United States v. Kenneth C. Brown

RENDELL, Circuit Judge,

dissenting:

I must respectfully dissent because the majority opinion approves a stop-and-frisk of Mr. Brown based on “nothing more substantial than inarticulate hunches” as proscribed by Terry v. Ohio, 392 U.S. 1, 22 , 88 S.Ct. 1868 , 20 L.Ed.2d 889 (1968). Mr. Brown was merely near the wrong place at the wrong time. The evidence established that, at 1:30 a.m., the defendant and four other males were spotted walking south on Belvedere and turned onto Princess Street, “one block over” from the area of 700 West King Street, where the shootings were reported to have occurred. * There was no evidence to connect these men to the crime other than then-having been the only ones seen by the police on the street in the general vicinity. The record contained no evidence as to when the shootings had occurred, how much time had *151 elapsed between the shootings and the sighting of the five black males, and no evidence that the perpetrators were black, male, or that they were on foot. In fact, all the police knew was that “shots had been fired in the 700 block of West King Street,” and “two victims of the shooting had been taken by a private vehicle to City Hall.” For all the police knew at the time, the incident could have been a shootout with no perpetrators other than those injured.

Further, Brown did not flee when two of his companions were questioned; rather, two stopped, and' the other three, including Brown, kept walking. He ran only later, when a police car kept pursuing him. While the majority opinion sidesteps the issue, flight alone, under these circumstances, should not provide probable cause for a Terry stop, because flight can be the result of legitimate concerns on the part of the person being pursued, and, on its own, does not indicate that criminal activity is afoot. See, e.g., United States v. Young, 598 F.2d 296, 304 (D.C.Cir.1979) (Robinson, J., concurring); United States v. Duffy, 796 F.Supp. 1252, 1258-59 (D.Minn.1992); United States v. Margeson, 259 F.Supp. 256, 264 (E.D.Pa.1966). While flight with more can justify a Terry stop, here there is nothing more.

Law enforcement officers made Brown a suspect merely by virtue of reporting the color of his hat and coat. The instant situation is clearly distinguishable from both United States v. Embry and United States ex rel. Richardson v. Rundle, on which the majority rely. In those cases there were facts which, when taken together with reasonable inferences drawn from those facts, justified an intrusion. Here, not only are there no facts that connect Brown with criminal activity, but, moreover, there are no inferences which can reasonably be drawn from facts of record which could do so. As Judge Seitz cautioned in his dissent from the majority opinion in United States v. Embry:

Terry and its progeny do not license the police to stop individuals in public places on a bare suspicion or an intuition that they may be criminals, and it certainly does not permit random stops in an effort to turn something up. In every case, “the police officer must be able to point to specific and articulable facts which, taken together with reasonable inferences from those facts, reasonably warrant the intrusion.”

546 F.2d 552, 558-59 , citing Terry, 392 U.S. at 21 , 88 S.Ct. 1868 .

Here, there are no such facts. We take a giant step backward in our Fourth Amendment jurisprudence in giving our stamp of approval to the police conduct in this case.

I would reverse.

Interestingly, a street map of York City shows the relevant portion of West King Street to be separated from Princess Street by several streets— Light Alley, West Poplar Street, and School Place. See Mapquest, http://city.net/cgi/mapsS. The record, however, contains only the officer’s statement as to the geographic layout of the area. Appendix, p. 63.