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


4-27-2007

Murphy v. Bendig
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-4307




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"Murphy v. Bendig" (2007). 2007 Decisions. Paper 1189.
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                                                             NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT

                                     NO. 06-4307
                                  ________________

    SEAN D. MURPHY, a/k/a Sean Emmons; DAVID R. THOMPSON, Appellants

                                            v.

           J. SCOTT BENDIG, SERGEANT; JAMES REAPE, DETECTIVE

                      ____________________________________

                    On Appeal From the United States District Court
                        For the Eastern District of Pennsylvania
                            (E.D. Pa. Civ. No. 06-cv-02355)
                       District Judge: Honorable John P. Fullam
                    _______________________________________


                      Submitted Under Third Circuit LAR 34.1(a)
                                   April 25, 2007

            Before: FISHER, ALDISERT AND WEIS, CIRCUIT JUDGES


                                (Filed: April 27, 2007)

                              _______________________

                                      OPINION
                              _______________________

PER CURIAM

      Sean Murphy and David Thompson appeal pro se from the District Court’s order

denying their motion for summary judgment and granting defendants’ motion for

judgment on the pleadings, which the District Court treated as a motion for summary
judgment. For the following reasons, we will affirm.

                                            I.

       The following facts are uncontested. At approximately 1:50 a.m. on October 18,

2004, defendant Bendig, a police officer, saw a rental moving van leave the driveway of a

construction management company in Montgomery County, Pennsylvania. Murphy was

the driver and Thompson was a passenger. Bendig, his suspicion aroused for reasons

discussed below, immediately stopped the van. After he ordered Murphy out of the van,

both Murphy and Thompson fled on foot. Both were apprehended, and Murphy was

found in possession of burglary tools. The van, later searched pursuant to a warrant,

contained jewelry and prescription drugs stolen earlier that night from an adjacent Costco

wholesale store. Bendig learned of that burglary shortly after stopping the van.

       Defendant Reape, a detective, later filed a criminal complaint in Montgomery

County charging Murphy and Thompson with burglary and other state crimes (which they

do not deny having committed). Murphy and Thompson moved to suppress the evidence

recovered from the van and their persons, arguing that Bendig lacked the “reasonable

suspicion” necessary to support an investigatory stop of their van. At the suppression

hearing, Bendig testified that he stopped the van because he knew the construction

company was closed for business at that late hour and he had never seen a vehicle of that

kind leaving the premises. He further testified that those circumstances aroused his

suspicion because he knew the construction company had been burglarized before (in

1991), because an adjacent business had been burglarized in a similar manner in April,

                                            2
2002, and because his field training officer had instructed him to “giv[e] a little more

attention” to the area in light of the 1991 burglary and other criminal activities. The state

court granted the motion to suppress. The Commonwealth appealed, but the

Pennsylvania Superior Court affirmed on the grounds that the Commonwealth had waived

all issues on appeal. The Commonwealth later dismissed all charges against Murphy and

Thompson.

       Murphy and Thompson then filed their complaint, asserting a claim under 42

U.S.C. § 1983 for violation of their Fourth Amendment rights, as well as claims for false

arrest, false imprisonment and malicious prosecution. Bendig and Reape filed a motion

for judgment on the pleadings, to which Murphy and Thompson responded by moving for

summary judgment. The District Court, treating both motions as motions for summary

judgment, entered judgment in favor of Bendig and Reape.1

                                             II.

                                     A.   § 1983 Claim

       The only issues briefed by the parties concern appellants’ § 1983 claim that

Bendig violated their Fourth Amendment rights by stopping the van. The District Court

correctly decided that Bendig was not collaterally estopped from litigating that issue by

the state court’s ruling. See Smith v. Holtz, 210 F.3d 186, 199 n.18 (3d Cir. 2000). On


   1
        We have appellate jurisdiction pursuant to 28 U.S.C. § 1291, and exercise plenary
review over the District Court’s grant of summary judgment. See Groman v. Township
of Manalapan, 47 F.3d 628, 633 (3d Cir. 1995). In doing so, we view the uncontested
facts in the light most favorable to Murphy and Thompson. See id.

                                              3
the merits, the District Court concluded that Bendig had reasonable suspicion and that the

stop was thus constitutional. We agree.2

       Police officers may make brief, investigatory stops if, under the totality of the

circumstances, they have a “reasonable, articulable suspicion that criminal activity is

afoot.” Couden v. Duffy, 446 F.3d 483, 494 (3d Cir. 2006) (citing Terry v. Ohio, 392

U.S. 1, 30 (1968)). A suspicion is reasonable if it is based on “some objective

manifestation” that the target “is, or is about to be, engaged in criminal activity,” but not

if it is merely “an ‘inchoate and unparticularized suspicion or hunch.’” Johnson v.

Campbell, 332 F.3d 199, 206 (3d Cir. 2003) (citations omitted). “The ultimate question is

whether a reasonable, trained officer standing in [Bendig’s] shoes could articulate specific

reasons justifying [appellants’] detention.” Id.

       We agree that Bendig articulated such specific reasons here. When Bendig

stopped appellants’ van, he knew that the construction company it was leaving, as well as

an adjacent business, had been burglarized before in a similar manner. He also had never

before seen a van leaving the construction company late at night while it was closed.

Moreover, his training officer had instructed him to pay particular attention to the area



   2
        Appellants argue that the District Court based its Fourth Amendment ruling on
factual findings not supported by the record, and that argument is well-taken in part. The
uncontested facts that are supported by the record, however, adequately support the
District Court’s ruling. The District Court also concluded that Bendig was shielded from
liability by qualified immunity. Because we do not find an underlying constitutional
violation, we do not reach that issue. See Donahue v. Gavin, 280 F.3d 371, 378 (3d Cir.
2002).

                                              4
because of prior criminal activities. In sum, Bendig relied on his experience, training,

knowledge of prior criminal activity in the area, and the lateness of the hour, all of which

are legitimate bases for reasonable suspicion. See United States v. Goodrich, 450 F.3d

552, 564 (3d Cir. 2006); Johnson, 332 F.3d at 206-07; United States v. Rickus, 737 F.2d

360, 365 (3d Cir. 1984). As appellants argue, Bendig did not have any reports of criminal

activity in the area when he stopped their van and had not actually observed them doing

anything illegal. But even innocent behavior can form the basis for reasonable suspicion

when viewed through these lenses. See Goodrich, 450 F.3d at 564; Rickus, 737 F.2d at

365. Such was the case here. Accordingly, we agree with the District Court that

Bendig’s suspicion was objectively reasonable and that he was justified in stopping

appellants’ van.

      B.    Claims for False Arrest, False Imprisonment and Malicious Prosecution

       The District Court concluded that these claims fail as a matter of law because there

was probable cause to arrest, imprison and prosecute Murphy and Thompson. On appeal,

appellants do not argue that the District Court erred in dismissing these claims or raise

any issues regarding them. Thus, appellants have waived any such issues. See Couden,

446 F.3d at 492.

       Moreover, any such issues would lack merit. Whether characterized as § 1983

claims or tort claims under Pennsylvania state law, each claim requires a lack of probable

cause. See Donahue, 280 F.3d at 379; Groman, 47 F.3d at 636; Renk v. City of

Pittsburgh, 641 A.2d 289, 295 n.2 (Pa. 1994). The District Court’s conclusion that

                                             5
appellants’ arrest, imprisonment and prosecution were supported by probable cause is

clearly correct. Accordingly, we will affirm the District Court’s judgment.




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