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UNITED STATES v. NELSON

June 10, 1996

UNITED STATES OF AMERICA, Plaintiff,
v.
SWYN B. NELSON, TALLY M. NELSON, CLARENCE WOODS and JEAN S. RICHARD, Defendants.



The opinion of the court was delivered by: LARIMER

 Defendants in this case are charged in a thirteen-count indictment with various drug-and firearm-related offenses. Defendant Swyn Nelson ("Nelson") has filed motions for various forms of relief, which are now pending before the court.

 I. Motion to Suppress Evidence in Connection with October 28, 1994 Arrest

 A. Facts

 Nelson moves to suppress identification testimony and physical evidence obtained in connection with his arrest by Rochester police officers on October 28, 1994. The court held a hearing on this motion on several days in February and March 1996.

 The basis for this motion is Nelson's assertion that probable cause was lacking for Nelson's arrest, and that the circumstances under which two of the officers identified him on October 28 were unnecessarily suggestive. To evaluate these contentions, a brief summary of the relevant events is necessary.

 On the night in question, Officer John C. Briggs was in his patrol car at around 12:20 a.m. when he saw a brown Camaro run a red light. He followed the Camaro, which shortly thereafter turned at an intersection without making a full stop. Briggs turned on his flashing lights, at which point the Camaro accelerated. Briggs gave chase and also radioed for assistance.

 Officer Lamar Cousins responded to Briggs's call, and was able to block the Camaro's path with his vehicle. The Camaro stopped and a black male jumped out and ran away, throwing an object on the ground as he did so. The object was later recovered and found to be a gun. Briggs and Hans, his police dog, chased the suspect on foot. Cousins also briefly chased the suspect on foot but stopped when he heard another officer (presumably Briggs) yell that a police dog had been released.

 Neither Briggs, Cousins, nor Hans caught up to the suspect. However, Officer Donald H. McKeeby was also in the area in his patrol car when he heard a radio report that officers were chasing an individual on foot a few blocks away. He drove to the scene and was told by an officer (McKeeby was not sure which one) that the fugitive was a black male wearing dark clothing and that he had run down a certain alleyway. McKeeby drove his vehicle to the area where he guessed the fugitive might be heading when a black male wearing dark clothing suddenly ran directly across McKeeby's path; McKeeby's car nearly hit him. McKeeby stopped his car and gave chase on foot. He eventually caught up with and apprehended the suspect, who turned out to be Nelson.

 Officer Robert S. Roxstrom, who had also responded to the radio calls, then arrived on the scene to find Nelson in handcuffs in McKeeby's custody. He took Nelson to the area where the Camaro had been stopped, and both Briggs and Cousins identified him as the suspect who had fled from the Camaro.

 B. Probable Cause to Arrest

 Nelson contends that Officer McKeeby did not have probable cause to arrest him because the information that McKeeby had at the time concerning the suspect's appearance was insufficient to support the arrest.

 Since McKeeby arrested Nelson without a warrant, the arrest was valid only if McKeeby had probable cause for the arrest. Probable cause exists when the authorities "have knowledge or reasonably trustworthy information of facts and circumstances that are sufficient in themselves to warrant a person of reasonable caution in the belief that (1) and offense has been or is being committed (2) by the person to be arrested." United States v. Jenkins, 876 F.2d 1085, 1089 (2d Cir. 1989) (citations and internal quotation marks omitted); see also Dunaway v. New York, 442 U.S. 200, 208, 60 L. Ed. 2d 824, 99 S. Ct. 2248 (1979); Gerstein v. Pugh, 420 U.S. 103, 111, 43 L. Ed. 2d 54, 95 S. Ct. 854 (1975). A "probable cause determination does not require proof beyond a reasonable doubt; it is the mere probability of criminal activity, based on the totality of the circumstances, that satisfies the Fourth Amendment." Hahn v. County of Otsego, 820 F. Supp. 54, 55 (N.D.N.Y. 1993), aff'd, 52 F.3d 310 (2d Cir. 1995).

 Probable cause can rest upon the collective knowledge of the police rather than solely on that of the officer who actually makes the arrest when there is some degree of communication between the two. United States v. Webster, 750 F.2d 307 (5th Cir. 1984), cert. denied, 471 U.S. 1106, 85 L. Ed. 2d 855, 105 S. Ct. 2340 (1985). When the arresting officer has no personal knowledge of any of the facts establishing probable cause, however, then the officer who issues the directive to arrest must himself have probable cause to arrest. Id. at 323.

 It is clear that probable cause to arrest Nelson existed at the time of his arrest by McKeeby. Briggs himself had probable cause to arrest based on Nelson's traffic violations and his attempt to flee after Briggs tried to pull him over. See United States v. Martinez-Gonzalez, 686 F.2d 93, 99 (2d Cir. 1982) (defendant's "hasty retreat" when officers justifiably approached him for questioning transformed officers' reasonable suspicion into probable cause to arrest); United States v. Lopez, F. Supp. , 1995 U.S. Dist. LEXIS 19875, 1995 WL 852067 *7 (D.Vt. 1995) (same). Thus, McKeeby was entitled to rely on Briggs's radio call and the information that he received when he arrived on the scene that the suspect was a black male in dark clothing who had just run down an alleyway. The sudden appearance moments later of Nelson, who fit the suspect's description, in the area where McKeeby surmised the suspect might be heading, as well as the fact that Nelson burst into the street without looking for oncoming vehicles first, more than justified McKeeby in pursuing and arresting Nelson.

