                                                                                                                           Opinions of the United
2000 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-21-2000

United States v Harple
Precedential or Non-Precedential:

Docket 99-1040




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Recommended Citation
"United States v Harple" (2000). 2000 Decisions. Paper 12.
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Filed September 10, 1999

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 99-1040

UNITED STATES OF AMERICA

v.

WILLIAM HARPLE,

Appellant

APPEAL FROM THE
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

(No. 98-cr-00125)
District Judge: The Honorable Raymond J. Broderick

Submitted Under Third Circuit LAR 34.1(a)
July 16, 1999

Before: GREENBERG and ALITO, Circuit Judges, and
STAFFORD, District Judge*

(Opinion Filed: September 10, 1999)



_________________________________________________________________

* The Honorable William H. Stafford, Jr., Senior Judge of the United
States District Court for the Northern District of Florida, sitting by
designation.


       MICHAEL R. STILES, Esq.
       United States Attorney
       WALTER S. BATTY, JR., Esq.
       Chief of Appeals
       HOWARD L. PERZAN
       Assistant U.S. Attorney
       U.S. Attorney's Office
       615 Chestnut Street
       Philadelphia, PA 19106

       Counsel for Appellee

       PAUL M. MESSING, Esq.
       Kairys, Rudovsky, Espstein,
        Messing & Rau
       924 Cherry Street, 5th Floor
       Philadelphia, PA 19107

       Counsel for Appellant

OPINION OF THE COURT

ALITO, Circuit Judge:

William Harple appeals from a judgment in a criminal
case. A jury convicted Harple of conspiracy to commit
arson, in violation of 18 U.S.C. S 371, arson, in violation of
18 U.S.C. S 844(i), and aiding and abetting arson, in
violation of 18 U.S.C. S 2. This appeal raises two questions:
first, whether the police officers had reasonable suspicion
under Terry v. Ohio, 392 U.S. 1 (1968), to effect a stop of
the automobile in which Harple was a passenger, and
second, whether the officers subsequently had probable
cause to arrest Harple and conduct a search of the
automobile and its occupants. This latter question requires
us to compare the facts of this case to those in United
States v. Kithcart, 134 F.3d 529 (3d Cir. 1998), in which we
held that probable cause was lacking under somewhat
similar circumstances. Here, we hold that the officers based
their investigatory stop upon reasonable suspicion and that
unlike in Kithcart, the officers then obtained probable cause
to arrest the occupants of the automobile, including Harple,
and to conduct a search of the automobile and its

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occupants. Accordingly, we affirm the judgment of the
District Court.

I.

On the night of April 9, 1996, Officers McCullough and
Postowski of the Philadelphia Police Department were
working in the 24th district's burglary detail, an
assignment that required them to dress in plainclothes and
drive an unmarked car. App. at 15. Their supervisor,
Sergeant Neiman, informed them of previous fires in the
vicinity of 2500 Butler Street and instructed them to "be on
the lookout for a blue over white vehicle with a third brake
light with a group of white males inside of it that were last
seen leaving that area the night before on a previous fire."
App. at 16. Sergeant Neiman also told the officers that the
group consisted of five or more young individuals. App. at
17.

At approximately 12:15 a.m., April 10, 1996, Officers
McCullough and Postowski received a radio transmission
reporting a fire at 2500 Butler Street. App. at 18. Because
their vehicle was only about two or three blocks away from
the fire, they arrived at the scene within a minute of
receiving the call. App. at 48. Approximately one minute
after arriving at the scene, Officers McCullough and
Postowski began to survey the area in their unmarked
vehicle. App. at 18-19, 48. Within approximately another
minute, they discovered a white Oldsmobile with a blue
pinstripe and a third brake light. App. at 20-22, 41, 48. The
car contained a group of white males. App. at 21. The white
Oldsmobile was less than three blocks away from thefire in
an area that was not heavily traveled at that time of night.
App. at 24, 48, 54. According to Officer McCullough, the
driver of the white Oldsmobile was "excessively obeying
traffic signal[s]."1 App. at 23. Officer McCullough also
_________________________________________________________________

1. Officer McCullough explained: "it has been my experience, on patrol,
that people do not tend to stay at the stop sign for more than a short
period of time like the driver of that vehicle [i.e., the white
Oldsmobile].
They came to a complete stop, stayed there for approximately 15 to 30
seconds and then moved. To me, in my past experience, that is excessive
and not normal for everyday drivers[.]" App. at 24.

