998 F.

2d 883

UNITED STATES of America, Plaintiff-Appellee,

v.
Rio Hatton JONES, Defendant-Appellant.
No. 92-2117.

United States Court of Appeals,

Tenth Circuit.
July 14, 1993.

William E. Parnall, Albuquerque, NM, for defendant-appellant.

Presiliano A. Torrez, Asst. U.S. Atty., D.N.M. (Don J. Svet, U.S. Atty.,
also on the brief), for plaintiff-appellee.
Before McKAY, Chief Judge, MOORE and ANDERSON, Circuit Judges.
McKAY, Chief Judge.

Defendant was arrested in Albuquerque, New Mexico, after local police found
crack cocaine in the vehicle in which he was a passenger. In the district court,
Defendant sought to suppress the crack cocaine as the product of an
unconstitutional seizure. When the trial court denied the motion, Defendant
entered a conditional plea of guilty to one count of possession of cocaine base
with intent to distribute in violation of 21 U.S.C. 841(a)(1) (1988). The
conditional nature of the plea preserved Defendant's right to appeal the
suppression issue.

* In reviewing the denial of a motion to suppress, we apply the clearly

erroneous standard to the district court's findings of fact. United States v.
Anderson, 981 F.2d 1560, 1566 (10th Cir.1992). In addition, we view the
evidence on appeal in the light most favorable to the prosecution. Id. However,
the ultimate determination of whether the police had a reasonable suspicion is a
conclusion of law that we review de novo. Id.

Viewing the evidence in the light most favorable to the prosecution, the facts

are as follows: On December 5, 1991, the Albuquerque, New Mexico, police

received a report from an apartment manager that one of his tenants had told
him two African-American men had pounded hard on the door of a neighbor's
apartment. One was holding a gun. The tenant then came on the line and
reported the men had left without entering the apartment, driving a black
Mercedes westbound. He stated that both were wearing a lot of jewelry, and
that one was wearing an expensive purple sweater.
4

The police dispatcher issued a call for a "1031," which indicates a suspicious
person. Shortly thereafter, a motorcycle patrol officer spotted a black Mercedes
proceeding south in an area that was a mile and a half west of the site of the
disturbance. The officers estimated that the interception site was about five
driving minutes from the scene of the incident. The record lacks sufficient
detail for us to know with precision the lapsed time between the departure of
the car from the apartment to the interception of the car at issue here.

The car that the police intercepted was driven by an African-American man,
with another African-American man in the back seat. Prior to stopping the
vehicle, the officers also observed a woman and a six- or seven-year-old child
in the front seat. Other than the radio report, there was nothing about the
appearance or operation of the vehicle that aroused the officers' suspicions or
contributed to the justification for the stop.

The officer called for back-up, and when the car stopped in the parking lot of a
grocery store, four or five police vehicles converged on the scene. The
occupants (who included a second child whom the officers had not previously
noticed) were ordered out of the car, and both men were handcuffed. A frisk
revealed no weapons. The officers, however, observed through an open car
door a clear plastic bag protruding from beneath the center arm rest in the back
seat. When one of the officers pulled it out, he discovered that it contained
crack cocaine. Defendant, who had been riding in the back seat, was arrested.

The trial court declined to suppress the cocaine. Defendant now appeals,
claiming that it was the fruit of an illegal seizure of himself and the vehicle in
which he was travelling.

II
8

The police officers who stopped this car did so on very meager evidence. They
knew only that two black men had left a disturbance five minutes earlier in a
black Mercedes. While they had some description of the clothing the men were

wearing, they could not see the clothing that the occupants of this vehicle were
wearing at the time they initiated the stop. They were not told of any further
distinguishing features of the car, such as a partial license plate or a dent.
Because of the layout of the streets in that part of Albuquerque, they had no
idea in what direction the men were travelling.1 They were in Albuquerque, a
major population center, at 4:00 p.m. on a weekday afternoon. The record
contains no evidence suggesting that the area within a five minute drive from
the scene of the disturbance was either sparsely populated or lightly driven.
9

There were many aspects of the vehicle they found which suggested this was
not the car they were looking for. They were searching for armed men fleeing
the scene of a disturbance. Yet the car they intercepted (a) contained a six- or
seven-year-old girl,2 (b) was not travelling from the direction of the
disturbance,3 (c) was on a street that, by the officers' own admission, could
only be reached from the disturbance by a circuitous route, and (d) promptly
parked in front of a grocery store.4

10

Nevertheless, the officers singled out this car, out of all the cars in the area, for
a massive intrusion based solely on the color and manufacturer of the car, and
the fact that it contained two black men. There is no information in the record
as to the number of black Mercedes owned by African-Americans in
Albuquerque, and we will not speculate as to the statistics.5 Absent a strong
showing, on the record and based on objective statistics, that the sight of two
African-Americans in a black Mercedes was a highly unusual event, we cannot
sanction the officers' claim that this flimsy evidence provided them with a
reasonable suspicion that they had found the car that fled the disturbance.

III
11

The officers' actions were problematic for reasons beyond the fatal weakness of
the description of this vehicle and its occupants. Our cases have established that
this kind of investigative stop is only justified if the officers have "a reasonable,
articulable suspicion that the person has been, is, or is about to be engaged in
criminal activity." United States v. Recalde, 761 F.2d 1448, 1454 (10th
Cir.1985). The inferences the officers had to make to reach that conclusion
were quite troubling.

