UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

UNITED STATES OF AMERICA, )

)
Plaintiff/Appellee, )
)
v. ) Case No. 08-8086
)
TERRANCE WILLIAM BROWN, )
)
Defendant/Appellant. )

On Appeal from the United States District Court

for the District of Wyoming

The Honorable Alan B. Johnson

District Court Judge

District Court No. 08-CR-13-01J

__________________________________________________________________

TERRANCE WILLIAM BROWN’S OPENING BRIEF

__________________________________________________________________

Megan L. Hayes
910 Kearney Street
Laramie, WY 82070
Tel: (307) 760-6258
Fax: (307) 745-7999
E-mail: mlhayes@tribcsp.com
Attorney for Terrance W. Brown

ORAL ARGUMENT IS NOT REQUESTED

NATIVE AND SCANNED PDF DOCUMENTS ARE ATTACHED
 TABLE OF CONTENTS

STATEMENT OF RELATED CASES .....................................................................3

TABLE OF AUTHORITIES ……………………………………………………....4

JURISDICTIONAL STATEMENT ……………………………………………….5

STATEMENT OF THE ISSUES...............................................................................5

STATEMENT OF THE CASE ..................................................................................5

STATEMENT OF FACTS…………………………..……………………………..6

SUMMARY OF THE ARGUMENT……………………………………………..10

ARGUMENT .......................................................................................................... 10

I. The police officer did not have reasonable suspicion to justify

an investigatory stop because it was based on the officer's
generalized fear of criminal activity and Mr. Brown's presence
in a high crime area, rather than on any objective evidence of
criminal activity.

A. Issue raised and ruled on. ........................................................ 10

B. Standard of Review ……………...…………………………..11

C. Discussion. ............................................................................... 12

CONCLUSION …………………………………………………………………16

CERTIFICATE OF SERVICE……………………………………………………17

CERTIFICATE OF DIGITAL SUBMISSION…………………………………...17

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APPENDIX

Judgment in Criminal Case

Order Denying Defendant‟s Motion to Suppress

STATEMENT OF RELATED CASES

There are no other cases related to this appeal.

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 TABLE OF AUTHORITIES

Cases

Brown v. Texas, 443 U.S. 47 (1979) …………………………………………13-14

Delaware v. Prouse, 440 U.S. 648 (1979) ……………………………………….12

Kaupp v. Texas, 538 U.S. 626 (2003) ……………………………………………12

Terry v. Ohio, 392 U.S. 1 (1968) ……...…………………………………………12

United States v. Arvizu, 534 U.S. 266 (2002) ……………………………………12

United States v. Cortez-Galaviz, 495 F.3d 1203 (10th Cir. 2007) ……………….11

United States v. Garner, 416 F.3d 1208 (10th Cir. 2004) ………………………..14

United States v. Hensley, 469 U.S. 221 (1985) ………………………………..…12

United States v. Hunnicutt, 135 F.3d 1345 (10th Cir. 1998). …………………….11

United States v. Laughrin, 438 F.3d 1245 (10th Cir. 2006) ………………..…12-13

United States v. Ramirez, 479 F.3d 1229 (10th Cir. 2007) ……………………….13

United States v. Villegas, No. 08-4078 (10th Cir. February 2, 2009) …………….11

United States v. Wallace, 429 F.3d 969 (10th Cir. 2005) ………………………...12

United States v. Williams, 271 F.3d 1262 (10th Cir. 2001) ………………………11

Statutes

18 U.S.C. §§ 922(g)(1) and 924(a)(2) ……………………………………………..5

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 JURISDICTIONAL STATEMENT

The district court had jurisdiction over this case pursuant to 18 U.S.C. §

3231. This Court has jurisdiction over the appeal of this case pursuant to 28

U.S.C. § 1291. This is an appeal of a final judgment of the district court entered

against Terrance William Brown on October 17, 2008. (Doc. 43) (Attachment 1).

Mr. Brown timely filed a Notice of Appeal in accordance with Federal Rule of

Appellate Procedure 4(b)(1) on October 27, 2008. (Doc. 45). By Order of the

Court, the deadline for filing this Opening Brief is February 23, 2009.

STATEMENT OF THE ISSUES

I. Did the police officer have reasonable suspicion to justify an

investigatory stop when it was based on the officer's

generalized fear of criminal activity and Mr. Brown's presence

in a high crime area, rather than on any objective evidence of

criminal activity?

