Unpublished Disposition, 914 F.2d 263 (9th Cir. 1989)

MEMORANDUM^* 

Walter Brown appeals his conviction and sentence for bank robbery. He argues that the district court improperly denied his motion to suppress evidence obtained in violation of his Fourth Amendment rights, and that the "career offender" provisions of the Sentencing Guidelines violate the Eighth Amendment.

STATEMENT OF FACTS

On August 18, 1988, the Valley National Bank in Phoenix, Arizona, was robbed. The robber handed the teller a brown paper bag and a note stating that she should fill the bag and that he had a gun. The teller filled the bag. She did not see a weapon.

The police sent out a report and a description of the robber: black male, 20-25 years old, 5'8" tall, dark green T-shirt, dark pants, short black hair, no facial hair. The report said that the suspect had put the money in a brown paper sack. There was no mention of the note's warning of a gun.

Officer Yost was driving nearby when he saw a black man running in the street "in a dead sprint." The man was in his 20's, medium height, thin, wearing a green "muscle" shirt (a " [t]ank top with straps, like a basketball shirt") and apparently dark pants. His suspicions aroused, Yost radioed in to the dispatcher. Moments later he heard the report of the bank robbery. He then pursued the suspect, but lost him.

Officer Walls, having heard both Yost's and the dispatcher's reports over the radio, then joined Officer Yost in the search. After Yost described the man he had seen, they and a number of other police set up a three-block perimeter to catch the suspect.

About ten minutes after the robbery, Officer Walls spotted the defendant, a man he believed fit the description of the robber. Brown's hands were empty.

Although Brown saw Walls' police car stopped ahead of him, he did not try to run. Walls testified that he was walking a "little slower than normal" and that he was looking from side to side as if for an escape route. Walls also noticed that he was sweating profusely. The temperature that afternoon was over 110 degrees. Walls noticed that Brown had a bulge in his right front pocket, but he did not see a weapon protruding from his body.

Walls got out of his car and stood behind the car door. When he felt that an officer in a nearby unmarked van had the defendant "covered," he walked away from his car and to the center of the sidewalk. When Brown approached, Walls asked him where he was coming from. Brown replied, "From the pool." There was a pool nearby in the direction he indicated. While he spoke, he did not seem out of breath, but Walls thought he seemed tired and nervous.

Walls then told him that there had been a bank robbery and that he fit the description. Walls told him to turn around, which he did cooperatively. Walls later stated in court that in Walls' view defendant at that time was not free to leave. Walls then patted him down for weapons. He didn't feel anything like a gun or knife; the bulge in the right front pocket "was not hard, but it wasn't soft. It was kind of in between." When asked in court whether Brown was "in custody" at this point, Walls replied, "I would believe he would have been. I wasn't going to let him go."

Walls then asked Brown what was in his pocket, and Brown replied, "Money." At this time Detective Cherry was just arriving. Cherry said something like, "You got him"; Walls replied, "Yeah, he's got a pocket full of money too." Cherry then reached into the pocket and took out the money. He explained in court that he intended to take Brown back to the bank for identification and that he had removed the money and Brown's other personal property pursuant to standard police department policy.

Either just before or just after Cherry took the money, Brown was told that he would have to come with them. He was put into the car. About one minute later, Yost, responding to Walls' radio report that he had a suspect in custody, drove up and identified Brown as the man he had been chasing. They then drove Brown to the bank where the teller also positively identified him.

Brown was charged with bank robbery, in violation of 18 U.S.C. § 2113(a). His motion to suppress the frisk, statements, search, seizure of money, arrest, subsequent identification and evidence obtained against him, on the grounds of violations of his Fourth Amendment rights, was denied. Brown waived a jury trial and was found guilty by the court.

Under the federal Sentencing Guidelines, a conviction for one count of bank robbery normally indicates an offense level of 19. Brown had three prior convictions: two for third-degree robbery and one for petit larceny. This would generally indicate a criminal history category of III. Because these past convictions as well as the present one were crimes of violence, however, defendant fell into the category of "career offender," which raised his offense level to 32 and his criminal history category to VI. After reducing the offense by two levels because of Brown's age, education, ability to participate in rehabilitative programs and acceptance of responsibility for the offense, the judge, on March 13, 1989, sentenced him to the minimum required by the guidelines: 168 months. Brown timely appealed.

STANDARD OF REVIEW

Generally, motions to suppress are reviewed de novo. United States v. Thomas, 863 F.2d 622, 625 (9th Cir. 1988). Mixed questions of law and fact in a motion to suppress evidence obtained from a warrantless search are usually reviewed do novo, although if the necessary analysis is predominantly factual in nature, the clearly erroneous standard is applied. Thomas, 863 F.2d at 625; United States v. Johnson, 820 F.2d 1065, 1072 (9th Cir. 1987). Application of the Sentencing Guidelines is reviewed de novo. United States v. Duarte, 901 F.2d 1498, 1500 (9th Cir. 1990). Generally, sentencing is left to the sound discretion of the district court and will be reviewed only for abuse of discretion. If the sentence raises constitutional issues, however, review is more searching. United States v. Yarbrough, 852 F.2d 1522, 1545 (9th Cir.), cert. denied, 488 U.S. 866 (1988) (involving an Eighth Amendment issue).

