                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-27-2007

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Precedential or Non-Precedential: Non-Precedential

Docket No. 06-2348




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                                                              NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ____________

                                    No. 06-2348
                                   ____________

                          UNITED STATES OF AMERICA

                                           v.

                                   JOHN NIGRO,

                                         Appellant
                                   ____________

                   On Appeal from the United States District Court
                       for the Eastern District of Pennsylvania
                                (D.C. No. 05-cr-00062)
                      District Judge: Honorable Jan E. DuBois
                                    ____________

                     Submitted Under Third Circuit LAR 34.1(a)
                                February 12, 2007

    Before: SMITH and FISHER, Circuit Judges, and DIAMOND,* District Judge.

                              (Filed: February 27, 2007)
                                    ____________

                             OPINION OF THE COURT
                                  ____________




      *
        The Honorable Gustave Diamond, United States District Judge for the Western
District of Pennsylvania, sitting by designation.
FISHER, Circuit Judge.



       John Nigro appeals the judgment of conviction and sentence entered by the District

Court. Nigro claims that the District Court erred by denying his motions to suppress

physical evidence. For the following reasons, we will affirm the conviction and sentence.

                                              I.

       As we write only for the parties, who are familiar with the factual context and the

procedural history of the case, we will set forth only those facts necessary to our analysis.

A residence in Philadelphia was burglarized on October 12, 2004, and numerous items

were stolen, including a safe. That same day, a witness, John Sacco, saw three people in

a Mercedes-Benz pull up next to a dumpster. According to Sacco, the driver was a

woman, and the two passengers were men. The two men got out of the car and threw

something into the dumpster, which made a “loud bang.” Sacco described the two men as

follows: (1) white, bald head, 35-40 years old, 5'9"!5'10", thin build, wearing a white

t-shirt and jeans, and (2) white, 30 years old, 6', black hair coming out of a black baseball

cap, thin, and wearing a white t-shirt. Sacco informed the police of what he saw, and the

police found the Mercedes. The police also found items stolen from the residence in the

dumpster, including the safe.




                                              2
       The police then interviewed the owner of the car, Dante Cuticchia (a.k.a. Veasey).1

Veasey informed the police that he had lent his car to Nigro and Thomas Bysura. Sacco

was shown a photo array, which included pictures of Bysura and Nigro. However, he

only identified Bysura as one of the men he saw by the dumpster. Bysura was arrested,

and informed the police that he and Nigro had thrown the safe into the dumpster as a

favor for Veasey. Bysura also stated that Veasey drove him and Nigro in the Mercedes to

the dumpster.

       The police sought an arrest warrant for Nigro. The warrant was issued on

November 1, 2004, and it included an affidavit of probable cause authored by Detective

Stephen Caputo. The affidavit indicated that Sacco saw two males and a female pull up

in a car next to the dumpster. He watched the two white males get out and throw a box

with a safe into the dumpster.2 Sacco’s description of the physical appearances of the

men were not included.3 The affidavit also stated that Sacco identified Bysura in the

photo array, but it did not provide that Nigro was not identified even though his picture

was also in the array. It also included the statement by Veasey that he had lent his car to


       1
        Because the parties and the District Court refer to Cuticchia as Veasey, we also
use that name.
       2
        Based on Sacco’s statement he did not actually see the two men throw a safe or a
box into the dumpster. He heard a loud bang, and then he saw them throw something else
into the dumpster. He followed the car, and watched the individuals get out of the car at
another location. He then went back to the dumpster and saw that there was a safe inside.
       3
        It appears from the record that Nigro is approximately 5'7" and was forty-three at
the time of the burglary and arrest.

                                             3
Bysura and Nigro, and that Bysura stated that Veasey drove Bysura and Nigro to the

dumpster where Bysura and Nigro threw out the safe.

       Nigro was arrested on December 10, 2004, after the police received a tip that

Nigro was at a particular residence and that he was armed.4 The police did not find Nigro

inside the house, and searched the surrounding area. Detective Robert Conn spotted

Nigro crouching in the backyard. Detective Conn yelled “Police,” and called for back-up.

Detective Raymond Evers and Officer Gary Harkins responded immediately. Detective

Conn pulled Nigro up and began to handcuff him. At the same time, Detective Evers

picked up a green bag that was located “directly right next to” Nigro. Based on the

weight and the feel of the bag, Detective Evers knew that it contained a gun. He opened

the bag and found a gun. At the time the bag was opened, Nigro was handcuffed.

       Nigro was indicted on February 8, 2005, with one count of possession of a firearm

by a convicted felon, in violation of §§ 922(g)(1) and 924(e). Nigro’s counsel made a

motion for a hearing pursuant to Franks v. Delaware, 438 U.S. 154 (1978), claiming that

the discrepancy about what Sacco observed was grounds for a Franks hearing. The

District Court denied the motion.

       Nigro then made a pro se motion for a Franks hearing. He argued that the

discrepancy between Sacco’s description of the second male and Nigro’s actual physical

appearance, the fact that Sacco did not identify Nigro in the photo array, and the



       4
        Nigro had eluded capture on the three prior occasions.

                                             4
discrepancy between Veasey’s and Bysura’s statements about whether Veasey was

present at the time of the dumping were all facts that should have been included in the

affidavit. After holding a Franks hearing, the District Court denied the motion to

suppress the gun. It determined that there was no evidence that the police intentionally,

knowingly, or recklessly omitted information from the affidavit. Further, it held that even

if all of the information was added to the affidavit, probable cause would not be vitiated.

