699 F.

2d 172

UNITED STATES of America, Appellee

v.
Kevin DeWayne MOBLEY, Appellant.
UNITED STATES of America, Appellee,
v.
Erick Conta BARRETT, Appellant.
Nos. 82-5071, 82-5072.

United States Court of Appeals,

Fourth Circuit.
Argued Nov. 8, 1982.
Decided Jan. 25, 1983.

Stanley J. Reed, Asst. Federal Public Defender, Baltimore, Md. (Fred

Warren Bennett, Federal Public Defender, Baltimore, Md., on brief), for
appellant Mobley.
Stephen N. Goldberg, Baltimore, Md., on brief, for appellant Barrett.
Barbara S. Sale, Asst. U.S. Atty., Baltimore, Md. (J. Frederick Motz, U.S.
Atty., Baltimore, Md., on brief), for appellee.
Before WINTER, Chief Judge, CHAPMAN, Circuit Judge, and
BUTZNER, Senior Circuit Judge.
CHAPMAN, Circuit Judge:

Defendants appeal their convictions of armed robbery of a federally insured

bank in the District of Maryland on October 15, 1981. They contend that the
stop of the automobile in which they were riding was not based on a reasonably
founded suspicion and was therefore unlawful, that their arrest was made
without probable cause, and that the fruits of the search warrant incident to the
stop and arrest should have been suppressed. We find the stop, the arrest and
the search were all legal and affirm the convictions.

Following indictment charging each defendant with the armed robbery of the

Following indictment charging each defendant with the armed robbery of the
Maryland National Bank of Jefferson, Maryland the defendants moved to
suppress evidence seized from the trunk of the automobile in which they were
riding at the time of their arrest, and all fruits of said seizure, including
identifications resulting from a "show up" at the bank shortly after their arrest.
Hearings on the motions were conducted over a period of seven days, following
which the court denied the motions to suppress. Each appellant waived a jury
trial and agreed to proceed to a trial before the court on stipulated facts together
with the testimony taken at the motions hearings. At the conclusion of the trial
appellants were found guilty on all counts.

* Shortly before 10:00 a.m. on October 15, 1981 the Maryland National Bank
in Jefferson, Maryland was robbed at gun point of approximately $21,000.
Immediately before the robbery a customer of the bank looked out of the
window of the bank and saw a maroon automobile containing four black males
drive into the bank parking lot at a high rate of speed in the exit portion of the
driveway. She concluded that these individuals were about to rob the bank and
commented to another witness to this effect. Moments later two or three black
males entered the bank, each wearing a stocking mask and carrying a gun. After
taking approximately $21,000 in cash and putting it into a cloth pillowcase the
robbers locked the victims in the bank vault and none of the victims observed
the getaway.

A few moments later the police arrived and broadcast a report of the armed
robbery advising police in the area to be on the lookout for a maroon
automobile carrying four black males. Special agent James E. Duffy of the
Hagerstown, Maryland office of the FBI heard this broadcast. Jefferson is a
small rural community in Frederick County, Maryland, not far from the
junction of Routes 340 leading to Baltimore and 270 leading to Washington.

A few moments after the broadcast a Maryland state police helicopter located
the maroon automobile abandoned in a field less than one mile from the bank.
The investigating officers were therefore aware that the getaway car had been
abandoned by the bank robbers and that they were probably leaving the area in
a second automobile.

When special agent Duffy heard the broadcast he immediately headed toward
the bank to assist in the investigation. Some ten months earlier, agent Duffy
had been involved in the investigation and prosecution of appellant Kevin
Dewayne Mobley in connection with another bank robbery in the Frederick
County area. It was Duffy's belief that a 1976 or 1977 white Lincoln
automobile had been used in connection with the prior robbery. A white

Lincoln with District of Columbia license plates had been seen in the vicinity of
the bank previously robbed and had raised the suspicion of some witnesses.
Shortly after the prior robbery a state patrolman had spotted a white Lincoln
traveling Route 270 toward Washington, but the car was not stopped. This car
was later traced to a District of Columbia resident by the name of Shirley Mae
Wallace. From Duffy's investigation of the prior robbery he was of the opinion
that Mobley had used the Wallace white Lincoln in the prior robbery and that
Mobley was an active member of Wallace's gang of criminal associates.
Mobley was acquitted on the prior bank robbery charge.
7

Several weeks before the October 15, 1981 robbery agent Duffy was advised
by an FBI agent in the Washington office that a reliable informant had reported
that the Shirley Wallace gang was planning another bank robbery in Duffy's
area. He had received no further information until he heard the police radio
report of the robbery on October 15, 1981 in Jefferson, but as he traveled
toward the bank he recalled the prior robbery, the white Lincoln and the tip
from the confidential informant that had been relayed to him. Concluding that
this must be the work of the Shirley Wallace gang, agent Duffy broadcast on
the Frederick County channel of the state police radio band a request that
officers be on the lookout for a 1976 or 1977 white Lincoln automobile
heading south on Route 270. Several minutes later a white Lincoln was spotted
heading south on Route 270 near the County line. When observed by a state
patrolman the Lincoln appeared to have only one occupant, Kevin DeWayne
Mobley, the driver. When the officer first spotted the car he noted that it had
only one license tag which aroused some suspicion, because it is not
uncommon for bank robbers to steal or switch license tags for use on an
automobile in the commission of a crime or leaving the scene of a crime.

