                                                                                                                           Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-16-2003

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Precedential or Non-Precedential: Non-Precedential

Docket 02-1435




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"USA v. Martin" (2003). 2003 Decisions. Paper 653.
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                                                                            NOT PRECEDENTIAL

                            UNITED STATES COURT OF APPEALS
                                 FOR THE THIRD CIRCUIT
                                      ___________

                                           No. 02-1435
                                           ___________

                                UNITED STATES OF AMERICA,

                                                 v.

                                       TYRONE MARTIN,
                                           Appellant.
                                      __________________

                          On Appeal from the United States District Court
                             For the Eastern District of Pennsylvania
                                (D.C. Crim. No. 00-cr-00710)
                              District Judge: Eduardo C. Robreno
                                   ____________________

                                   Argued on February 13, 2003

       BEFORE:         ALITO and McKEE, Circuit Judges, and SCHWARZER, * Senior
                       District Judge

                                       (Filed: April 16, 2003)


                                              JOSEPH D. MANCANO (ARGUED)
                                              Britt, Hankins, Schaible & Moughan
                                              Two Penn Center Plaza, Suite 515
                                              Philadelphia, PA 19102

                                              Attorney for Tyrone Martin, Appellant

                                              JOSEPH G. POLUKA (ARGUED)


       *
         Honorable William W Schwarzer, Senior District Judge, Northern District of
California, sitting by designation.
                                                   Assistant United States Attorney
                                                   PATRICK L. MEEHAN
                                                   United States Attorney
                                                   LAURIE MAGID
                                                   Deputy United States Attorney for Policy and
                                                   Appeals
                                                   ROBERT A. ZAUZMER
                                                   Assistant United States Attorney, Senior
                                                   Appellant Counsel
                                                   615 Chestnut Street, Suite 1250
                                                   Philadelphia, PA 19106

                                                   Attorneys for Appellee United States of
America

                                       _______________________

                                       OPINION OF THE COURT
                                       _______________________

SCHWARZER, Senior District Judge

                 Tyrone Martin appeals from his conviction of possession with intent to

distribute cocaine base in violation of 21 U.S.C. § 841(a)(1) and carrying a firearm in

relation to a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1). Martin contends

that the district court committed two errors entitling him to a new trial: (1) that the court

erred in denying his motion to suppress evidence illegally seized from his vehicle, and (2)

that it erred in receiving testimony from the government’s expert witness regarding

Martin’s intent. We review the district court’s factual findings for clear error and exercise

plenary review of the court’s application of the law to those facts. United States v. Peréz

280 F.3d 318, 336 (3rd Cir. 2002). We have jurisdiction pursuant to 28 U.S.C. § 1291, and

affirm.

                                                     -2-
                (1) On the night of February 6, 2000, between the hours of 3:30 and

11:30 p.m., Officers Whitaker and Fletcher were patrolling a section of Northwest

Philadelphia in an unmarked car wearing plainclothes. The 35th district, to which they had

been assigned for five and four years, respectively, had recently received calls from

citizens concerning drug activity in the area, and the officers knew of those calls and, while

on duty that night, observed narcotics sales in the area. At around 11:00 p.m., the officers

saw a gold 2000 Ford Expedition circle the block three or four times. The officers

observed that the vehicle had New Jersey plates and bore an emblem indicating that it was a

rental car. It had snowed recently, and as a result of the plowing, only one lane was open on

Medary Street. As Martin circled the block, his car came face to face with the unmarked

police car in the one lane open to traffic, and both cars stopped. The officers identified

themselves as policemen, ordered Martin out of his car and asked to see his driver’s

license. This investigatory stop eventually led to a search of the car, which disclosed a gun,

ammunition and drugs.

                While there appeared to be inconsistencies in the arresting officers’

testimony, the district court found it undisputed that the following facts were known by the

police officers before they approached Martin’s vehicle: (1) Martin was driving his vehicle

late at night; (2) he circled the block three or four times; (3) the area of the block was one

where there was on-going drug activity; (4) he was driving a rented vehicle with out-of-state

tags; and (5) the two officers respectively had four and five years’ experience as

Philadelphia police officers.

                                                    -3-
                 Martin contends that these five factors do not amount to unusual conduct and

do not create reasonable suspicion of criminal activity to justify the stop of Martin’s

vehicle. We disagree. In United States v. Arvizu, 534 U.S. 266 (2002), the Court rejected

the lower court’s “evaluation . . . of . . . the listed factors in isolation from each other.” Id.

at 274. “[R]eviewing courts . . . must look at the ‘totality of the circumstances’ of each

case to see whether the detaining officer has a ‘particularized and objective basis’ for

suspecting legal wrongdoing.” Id. at 273 (citations omitted).

                 Here, the information known to the officers at the time of the investigatory

stop is substantially similar to that which was known to the officers in United States v.

Rickus, 737 F.2d 360 (3rd Cir. 1984). There, we held that an investigatory stop by

experienced police officers was supported by reasonable suspicion where the officers first

observed the defendants’ vehicle driving through a closed business district at 3:30 a.m. at

15-20 miles per hour below the speed limit and then turn into a residential area that had

recently been victimized by a spate of burglaries. 737 F.2d at 365. We think our decision

in Rickus is dispositive.1

                 (2) Martin also contends the district court erred in receiving certain

testimony from the government’s expert witness. The prosecutor asked Detective Matthew

McDonald, “hearing all of the evidence and reviewing the relevant documents and testimony

and exhibits, can you form an opinion as to . . . whether the amount of drugs in this case as


        1
        Martin’s appeal does not challenge the subsequent search of his vehicle for lack of
probable cause.

                                                      -4-
found in the lab, 24.49 grams, was consistent with possession with intent to distribute?”

The witness responded, “[y]es, sir, I have no doubt that the drugs possessed in this case were

possessed with the intent to distribute.” Later in the examination, the prosecutor asked the

witness whether, if the amount of drugs were 2.86 grams rather than 24.49 grams, his

opinion would change. The witness responded, “if it stood alone, it would be certainly

questionable, but due, again, to the totality of the situation, I think that two or three grams

would be held for resale also.”

                 Because Martin did not object or move to strike, we review for plain error.

Plain error requires a showing there was “(1) an error; (2) which is clear or obvious; and (3)

which affects substantial rights (i.e., it affected the outcome of the district court

proceedings).” United States v. Navarro, 145 F.3d 580, 584-85 (3d Cir. 1998) (citing

United States v. Olano, 507 U.S. 725, 733-34 (1993)). Citing United States v. Watson,

260 F.3d 301 (3rd Cir. 2001), Martin argues that the government violated Federal Rule of

Evidence 704 by eliciting testimony from Detective McDonald regarding Martin’s mens

rea. However, the prosecutor’s questions in Watson asked whether the witness had

“formed an opinion, as to whether or not the substance . . . was possessed with the intent to

distribute . . .?” Id. at 305-06. The court held that “the Government violated Rule 704(b)

by repeatedly eliciting from its experts testimony as to Watson’s mental state and the

purpose of his actions.” Id. at 310. Here, the prosecutor asked a different

question—whether the amount of drugs found was consistent with intent to distribute—not

aimed at eliciting testimony as to Martin’s particular state of mind. Although Detective

                                                      -5-
McDonald’s answer referred to Martin’s intent, and may have been subject to being struck

had Martin moved to strike, the court’s failure to strike it sua sponte was not plain error

and did not affect Martin’s substantial rights.

                For the foregoing reasons, we affirm.

___________________________

TO THE CLERK:

                Please file the foregoing opinion.


                                                    /s/ William W. Schwarzer
                                                  Senior District Judge




                                                     -6-