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testified that he could see the fire department trucks at the
2500 Butler Street fire from that location. App. at 55.

Officers McCullough and Postowski called for assistance
and continued to follow the Oldsmobile. App. at 25-26. A
police wagon soon arrived and pulled over the Oldsmobile.
App. at 25. The officers then asked the Oldsmobile's driver
for his license and registration. App. at 26. When the driver
stated that he did not have these documents, the officers
instructed the driver and the other passengers to step out
of the vehicle. App. at 26, 28. There were five individuals in
the vehicle. App. at 30.

Officer McCullough then used his portable radio to
inform other police officers that he had stopped the vehicle.
At that point, he heard his radio transmission projected
back at him from inside the Oldsmobile. When he stopped
transmitting his message, he heard the fire department's
radio frequency coming from inside the automobile. App. at
27. Upon looking inside the automobile, Officer McCullough
discovered a hand-held scanner that was tuned to the
police and the fire departments' radio frequencies. Id.
Following the discovery of the hand-held scanner, the
officers then proceeded to frisk the occupants and
discovered lighters, matches, and rolled-up paper towels.
App. at 28. The officers then searched the inside of the
Oldsmobile and found a flashlight and a set of walkie-
talkies. App. at 29.

Harple moved to suppress all the physical evidence
recovered by the police officers. The District Court denied
Harple's motion. The District Court held that "the totality of
circumstances support a finding that, at the time Officers
Postowski and McCullough stopped the white Oldsmobile
carrying Defendant Harple, the officers had a reasonable
suspicion that criminal activity was afoot which justified
the officers in making a stop under Terry." Dist. Ct. Op. at
8. The District Court also held that "[o]nce[the police
officers] discovered the police and fire scanner in the
automobile -- after the officers stopped the automobile, but
before they effected a search of the automobile or its
occupants -- the officers had probable cause to believe that
the occupants of the Oldsmobile had committed or were
committing arson." Dist. Ct. Op. at 10.

                               4


On appeal, Harple contends that the District Court erred
in making both legal determinations. Harple makes two
arguments. First, he claims that "the information possessed
by the officers was insufficient to establish reasonable
suspicion to warrant an investigative stop." Appellant's Br.
at 15. Second, he argues that if the information possessed
by the police officer in United States v. Kithcart, 134 F.3d
529 (3d Cir. 1998), was inadequate to support afinding of
probable cause to arrest and search the appellant in that
case, then it follows that the police officers lacked probable
cause here. See Appellant's Br. at 13. We will address each
argument in turn.

II.

We review a district court's determinations of reasonable
suspicion and probable cause de novo. See Ornelas v.
United States, 517 U.S. 690, 697 (1996); United States v.
Brown, 159 F.3d 147, 148 (3d Cir. 1998) (reasonable
suspicion); United States v. Kithcart, 134 F.3d 529, 531 (3d
Cir. 1998) (probable cause). We review a district court's
factual findings for clear error. Brown, 159 F.3d at 148.

A.

Terry v. Ohio created a narrow exception to the general
warrant requirement of the Fourth Amendment to the
United States Constitution. 392 U.S. 1, 20-21 (1968). In
Kithcart, we commented that "[a]lthough Terry allows an
investigative stop, it still requires reasonable suspicion
before the government can justify even this limited
intrusion." 134 F.3d at 532. In United States v. Rickus, 737
F.2d 360, 365 (3d Cir. 1984) (quoting Terry, 392 U.S. at
21), we noted that "[r]easonable suspicion must be based
upon `specific and articulable facts which, taken together
with rational inferences from those facts, reasonably
warrant that intrusion.' "

The District Court supported its holding that the officers
had reasonable suspicion to perform an investigatory stop
by citing the following factors:

       the temporal and geographic proximity of the
       Oldsmobile to the Butler Street fire, the fact that the

                                5


       Oldsmobile was driving in an otherwise desolate area,
       the fact that the Oldsmobile substantially matched the
       description which the officers had received from Sgt.
       Nieman [sic] (including the automobile having the
       brake light in the rear window area), the fact that the
       Oldsmobile started moving in an unusually careful
       manner, and the fact that, consistent with the briefing
       the officers had received that night, the Oldsmobile
       carried several white males who appeared young.

