US v. Prince Bell, No. 14-4024 (4th Cir. 2014)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 14-4024 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. PRINCE JHAMIER BELL, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Newport News. Raymond A. Jackson, District Judge. (4:13-cr-00049-RAJ-DEM-1) Argued: October 30, 2014 Before TRAXLER, Judges. Chief Judge, Decided: and KING and November 18, 2014 THACKER, Circuit Affirmed by unpublished per curiam opinion. ARGUED: Timothy Anderson, ANDERSON & ASSOCIATES, Virginia Beach, Virginia, for Appellant. Richard Daniel Cooke, OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia, for Appellee. ON BRIEF: Dana J. Boente, Acting United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Prince Jhamier Bell pled guilty to interference with commerce by robbery, 18 U.S.C. § 1951(a), and possession of a firearm in furtherance of a crime of violence, 18 U.S.C. § 924(c), reserving his right to appeal the denial of his motion to suppress. contends He received a 144-month sentence. that the district court erred in On appeal, Bell finding that his arrest was supported by probable cause and erred in concluding that a show-up identification of him was constitutional. We affirm. I. On January 6, 2013, a Shell gas station in Newport News, Virginia, was robbed at gunpoint. Within minutes, police officers responded to the robbery, interviewed the victim clerk, and issued a description of the robber on the police radio. The suspect was described as a tall black man, dressed entirely in black, and wearing a black hat and scarf over his head and face. The suspect had fled on foot. Within 16 minutes of the robbery, the police located a suspect who matched the description and who was running through the nearby neighborhood. During the pursuit, the police officers were constantly communicating with one another and sharing information about the movements of the suspect. through At least two officers observed the suspect running the neighborhood, and one 2 officer attempted a foot chase. The officers were additionally assisted by nearby residents, who were also reporting the movements of the suspect. When Bell was finally apprehended, he was wearing a white tshirt and black pants, and was out of breath and sweating. However, with the assistance of a K-9 police dog, the officers recovered a black hooded sweatshirt and a large amount of money behind the residences in the adjoining block. After apprehending Bell, officers transported the victim clerk from the Shell gas station to the location where Bell was being detained, and the clerk identified Bell as the robber based upon Bell’s pants and shoes. Bell admitted running from the police, but denied participating in the robbery. II. A. When considering a district court’s ruling on a motion to suppress, we review the district court’s legal conclusions de novo and its factual findings for clear error. McGee, 736 F.3d 263, 269 (4th Cir. 2013). court has denied the suppression motion, United States v. When the district we construe evidence in the light most favorable to the Government. defer to the district court’s credibility findings. Id. We United States v. Griffin, 589 F.3d 148, 150-51 n.1 (4th Cir. 2009). 3 the B. Bell arrest contends him and, that the therefore, police that lacked his probable arrest obtained thereafter must be suppressed. and cause the to evidence In determining whether probable cause existed for Bell’s arrest, the court must look at the totality of the circumstances surrounding the arrest. Illinois v. Gates, 462 U.S. 213, 230-32 (1983); see also Taylor v. Waters, 81 F.3d 429, 434 (4th Cir 1996). a warrantless arrest is defined as Probable cause for “facts and circumstances within the officer’s knowledge that are sufficient to warrant a prudent person, or one of reasonable caution, in believing, in the circumstances shown, that the suspect has committing, or is about to commit an offense.” committed, is United States v. Gray, 137 F.3d 765, 769 (4th Cir. 1998)(en banc)(citations and internal quotation information marks surrounding omitted). an arrest Determining is sufficient whether to the establish probable cause is an individualized and fact-specific inquiry. See Wong Sun v. United States, 371 U.S. 471, 479 (1963). Additionally, officers are permitted to draw on their experience and specialized training to make inferences from and deductions about cumulative evidence. United States v. Arvizu, 534 U.S. 266, seemingly 273 (2002). “[E]ven innocent activity when placed in the context of surrounding circumstances,” can give 4 rise to probable cause. United States