Third Circuit: Terry Stop and Frisk Justified Due to FBI Notice Suspect Was Armed and Dangerous
The Third Circuit Court of Appeals recently held that an FBI notice identifying a suspect as armed and dangerous justified an officer’s demonstration of his weapon and use of handcuffs during Terry stop and frisk.
David Robinson committed two bank robberies in Philadelphia, PA in March 2016. He did not conceal his appearance or clothing in the robberies, and security cameras recorded him. The FBI circulated notices that included photographs and a detailed physical description of Robinson thereafter. The notices described the suspect as armed and dangerous.
On March 21, 2016, a U.S. Probation Officer in Philadelphia told the FBI that she knew Robinson was the suspect because she was his supervising probation officer. The U.S. Probation Office then obtained a warrant for Robinson’s arrest for a violation of his terms of supervised release.
On March 22, 2016, Southeastern Pennsylvania Transportation Authority (SEPTA) Police Officer Jeffrey McKee saw Robinson while on patrol near the location of one of the robberies. McKee recognized Robinson from the FBI’s notices. He ordered Robinson to put his hands in the air, and Robinson “kept reaching around his waistband.” He then drew his weapon and commanded Robinson to face the wall with his hands up, to which Robinson complied. Police officers arrived and placed Robinson in custody.
While Robinson was detained, another SEPTA Police Officer, Martin Zitter, brought bank employee witnesses from one of the bank robberies to the scene to verify whether Robinson was the suspect. The witnesses identified Robinson and the suspect. Robinson was then transported to the FBI offices. FBI Special Agent Percy Giles then interviewed both witnesses who confirmed Robinson as the suspect.
Robinson moved to suppress the clothing the police seized when he was arrested and the show-up identifications. He argued he was subjected to a warrantless arrest without probable cause and that the identification procedure was unduly suggestive. The district court denied the motion. Robinson appealed.
The court of appeals first found the show-up identifications did not need to be suppressed. The court stated that evidence found as a result of a search and seizure may be suppressed only if the search and seizure were unreasonable. The court stated that an officer may perform a stop under Terry v. Ohio if the officer had “a reasonable, articulable suspicion that criminal activity is afoot.” The court reasoned that McKee had reasonable suspicion to stop Robinson because Robinson matched the photograph and description in the FBI notices.
Robinson argued that the stop was unlawful because McKee pulled his weapon and forced Robinson against a building, placed him in handcuffs, and detained him for around thirty minutes. The court disagreed, and stated that whether the use of force and duration of the detention converted the stop into an arrest depend on the circumstances. Because McKee testified the FBI notice described Robinson as armed and dangerous, the court found that McKee’s actions justified pulling out his weapon, and handcuffing Robinson to effectuate the Terry stop. The court also found that the duration of the detention did not elevate the stop to an unlawful arrest since the purpose of the stop was to determine whether Robinson was the perpetrator of the robberies.
Further, the court found that the show-up identifications were reliable and should not be suppressed. The court stated that an identification procedure violates the Due Process Clause if it is “unnecessarily suggestive” and results in a “substantial risk of misidentification.” However, an unduly suggestive identification procedure does not need to be suppressed if the identification “possesses sufficient aspects of reliability, for reliability is the linchpin in determining the admissibility of identification testimony.”
Here, the court found both witnesses on the day of the robbery provided detailed descriptions that were similar to Robinson’s appearance. Because these descriptions matched Robinson’s appearance at the time of identification and the photographs from the banks, and because the witnesses expressed certainty about their identification, the court concluded that the district court did not err in denying Robinson’s motion to suppress the identifications.
Read the full case: United States v. Robinson
This case law update was written by Michael J. Sgarlat, Associate Attorney, Shaw Bransford & Roth, PC.
For thirty years, Shaw Bransford & Roth P.C. has provided superior representation on a wide range of federal employment law issues, from representing federal employees nationwide in administrative investigations, disciplinary and performance actions, and Bivens lawsuits, to handling security clearance adjudications and employment discrimination cases.