Dist. Ct. Op. at 9-10. We agree with the District Court's
analysis, and we accordingly reject Harple's contention that
Officers McCullough and Postowski did not have reasonable
suspicion to effect an investigatory stop.

B.

We now turn to Harple's second argument, viz., that in
view of our opinion in Kithcart, we should hold that Officers
McCullough and Postowski did not have probable cause to
arrest the Oldsmobile's occupants and to search them and
the automobile.2 In Kithcart, a police officer in a patrol car
received three radio transmissions within the course of an
hour, each of which reported an armed robbery. Id. at 529.
The first two robberies occurred in Bensalem Township, the
township where the police officer worked. Id. The last
robbery occurred in neighboring Bristol Township, and the
transmission reporting it did not specify where or when it
occurred. Id. at 529-30.

The radio transmissions described the alleged
perpetrators of these robberies as "two black males in a
black sports car." Id. at 530. Among other things, the
transmissions described the vehicle that the alleged
perpetrators were driving as a "possible Z-28, possible
Camaro." Id. (footnote omitted). Approximately ten minutes
after receiving the final transmission, a police officer
spotted a black Nissan 300ZX approximately a mile from
the boundary of Bristol Township. Id. The police officer
discerned that an African-American male was driving the
_________________________________________________________________

2. The government has not attempted to justify the frisk of the occupants
under Terry.

                               6


automobile, and she believed that he was the only person
in the car. Id. The police officer then observed the Nissan
drive through a red light. Id. At that point, she turned on
her dome lights, and the Nissan pulled over. Id. The police
officer then called for backup. Id. After two backup police
officers arrived, the officers conducted a search and
discovered a gun in Kithcart's white nylon waist pouch and
another gun under the driver's seat. Id.

The District Court held "that the officers had `probable
cause' to arrest Kithcart and to search him incident to the
arrest." Id. at 531. We reversed the District Court, noting
that "[t]he mere fact that Kithcart is black and the
perpetrators had been described as two black males is
plainly insufficient" to support a finding of probable cause.
Id. In addition, we stated that "[a]lthough the Camaro Z-28
and the Nissan 300ZX could be considered `sports cars,'
there was no evidence offered at the suppression hearing
that the shapes of the two cars were sufficiently similar so
as to warrant an inference that a 300ZX could be mistaken
for a Z-28." Id. Lastly, we noted that "[t]here was no
evidence presented as to where in Bristol Township the
final robbery occurred; nor was there evidence presented
that the Bristol robbery occurred shortly before Officer
Nelson stopped the car carrying Kithcart." Id.

We reject Harple's contention that Kithcart requires us to
reverse the District Court's determination that Officers
McCullough and Postowski had probable cause to arrest
the Oldsmobile's occupants and to search them and the
automobile. Unlike in Kithcart -- where the officer
essentially relied upon a description of the perpetrators as
two black males driving a black sports car -- the officers
here did not rely solely upon Sergeant Neiman's description
of the alleged arsonists as a young group of white males
driving a blue on white automobile. Rather, there was other
evidence linking Harple to the arson at 2500 Butler Street.
In contrast to Kithcart, the record here shows that the
officers had knowledge of where the arson happened and
that the officers stopped the car carrying Harple shortly
after the arson occurred. Moreover, the officers spotted the
white Oldsmobile moving in an abnormally cautious
manner less than three blocks away from the fire. From

                               7
that location, the occupants of the Oldsmobile could see the
fire trucks that had arrived at the scene of thefire. After
the stop, the officers discovered hand-held scanners tuned
to police and fire department frequencies, behavior that
tended to show that the occupants of the Oldsmobile were
monitoring police and fire department activity. In light of
this evidence, we hold that the District Court did not err in
concluding that the officers had probable cause to arrest
the occupants of the Oldsmobile, including Harple, and to
search the automobile.

III.

For these reasons, we affirm the judgment of the District
Court.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

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