                                                              NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT

                                    _____________

                                     No. 10-1634
                                    _____________

                          UNITED STATES OF AMERICA

                                           v.

                                  EDWIN THOMAS,

                                             Appellant
                                    _____________

                     Appeal from the United States District Court
                              for the District of New Jersey
                             (D.C. Criminal No. 09-cr-147)
                     District Judge: Honorable Susan D. Wigenton

                                   ______________

                      Submitted Under Third Circuit LAR 34.1(a)
                                  March 10, 2011

            Before: SCIRICA, AMBRO AND VANASKIE, Circuit Judges

                                 (Filed April 12, 2011 )

                                   ______________

                                      OPINION
                                   ______________

VANASKIE, Circuit Judge.

      After his motion to suppress the evidence was denied, a jury found Appellant

Edwin Thomas (“Thomas”) guilty of a felon in possession of a firearm in violation of 18
U.S.C. § 922(g)(1). Thomas appeals, asserting that the District Court erroneously denied

his suppression motion as well as two mistrial motions, and that the prosecutors engaged

in misconduct. For the following reasons, we will affirm the Judgment of the District

Court.

                                              I.

         As we write only for the parties, who are familiar with the facts and procedural

history of this case, we will set forth only those facts necessary to our analysis.

         On November 14, 2008, at approximately 9:00 p.m., Newark, New Jersey Police

Department Detectives Modesto Miranda and Edward Vernotica patrolled a public

housing neighborhood in a white, unmarked police vehicle. Both detectives were twenty-

five-year veterans of the police force. They knew that the neighborhood, which included

30 Ridgewood Avenue, was a high crime rate area where frequent drug dealings and

shootings occurred. The detectives turned into 30 Ridgewood Avenue which led to a

backyard parking lot. It was a misty, dark night, but street lights provided some

illumination of the area, where three to four pre-teenage children played.

         As their car approached the parking lot, someone yelled “5-0.” Approximately

twenty feet or less away, the detectives saw Thomas. He dropped a duffel bag to the

ground, and walked towards the detectives. At that point, the detectives stopped and

exited the vehicle. The detectives, in plain clothes with their police badges hanging from

their necks, told Thomas to put his hands on the hood of the vehicle. After he failed to

produce any identification, Thomas was patted down and placed in the back seat of the

vehicle.

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      Detective Miranda proceeded to position the vehicle so its headlights shined upon

the duffel bag. Again, both detectives exited the vehicle. As the bag lay undisturbed,

Detective Miranda observed the handle of a gun sticking out of the duffel bag.

Consequently, Detective Miranda immediately alerted Detective Vernotica to arrest

Thomas, and Detective Vernotica handcuffed Thomas and placed him under arrest.

      Detective Miranda continued his investigation by shining his flashlight on the

open portion of the duffel bag, where he observed another gun. When the duffel bag was

eventually opened by police officers from the Crime Scene Unit, they recovered a

Romarm Cugir 7.62 millimeter semi-automatic rifle and an Armscor Philippines Model

1600 .22 caliber semi-automatic long rifle.

      On June 8, 2009, counsel for Thomas filed a pre-trial motion asserting that

Thomas‟s stop and arrest violated the Fourth Amendment. In the afternoon of October

14, 2009, the day before the hearing on Thomas‟s motion to suppress, the government

faxed a letter to defense counsel summarizing materials it was required to produce under

Giglio v. United States, 405 U.S. 150 (1972). At the October 15, 2011 suppression

hearing, however, the District Court Judge, who had previously reviewed the Giglio

materials in camera, explained that the government failed to comply with the spirit and

intent of her order. The government was supposed to have produced the actual materials,

rather than a summary of the facts, to defense counsel. The court again ordered the

government to produce the appropriate Giglio materials, and the hearing on the

suppression motion was postponed.



                                              3
       On the night of October 15, 2009, the government produced the Giglio materials,

and the suppression hearing was held on October 19, 2009. With respect to the two

firearms, the District Court, ruling from the bench, denied Thomas‟s motion to suppress

the evidence. The District Court found that there was reasonable suspicion to stop

Thomas, and that he had abandoned his duffel bag containing the two rifles. (J.A. 321-

22.)

       Subsequently, on November 9, 2009, Thomas‟s jury trial commenced. During the

trial, defense counsel moved for a mistrial on two occasions. First, after a prosecutor

referred to Thomas‟s counsel as a public defender while cross-examining a defense

witness, counsel for Thomas moved for a mistrial. The District Court denied the motion

and provided a curative instruction to the jury. Defense counsel‟s second motion was

made after the government delivered its rebuttal closing argument. The District Court

also denied this motion for a mistrial. On November 13, 2009, the jury found Thomas

guilty. On February 22, 2010, he was sentenced to eighty-five months‟ imprisonment,

which was within the advisory guidelines range of seventy to eight-seven months. This

timely appealed followed.

