                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-10-2004

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Precedential or Non-Precedential: Non-Precedential

Docket No. 03-3639




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                                               NOT PRECEDENTIAL

         UNITED STATES COURT OF APPEALS
              FOR THE THIRD CIRCUIT


                        No. 03-3639


             UNITED STATES OF AMERICA

                             v.

                   RODNEY GORDON
                    a/k/a Kevin Jones

                                        Rodney Gordon,

                                                         Appellant


       On Appeal from the United States District Court
           for the Middle District of Pennsylvania
                (D.C. Crim. No. 02-cr-00227)
        Honorable James M. Munley, District Judge


                   Argued June 25, 2004

BEFORE: AM BRO, BECKER, and GREENBERG, Circuit Judges

                  (Filed: August 10, 2004)


                           James V. Wade
                           Federal Public Defender
                           Middle District of Pennsylvania
                           Daniel I. Seigel
                           100 Chestnut St., Suite 306
                           Harrisburg, PA 17108
                           Patrick A. Casey (argued)
                           Assistant Federal Public Defender
                                           Kane Professional Building, Suite 2C
                                           116 North Washington Avenue
                                           Scranton, PA 18503-1800

                                               Attorneys for Appellant

                                           Thomas A. Marino
                                           United States Attorney
                                           Middle District of Pennsylvania
                                           George J. Rocktashel (argued)
                                           Assistant United States Attorney
                                           Herman T. Schneebeli Building
                                           240 West Third Street, Suite 316
                                           Williamsport, PA 17701-6465

                                               Attorneys for Appellee


                                OPINION OF THE COURT


GREENBERG, Circuit Judge.

       This matter comes on before the court on Rodney Gordon’s appeal from a

judgment of conviction and sentence entered in the district court on September 2, 2003,

following his conviction at a jury trial in this cocaine distribution and possession case.

Gordon, however, challenges only the district court’s order entered April 22, 2003,

denying his motion to suppress evidence. The district court had jurisdiction pursuant to

18 U.S.C. § 3231 and we have jurisdiction pursuant to 28 U.S.C. § 1291. We review the

district court’s order for clear error as to underlying facts, but exercise plenary review as

to its conclusions of law. See United States v. Fulani, 368 F.3d 351, 352 (3d Cir. 2004).

For the reasons stated herein, we will affirm the judgment of conviction and sentence.

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       The following is what happened. On August 13, 2002, Gordon traveled from

Philadelphia, Pennsylvania, on a Susquehanna Lines bus. When the bus made a

regularly-scheduled stop in Lehighton, Pennsylvania, Gordon transferred to another bus,

which was en route to Williamsport, Pennsylvania.

       Special Agents Jeffrey P. Aster and Ronald Paret of the Pennsylvania Attorney

General’s Bureau of Narcotics Investigation, along with Lehighton Police Chief Wentz,

were stationed at the bus stop. Agents Aster and Paret saw Gordon make the bus transfer

and at that time saw that he was carrying a black duffle bag. Chief Wentz noticed that

Gordon was watching him in an intense manner.

       Agents Aster and Paret boarded the W illiamsport bus and, with the bus driver’s

permission, Agent Paret announced over the public address system that he and Agent

Aster were conducting a brief drug investigation. He informed the passengers that their

cooperation was appreciated but not required. Chief Wentz remained at the front of the

bus, but did not seal off the door. During the entire investigation, the door and aisle

remained open for passengers to enter and exit the bus.

       Agents Aster and Paret approached Gordon and asked to see his bus ticket which

Gordon then produced. The agents then asked him if he had luggage with him, and

Gordon identified the black carry-on duffle bag as his luggage. The agents then asked if

they could search the bag, and Gordon consented. Inside the bag, the agents discovered

hundreds of empty plastic bags in assorted colors. Based on their prior experience and



                                              3
training, they recognized the bags as being of a type commonly used to package

controlled substances. Agent Paret then asked Gordon to identify himself. Gordon said

that his name was Nathaniel Thompson from Philadelphia, and that he was headed to

Williamsport. When asked if he previously had been arrested, Gordon said he had been

arrested for weapons violations.

       Understandably the agents then conducted a pat-down search of Gordon for

weapons. During the search agent Aster felt a hard mass in Gordon’s sweatshirt pocket,

which he immediately recognized through feel as controlled substances. He testified as

follows:

       And for our safety and safety of the other passengers involved, we
       conducted a very quick Terry pat down on the bus. And as I was feeling the
       right side part of his red sweatshirt, which is to my right side here, I noticed
       that there was something hanging in the pocket, it was an open pocket, I
       could see it, and then – as I bumped it I could feel it, and as I put my hand
       around it it was like a semi-round mass, hard mass that I felt. And I was
       very confident through my experience that this was consistent with cocaine
       or other powder type drug that had been wrapped very tightly in a ball.

A. 118. Agent Aster then arrested Gordon and reached into his pocket and retrieved a

clear plastic bag containing other smaller individual bags of a tightly wrapped white

substance, which appeared to be cocaine.