STATEMENT OF THE CASE

Terrance Brown was indicted and charged with being a felon in possession

of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2), after his arrest

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on October 10, 2007. (Doc. 1). Prior to trial, Mr. Brown moved to suppress the

evidence seized from him as the result of an unlawful stop and search of him and

his automobile. (Doc. 14). The government opposed Mr. Brown‟s motion. (Doc.

16). After a hearing (Vol. Five, July 30, 2008 Motion Hearing), the district court

denied Mr. Brown‟s motion to suppress. (Doc. 38, Order Denying Motion to

Suppress) (Attachment 2).

Mr. Brown‟s case proceeded to a jury trial, which concluded in a guilty

verdict. (Vol. Four, Jury Trial Trans., p. 279). After preparation of a presentence

investigation report, Mr. Brown was sentenced to serve 30 months incarceration

with the federal Bureau of Prisons. (Vol. Six, Sentencing Hearing Trans., October

15, 2008) and (Doc. 43, Judgment and Commitment, October 17, 2008).

Mr. Brown‟s trial attorney withdrew as counsel for the defendant and the

district court appointed undersigned counsel to represent Mr. Brown in this

appeal. (Doc. 44, Order to Substitute Attorney). Mr. Brown timely filed a Notice

of Appeal on October 27, 2008. (Doc. 45).

STATEMENT OF FACTS

At 3:30 a.m., on October 10, 2007, Casper Police Officer James Yurkiewicz

was having a “slow morning” and decided to conduct surveillance on a

convenience store on the north side of Casper, Wyoming. (Vol. Five, Trans.,

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Motion Hearing, pp. 6-7). He went to that location because the store was the only

one open at that time of night and was known for a lot of night time activity, such

as public drunkenness and fights. (Vol. Five, p. 7). According to Officer

Yurkiewicz, “[t]hat particular area of town is fairly busy as far as crime activity

goes.” (Vol. Five, p. 7). He parked his vehicle in an alley across the street from

the store and watched the store through binoculars. (Vol. Five, pp. 7-8).

Officer Yurkiewicz saw a white Cadillac pull up to the south side of the

convenience store where a lot of “criminal activity” occurs because “it‟s not well

lit and the clerk can‟t see that part of the parking lot.” (Vol. Five, p. 8). He saw a

black male get out of the Cadillac and enter the store. Soon thereafter a smaller

car pulled up alongside the Cadillac. The driver, later identified as Terrance

Brown, exited his vehicle, walked toward the street and looked around. Officer

Yurkiewicz believed he was looking around “to see if there was any police cars or

any other vehicles around the area or people even.” (Vol. Five, p. 9). Meanwhile,

a passenger in Mr. Brown‟s vehicle exited the car and got into the driver‟s seat of

the white Cadillac. (Vol. Five, p. 9).

At that point, the black male Cadillac owner came out of the store and Mr.

Brown, his passenger and the black male all converged near the Cadillac and

began “discussing something.” (Vol. Five, p. 10). They walked over to the back

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of Mr. Brown‟s vehicle, opened the trunk and looked at something inside. Mr.

Brown pulled a shotgun out of the trunk and was given “something” by the black

male, who then took the shotgun and put it into his Cadillac. The parties then

drove off separately, in their respective vehicles. (Vol. Five, pp. 10-11).

Officer Yurkiewicz called for backup because he felt “there was something

really strange going on here.” Because of Mr. Brown‟s conduct and his presence

in a high crime area, Officer Yurkiewicz believed “there was something totally

amiss here,” perhaps stolen property or something to do with drug transactions.

(Vol. Five, p. 11). Officer Yurkiewicz followed Mr. Brown for several blocks and

then pulled him over. The backup police unit did the same for the driver of the

Cadillac, finding a shotgun in the trunk of that car. (Vol. Five, p. 12-14).

Officer Yurkiewicz drew out his service revolver and at gunpoint, asked Mr.

Brown to exit his vehicle. He handcuffed Mr. Brown because of his “attitude” in

wanting to know why he had been stopped, a firearm was involved, and he was in

a high-crime area. (Vol. Five, pp. 14-15, p. 22). Officer Yurkiewicz stated that

the only reason he had stopped Mr. Brown was because he saw Brown transfer a

shotgun. (Vol. Five, p. 23).

Officer Yurkiewicz had police dispatch run Mr. Brown‟s identification

through the NCIC system, a check that revealed a prior felony conviction. At that

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point, Officer Yurkiewicz realized Mr. Brown had violated the law and arrested

him. (Vol. Five, p. 27).

