Submitted: December 15, 2017
from United States District Court for the Eastern District of
Missouri - Cape Girardeau
SMITH, Chief Judge, KELLY and ERICKSON, Circuit Judges.
Daniel appeals after a jury convicted him of (1) aiding and
abetting the interference with commerce by robbery, and (2)
aiding and abetting the possession of a firearm in
furtherance of a crime of violence. He challenges the
sufficiency of the evidence supporting the convictions.
Daniel also argues that the district court erred in denying
a motion to suppress and in its jury instructions. We affirm.
recite the facts in the light most favorable to the
jury's verdict." United States v.
Payne-Owens, 845 F.3d 868, 870 n.2 (8th Cir. 2017)
(quoting United States v. Stevens, 439 F.3d 983, 986
(8th Cir. 2006)). After St. Joe's General Store in
Perryville, Missouri, had closed, clerk Angela Corse worked
to prepare the store for the next day. The back door was
unlocked and propped opened for cleaning. As Corse faced away
from that door, someone entered the store behind her, wrapped
his arm around her, and pressed a gun to her back. The
unknown male asked for money and pushed Corse toward the cash
registers, where he made her pull cash from the drawer. Corse
never saw the man's face but believed he was African
American based on the appearance of his hand when he took the
cash. The man then grabbed Corse's wallet off the counter
and pushed Corse to the rear of the store. He shoved her
aside and pointed a gun at her before running out the back
man fled from the store, Corse saw a white Suburban driving
slowly on the road parallel to the back of the store. The
vehicle's brake lights illuminated, and the man went
towards the Suburban. Once Corse realized where he was going,
she shut and locked the door and immediately called 911.
Corse reported that she had been robbed at gunpoint and that
the suspect had left in a white Suburban driven by someone
else. She also described the individual's clothing, race,
and the color of the gun she had seen pointed at her-silver.
The dispatcher immediately relayed this information to
Perryville and Perry County law enforcement.
County Sheriff's Deputy Rusty Farrar responded to the
call reporting an armed robbery at St. Joe's General
Store. Farrar heard the description of a white Suburban and
immediately headed towards the store. After only a couple of
blocks, he noticed a white Suburban driving in the opposite
direction in the oncoming lane. Farrar activated his lights
and sirens and pursued. The Suburban pulled over, and Farrar
called for backup. Two officers soon arrived. Peering into
the vehicle, the officers observed a woman's wallet
behind the driver's seat. The officers identified Daniel
as the driver of the Suburban. Darion Gipson was the
passenger. Daniel initially argued with Farrar over the
traffic stop, but he ultimately consented to a search of the
search revealed that the women's wallet behind the
driver's seat was Corse's. Near the wallet, the
officers found a hoodie similar to the one worn by the person
who attacked Corse. Gipson had on no jacket or sweatshirt.
The searching officer found a loaded black 9mm pistol in the
space underneath the front seat cupholder. Gipson had $349 in
cash in his pocket-the precise amount a later audit revealed
was taken from the store's cash register. The officers
never found a silver gun.
went to trial, and the jury convicted him of aiding and
abetting the interference with commerce by robbery, in
violation of 18 U.S.C. §§ 2 and 1951, and aiding
and abetting the possession of a firearm in furtherance of a
crime of violence, in violation of 18 U.S.C. §§ 2
and 924(c)(1)(A)(ii). On appeal, Daniel argues that the
district court erroneously denied a pretrial motion to
suppress evidence obtained in the traffic stop. He also
challenges the sufficiency of the evidence as to both
convictions. Finally, Daniel contends that the jury
instructions were erroneous.
Motion to Suppress
first address the district court's denial of the motion
to suppress. "We review the denial of a motion to
suppress de novo but the underlying factual
determinations for clear error, giving due weight to
inferences drawn by law enforcement officials."
United States v. Mosley, 878 F.3d 246, 251 (8th Cir.