v. Humphries, 372 F.3d 653, 657 (4th Cir. 2004) (internal quotation marks omitted). The district court concluded that Bell’s attire, demeanor, and flight through the neighborhood, in light of the short amount of time that transpired between the robbery and Bell’s detention, provided the requisite probable cause. Having carefully reviewed the parties’ briefs, the materials submitted in the joint appendix, and the district court’s order denying Bell’s motion to suppress, we agree. Here, the officers were entitled to rely not only upon the initial description of the suspect given by the victim clerk, but also upon the suspect’s “headlong internal flight upon quotation noticing marks police,” omitted), and id. (alteration and the information the police collectively learned from each other and the residents while in pursuit, see United States v. Massenburg, 654 F.3d 480, 492-95 (4th Cir. 2011). Based upon the totality of the circumstances, we are satisfied that Bell’s arrest was supported by probable cause. C. Bell next contends that the district court erred in denying his motion to suppress the victim clerk’s show-up identification of him immediately after his arrest. This court may uphold a district court’s denial of a motion to suppress an out-of-court identification if we find the identification reliable, without 5 determining whether the suggestive. Holdren 1994). assessing In identification v. Legursky, the 16 procedure F.3d reliability 57, of was 61 an unduly (4th Cir. out-of-court identification, this court examines: (1) the witness’s opportunity to view the suspect at the time of the crime; (2) the witness’s degree of attention at the time; (3) the accuracy of the witness’s initial description of the suspect; (4) the witness’s level of certainty in making the identification; and (5) the length of time between the crime and the identification. United States v. Saunders, 501 F.3d 384, 391 (4th Cir. 2007). On appeal, Bell argues that the show-up identification was impermissibly suggestive in violation of his due process rights because the procedure utilized by the police for the show-up was inherently suggestive and suggestive procedures. no emergency We disagree. existed requiring the Prompt, on-the-scene show- ups are not per se suggestive and may in fact “promote fairness, by enhancing reliability of the identifications, expeditious release of innocent subjects.” 624 F.2d 491, 494 (4th omitted). While suspect is exhibited having similar Cir. “[g]reater to facial a and 1980) witness in physical can the permit Willis v. Garrison, (internal accuracy and be quotation assured company marks when a of others characteristics under circumstances where the mind of the beholder is not affected by intended or unintended, blatant or subtle, suggestions of the suspect’s probable guilt,” one-man 6 confrontations are not impermissibly commission suggestive of a when crime, they the occur police promptly have after obtained a the good description of the offender, and the show-up is completed under circumstances where it is important to continue the search for the real culprit promptly if he has not been apprehended. v. Coiner, 473 F.2d 877, 880-81 (4th Cir. 1973); Smith see also court, the Stanley v. Cox, 486 F.2d 48, 51 n.7 (4th Cir. 1973). In any event, and as noted by the district identification was reliable under the circumstances. was very close to the suspect during the robbery The clerk and his identification of Bell took place approximately forty minutes later. Although Bell was covered in black clothing from head to foot, the clerk “was able to identify the suspect from the waist down because during the robbery, the suspect kept the gun at waist-level, pointed at the [c]lerk.” J.A. 273. The clerk “elaborated [on] the specific style of the suspect’s pants” and testified that the suspect’s “shoes were black high-tops with smooth soles and mud at the bottom.” Id. Finally, the district court “observed the [c]lerk’s demeanor and made special note of the degree of confidence and consistency with which he relayed the identifying information.” Id. Having carefully considered the record, we conclude that the district court did not err in 7 finding that the identification was reliable under the circumstances of this case. * III. For the foregoing reasons, we affirm the district court’s judgment. AFFIRMED * To the extent Bell argues the show-up identification violated his Sixth Amendment right to counsel, his right to counsel did not attach until after the commencement of adversarial judicial proceedings. See United States v. Alvarado, 440 F.3d 191, 199-200 (4th Cir. 2006). 8