Mr. Brown was charged with being a felon in possession of a firearm. He

moved to suppress the evidence seized as the result of his unlawful stop because

the “officer had no cause to believe a crime had been committed or was being

committed.” (Doc. 14, Defendant‟s Motion to Suppress, p. 3). Mr. Brown likened

Officer Yurkiewicz‟s conduct “to sitting outside of a gun store and arresting

people who come out to see if they may be felons or prohibited persons.” (Vol.

Five, p. 34).

After reviewing these facts, the district court denied Mr. Brown‟s motion to

suppress, finding that Officer Yurkiewicz had reasonable suspicion, based on the

totality of the circumstances, to effectuate the investigatory stop that culminated in

Mr. Brown‟s arrest. (Vol. Five, pp. 36-43).

Mr. Brown‟s case proceeded to a jury trial where a jury found him guilty.

(Vol. Four, p. 279). After preparation of a PSI, the district court sentenced Mr.

Brown to 30 months imprisonment. (Doc. 43, Judgment and Commitment).

This appeal followed.

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 SUMMARY OF THE ARGUMENT

The Fourth Amendment to the United States Constitution exempts

investigatory stops from probable cause and warrant requirements only when a

police officer has a reasonable, articulable suspicion, based on objective evidence,

that a suspect is involved in criminal activity. Here, Mr. Brown‟s presence in a

high crime area and his non-criminal conduct did not provide a reasonable basis

for the officer‟s suspicion that Mr. Brown was engaged in criminal activity. The

officer‟s generalized fear of criminal activity coupled with a complete absence of

any observable crime demonstrated that his suspicion of criminal activity was not

reasonable and that his investigatory stop of Mr. Brown violated the Fourth

Amendment.

ARGUMENT

I. The police officer did not have reasonable suspicion to

justify an investigatory stop because it was based on the
officer's generalized fear of criminal activity and Mr.
Brown's presence in a high crime area, rather than on any
objective evidence of criminal activity.

A. Issue raised and ruled on.

Mr. Brown filed a motion to suppress evidence seized after an unlawful stop

and search. (Doc. 14). The district court held a hearing on Mr. Brown‟s motion

on July 30, 2008, at which time the court denied the motion to suppress. After

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trial, the district court entered a written order denying the motion to suppress.

(Doc. 38).

B. Standard of review.

When reviewing a denial of a motion to suppress, this Court reviews

the district court‟s factual findings for clear error, but reviews de novo the

legal question of whether the search was „reasonable‟ under the Fourth

Amendment. United States v. Villegas, No. 08-4078, p. 5 (10th Cir.

February 2, 2009); United States v. Cortez-Galaviz, 495 F.3d 1203, 1205

(10th Cir. 2007). See also United States v. Williams, 271 F.3d 1262, 1266

(10th Cir. 2001) (“On appeal, we consider the totality of the circumstances

and treat the ultimate determination of reasonableness under the Fourth

Amendment as a question of law which we review de novo), citing United

States v. Hunnicutt, 135 F.3d 1345, 1348 (10th Cir. 1998).

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 C. Discussion.

The Fourth Amendment to the United States Constitution guarantees that

every search and seizure by a state actor must be reasonable. A seizure for

purposes of the Fourth Amendment occurs when a reasonable person would not

feel free to end an encounter with a police officer. Kaupp v. Texas, 538 U.S. 626,

629 (2003); United States v. Wallace, 429 F.3d 969, 974-75 (10th Cir. 2005). “A

traffic stop is a Fourth Amendment seizure.” United States v. Laughrin, 438 F.3d

1245, 1247 (10th Cir. 2006), citing Delaware v. Prouse, 440 U.S. 648, 653 (1979).

Certain types of searches and seizures, such as investigatory stops, are

exempted from constitutional probable cause and warrant requirements if based on

reasonable suspicion of criminal activity. Terry v. Ohio, 392 U.S. 1, 20-21 (1968).

Police officers may commence an investigatory stop if they have reasonable,

articulable suspicion that a person is engaged in criminal activity. Terry, 392 U.S.

at 21; United States v. Arvizu, 534 U.S. 266, 275-77 (2002). The Supreme Court

has found no constitutional violation when police officers “briefly stop a moving

automobile to investigate a reasonable suspicion that its occupants are involved in

criminal activity.” United States v. Hensley, 469 U.S. 221, 226 (1985). See also

Arvizu, 534 U.S. at 273 (a traffic stop will be held reasonable under the Fourth

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Amendment when, under the totality of circumstances, the police officer has a

“reasonable suspicion” that criminal activity “may be afoot”).