                                            II.

       The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction

pursuant to 28 U.S.C. § 1291.

                                            A.

       On appeal, Thomas challenges the denial of his motion to suppress the two rifles

and his mistrial motions based upon purported prosecutorial misconduct. Generally, the

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Fourth Amendment prohibits “unreasonable searches and seizures. . . .” U.S. Const.

amend. IV. Thomas‟s suppression motion, presented in the context of a brief encounter

between Thomas and Detectives Miranda and Vernotica, is governed by the analysis

announced in Terry v. Ohio, 392 U.S. 1 (1968). See Illinois v. Wardlow, 528 U.S. 119,

123 (2000).1 In Terry, the Supreme Court observed that “a police officer may in

appropriate circumstances and in an appropriate manner approach a person for purposes

of investigating possibly criminal behavior even though there is no probable cause to

make an arrest.” 392 U.S. at 22. Thus, pursuant to Terry, “an officer may, consistent

with the Fourth Amendment, conduct a brief, investigatory stop when the officer has a

reasonable, articulable suspicion that criminal activity is afoot.” Wardlow, 528 U.S. at

123. Indeed, the “Fourth Amendment does not require a policeman who lacks the precise

level of information necessary for probable cause to arrest to simply shrug his shoulders

and allow a crime to occur or a criminal to escape.” Adams v. Williams, 407 U.S. 143,

145 (1972).

       We “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.” United States v. Arvizu, 534 U.S. 266, 273 (2002) (quoting United States

v. Cortez, 449 U.S. 411, 417-18 (1981)). “This process allows officers to draw on their

own experience and specialized training to make inferences from and deductions about


       1
         We review the District Court‟s denial of a motion to suppress for clear error as to
the underlying factual findings, and exercise plenary review of the District Court‟s
application of the law to those facts. United States v. King, 604 F.3d 125, 134 (3d Cir.
2010).
                                              5
the cumulative information available to them that „might well elude an untrained

person.‟” Arvizu, 534 U.S. at 273 (quoting Cortez, 449 U.S. at 418). Relevant contextual

considerations in a Terry analysis include a “high crime area[,]” Adams, 407 U.S. at 144,

“nervous, evasive behavior[,]” Wardlow, 528 U.S. at 124, as well as “commonsense

judgments and inferences about human behavior.” Id. at 125.

       Here, Thomas first argues that he was arrested when the detectives placed his

hands on the hood of the unmarked police vehicle, patted him down, and placed him in

the backseat. “[G]ood police work[,]” however, may require “an intermediate response”

short of an arrest, such as a “brief stop of a suspicious individual, in order to determine

his identity or to maintain the status quo momentarily while obtaining more information,

[which] may be most reasonable in light of the facts known to the officer at the time.”

Adams, 407 U.S. at 145-46. That is precisely what occurred here. The detectives asked

Thomas for identification, but he was unable to produce any. Thus, Thomas was placed

in the back seat of the vehicle so the detectives could verify who he was, determine if

there were any outstanding arrest warrants issued against him, and assess the situation

pertaining to the dropped duffel bag. Accordingly, Thomas‟s argument is unpersuasive.

       Thomas also argues that there was no reasonable suspicion to stop him because his

actions were not indicative of criminal behavior. This Court has “acknowledged,

however, that reasonable suspicion does not require that the suspect‟s acts must always

be themselves criminal.” United States v. Valentine, 232 F.3d 350, 356 (3d Cir. 2000)

(“In many cases the Supreme Court has found reasonable suspicion based on acts capable



                                              6
of innocent explanation.”). The District Court properly found that Detectives Miranda

and Vernotica had reasonable suspicion to conduct a Terry stop.

       The facts, in pertinent part, are undisputed. The encounter between Thomas and

the detectives occurred in a high crime area, which was the site of frequent drug dealing

and shootings. Further, approximately one month before Thomas‟s encounter, a

homicide had taken place in the same neighborhood. The detectives were familiar with

the area and that it was a high crime rate area. Additionally, it was nighttime, and

Thomas dropped the duffel bag when he was alerted that the police were in the vicinity

and he saw the detectives‟ vehicle approaching. Although three to four pre-teenage

children were playing in the general location of the parking lot, no one was specifically in

the grassy area where Thomas dropped his duffel bag.

