                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-14-2008

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Precedential or Non-Precedential: Non-Precedential

Docket No. 06-3965




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                                                                  NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ____________

                                       No. 06-3965
                                      ____________

                            UNITED STATES OF AMERICA

                                             v.

                                   ALLEN HEADEN,

                                          Appellant
                                      ____________

                     On Appeal from the United States District Court
                         for the Eastern District of Pennsylvania
                                 (D.C. No. 06-cr-00036-1)
                     District Judge: Honorable Eduardo C. Robreno
                                      ____________

                       Submitted Under Third Circuit LAR 34.1(a)
                                   January 10, 2008

           Before: FISHER, HARDIMAN and STAPLETON, Circuit Judges.

                                (Filed: February 14, 2008)
                                      ____________

                               OPINION OF THE COURT
                                    ____________

FISHER, Circuit Judge.

       On May 9, 2006, Defendant Allen Headen entered a conditional guilty plea to one

count of possession of a firearm by a convicted felon, in violation of 18 U.S.C.

§ 922(g)(1). In accordance with the terms of his plea, Headen now appeals the District
Court’s conviction and sentence. Headen challenges the District Court’s denial of his

motion to suppress the introduction of the firearm that was seized from him during a frisk

on December 3, 2005. In light of the totality of the circumstances, we conclude that the

police officers had reasonable suspicion to conduct the frisk. We will, therefore, affirm

the judgment of the District Court.

                                              I.

       We write exclusively for the parties, who are familiar with the factual context and

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

analysis.

       Prior to December 3, 2005, Special Agent Robert Wescoe, a 15-year veteran of the

Bureau of Alcohol, Tobacco, Firearms and Explosives, and Detective Robert McDermott,

a 10-year veteran of the Southwest Detective Division of the Philadelphia Police

Department, had been investigating a year-long series of shootings and other violent

crimes in Southwest and West Philadelphia. On December 2, 2005, at around 6:30 p.m.,

Special Agent Wescoe, in the presence of Detective McDermott, received a telephone call

from a confidential informant who had previously provided reliable information to

Wescoe and McDermott on shootings in the area. On this occasion, the informant told

Wescoe that Headen and a fellow gang member, Dorian Thompson, were planning a

retaliatory shooting against an opposing gang member who had been shooting at Headen

and Headen’s friends.



                                              2
       During the initial phone call, the informant told Wescoe that Headen and

Thompson were in a blue minivan in the area, were armed, and were “looking for another

guy to shoot at.” Later that evening, between 7:30 p.m. and 8:30 p.m., Wescoe again

spoke to the informant, who told Wescoe to check the area of 47 th and Parrish Streets.

Between 9:00 p.m. and 9:30 p.m., Wescoe and McDermott found the blue minivan,

unattended, in the area described by the informant. After he found the van, Wescoe spoke

to the informant, who told the officers to wait as Headen would be returning to the

minivan.

       While waiting for Headen to return to the minivan, Wescoe and McDermott

noticed that the minivan had an expired registration sticker. Upon checking the

registration with the Pennsylvania Bureau of Motor Vehicles, they learned that the

minivan was registered to Rodney Smith and that the registration was expired. Wescoe

again contacted the informant and learned that Smith was an acquaintance of Thompson.

       At approximately midnight, McDermott saw Headen, with whom McDermott was

familiar prior to this incident, get into the front passenger seat of the minivan and saw

another male, later identified as Thompson, get into the driver’s seat. Wescoe and

McDermott, each in separate vehicles, followed the minivan as it drove away and each

noticed that a right rear light on the minivan was not working. Philadelphia police

officers, who had been summoned as a backup team, also noticed that the right rear light

was not functioning and that the registration was expired.



                                              3
       After noticing these motor vehicle code violations, the officers attempted to stop

the minivan. Despite Thompson’s attempt to evade the officers, McDermott was able to

block the minivan from leaving the area. Police removed Thompson from the van,

frisked him, and found that he was wearing a ballistic vest. At the same time, Wescoe

opened the passenger door and conducted a quick frisk of Headen’s waist area. During

that frisk, Wescoe felt a large, thick, L-shaped object in the right pocket of Headen’s coat.

Because of the feel of the object, along with the informant’s tips, Wescoe suspected that

the object was a handgun. Consequently, Wescoe ordered Headen out of the minivan and

searched Headen’s pockets wherein he found a fully loaded handgun, with one round in

the chamber, as well as an additional magazine for the gun. The officers issued traffic

violations for the expired registration and the malfunctioning tail light and arrested

Headen and Thompson.

                                             II.