DISCUSSION

A central dispute between the parties is at what point the defendant was placed under arrest. Brown argues that he was placed under arrest "no later than when he [Walls] patted the defendant down. In fact, arrest may have occurred as early as when Officer Walls first told him to stop and answer some questions, just seconds before the frisk." Brown's conclusion rests on Officer Walls' statement that at the moment he asked Brown to turn around, Brown wasn't "in [Walls'] own personal view free to leave." He also points to Walls' agreement with the defense attorney that, just after the frisk, Brown was "in custody." "I wasn't going to let him go."

Brown's assumption that one is legally under arrest when the police officer subjectively considers him not free to leave is unsupported by case law.

In United States v. Woods, 720 F.2d 1022 (9th Cir. 1983), narcotics officers stopped defendants based on an informant's tip that persons fitting a certain description would be arranging a drug sale in the airport that day. At the time of the stop, it was one agent's "intention to 'detain them for identification purposes.' It was his undisclosed state of mind that they were not free to leave, had they attempted to do so, until the completion of the investigation." 720 F.2d at 1025.

In rejecting the defendants' argument that this undisclosed intention of the officer put them into custody, requiring Miranda warnings, the court stated that the " 'fact that the officers had entertained an unexpressed intention to detain appellants had they compounded suspicion by refusing to answer and attempting to run away does not amount to detention.' " Id. at 1026 (quoting Williams v. United States, 381 F.2d 20, 22 (9th Cir. 1967)). "Whether a person is in custody should not be determined by what the officer or the person being questioned thinks; there should be an objective standard." Id. at 1031 (quoting Lowe v. United States, 407 F.2d 1391, 1397 (9th Cir. 1969)). This objective standard was described in Lowe as an "objective, reasonable man test." 407 F.2d at 1397. A trial court must consider "circumstances which might have led defendant reasonably to believe that she could not leave freely." Id. at 1397 (quoting People v. Arnold, 66 Cal. 2d 438, 449, 426 P.2d 515, 522, 58 Cal. Rptr. 115, 122 (1967), overruled on other grounds, Walker v. Superior Court, 47 Cal. 3d 112, 253 Cal. Rptr. 1, 763 P.2d 852 (1988)), cert. denied sub nom. Walker v. Superior Court of Sacramento County, 109 S. Ct. 3186 (1989). These circumstances include the language used by the officers, the physical surroundings, "the extent to which the authorities confronted defendant with evidence of her guilt," and the "pressures exerted to detain defendant." Id. See also United States v. Mendenhall, 446 U.S. 544, 554 (1980).

We find that just before and just after Walls' frisk the circumstances were such that a reasonable person would have believed that he was free to leave. This was just an ordinary police stop. Walls merely asked the defendant where he had come from and informed him that there had been a bank robbery and that he fit the description. Similarly, there is no basis for a reasonable person in Brown's position to have believed that he was in custody at the time Walls asked what was in his pocket.

Once it has been concluded that Brown was not objectively under arrest until at some point after Walls' question about the contents of defendant's pocket, the incidents prior to this time are analyzed under a stop-and-frisk analysis. Brown concedes that the police had "founded suspicion" to stop him, and thus that the initial stop was justified under the standard of Terry v. Ohio, 392 U.S. 1, 22 (1968). He also does not object to Walls' inquiry as to where defendant had come from.

Whether a frisk incident to a justified stop is lawful must be analyzed separately. United States v. Thomas, 863 F.2d 622, 628 (9th Cir. 1988). "The standard for justifying a frisk is whether a reasonably prudent person in the circumstances would be warranted in the belief that his or her safety or that of others was in danger." Id. (citing Terry, 392 U.S. at 27). The officer may conduct a limited weapons search if he can point to specific facts leading to his belief that the suspect is armed and dangerous. Id. (citing Adams v. Williams, 407 U.S. 143, 146 (1972)); Sibron v. New York, 392 U.S. 40, 64 (1968).

Here, Walls knew he was looking for a bank robbery suspect. Since this crime inherently involves the use or threat of harmful force, it is reasonable to fear that such a suspect might be armed, especially when there is a visible bulge in his pocket. We uphold the district court's finding that the frisk was lawful.

C. Lawfulness of Walls' Question about the Pocket's Contents

Brown contends that Walls exceeded the scope of permissible inquiry allowed under Terry when he asked Brown what was in his pocket after he had determined that the bulge was not weapon-like.