       Therefore, viewed in their totality, the facts provide the requisite “minimal level of

objective justification for making the stop.” United States v. Sokolow, 490 U.S. 1, 7

(1989) (quotation omitted). Indeed, “we think that if the [detectives] had done nothing

and continued on their way after [witnessing Thomas drop the duffel bag], the

[detectives] would have been remiss.” Valentine, 232 F.3d at 356. Accordingly, the

detectives had sufficient reasonable suspicion to effectuate a Terry stop.

       Further, the District Court correctly concluded that Thomas abandoned the duffel

bag containing the rifles, thereby justifying the search of its contents. “Although a person

has a privacy interest in the contents of his personal luggage, he forfeits that interest

when he abandons his property.” United States v. Fulani, 368 F.3d 351, 354 (3d Cir.

2004) (citation omitted); see Abel v. United States, 362 U.S. 217, 241 (1960) (explaining

                                              7
that an individual has no reasonable expectation of privacy in abandoned property).

Abandonment analysis under the Fourth Amendment focuses on an individual‟s

reasonable expectation of privacy. Fulani, 368 F.3d at 354. We “must determine from

an objective viewpoint whether [Thomas‟s duffel bag] has been abandoned.” Id. Finally,

proof of Thomas‟s intent to abandon his property must be established by clear and

unequivocal evidence, id., which “may be inferred from „words spoken, acts done, and

other objective facts.‟” United States v. Thomas, 864 F.2d 843, 846 (D.C. Cir. 1989)

(quoting United States v. Colbert, 474 F.2d 174, 176 (5th Cir. 1973)).

       Thomas dropped the duffel bag in a grassy area in the parking lot located behind

housing units, then walked away. Any individual in the area would have had access to

the duffel bag. Therefore, we can infer that Thomas had no reasonable expectation of

privacy in the bag. See United States v. Dickens, 695 F.2d 765, 778 (3d Cir. 1982)

(“Expecting privacy in a building staircase accessible to other tenants and the general

public [where police officers discovered weapons in a plastic bag] cannot be considered

reasonable.”), abrogated on other grounds as recognized by In re Grand Jury

Empaneling of Special Grand Jury, 171 F.3d 826, 828 (3d Cir. 1999). Additionally,

because Thomas dropped the duffel bag and walked away from it before he was stopped

by the detectives, he is foreclosed from arguing that the abandonment was “precipitated

by an unlawful seizure,” thus mandating its exclusion. United States v. Coggins, 986

F.2d 651, 653 (3d Cir. 1993). Accordingly, the District Court did not err in denying

Thomas‟s suppression motion, nor in determining that he abandoned the duffel bag.



                                             8
                                              B.

       Thomas challenges the denial of mistrial motions that were premised upon alleged

prosecutorial misconduct. He also claims prosecutorial misconduct in connection with

the delay in providing Giglio materials.

       As we explained in United States v. Morena, 547 F.3d 191, 193-94 (3d Cir. 2008):

       Improper prosecutorial conduct rises to the level of constitutional error
       “when the impact of the misconduct is to distract the trier of fact and thus
       raise doubts as to the fairness of the trial.” Marshall v. Hendricks, 307 F.3d
       36, 67 (3d Cir. 2002). The test for prosecutorial misconduct is whether the
       conduct “„so infected the trial with unfairness as to make the resulting
       conviction a denial of due process‟” in light of the entire proceeding. Id. at
       64 (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974)). In
       conducting this analysis, this Court assesses the prosecutor‟s improper
       actions, the weight of properly admitted evidence and any curative
       instructions given by the trial court. Moore v. Morton, 255 F.3d 95, 112-
       113 (3d Cir. 2001).

When contemporaneous objections of prosecutorial misconduct are asserted, we review

the “District Court‟s ruling . . . for abuse of discretion.” United States v. Brennan, 326

F.3d 176, 182 (3d Cir. 176). “Any non-contemporaneous objections are subject to plain

error review.” Id.

       Regardless of what standard of review we apply, we find that the government did

not commit misconduct. First, the government‟s belated disclosure of the Giglio

materials, albeit unjustified, does not rise to a level that warrants setting aside the

conviction. In this regard, Thomas has not shown how he was prejudiced by the timing

of the disclosure. Second, the government did not badger any defense witness, but

instead engaged in an appropriate cross-examination. Third, although the government

erred in referring to the fact that Thomas was represented by a public defender, the

                                               9
District Court took adequate steps to remedy the situation by providing curative

instructions. Finally, the government‟s rebuttal argument was not inappropriate.

Accordingly, we fail to find any alleged prosecutorial misconduct sufficient to warrant a

mistrial or setting aside the verdict on appeal.

                                             III.

       For the foregoing reasons, we will affirm the Judgment of the District Court.




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