United States of America v. Larry Brown

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 00-4345
UNITED STATES OF AMERICA,
Appellee
v.
LARRY BROWN,
Appellant
On Appeal from the Convictions and Judgment of Sentence Entered
in the United States District Court
for the Western District of Pennsylvania
Crim. No. 99-cr-00175
District Judge: Hon. Donetta W. Ambrose
Submitted Pursuant to Third Circuit LAR 34.1
December 17, 2001
Before: Sloviter, McKee, Circuit Judges, and Hayden, District Judge
(Filed: February 28, 2002)
MEMORANDUM OPINION
McKee, Circuit Judge.
Larry Brown appeals his conviction following acceptance of his conditional guilty
plea to robbery and related offenses stemming from the October 7, 1999 robbery of the
Dollar Bank in Monroeville, Pennsylvania. As per his plea agreement, Brown challenges
the district court’s denial of his motion to suppress. He argues that his warrantless arrest
was not supported by probable cause and the evidence seized in the search incident to the
arrest should therefore have been suppressed. For the reasons that follow, we will affirm.
I.
As we write only for the parties, we need not recite the facts or procedural history.
We review the district court’s determination of probable cause de novo, and the district
court’s factual findings for clear error. See United States v. Harple, 202 F.3d 194, 196
(3d Cir. 1999).
II.
Brown’s sole argument on appeal is that his warrantless arrest was not based upon
probable cause, and that the evidence seized from the car should therefore have been
suppressed as a fruit of the poisonous tree. Brown bases his argument on United States v.
Kithcart, 134 F.3d 529 (3d Cir. 1998). He interprets Kithcart as holding that
commonality of race between the defendants and the suspects does not establish probable
cause. Brown contends that the FBI agents arrested him because he and his companions
were Black and the suspects were also Black.
Probable cause to arrest exists when a reasonable law enforcement officer has
cause to believe that an offense has been committed and that the person being arrested
committed it. See Beck v. Ohio, 379 U.S. 89, 91 (1964); Paff v. Kaltenbach, 204 F.3d
425, 436 (2000). Probable cause determinations must often be made on the scene and
under pressure. Therefore, they do "not require the fine resolution of conflicting evidence
that a reasonable doubt or even preponderance standard demands." Paff, 204 F.3d at 436;
quoting Gerstein v. Pugh, 420 U.S. 103, 121 (1975). Police need only have enough

