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


2-5-2004

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Precedential or Non-Precedential: Non-Precedential

Docket No. 02-4433




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Recommended Citation
"USA v. Collins" (2004). 2004 Decisions. Paper 1022.
http://digitalcommons.law.villanova.edu/thirdcircuit_2004/1022


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                                                     NOT PRECEDENTIAL

            THE UNITED STATES COURT OF APPEALS
                   FOR THE THIRD CIRCUIT

                            ___________

                            No. 02-4433
                            ___________


                  UNITED STATES OF AMERICA

                                  v.

                         JMEAL COLLINS
                              a/k/a
                         PAUL VAN LOAN

                             J'Meal Collins,

                                  Appellant
                            ___________


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

                    (D.C. Criminal No. 01-cr-00780)
            District Judge: The Honorable Jay C. Waldman

                            ___________

              Submitted Under Third Circuit LAR 34.1(a)
                          October 28, 2003




BEFORE: SCIRICA, Chief Judge, NYGAARD, and AMBRO, Circuit Judges.
                                  (Filed: February 5, 2004)

                                        ___________

                                OPINION OF THE COURT
                                     ___________

NYGAARD, Circuit Judge.

              Appellant J’Meal Collins, a.k.a. Paul Van Loan, brings this appeal to his

conviction for possession of a firearm by a convicted felon, in violation of 18 U.S.C. §

922(g)(1). Collins challenges the District Court’s refusal to suppress the firearm that

forms the basis for this conviction, contending that the police’s seizure of this weapon

was unlawful. We will affirm.

              The events leading to Collins’s arrest began when a dispatcher for the

Philadelphia Police Department received a call from a woman who reported that someone

she knew was driving with a handgun under the seat of his car. The caller gave a detailed

description of Collins and his car, confirmed the address from which she was calling, and

expressed fear that Collins would seek revenge if he knew she had called. When two

police officers drove to the caller’s address to speak with her further, they saw a car and

driver matching the caller’s description. The officers first pulled their police cruiser

behind the car, and then moved the cruiser to try to block the car when the driver – later

identified as Collins – started to pull away. The District Court assumed, but did not

decide, that this action effectively blocked the car and prevented the driver from pulling

away.

                                              2
              As they got out of the police cruiser, the officers saw Collins moving his

head up and down and bending toward his right side. Both officers drew their firearms

and approached the car. One officer went to the driver’s side door and asked Collins to

show his hands, an order which was repeated three more times before Collins complied.

The officer then asked Collins to get out of the car, and he did so, walking toward the rear

of his car, reaching for his waistband, and withdrawing a handgun. After one officer

yelled “gun,” Collins threw the handgun and ran toward the adjacent apartment complex,

where he was apprehended and placed under arrest.

              A jury convicted Collins of possession of a handgun by a convicted felon

and the District Court sentenced him to 240 months in prison. Before trial, Collins had

filed a motion to suppress the handgun that formed the basis for his indictment,

contending that it was seized as a result of an unlawful arrest and an insufficiently reliable

anonymous tip. Collins now contests the District Court’s denial of this motion. The

District Court exercised jurisdiction under 18 U.S.C. § 3231 and this Court has appellate

jurisdiction over the final judgment under 28 U.S.C. § 1291.

              The District Court received briefs from the parties and heard testimony and

argument related to the admissibility of the gun. Based upon the facts as outlined above,

the District Court found the officers acted reasonably in pursuing the caller’s complaint;

used reasonable force in stopping Collins, including using the police cruiser to block his

car; and took reasonable precautions in proportion to the justified concerns about their



                                              3
safety that were prompted by Collins’s suspicious behavior. The Court therefore found

that the officers’ behavior passed the test established in Terry v. Ohio, 392 U.S. 1, 30

(1968), and that they had probable cause to arrest Collins and seize his gun when he

pulled it from his waistband and threw it while attempting to flee. Dist. Ct. Op. 4-7.

              In an argument made for the first time upon appeal, Collins now contends

that the seizure of the gun was unlawful under the standard established in United States v.

Ubiles, 224 F.3d 213, 217 (3d Cir. 2000). He maintains that, as in Ubiles, there was no

reason for the police officers to suspect that Collins was engaged in illegal activity, since

possessing a gun is not necessarily illegal, and the surrounding circumstances did not

point to the presence of illegal activity. The District Court did not address this issue

because it was not given the opportunity to do so. Because this theory of suppression was

not brought before the District Court, we find that it has been waived, and decline to

review it on its merits.1 “A litigant cannot jump from theory to theory like a bee buzzing




1        Indeed, if we were to attempt to address the merits of Collins’s new theory, we
would be at a decided disadvantage, because the District Court was not given the
opportunity to create an adequate factual record. Our prior holdings have made it clear
that the question of whether or not the police had sufficient reason to suspect illegal
activity is based upon a variety of highly contextual considerations. See United States v.
Valentine, 232 F.3d 350, 356 (3d Cir. 2000); Ubiles, 224 F.3d at 217. In this case, these
considerations might include an examination of the difference between Pennsylvania gun
law and the Virgin Islands law implicated in Ubiles, as well as consideration of whether
Collins was in a high-crime neighborhood when he was approached by police, and if the
fear of reprisal voiced by the caller constituted an adequate reason for the police to
suspect that Collins was dangerous. Because we find the issue to be waived, we do not
address these questions further.

                                              4
from flower to flower. To the precise contrary, when a party fails to raise a theory at the

district court level, that theory is generally regarded as forfeited and cannot be advanced

on appeal.” United States v. Torres, 162 F.3d 6, 11 (1st Cir. 1998); see, e.g., United States

v. Hawkins, 249 F.3d 867, 872 (9th Cir. 2001); United States v. Neumann, 887 F.2d 880,

886 (8th Cir. 1989); United States v. Di Stefano, 555 F.2d 1094, 1100 n.5 (2d Cir. 1977).




                                              5
_________________________


TO THE CLERK:

           Please file the foregoing opinion.




                                          /s/ Richard L. Nygaard
                                          _________________________________
                                          Circuit Judge
