                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-22-2008

USA v. McIntosh
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-2744




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Recommended Citation
"USA v. McIntosh" (2008). 2008 Decisions. Paper 508.
http://digitalcommons.law.villanova.edu/thirdcircuit_2008/508


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                                                                NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT

                                   Case No: 07-2744

                           UNITED STATES OF AMERICA

                                               v.

                               RICHARD MCINTOSH,

                                            Appellant


                    On Appeal from the United States District Court
                       for the Western District of Pennsylvania
                             District Court No. 06-CR-233
                    District Judge: The Honorable Nora B. Fischer


                   Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                                  September 9, 2008

          Before: SCIRICA, Chief Judge, McKEE and SMITH, Circuit Judges

                              (Filed: September 22, 2008)


                                       OPINION


SMITH, Circuit Judge.

      A grand jury indictment charged Richard McIntosh with being a felon in

possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). McIntosh moved to

suppress certain statements and the firearm. In a thorough and well-reasoned

                                           1
memorandum opinion, the United States District Court for the Western District of

Pennsylvania denied McIntosh’s motion to suppress. Thereafter, a jury convicted

McIntosh of the offense charged. The District Court sentenced McIntosh to, inter alia, 33

months of imprisonment. McIntosh appealed, contending that the District Court erred by

denying his motion to suppress.1

       This Court reviews the legal determinations of a district court ruling on a

suppression motion, including the existence of reasonable suspicion, under a de novo

standard. Ornelas v. United States, 517 U.S. 690, 691 (1996); United States v. Goodrich,

450 F.3d 552, 557 n.5 (3d Cir. 2006). The factual findings are reviewed for clear error.

United States v. Myers, 308 F.3d 251, 255 (3d Cir. 2002).

       McIntosh contends that the District Court erred at each step in its analysis by

concluding that: the agents had a reasonable suspicion to support their investigatory stop;

the pat-down was constitutionally permissible; McIntosh was not in custody while

speaking to the agents on the sidewalk, or during the short ride to McIntosh’s home;

McIntosh’s statements prior to being Mirandized 2 were voluntary; and consent to search

the house was also voluntary. We find neither legal nor factual error.

       We agree with the District Court that the agents had a reasonable suspicion to

support the investigatory stop. See United States v. Hensley, 469 U.S. 221, 229 (1985);


       1
        The District Court had jurisdiction under 18 U.S.C. § 3231. Appellate jurisdiction exists
under 28 U.S.C. § 1291.
       2
           See Miranda v. Arizona, 384 U.S. 436 (1966).

                                                 2
United States v. Brown, 448 F.3d 239, 244 n.7 (3d Cir. 2006). The evidence of record

established that the agents had been informed by another participant in the robbery that

McIntosh was involved in the robbery of a pawn shop. In light of the fact that six of the

stolen firearms were still unaccounted for and that the other robber was in custody, there

was also a reasonable suspicion that McIntosh had possession of one or more of these

firearms and may have been attempting to dispose of them. These circumstances further

justified the protective pat-down.

       McIntosh asserts that his statements and the firearm should have been suppressed

because he was seized by the police on the street and interrogated without the benefit of

being Mirandized. McIntosh fails, however, to identify any factual finding that is

unsupported by the record or to explain how the Court erred in its legal analysis. After

careful review of the record, we find no reason to disturb the District Court’s

determination that McIntosh was not in custody while speaking with the officers on the

sidewalk.

       Finally, McIntosh’s attack upon the voluntariness of his statements and the consent

to search the house lack merit in light of the evidentiary support in the record for the

District Court’s factual determinations. Accordingly, we will affirm the judgment of the

District Court.