The permissible scope of inquiry is fact-specific: police may investigate the circumstances provoking their suspicion. Thomas, 863 F.2d at 628. " [Q]uestions which relate directly to a suspected crime after the officer's suspicion has been aroused ... may be permissible as on-the-scene inquiries." Lowe v. United States, 407 F.2d 1391, 1394 (9th Cir. 1969). Asking what produced a large bulge in a suspected bank robber's pocket is well within these boundaries. In addition, since the defendant was not "in custody," no Miranda warnings were necessary.

D. Validity of Cherry's Search of Defendant's Pocket

The test for officers' probable cause to arrest is "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 believing that the petitioner had committed or was committing an offense." Beck v. Ohio, 379 U.S. 89, 91 (1964). Here, after Brown admitted to having money, Officer Walls' information consisted of the matching description, the heavy sweating, the proximity of the suspect to the robbed bank, and the suspect's answer of "money" as the cause of the large bulge in his pocket. This information is sufficient to support a finding of probable cause to arrest.

If the police do in fact arrest a suspect based on probable cause, they may conduct a full search of the person without additional justification. United States v. Robinson, 414 U.S. 218, 235 (1973). Thus, Officer Cherry's search of Brown's pocket was reasonable if there had been a prior lawful arrest.

The question then is whether the circumstances just before the search into the pocket should have led Brown "reasonably to believe that [he] could not leave freely," i.e., that he was in fact under arrest. Lowe, 407 F.2d at 1397. Ordering Brown to come with them would in itself have been sufficient to constitute an arrest. See Florida v. Royer, 460 U.S. 491, 501-503 (1983) (narcotics investigators' taking defendant from an airport concourse to a private police room while holding onto his ticket, driver's license and luggage effectively amounted to an arrest). The record is unclear, however, as to whether Brown was told he would have to come with them before or after Cherry reached into his pocket. Even so, the concession by both officers that Walls had "got him" is sufficient to induce a reasonable belief in a defendant that he is not free to leave. In addition, after Brown admitted to having money in his pocket, it was objectively apparent that the officers were not going to let him go. Thus, we find that Brown had been arrested prior to the pocket search, and thus that this search was valid.

Brown also attacks the special treatment accorded "career offenders" in the Sentencing Guidelines. Citing Furman v. Georgia, 408 U.S. 238 (1972), Godfrey v. Georgia, 446 U.S. 420, 433 (1980), Zant v. Stephens, 462 U.S. 862, 874 (1983), and Barclay v. Florida, 463 U.S. 939, 950 (1983), he argues first that this provision constitutes arbitrary and capricious sentencing. Although it does provide detailed, specific guidance for the sentencing judge, it does not, Brown claims, draw a meaningful distinction between career offenders and other offenders: while most offenders have their prior criminal acts taken into account only through an increase in the Criminal History Category level, career offenders have their prior acts taken into account through increases in both the CHC level and the present offense level.

In addition, Brown argues that the Guidelines fail to direct the sentencing court's discretion in a principled, meaningful way because they require the court to factor in prior conduct when determining the instant offense level: the Sentencing Commission arbitrarily and capriciously applied prior history factors to the instant offense level determination without Congress' having changed criminal statutes to include elements of prior criminal conduct. Finally, Brown claims that to increase both the CHC level and the present offense level by the same prior convictions constitutes impermissible double enhancement under Simpson v. United States, 435 U.S. 6 (1978).

As the government explains in its response, the purpose of this dual increase for career offenders is to implement Congress's directive that career offenders receive near the statutory maximum for their offense. 28 U.S.C. § 994(h).

We apply the reasoning of this Circuit in United States v. Sanchez-Lopez, 879 F.2d 541 (9th Cir. 1989), to reject Brown's argument. There, the court rejected the claim that defendant, a career offender, had received an impermissible double enhancement of his sentence. The court concluded that the method used to calculate was of no consequence since the sentence was set by Congress by statute and defendant's sentence was below that maximum. Id. at 559. The same is true here. While the Commission could have implemented Congress' directive through another method of calculation, the method it chose does not lead to arbitrary and capricious sentencing.

Finally, Brown argues that the career offender provision unconstitutionally punishes violation of a status offense. Citing Robinson v. California, 370 U.S. 660 (1962) (criminally punishing someone solely for being a drug addict violates the Eighth Amendment), he argues that the additional time he will be required to serve constitutes punishment for meeting the requirements of the status of "career offender," not for any overt act.

Brown's argument lacks merit. He was sentenced for robbing a bank, not for being a career offender. The additional prison time added on was a permissible sentence enhancement sanctioned by Congress. See Sanchez-Lopez, 879 F.2d at 558-9. See also Rummel v. Estelle, 445 U.S. 263 (1980) (upholding a state enhancement statute providing a mandatory life sentence for a third felony-conviction). The career offender provisions cannot be separated from the rest of the Guidelines which punish specific overt acts.

AFFIRMED.