Nigro also made a motion to suppress the gun claiming that it was obtained without a

warrant and its discovery did not constitute a search incident to arrest. The District Court

denied the motion holding that the gun was recovered during a search incident to a valid

arrest. A trial was held, and a jury found Nigro guilty on October 6, 2005.5 He was

sentenced on April 7, 2006, to ninety-six months imprisonment. Nigro brought this

timely appeal.

                                              II.

       We have jurisdiction over this case pursuant to 28 U.S.C. § 1291. We review a

district court’s denial of a motion to suppress “for clear error as to the underlying factual

findings and exercise[] plenary review of [a district court’s] application of the law to

those facts.” United States v. Perez, 280 F.3d 318, 336 (3d Cir. 2002).

       On appeal, Nigro first claims that the District Court erred by denying his motion to

suppress the gun because the affidavit of probable cause omitted material information and


       5
        Nigro made a pro se motion for reconsideration of his Franks motion after the
trial, which was also denied.

                                              5
made material misrepresentations of fact. Franks acknowledged that a criminal defendant

has the right to challenge statements made in an affidavit of probable cause. United

States v. Yusuf, 461 F.3d 374, 383 (3d Cir. 2006). At a Franks hearing, “the defendant

must ultimately prove by a preponderance of the evidence: (1) that the affiant knowingly

and deliberately, or with a reckless disregard for the truth, made false statements or

omissions that create a falsehood in applying for a warrant; and (2) that such statements

or omissions were material, or necessary, to the probable cause determination.” Id.

(internal citations omitted). As the District Court determined, there is no evidence in the

record that Detective Caputo knowingly or deliberately omitted or misrepresented any of

the information included in the affidavit. However, there is sufficient evidence that

Detective Caputo may have recklessly disregarded the truth. In Wilson v. Russo, 212 F.3d

781, 787 (3d Cir. 2000), we explained that a determination of whether an officer

recklessly disregarded the truth includes consideration of whether the officer recklessly

omitted facts that a reasonable person would want to know and whether the officer “has

obvious reasons to doubt the truth of what he or she is asserting.” A reasonable person

would want to know that Sacco’s description of the second male did not match Nigro’s

actual description, and that Sacco failed to pick Nigro out of the photo array. It is also

likely that Detective Caputo had reason to doubt his assertions in the affidavit because

this information was omitted.

       Regardless, Nigro failed to meet his burden on the second prong. We agree with

the District Court that even including the information that Nigro alleges was omitted and

                                              6
deleting what he claims are misrepresentations does not vitiate the probable cause. The

statements by Veasey and Bysura put Nigro in the tan Mercedes that Sacco saw on the

day of the burglary, and Bysura puts Nigro at the dumpster. Additionally, Bysura’s

statement of identification is particularly reliable in the probable cause context because he

is an accomplice. See, e.g., United States v. Brown, 366 F.3d 456, 459-60 (7th Cir. 2004).

Therefore, we will affirm the District Court’s denial of Nigro’s motion to suppress the

gun on this ground.6

       Nigro also claims that even if the arrest warrant was supported by probable cause,

the search of the bag was not within the scope of a search incident to arrest. He argues

that because the police did not have a warrant to search the bag, and the search was not

within an exception to the warrant rule, the gun should have been suppressed. In United

States v. Myers, 308 F.3d 251 (3d Cir. 2002), we discussed the scope of the search

incident to arrest in this type of context. We recognize that our discussion of the search

incident to arrest in Myers was likely dicta because we decided the case on other grounds.

Id. at 266 (holding that there was not probable cause for arrest, but even if there was the

gun should have been suppressed because the search of the bag exceeded the scope of a

search incident to arrest). Regardless, we agree with the analysis used in Myers.

       In Myers, we acknowledged the teachings of Chimel v. California, 395 U.S. 752

(1969), where the Supreme Court held that a search incident to arrest included the


       6
       Because we hold that the affidavit of probable cause was valid, we do not reach
the Government’s argument that the good faith exception to the warrant rule applies.

                                              7
defendant’s person and the area within his immediate control. Myers, 308 F.3d at 267

(internal quotations and citations omitted). We explained that there are both geographic

and temporal limitations for a search incident to arrest. Id. at 266-67. We also approved

of the approach used by the United States Court of Appeals for the District of Columbia

which held that there must be an objective basis for a search incident to arrest. Id.

(quoting United States v. Abdul-Saboor, 85 F.3d 664, 670 (D.C. Cir. 1996)). If there is an

objective basis for the arresting officer to fear the arrestee or the surrounding

environment, “‘a search of the area where the arrest occurred . . . is a search incident to

arrest.’” Myers, 308 F.3d at 267 (quoting Abdul-Saboor, 85 F.3d at 670). We agree with

the District Court that an objective basis existed for the search of Nigro’s bag, which was

located directly next to him when he was arrested. The officers had information that

Nigro was armed, and he was hiding in a dark backyard. The bag was picked up at the

same time Nigro was being handcuffed and was opened when he was handcuffed. This

search was within both the temporal and geographic limitations necessary for a valid

search incident to arrest. Myers, 308 F.3d at 266-67. The search was proper, even though

Nigro was actually handcuffed when the bag was opened. Abdul-Saboor, 85 F.3d at 670.

Therefore, we will affirm the District Court’s denial of Nigro’s motion to suppress the

gun on this ground as well.

                                             III.




                                              8
      For the foregoing reasons, we will affirm the District Court’s judgment of

conviction and sentence because the District Court properly denied Nigro’s motions to

suppress the gun.




                                           9
