                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-1-2005

USA v. Williams
Precedential or Non-Precedential: Precedential

Docket No. 04-2807




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                                                PRECEDENTIAL

          UNITED STATES COURT OF APPEALS
               FOR THE THIRD CIRCUIT


                     Nos. 04-2807 & 04-2903


                        UNITED STATES

                     Appellant in No. 04-2807

                                v.

                EUGENE IVOR WILLIAMS


                        UNITED STATES

                                v.

                EUGENE IVOR WILLIAMS

                     Appellant in No. 04-2903


    On Appeal from the District Court of the Virgin Islands
                    (D.C. No. 04-cr-00016)
   District Judge: Honorable Chief Judge Raymond L. Finch


                 Argued December 14, 2004

     Before: SLOVITER, FUENTES, and GREENBERG,
                    Circuit Judges.

                       (Filed: July 1, 2005)

Anthony J. Jenkins

                                -1-
Acting United States Attorney
Denise A. Hinds
Assistant United States Attorney
District of the Virgin Islands

Elizabeth D. Collery (ARGUED)
Appellate Section, Criminal Division
U.S. Department of Justice
P.O. Box 899, Ben Franklin Station
Washington, DC 20044-0899

ATTORNEYS FOR APPELLANT

Pamela Lynn Colon (ARGUED)
Law Offices of Pamela Lynn Colon, LLC
36 C Strand Street, Third Floor
Christiansted, U.S.V.I. 00820

ATTORNEY FOR APPELLEE




                     OPINION OF THE COURT




FUENTES, Circuit Judge.

       This appeal arises out of two separate events involving
Eugene I. Williams, twice arrested by the Virgin Islands Police
Department on the island of St. Croix for offenses involving
firearms and drugs. In the first event, several police officers
approached a parked van with the rear doors open and found
Williams inside bagging marijuana. The officers, upon seeing a
leafy green substance, proceeded to stop, search, and arrest
Williams. The District Court granted Williams’ motion to suppress
evidence seized in connection with this arrest on the grounds that
the police lacked reasonable suspicion to approach the van. In the
second incident, Williams, who was standing on a street with a
group of people, fled when he saw a police cruiser approach.

                               -2-
During the ensuing chase, Williams threw away a loaded firearm
and was later found hiding in the bathroom of a stranger’s house
with marijuana in a nearby bathtub. The District Court denied
Williams’ motion to suppress with regards to the second arrest,
finding that his flight created reasonable suspicion for the police to
pursue and that, in any event, Williams lost any expectation of
privacy in the firearm and marijuana once he discarded them.

        The United States filed an interlocutory appeal with regards
to the suppression order relating to the first arrest, while Williams
filed an interlocutory cross-appeal with regards to the denial of his
motion relating to the second arrest. Because we find that the
police did not need reasonable suspicion to approach the parked
van in which Williams was bagging marijuana, we will reverse the
District Court’s suppression order. However, with regards to
Williams’ cross-appeal, we conclude that we lack jurisdiction over
his interlocutory appeal and accordingly will dismiss it.

                                  I.

       On May 27, 2004, a Grand Jury sitting in the District of the
Virgin Islands, Division of St. Croix, returned a five-count
superseding indictment charging Williams with the knowing
possession of a firearm with an obliterated serial number in
violation of 18 U.S.C. § 922(k); unauthorized possession of a
firearm in violation of V.I. Code Ann. Tit. 14, § 2253(a) (2004);
possession of marijuana with the intent to distribute in violation of
21 U.S.C. § 841(a)(1); using and carrying a firearm during and in
relation to a drug trafficking offense in violation of 18 U.S.C.
§ 924(c)(1)(A); and unauthorized possession of a firearm with an
obliterated serial number in violation of V.I. Code Ann. Tit. 23,
§ 481. The indictment stemmed from two separate arrests of
Williams for criminal conduct, the first occurring on August 27,
2003 (the “First Arrest”), and the second on January 29, 2004 (the
“Second Arrest”).1


       1
        The following description of the First and Second Arrests
is taken from testimony provided at a hearing before the District
Court on June 3, 2004, as well as from the facts found by the

                                 -3-
       A.     First Arrest

       On the afternoon of August 27, 2003, Officer Uston
Cornelius of the Virgin Islands Police Department and three other
officers were on routine patrol in a marked police cruiser in an area
of St. Croix known as the Castle Coakley residential area. They
came upon a parked blue van, with its rears doors open, such that
the officers could see straight into the vehicle. As the officers
approached the van, they observed an individual (later identified as
Defendant Williams) seated in the rear of the van engaged in some
sort of activity. The officers stopped their car, exited, and
approached the van. Officer Cornelius later testified that he had no
suspicion that criminal activity was taking place when he began his
approach toward the van.