In United States v. Laughrin, this Court determined that an officer‟s

investigatory stop of an automobile was not valid because Mr. Laughrin‟s history

of driving violations combined with the officer‟s belief that his license suspension

22 weeks earlier might still be in effect was insufficient to create a reasonable

suspicion for the stop. 438 F.3d at 1247-48. The Laughrin decision demonstrates

that investigatory stops will be considered valid only if an officer has an objective

basis for his or her reasonable suspicion. This requirement was set forth in Arvizu,

where the court required an officer to have a “particularlized and objective basis”

for an investigatory stop. 534 U.S. at 275-277. Accord United States v. Ramirez,

479 F.3d 1229, 1243-44 (10th Cir. 2007) (requiring objective basis for officer‟s

reasonable suspicion of criminal activity to perform an investigatory stop).

An officer‟s generalized fear of criminal activity and a suspect‟s non-

criminal activity in a high-crime area do not alone justify an investigatory stop. In

Brown v. Texas, a police officer observed Brown and another man walking away

from each other in an alley in a neighborhood of El Paso with a high incidence of

drug traffic activity. 443 U.S. 47, 48 (1979). The arresting officer explained at

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the suppression hearing that Brown “looked suspicious and we had never seen that

subject in that area before.” Id. The officer testified that he did not suspect Brown

of any specific misconduct but that he was in an alley with another individual in a

“high drug problem area.” Id. The Supreme Court determined that the officer‟s

generalized fear of criminal activity and the presence of a suspect in a high-crime

area were not sufficient to justify the investigatory stop. Id. at 52.

Similarly, reasonable suspicion of criminal activity may justify an

investigatory stop when based on a police officer‟s direct observation and the

officer‟s knowledge that a crime has been committed. Thus, in United States v.

Garner, 416 F.3d 1208, 1214 (10th Cir. 2004), this Court found that reasonable

suspicion existed to detain a man for violating Utah‟s public intoxication statute

when the suspicion was based on a report from anonymous caller that later was

confirmed by the direct observation of the responding police officer.

Taken together, the Brown and Garner decisions reveal that a police officer

must have a reasonable and articulable suspicion, based on objective observation,

of criminal activity before an investigatory stop can be found valid under the

Fourth Amendment. In this case, Officer Yurkiewicz testified that he felt

„something was amiss,‟ even though he had not witnessed any illegal activity and

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there was no objective evidence of criminal activity. Officer Yurkiewicz testified

that it is not illegal to sell a gun. He did not suspect Mr. Brown of any specific

misconduct, but simply felt something might be wrong. He felt that Mr. Brown‟s

presence in a high crime area, his conduct in looking around when he arrived at

the convenience store parking lot, and his transfer of a firearm were sufficiently

suspicious to justify the investigatory stop and to hold Mr. Brown at gun point

while placing him in custody.

Officer Yurkiewicz had not observed any criminal activity. His generalized

fear of criminal activity and Mr. Brown‟s lawful activity in a high-crime area do

not justify the investigatory stop that resulted in Mr. Brown‟s arrest. Accordingly,

the district court erred in finding that Officer Yurkiewicz had reasonable,

articulable suspicion to perform the investigatory stop because the stop was

unreasonable for purposes of the Fourth Amendment.

This case should be remanded to the district court with directions to

suppress the evidence surrounding Mr. Brown‟s arrest on October 10, 2007, and to

dismiss the indictment against Mr. Brown.

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 CONCLUSION

For the foregoing reasons, this case should be remanded to the district court

with directions to dismiss the indictment against Mr. Brown.

Respectfully submitted this 9th day of February, 2009.

s/ Megan L. Hayes
________________________
Megan L. Hayes
910 Kearney Street
Laramie, WY 82070
(307) 760-6258
FAX: (307) 745-7999
E-mail: mlhayes@tribcsp.com
Attorney for Terrance William Brown

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 CERTIFICATE OF SERVICE

I hereby certify that on the 9th day of February, 2009, I deposited a true and

correct copy of the foregoing TERRANCE WILLIAM BROWN’S OPENING

BRIEF, by e-mail and by United States mail, postage prepaid, addressed to:

James Anderson
Assistant U.S. Attorney
P.O. Box 668
Cheyenne, WY 82003
james.anderson@usdoj.gov

/s Megan L. Hayes

CERTIFICATE OF DIGITAL SUBMISSION

I hereby certify that pursuant to this Court‟s General Order dated August 10,

2007 that there are no required privacy redactions to be made to this document or

its attachments, and that this document and its attachments have been scanned for

viruses with Norton AntiVirus (Symantec Corporation) version 16.2.07 (updated

on January 26, 2009) and are free of viruses.

s/ Megan L. Hayes

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