       On September 12, 2002, a grand jury indicted Gordon for distribution and

possession with intent to distribute approximately 30 grams of cocaine in violation of 21

U.S.C. § 841(a)(1). On November 12, 2002, he moved to suppress evidence, arguing that

the agents searched his carry-on bag without consent, Agent Aster’s pat-down search

                                              4
exceeded its permissible scope, certain of Gordon’s statements should be suppressed, and

his rights had been violated because he had been targeted due to racial profiling. The

district court denied Gordon’s motion in its entirety. With reference to the pat-down

search to the extent that it led to the seizure of the cocaine, the validity of which is the

only issue Gordon raises on appeal, the district court found that it was immediately

apparent to Agent Aster when he patted down Gordon’s sweatshirt that the item he felt

was not a weapon but was drugs. Specifically, the court found that Agent Aster

         did manipulate the object but only enough to determine it was not a weapon,
         and immediately upon realizing it was not a weapon, he concluded that it was
         drugs. The record indicates that no extraneous manipulation of the object
         occurred after the investigator determined that it was not a weapon.
         Accordingly, the evidence will not be suppressed.

A. 11.

         Gordon’s case proceeded to trial, and on May 30, 2003, a jury returned a guilty

verdict. On September 2, 2003, the district court entered a judgment of conviction and a

sentence of 262 months of imprisonment to be followed by a six-year term of supervised

release. Gordon then timely appealed.

         The sole issue on this appeal is whether the district court clearly erred in finding

that Agent Aster handled the object in Gordon’s sweatshirt merely to determine that it

was not a weapon, and at the moment he made that determination, he also determined that

the object was drugs.

         In Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868 (1968), the Supreme Court held that



                                                5
“the police can stop and briefly detain a person for investigative purposes if the officer

has reasonable suspicion supported by articulable facts that criminal activity ‘may be

afoot,’ even if the officer lacks probable cause.” United States v. Sokolow, 490 U.S. 1, 7,

109 S.Ct. 1581, 1585 (1989) (citing Terry, 392 U.S. 1, 30, 88 S.Ct. 1884-85)). In this

case, Gordon does not contend that the agents lacked reasonable suspicion to conduct a

pat-down search for weapons. Rather, he argues that under Minnesota v. Dickerson, 508

U.S. 369, 113 S.Ct. 2130 (1993), Agent Aster’s pat-down search exceeded the

permissible scope of Terry. In Dickerson, the Supreme Court clarified that:

       If a police officer lawfully pats down a suspect’s outer clothing and feels an
       object whose contour or mass makes its identity immediately apparent, there
       has been no invasion of the suspect’s privacy beyond that already authorized
       by the officer’s search for weapons; if the object is contraband, its warrantless
       seizure would be justified by the same practical considerations that inhere in
       the plain-view context.

Id. at 375-76, 113 S.Ct. at 2137.

       Our review of the record leads us to conclude that the district court did not clearly

err in finding that Agent Aster handled the object in Gordon’s pocket just enough to

determine it was not a weapon, and that immediately upon reaching that conclusion, he

also concluded that the object was drugs. After all, Agent Aster testified that that is

exactly what happened. Therefore, the only way we could reverse here would be to hold

that the district court should not have believed the agent but we have no reason to reach

such a conclusion. Thus, this case is distinguishable from Dickerson, where the

incriminating nature of the object was not immediately apparent to the officer, and he

                                              6
determined the object was contraband only after conducting a further search Terry did not

authorize. See Dickerson, id. at 379, 113 S.Ct. at 2139.

       For the reasons stated above, the judgment of conviction and sentence entered

September 2, 2003, will be affirmed.




AMBRO, Circuit Judge, Concurring:

       Based on Agent Aster’s testimony, the District Court concluded that he handled

the object in Gordon’s pocket just enough to determine it was not a weapon. The

majority is correct that we have little basis on appeal to hold the District Court should

have disregarded the agent’s testimony. Therefore, I cannot say the District Court’s

finding was clearly erroneous. I write separately, however, to briefly express two

concerns.

       First, the facts of this case could be construed as very similar to the events in

Minnesota v. Dickerson, 508 U.S. 366 (1993), in which evidence of drug possession was

suppressed. Agent Aster testified that he could see a round bulge in Gordon’s pocket

about the size of a tennis ball. Yet Agent Aster neither specified what weapon he thought

the round object could be nor identified any reason that caused him to suspect the object

was a weapon. Agent Aster also testified: “I basically tapped [the object], and kind of

manipulated [it] with my fingers a little bit before I grasped the object and placed a

squeeze upon it.” App. at 140. Only after squeezing the object did Agent Aster



                                              7
determine it was contraband. This situation is similar to Dickerson, which also involved

an initial frisk or patdown, followed by more significant tactile exploration. The officer

there testified: “[A]s I pat-searched the front of his body, I felt a lump, a small lump, in

the front pocket. I examined it with my fingers and it slid and it felt to be a lump of crack

cocaine in cellophane.” 508 U.S. at 369.

       This case also demonstrates that the distinctions Dickerson requires courts to make

are often ethereal. Are the Fourth Amendment implications different if an officer merely

pats down an individual’s outer clothing versus if an officer pats and then squeezes an

object in the individual’s coat pocket? Is a squeeze different from manipulating an

object? If so, is squeezing more or less invasive? Is some squeezing permissible but too

much squeezing not? These and similar questions judges ask to decide cases of this kind

connote less the lore of law than a bad Seinfeld episode.




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