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evidence to establish the probability that criminal activity has occurred. This does not
rise to the level of establishing a prima facie showing of criminal activity. See Illinois v.
Gates, 462 U.S. 213, 235 (1983). Moreover, a court will evaluate the totality of
circumstances to determine if probable cause to arrest existed. See id. at 238.
A warrantless search is per se unreasonable unless police can demonstrate the
presence of "exigent circumstances." Payton v. New York, 445 U.S. 573, 587 n.25
(1980). The Supreme Court has recognized that the presence of automobiles can
constitute an exigent circumstance due to their "ready mobility." Pennsylvania v. Labron,
518 U.S. 938, 940 (1996). Accordingly, we have upheld the warrantless arrest of a
motorist and subsequent search of his car where law enforcement had probable cause to
believe that the motorist had committed, or was committing, a crime. See e.g. United
States v. Bivens, 445 F.2d 1064, 1069 (3d Cir. 1971).
Moreover, it is well established that a search incident to a warrantless arrest is
valid if the arrest itself is valid. See Kithcart, 134 F.3d at 531. This also applies to
automobiles, as an officer who has lawfully arrested an occupant of a car, may validly
search the passenger areas of the car incident to the arrest. See New York v. Belton, 453
U.S. 454, 460 (1981).
The FBI agents here clearly had probable cause to arrest Brown. Agents received
a tip from a confidential informant on October 5, 1999 that Brown was going to rob a
bank the next day. This same informant also told agents that Brown had robbed the PNC
Bank in the Frankstown Road Mall two weeks earlier. The PNC Bank robbery was
"takeover" style, where the robbers went behind the counter and took the money.
"Takeover" robberies occur in less than 2% of all Pittsburgh area bank robberies. As a
result of this information, agents placed Brown under surveillance over the next two days.
On October 6, 1999, agents observed two Black men arrive separately at Brown’s
house in the late morning. One arrived in a blue Chevrolet, the other in a tan Dodge.
Brown then left his house with the two men in the Dodge. Agents observed they traveled
to the same strip mall where the PNC Bank robbery had occurred. The Dodge then
"squared" the block by going all the way around it in an apparent attempt to determine if
anyone was following. The men then drove the Dodge to another strip mall containing a
number of banks. There, one of the occupants left the Dodge and bought something in a
department store.
The next day, agents again surveilled Brown. They observed the same blue
Chevrolet arrive at Brown’s house in the morning. Brown then left his house with two
Black men in the Chevrolet. They drove to the Frankstown mall, and as they drove past
the PNC Bank, they looked inside. The Chevrolet then parked, and Brown got out of the
car and went into a drugstore. Upon entering the store, he looked into the PNC Bank, and
he looked into it again as he was leaving the store. The Chevrolet then "squared" the
mall, and parked in a nearby cemetery for a few minutes. The men then returned to the
mall, and "squared" it yet again.
The agents next observed the Chevrolet leaving the parking lot of the PNC Bank
located at the Squirrel Hill Mall. The Chevrolet returned to the Frankstown Mall, then
left the mall, but returned again and parked. Agents saw Brown, who was sitting in the
back seat, pull a ski mask over his head while the man in the front passenger seat cracked
open the door. However, he then closed the door and the three men sat in the car for
eleven minutes. The men then drove to the Great Valley Shopping Center, and parked
behind a PNC Bank located there. Two men got out of the car, walked toward the bank,
but then returned to the car without entering the bank.
Agents lost track of the Chevrolet around 1:23 p.m. At 1:46 p.m. a radio broadcast
reported that the Dollar Bank in the Miracle Mile Shopping Center had just been robbed.
That bank is five or six miles from the last place the Chevrolet had been sited. Agents
spoke to the branch manager on the phone and were told that the robbery had been
"takeover" style, and was committed by three Black men wearing ski masks. Agents
immediately proceeded to Brown’s house and awaited his return. Shortly after 2 p.m. the
Chevrolet returned to Brown’s house, and agents arrested Brown and his two
companions, Jasper and Charles Stubbs. Agents searched the car pursuant to the arrests
and found incriminating evidence. A search of Brown’s person revealed $1000 in $50
bills and a latex glove was discovered in Brown’s pocket.
Brown attempts to argue that he was arrested only because he was Black, in
violation of Kithcart. However, the agents had much more than race to support their

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determination of probable cause. The agents had a confidential informant that linked
Brown to a previous robbery. The PNC Bank robbery in which Brown was implicated
was "takeover" style, as was the Dollar Bank robbery. Over the course of two days,
agents observed Brown and his companions drive to a variety of banks, park in malls
containing banks, park in a cemetery, take counter-surveillance measures, and look inside
the windows of banks. Agents observed Brown put a ski mask over his head in the lot
behind a bank, and the bank manager reported that three men wearing ski masks had
robbed the bank. Agents lost track of the Chevrolet twenty minutes before the Dollar
Bank robbery, when it was only five or six miles from the Dollar Bank.
In light of the totality of circumstances, it is clear that probable cause existed to
arrest Brown. As that arrest was lawful, the subsequent search was therefore a valid
search incident to a lawful arrest. Consequently, the district court properly denied
Brown’s motion to suppress evidence.
Accordingly, for all the reasons set forth herein, we will affirm the convictions and
judgment of sentence.
TO THE CLERK:
Please file the foregoing memorandum opinion.
BY THE COURT:
/s/ Theodore A. McKee
Circuit Judge

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