The officer who spotted the car reported his observation. Lieutenant Yinger of
the Frederick Barracks of the state police advised the officers that possibly
other persons were lying down in the floorboard of the car and told the officers
to make a stop. Officers Eiker and Etheridge stopped the Lincoln, and because
of a suspected felony they drew their weapons as they approached the car.

As officer Etheridge approached from the rear he observed a passenger in the

right front seat raise his head and peer over the dash. Officer Eiker also saw
movement in the front passenger seat and observed a hand placed on the
dashboard. At this moment a third officer, Hunnicutt, had arrived at the scene
and noticed that there were other passengers in the car. The officers directed all
occupants to exit the car and found Kevin Dewayne Mobley at the wheel, Larry
Tyrone Hagans, Jr. in the passenger seat and appellant Erick Conta Barrett in
the back seat. The remains of a stocking mask were around Barrett's neck as he

exited the car. None of the individuals had any identification and each refused
to give his name.
10

Officer Hunnicutt asked about the alleged fourth bank robber. He was
concerned that the fourth robber might be hiding in the trunk. He also
remembered that a police captain had been killed by a criminal hiding in a car
trunk, so he opened the trunk. He did not find the fourth suspect, but saw in
plain view a number of guns and a cloth pillowcase stuffed with currency
wrapped in bank straps.

11

The three suspects were immediately taken to the state police barracks in
Rockville and the car, with the money and guns in the trunk, was towed to the
Frederick barracks. The robbers were taken back to the bank and Mobley and
Barrett were positively identified by bank employees. These facts were found
by the court and are amply supported by the evidence.

II
12

Since the officers making the stop were acting upon orders from Lieutenant
Yinger and the direction of agent Duffy to be on the lookout for a 1976 or 1977
white Lincoln heading south on Route 270, we must decide whether Duffy's
broadcast and Yinger's order to stop the white Lincoln meet the test of Terry v.
Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889 (1967) that "... in
justifying the particular intrusion [the stop] the police officer must be able to
point to specific and articulable facts which, taken together with the rational
inferences from those facts, reasonably warrant that intrusion."

13

At the time Duffy broadcast the lookout he either knew or believed the
following: (1) That an armed bank robbery had been committed in Jefferson;
(2) that it appeared to have been perpetrated by four black males; (3) that black
bank robbers in that area of rural Maryland usually came from Baltimore or
Washington; (4) that an exceedingly reliable informant had reported recently
that the Shirley Wallace gang was planning a robbery in Duffy's area; (5) that
Kevin Dewayne Mobley was a member of the Shirley Wallace gang; (6) that
Shirley Wallace owned a 1976 or 1977 white Lincoln; (7) that less than a year
before, the same gang had committed a bank robbery in the Frederick area; and
(8) that Shirley Wallace's white Lincoln had been involved in the prior robbery
and had been spotted headed south toward Washington on Route 270 shortly
thereafter.

14

Lieutenant Yinger, when he directed the patrolman to stop the white Lincoln,

was aware: (1) That a car matching the description given by agent Duffy was
seen proceeding south on Route 270; (2) that it appeared to be occupied by one
black male; (3) that it was not uncommon for criminals to lie in the floor of a
car in order to conceal themselves; (4) that the suspect vehicle bore only one
license tag; (5) that it was not uncommon for criminals to steal or switch one
license tag; (6) that bank robbers usually involve the use of two automobiles,
because the robbers wish to abandon the automobile seen by witnesses at the
bank and make their getaway in a vehicle that has not been observed; and (7)
that the maroon car had been found abandoned.
15

We find that the facts known by agent Duffy at the time of his broadcast were
sufficiently specific and articulable when taken with the rational inferences to
be drawn therefrom to give rise to a reasonable suspicion that a white 1976 or
1977 Lincoln automobile had been involved in the bank robbery and would be
headed south on Route 270.

16

In considering the totality of the circumstances as it appeared to the

investigating officers at the time, Lieutenant Yinger had sufficient facts
available to give rise to a reasonable suspicion that the white Lincoln spotted by
officer Eiker headed south on Route 270 was engaged in criminal activity
justifying an investigative stop of the car under Terry v. Ohio.