       We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. We review

the District Court’s denial of a motion to suppress for clear error as to the underlying

facts, and exercise plenary review of the District Court’s application of the law to those

facts. United States v. Perez, 280 F.3d 318, 336 (3d Cir. 2002). In the Fourth

Amendment context, a defendant who challenges a search or seizure typically bears the

burden of proving that it was illegal. However, the government bears the burden of




                                              4
proving that a search was reasonable where, as here, that search was conducted absent a

warrant. United States v. Johnson, 63 F.3d 242, 245 (3d Cir. 1995).

       The issue on appeal is whether the officers seized the firearm from Headen

pursuant to a valid stop and frisk. Under Terry v. Ohio, 392 U.S. 1 (1968), and

subsequent cases, “‘an officer may, consistent with the Fourth Amendment, conduct a

brief, investigatory stop when the officer has reasonable, articulable suspicion that

criminal activity is afoot.’” United States v. Valentine, 232 F.3d 350, 353 (3d Cir. 2000)

(quoting Illinois v. Wardlow, 528 U.S. 119, 123 (2000)). An officer may also conduct a

limited search for weapons when he reasonably believes that the subject of an

investigatory stop is armed and dangerous. Terry, 392 U.S. at 27.

       Reasonable suspicion is “‘a less demanding standard than probable cause and

requires a showing considerably less than preponderance of the evidence.’” Valentine,

232 F.3d at 353 (quoting Wardlow, 528 U.S. at 123). In determining whether the officers

had reasonable suspicion, “we must consider ‘the totality of the circumstances-the whole

picture.’” United States v. Sokolow, 490 U.S. 1, 8 (1989) (quoting United States v.

Cortez, 449 U.S. 411, 417 (1981)). Moreover, we have recognized “that a reasonable

suspicion may be the result of any combination of one or several factors: specialized

knowledge and investigative inferences [Cortez, 449 U.S. at 419], personal observation of

suspicious behavior [Terry, 392 U.S. at 24, and] information from sources that have

proven to be reliable.” United States v. Nelson, 284 F.3d 472, 478 (3d Cir. 2002).



                                             5
       In order for an informant’s tip to be the basis for reasonable suspicion, however,

that tip must be reliable both in its assertion of illegality and in its tendency to identify a

determinate person. See Florida v. J.L., 529 U.S. 266, 272 (2000). Nevertheless,

predictive information “can reflect particularized knowledge,” Nelson, 284 F.3d at 484,

and it provides police the “means to test the informant’s knowledge or credibility.” J.L.,

529 U.S. at 271. However, the reliability of the informant must also be taken into

consideration when determining whether reasonable suspicion existed. See Valentine,

232 F.3d at 354.

                                              III.

       The District Court properly held that the officers had reasonable suspicion to stop

the minivan with Headen and Thompson inside.1 The District Court also correctly held

that under the totality of the circumstances, the officers had reasonable suspicion to frisk

Headen. Because of their participation in the Violent Crime Impact team in the

neighborhood in which the stop occurred, Wescoe and McDermott both had specialized

knowledge of the geographic area, the criminal activity in that area, and the individuals

involved in that criminal activity. Despite Headen’s argument that the District Court

erred in finding that Headen had been involved in gang activity, Wescoe and McDermott

had previously investigated shootings in the area involving Headen and Mark Lawrence


       1
         We apply the Supreme Court’s “bright line rule that any technical violation of the
traffic code legitimizes a stop, even if the stop is merely a pretext for an investigation of
some other crime.” See United States v. Mosley, 454 F.3d 249, 252 (3d Cir. 2006).

                                                6
and the families and acquaintances of each. Furthermore, the officers were aware of

Headen’s involvement in violent activity.

       In addition to the officers’ specialized knowledge, we must also take into

consideration the reliability of the confidential informant’s tip. While Headen argues that

the informant’s tips were general in nature and not corroborated, the informant, who had

given the officers trustworthy information in the past, provided Wescoe with accurate and

detailed information. For example, the informant specifically named Headen and

Thompson and recounted that they were armed, in a blue minivan and were seeking to

carry out a retaliatory shooting against Lawrence. These facts enhance the credibility of

the informant. Moreover, the informant continued to provide Wescoe reliable and

predictive information throughout the evening including the area in which the blue

minivan was located, and later found, and the fact that Headen would be returning to the

minivan. The informant also provided corroborating information about Rodney Smith, to

whom the minivan was registered.

       The evasive actions by the minivan’s driver also added to the basis for the

reasonable suspicion that justified frisking Headen. The officers’ personal observations

of these evasive actions, combined with their experience in that specific high crime area,

along with the fact that they possessed specific information that Headen might be armed,

all suggest that the frisk was warranted based on the totality of the circumstances.




                                             7
       Accordingly, the officers’ suspicion that Headen was armed and dangerous was

reasonable, and a protective frisk was justified. Consequently, the District Court properly

denied Headen’s motion to suppress the firearm seized from him during the search. We

will therefore affirm the judgment of the District Court.




                                             8