 Furthermore, under the circumstances that existed at the time, it was clearly reasonable for McKeeby at least to stop Nelson and detain him long enough to ascertain whether he was the suspect that the other officers had been pursuing. "Courts have time and again approved on-the-scene showups, occurring reasonably soon after the crime, as one of the best ways not only to catch the criminal but also to exonerate the innocent." Dempsey v. Town of Brighton, 749 F. Supp. 1215, 1225 (W.D.N.Y. 1991), aff'd, 940 F.2d 648 (2d Cir.), cert. denied, 502 U.S. 925, 116 L. Ed. 2d 278, 112 S. Ct. 338 (1991). See also People v. Hicks, 68 N.Y.2d 234, 242, 508 N.Y.S.2d 163, 500 N.E.2d 861 (1986) (police acted reasonably in detaining defendant and transporting him a quarter mile so that witnesses could tell police whether he was one of the perpetrators). Thus, aside from the issue of whether there was probable cause to arrest Nelson, there was ample reason to detain him for purposes of a showup before Briggs and Cousins.

 The cases cited by Nelson in support of his assertion that probable cause to arrest was lacking are clearly distinguishable. The primary case relied upon by Nelson is United States v. Shavers, 524 F.2d 1094 (8th Cir. 1975). There, the Eighth Circuit held that probable cause to arrest the defendant for attempted bank robbery did not exist where the officer's arrest of the defendant was based on the facts that: a radio broadcast had stated that one of the two suspects was a black male about 5'8" tall, and the defendant was a 5'7" black male; the defendant was about a block away from the crime scene about ten minutes after the robbery attempt; he was walking fast; and his pants were wet (it had been raining) and had grass on them. In holding that there was no probable cause, the court observed that the neighborhood was about 50% black, and at 9:00 on a weekday morning, many persons fitting the suspect's description could likely have been found. The court also held that the defendant's proximity to the crime scene was not a persuasive factor, since some ten minutes had elapsed since the crime occurred. In addition, the defendant was not running, but only walking quickly, which would not have been unusual given the threat of further rain at the time. Id. at 1095-96.

 The facts in the case at bar are clearly distinguishable from those in Shavers. Here, Nelson was running late at night, not walking down a busy street. Furthermore, in Shavers the fact that the defendant was only a block away from the crime scene ten minutes after the crime occurred--and walking at a fast pace--actually weighed against a finding of probable cause, since the would-be robbers could presumably have gotten more than a block away in ten minutes' time. In contrast, Nelson was in the direction and area where McKeeby expected he might find the fugitive, based on what the other officers had told him about the fugitive's direction.

  The other cases cited by Nelson are even more dissimilar factually to the instant case. In United States v. Nicholas, 448 F.2d 622 (8th Cir. 1971), police officers observed a car with out-of-state license plates parked near a pool hall in an area known for a high incidence of drug trafficking. One man was sitting on the passenger's side, and another man came out of the pool hall and entered the car on the driver's side. The officers approached the car and told the driver to roll down his window. When he did so, the officers smelled burnt marijuana, arrested the men, and searched the car, turning up certain contraband. The Eighth Circuit held that the officers did not have probable cause to arrest. Among other factors contributing to this holding, the court noted that the officers were not investigating any crime at the time, nor had they been informed of any suspicious activities in the area.

 In United States v. Strickler, 490 F.2d 378 (9th Cir. 1974), the court, by a 2-1 majority, found a lack of probable cause to arrest where the only facts known to the officers at the time of the arrest were that: the parked car that the defendant was sitting in was near a residence where undercover police officers were expecting a cocaine delivery to be made; the car had slowly driven through the area a short time earlier; and the defendant was looking in the direction of the house in question.

 In United States v. Bazinet, 462 F.2d 982 (8th Cir.), cert. denied, 409 U.S. 1010, 34 L. Ed. 2d 303, 93 S. Ct. 453 (1972), the court held that the police had probable cause to arrest the appellant Bazinet's codefendant, but not to arrest Bazinet, because, as the police themselves admitted, they had "no information whatever to connect Bazinet with the commission of any crime, other than the fact that an officer [at the arrest scene] recognized Bazinet as a convicted felon." Id. at 988. Furthermore, the arresting officer testified that the main reason he arrested Bazinet was the codefendant's presence in Bazinet's vehicle. Id.

 All of these cases present factual situations much different from the one in the case at bar. The officers here were legitimately pursuing a fugitive who had fled when Briggs justifiably attempted to stop his vehicle. The arresting officer, McKeeby, was looking for the fugitive when Nelson, who fit the fugitive's description, ran past him in the area where McKeeby expected to find the ...


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