17

In the present case the officers were involved in a known and ongoing crime.
They were conducting a minute-by-minute investigation. They knew the bank
robbers were in the immediate vicinity and hoped to be able to apprehend them
before they could slip away.

18

It is obvious that the investigating officers and those directly responsible for
ordering the stop of the white Lincoln had a particularized and objective basis
for suspecting the white Lincoln to be involved in the robbery. The assessment
to be made by the officers is set forth in U.S. v. Cortez, 449 U.S. 411, 418, 101
S.Ct. 690, 695, 66 L.Ed.2d 621 (1981):

19

The idea that an assessment of the whole picture must yield a particularized
suspicion contains two elements, each of which must be present before a stop is
permissible. First, the assessment must be based upon all of the circumstances.
The analysis proceeds with various objective observations, information from
police reports, if such are available, and consideration of the modes or patterns
of operation of certain kinds of law breakers. From these data, a trained officer
draws inferences and makes deductions--inferences and deductions that might
well elude an untrained person.

20

The process does not deal with hard certainties, but with probabilities. Long
before the law of probabilities was articulated as such, practical people
formulated certain commonsense conclusions about human behavior; jurors as
factfinders are permitted to do the same--and so are law enforcement officers.
Finally, the evidence thus collected must be seen and weighed not in terms of
library analysis by scholars, but as understood by those versed in the field of
law enforcement.

21

The second element contained in the idea that an assessment of the whole
picture must yield a particularized suspicion is the concept that the process just
described must raise a suspicion that the particular individual being stopped is
engaged in wrongdoing.

22

The appellants argue that the white Lincoln was stopped on the basis of a
hunch or just blind luck. The government contends that the stop was a result of
good police work. This court agrees that it was good police work and met both
prongs of the Cortez test. Agent Duffy was aware of the "modes or patterns" of
bank robbers in general and the Shirley Wallace gang in particular. He had the
information as enumerated above. This information supports the probability
that a white Lincoln had been used in a bank robbery that had just occurred.
The particular individual stopped was Kevin Dewayne Mobley, who was
suspected as being a member of the Shirley Wallace gang, had been indicted in
a prior bank robbery in the same area and was driving the white Lincoln in the
direction of Washington immediately following the October 15, 1981 bank
robbery. The only luck involved the use of the white Lincoln. The vehicle used
on October 15, 1981 did not belong to Shirley Wallace but was owned by Larry
Tyrone Hagans, the father of Larry Tyrone Hagans, Jr., the juvenile found in
the front seat of the car at the time of the stop. Mr. Hagans, Sr. was not
involved in the scheme to rob the bank. However, this coincidence does not
undermine the inferences that were properly drawn and adequately supported
that a white Lincoln probably was used in the bank robbery.

III
23

Since the officers at the scene were advised that there had been four bank
robbers, and since two of the individuals in the car had been trying to conceal
themselves, and one of them still had the stocking mask around his neck, it was
perfectly reasonable for the officers to search into the automobile trunk for the
fourth suspect. United States v. Muhammad, 658 F.2d 249 (4th Cir.1981).

24

The total elapsed time in stopping the white Lincoln, unloading the occupants
and searching the vehicle was no more than five minutes. Although the exact

moment of the arrest of the suspects is uncertain, it occurred sometime during

the five minutes. Once the two suspects, who had been hiding in the car came
forth, and one had a stocking mask around his neck, there were sufficient facts
and circumstances to justify the officers' belief that they had apprehended the
bank robbers. This belief became certain a moment later when the trunk was
opened revealing the bank money and the weapons used in the robbery.
25

Defendants contend that this case is controlled by U.S. v. Rias, 524 F.2d 118
(5th Cir.1975). However, Rias involved a completely different factual situation.
Rias and his companion were stopped and their vehicle searched because they
were black males driving a black or blue Chevrolet near a Farm Store in
Miami, when the police officer knew that there had been a series of Farm Store
robberies, the last of which occurred at least two weeks and possibly a month
earlier. The officer in Rias had no other information to justify the stop and
attempted to justify the search of the automobile upon inconsistent stories by
Rias and his companion as to where they were going. Rias did not involve the
investigation of a bank robbery which had occurred within the past hour or so.
Rias did not involve a stop after checking with higher authority, which had the
benefit of the accumulation of all of the facts which have been mentioned
herein. The search in Rias was not for the protection of the officers, when the
officers knew that there was a fourth participant involved, and Rias nor his
companion exited the vehicle with the remains of a stocking mask around the
neck.

26

Since the stop was based upon specific and articulable facts giving rise to a
reasonable suspicion that the occupants of the Lincoln were engaged in criminal
activity, and the arrest was made upon probable cause in connection with an
ongoing investigation, both were proper and the fruits of the search of the
automobile were admissible at trial. Judgment is, therefore,

27

AFFIRMED.