Law
enforcement must have “an objectively reasonable and articulable suspicion that
illegal activity has occurred or is occurring.” Id. (internal quotation marks omitted).
The existence of reasonable suspicion “does not depend upon any one factor, but on
the totality of the circumstances.” Id. (internal quotation marks omitted).
By that standard, the officers did not have reasonable suspicion to believe that
McCoy was in the vehicle driven by Defendant. What they had was merely a hint
that they might wish to pursue. The officers could not tell which of the 75-odd
townhomes the vehicle had visited. And the only link of the vehicle to McCoy was a
visit to two “business” locations of McCoy’s on one occasion a month earlier, when
there was no reason to believe that McCoy was at either location.
The government has not pointed to any case law supporting its view that the
facts known to the officers provided reasonable suspicion to believe that McCoy was
in Defendant’s vehicle. What we have found in our review, however, supports our
conclusion. In United States v. Green, 111 F.3d 515, 519–20 (7th Cir. 1997), the
court said that the fact that officers had observed the defendant’s car parked in front
of a known fugitive’s house the night before failed to provide reasonable suspicion to
stop the car to look for the fugitive. In United States v. Crawford, 891 F.2d 680, 682
(8th Cir. 1989), the court said that the fact that a unit in an apartment building with at
least six units was rented to a person arrested earlier in the day for trafficking cocaine
“contributed nothing objective to the suspiciousness” of the conduct of the defendant,
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who was observed running into and out of the building. This is not a case in which
officers observed a car leaving a house or other single-family dwelling after receiving
reliable information that it was occupied by a fugitive. Cf. Ferguson v. Unicoi, No.
2:03-CV-360, 2005 WL 2407664, at *1, 6 (E.D. Tenn. Sept. 29, 2005), aff’d, 222 F.
App’x 508, 510 (6th Cir. 2007) (unpublished) (reliable informant reported that
fugitive was in the home; when a car pulled out of the driveway, officers followed it
but were unable to tell who the occupants were because rear window was blocked;
brief stop of vehicle to check for occupants was lawful).
A Second Circuit opinion is instructive. In United States v. Swindle, 407 F.3d
562 (2d Cir. 2005), officers assigned to an FBI task force were on patrol, looking for
a fugitive wanted for dealing drugs. See id. at 564. They spotted “a black Pontiac
Bonneville, a model of car that [the fugitive] had previously been seen ‘near’ but had
never been known to drive.” Id. The officers followed the car and watched as it
stopped in front of a known drug house that the fugitive “had supplied in the past.”
Id. They saw a man get out of the car and enter and then exit the house, but they
could not determine if he was the fugitive they were looking for. See id. They
proceeded to follow the car and a short time later ordered it to stop. See id.
Although other factors required denial of the motion to suppress, the appellate court
said that the order to stop “was a clear abuse of police authority” because “[a]t the
moment they ordered [the car] to stop, the officers had merely observed an
unidentified black man drive up to the drug house in a Bonneville (a model the police
associated with [the fugitive]), enter the house, leave a short while later and then
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drive away.” Id. at 569; see id. (“[The defendant’s] entering a known drug house
[did] not itself suggest that a crime was afoot.”).
The links between McCoy and Defendant’s vehicle were, if anything, even
more attenuated than those in Swindle. McCoy was never observed “near” the Denali
(or near Defendant for that matter), and the date on which Defendant was observed at
the two addresses associated with McCoy came more than a month before the stop
occurred. Cf. id. at 564 (defendant observed entering and exiting drug house
associated with fugitive on the same day as the stop).
We conclude that the actions of the officers cannot be justified on the ground
that there was reasonable suspicion to believe that McCoy was in Defendant’s vehicle
as it departed Paradise Plaza. To hold that there was such reasonable suspicion
would come too close to authorizing a roadblock for inspection of all traffic leaving
Paradise Plaza to check for a fugitive known to frequent the complex. We do not
fault the officers for paying special attention to the recognized vehicle, and we do not
foreclose the possibility that the police conduct in this case was warranted under a
theory not proffered by the government. But we think the initial instinct of the
officers was correct—although they could have stopped Defendant’s Denali as soon
as it left Paradise Plaza if they had reasonable suspicion to believe that McCoy was
in it, they apparently believed that they lacked such reasonable suspicion because
they decided they could not stop the vehicle until they observed a traffic violation
Outcome: We REVERSE the order denying the motion to suppress and REMAND to the
district court with instructions to VACATE Defendant’s conviction and sentence.
Plaintiff's Experts:
Defendant's Experts:
Comments: