In United States v. Baker, --- F.4th ---, No. 20-50314 (9th Cir. 2023), the Court affirmed Terrance Baker’s convictions for Hobbs Act robbery and conspiracy to commit robbery in violation of 18 U.S.C. § 1951(a) and a sentence enhancement under U.S.S.G. § 3C1.1, reversed his conviction for brandishing a firearm in violation of 18 U.S.C. § 924(c)(1)(A)(ii), and remanded for a reduction of sentence or retrial on the § 924(c) count.
The essential facts of the case are these: A week after a robbery, the LAPD stopped and frisked Baker. Although no weapons or contraband were found on Baker, an officer removed a car key from his belt loop without his consent and walked to a nearby parking lot in search of the car associated with the key. Baker denied having a car. When officers located a red Buick whose flashing headlights responded to the key fob, Baker fled and was apprehended a short distance away. A handgun was recovered from the car and later introduced at Baker's trial as the weapon used in the Sprint store robbery.
On appeal, the Court concluded that the handgun evidence was illegally obtained and should have been excluded at trial, and that this error prejudiced Baker as to the brandishing conviction but was harmless as to the convictions for Hobbs Act robbery and conspiracy.
The Court explained, "[a] Terry stop must be “confined in scope” to a “carefully limited search of the outer clothing … in an attempt to discover weapons.”It is well established that a Terry stop is a seizure of an individual and a frisk is a search of the individual’s person within the meaning of the Fourth Amendment. Assuming officers reasonably suspected that Baker was trespassing and armed, they were authorized to briefly detain him to ask questions related to trespassing and to pat him down for weapons. But after officers confirmed that Baker did not possess weapons or contraband, they turned to other purposes. Officer Byun removed a key visibly hanging from Baker’s belt loop and searched for a car that corresponded to it. Officers continued to detain Baker, not for the purpose of inquiring about trespass, but to ask him questions about whether he owned a car. Officer Byun made no claim that he suspected the car key was a weapon or contraband.Had officers limited their Terry stop to a brief detention and protective patdown search of Baker, they would have had no occasion to search for a car in an adjoining parking lot that matched the key fob hanging from Baker’s belt loop.Where a “protective search goes beyond what is necessary to determine if the suspect is armed, it is no longer valid under Terry and its fruits will be suppressed.”According to the Government, Baker’s assertion that he had no car operated to deny any ownership interest in the car key. The Government identifies no precedent in support of the proposition that a person abandons an item in his possession by stating he does not own a different, related item. Even if such a claim had a basis in law, an individual does not relinquish a possessory interest in an item merely by stating he does not own the item.The discovery of the handgun was the product of illegal police conduct, whether that conduct is framed as exceeding the permissible scope of a Terry stop or as the warrantless seizure of the car key. Where evidence is obtained from an unlawful search or seizure, the exclusionary rule renders inadmissible both “primary evidence obtained as a direct result of an illegal search or seizure” and “evidence later discovered and found to be derivative of an illegality,” known as “fruit of the poisonous tree.”No reasonable interpretation of the record suggests that Baker consented to, or even was equivocal about, the officers taking the car key off his belt. The record clearly demonstrates that Officer Byun removed the car key from Baker’s belt loop during the patdown without asking for permission or consent. We have held that suppression is favored where an officer violates the law “with the purpose of extracting evidence against the defendant.” The officers’ conduct following the patdown of Baker was plainly “investigatory,” an “expedition for evidence in the hope that something might turn up.”Baker’s flight from police does not qualify as an intervening circumstance because the red Buick was discovered as a consequence of the officers’ misconduct before Baker fled from officers.We conclude the Government has demonstrated beyond a reasonable doubt that the jury would have convicted Baker of robbery and conspiracy to commit robbery in violation of 18 U.S.C. § 1951(a) based on substantial independent evidence establishing Baker’s involvement in the robbery. However, there is reasonable doubt whether the jury would have convicted Baker of brandishing a firearm in violation of 18 U.S.C. § 924(c) absent the admission of the handgun, and we accordingly vacate his conviction of this count.
The Court also rejected several evidentiary arguments raised by Baker.