2017) (quoting United States v. Hurd, 785 F.3d 311,
314 (8th Cir. 2015)).
argues that Farrar did not have reasonable suspicion to stop
the suburban. "An officer may conduct a Fourth Amendment
stop to investigate a crime only if the officer has a
reasonable suspicion that that person had committed or was
committing a crime." United States v. Juvenile
TK, 134 F.3d 899, 902 (8th Cir. 1998) (citing Terry
v. Ohio, 392 U.S. 1, 30 (1968)). "[T]he likelihood
of criminal activity need not rise to the level required for
probable cause, and it falls considerably short of satisfying
a preponderance of the evidence standard." United
States v. Arvizu, 534 U.S. 266, 274 (2002) (citing
United States v. Sokolow, 490 U.S. 1, 7 (1989)). In
justifying the stop, "the police officer must be able to
point to specific and articulable facts which, taken together
with rational inferences from those facts, reasonably warrant
that intrusion." Terry, 392 U.S. at 21.
"[T]he facts [are] judged against an objective standard:
would the facts available to the officer at the moment of the
seizure or the search warrant a man of reasonable caution in
the belief that the action taken was appropriate?"
Id. at 21-22 (quotations omitted). "[D]ue
weight must be given, not to [the officer's] inchoate and
unparticularized suspicion or 'hunch, ' but to the
specific reasonable inferences which he is entitled to draw
from the facts in light of his experience." Id.
at 27 (citation omitted). When a traffic stop is based on a
radio dispatch, factors such as "the temporal and
geographic proximity of the car to the scene of the crime,
[a] matching description of the vehicle, and the time of the
stop" are highly relevant to a finding of a reasonable
suspicion. Juvenile TK, 134 F.3d at 903.
district court found the following facts in denying
Daniel's motion to suppress. Farrar heard dispatch report
an armed robbery at the St. Joe's General Store and that
the suspect was in a white Suburban. Farrar immediately
started driving towards the store, then saw a white Suburban
driving in the oncoming lane on the highway. He passed it,
made a U-Turn, and stopped the Suburban. The stop occurred
within minutes of the dispatch. Farrar admitted that the
vehicle had committed no traffic violation; rather, the stop
"was just based on the radio dispatch." Transcript
of Hearing on Motion to Suppress at 87, United States v.
Daniel, No. 1:16-cr-00006-SNLJ-1 (E.D. Mo. Mar. 24,
2016), ECF No. 54. As the district court noted, all this
occurred late at night when there was very little traffic on
the roadway. Based on the evidence presented at the
suppression hearing, these factual findings are not clearly
erroneous. Mosley, 878 F.3d at 251.
facts support reasonable suspicion. Considering "the
temporal and geographic proximity of the car to the scene of
the crime, the matching description of the vehicle, and the
time of the stop, " Juvenile TK, 134 F.3d at
903, we hold that an officer in Farrar's position would
have reasonable suspicion to justify stopping the Suburban.
See id. at 901-04 (holding reasonable suspicion
existed for a Terry stop two blocks away from the
reported crime and five to seven minutes after dispatch
identified a gray vehicle engaging in criminal activity in
the early morning hours); United States v. Farnell,
701 F.3d 256, 258-59 (8th Cir. 2012) (holding reasonable
suspicion existed for a Terry stop an hour after
dispatch described robbery suspect's vehicle as a white
van and the suspect as a heavy white male wearing certain
clothing, and an officer observed a white van whose driver
was a heavy white male wearing different clothing, and who
held up his hand to conceal his face).
appeal, Daniel points out that when cross-examined, Farrar
admitted that as he made the U-turn, he heard on the police
radio traffic "of the vehicle possibly headed towards
the square in Perryville"-the opposite direction from
the way the Suburban was heading. Transcript of Hearing on
Motion to Suppress at 89. Farrar stopped the Suburban anyway.
Our conclusion is unchanged by the radio report's vehicle
direction information. An officer exercising "reasonable