12

First, the information that the police were acting on came from an informant
with whom they had no experience. The police made no observations of
suspicious behavior that corroborated the report.6 The tip given in this case was
only marginally above the minimum required by the Supreme Court in
Alabama v. White, 496 U.S. 325, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990).

13

Second, the tip stated that one of the men involved in the disturbance was
holding a gun and that the men were pounding hard on an apartment door. The
officers admitted on the stand that they were aware that these actions were not
crimes in New Mexico. Further, while the tip did indicate the potential for
some kind of altercation at the site of the disturbance, the officers were aware
that the vehicle they seized was far from that site, carried a six- or seven-yearold child, and had just parked at a grocery store. Therefore, even assuming
arguendo that the officers had found the right car, any inference that Defendant
and his companions had been, were currently, or were about to be engaged in
criminal activity was far-fetched. The fact that crack was found in the car was
blind luck.

14

In order to conclude that an investigatory stop was in order the police would
have had to infer (a) that they had found the car that they were looking for; (b)
that the report of the disturbance was reliable; and (c) that the men who left the
scene of the disturbance had been, were, or were about to be engaged in
criminal activity. The stop was only justified if all of these inferences, taken
together, were reasonable.

15

While multiple inferences are not per se impermissible, courts have long been
cautious about accepting conclusions that were arrived at "by piling inference
upon inference." Direct Sales Co. v. United States, 319 U.S. 703, 711, 63 S.Ct.
1265, 1269, 87 L.Ed. 1674 (1943).7 This is precisely what the police did in this
case. Of the three inferences necessary to reach a conclusion of reasonable
suspicion, the first was fatal, and all three were weak. Looking to the three
inferences piled on top of each other, the support for the ultimate conclusion
that an investigatory stop was justified fell far short of the minimum
requirements of the Fourth Amendment.

IV
16

We do not suggest that the level of the intrusion was inappropriate if the
officers indeed had a reasonable suspicion that the vehicle contained armed
criminals. But the radical intrusion into the lives of people who were going to
the grocery store with two young children underlines the compelling need for
courts to strictly apply the requirement that police have reasonable suspicion
before they initiate such an intrusion.

17

The judgment is REVERSED, and the case is REMANDED for further

proceedings consistent with this opinion.8

18

ANDERSON, Circuit Judge, separately concurring.

18

ANDERSON, Circuit Judge, separately concurring.

19

I am pleased to concur in the excellent majority opinion in this case, with one
caveat. I hope that the police in my neighborhood will continue to have
suspicions that a crime has been or is about to be committed if two people
(regardless of race, gender, nationality, religion, etc.), carrying guns, walk up to
my door and start pounding on it.

While the report stated that the vehicle was heading west and the car in
question was found at a location west of the site, the witnesses agree that this is
only coincidence. As the police were aware, the car was exiting a cul-de-sac
which only exited to the west, and in fact was proceeding southbound when
they intercepted it. Thus, given the testimony that a vehicle travelling in
Albuquerque at that time of day would travel about a mile and a half in the five
minutes that police were searching for it, the car could have been anywhere in a
seven square-mile area

We note that it would be unusual, to say the least, to bring two children to an
armed confrontation

At the point it was intercepted, the car was travelling south, while the
disturbance was to the east

Subsequent to initiating the search, police learned several other things that
called into question whether they had found the right car. For example, one of
the men reported leaving the scene of the disturbance was described as wearing
a purple sweater. Three out of four officers affirmatively stated that none of the
men in the car they stopped was wearing such a sweater (one officer had an
uncertain memory). Similarly, the officers confirmed that the men they stopped
did not have the abundance of jewelry that was seen at the disturbance. Of
course, this subsequently discovered information has no bearing on the
justification for the seizure of this vehicle

We note, however, that no evidence was presented on the record connecting

this car to the prior disturbance. In fact, the evidence presented strongly
suggests that the vehicle intercepted by police was actually carrying two men
who were bringing a mutual acquaintance, her daughter, and her niece to the
grocery store to buy some food
The prosecution represented to the trial court that, after Defendant was
arrested, the original informant viewed a photograph of the Mercedes at issue
in that case, and believed it to be the same car as the one he reported. However,

given the presence of three people not mentioned by the informant, substantial
variances between the informant's description and the appearance of the
occupants of this car, see supra note 4, the lack of any attempt on this record to
conduct a line-up with the occupants of the car, the uncontradicted testimony
by the woman in the car that she was out getting milk for her daughter and her
niece at the grocery store at which they stopped, and the lack of any testimonial
or physical evidence whatsoever on the record to link this car to the earlier
disturbance, it appears, even drawing all inferences in the light most favorable
to the government, that we can say only that this car was the same color and
model as the car at the disturbance, and that this car had no connection to the
earlier incident.
Thus, it would appear that there were at least two black Mercedes driven by
African-Americans in Albuquerque on that afternoon.
6

The only corroboration was the sighting of the Mercedes in which Defendant
was travelling in the area about five minutes later

Thus, as this court stated in another context, "inferences alone may, if

reasonable, provide a link in the chain of evidence and constitute in that regard
substantial evidence. But an inference cannot be piled upon an inference, and
then another inference upon that, as such inferences are unreasonable and
cannot be considered as substantial evidence." NLRB v. Meinholdt Mfg. Inc.,
451 F.2d 737, 738 (10th Cir.1972) (quoting Interlake Iron Corp. v. NLRB, 131
F.2d 129, 133 (7th Cir.1942)) (emphasis supplied in Meinholdt Mfg.)

Because of our disposition of this issue, we do not reach Defendant's other

contentions of error