       From a distance of about twelve or thirteen feet, Officer
Cornelius saw Williams holding a large ziplock bag containing a
green leafy substance that appeared to be marijuana and several
smaller ziplock bags in his lap containing the same green leafy
substance. When Williams noticed the officers approaching, he
attempted to discard all the bags in his lap and hands. Williams
was removed from the van, searched and handcuffed. A search of
the van revealed the larger bag and fourteen smaller bags. The
green leafy substance field-tested positive for marijuana. After
receiving Miranda warnings at the station house, Williams
acknowledged responsibility for four of the bags in the van but
denied ownership of the remaining bags.

       B.     Second Arrest

       During the evening of January 29, 2004, Officer Franchet
Hodge and his partners were on patrol in the Estate Profit area of
St. Croix, a high crime area, in a marked police car. As Officer
Hodge approached a group of individuals standing on a street
corner, an individual later identified as Williams left the group and
started off running down the street. Upon seeing Williams run,
Officer Hodge exited his vehicle and gave chase. During the



District Court and set forth in its suppression order.

                                -4-
pursuit, Officer Hodge ordered Williams to stop, but Williams
refused. Officer Hodge also saw Williams pause and take an
unidentifiable object from his right side and throw it over a fence.

       Williams then continued running and entered into a nearby
house. Officer Hodge’s two partners, still in the car, pursued
Williams to the house where they received permission from the
owner of the house to search the premises. The officers found
Williams hiding in the bathroom. The owner of the house
indicated that he did not know Williams and had not given him
permission to enter his residence. Williams was ordered out of the
bathroom. The officers then conducted a pat down search and
discovered that Williams was wearing a bulletproof vest. The
officers also found eight bags of marijuana in the bathtub of the
bathroom where Williams had been hiding. Officer Hodge went
back to the vicinity where he had seen Williams throw the
unidentified object and discovered a chrome handgun with six live
rounds of ammunition in the magazine and one in the chamber.
Williams was arrested.

       C.     Suppression Order

       Following his arrest, Williams moved to suppress all
physical evidence obtained and any statements made in connection
with both arrests on the grounds that the evidence was seized
through illegal warrantless searches and seizures. A hearing was
held before the District Court on June 3, 2004, in which Officers
Cornelius and Hodges testified regarding the two arrests described
above. The District Court issued its order in a Memorandum
Opinion dated June 7, 2004, in which the court granted in part, and
denied in part, the motion to suppress.

       With regards to the Second Arrest, the District Court denied
the suppression motion on the grounds that Officer Hodge had
reasonable suspicion to pursue Williams because Williams had fled
in a high crime area upon the sight of police. The District Court
also found that Williams was not seized for purposes of the Fourth
Amendment because he had fled and never submitted to police
authority. Moreover, the firearm and ammunition which were
found near the fence, and the marijuana found in the bathtub, were

                                -5-
all abandoned by Williams, and thus he no longer had an
expectation of privacy in these items.

       However, the District Court granted the suppression motion
with respect to the First Arrest. In particular, the District Court
concluded that because the police lacked reasonable suspicion that
criminal activity was afoot when they saw the parked van, they had
no justification to approach the van, and consequently their
approach did not constitute a lawful stop under Adams v. Williams,
407 U.S. 143 (1972). Accordingly, all items seized in connection
with the arrest, and all confessions made thereafter, were
suppressed as fruits of the unlawful seizure.

       The United States now appeals from the District Court’s
suppression order relating to the First Arrest. Williams has filed a
cross-appeal from the District Court’s denial of his motion to
suppress in connection with the Second Arrest.2

                                II.

        We review de novo the District Court’s determination of
reasonable suspicion and probable cause, as well as its
determination regarding whether Williams was seized for purposes
of the Fourth Amendment. See Ornelas v. United States, 517 U.S.
690, 699 (1996); see also United States v. Coggins, 986 F.2d 651,
654 (3d Cir. 1993). In our de novo review, however, we accept
findings of fact made by the District Court unless clearly
erroneous. See Ornelas, 517 U.S. at 699; Coggins, 986 F.2d at
654. We will first consider the United States’ appeal, followed by
Williams’ cross-appeal.




       2
        This Court has jurisdiction over a district court’s grant of
a motion to suppress evidence pursuant to 18 U.S.C. § 3731
(permitting the United States to bring an interlocutory appeal). As
discussed below, this Court, however, lacks jurisdiction to hear an
interlocutory appeal of an order denying a motion to suppress
evidence. See United States v. Johnson, 690 F.2d 60, 62 (3d Cir.
1982) (citations omitted).

                                -6-
       A.     First Arrest

       The Fourth Amendment to the U.S. Constitution protects
individuals from “unreasonable searches and seizures.” U.S.
Const. amend IV. Generally, subject only to a few well-defined
exceptions, warrantless searches and seizures are per se
unreasonable under the Fourth Amendment. See United States v.
Ross, 456 U.S. 798, 824-25 (1982) (quoting Katz v. United States,
389 U.S. 347, 357 (1967)). However, 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 a reasonable, articulable suspicion that
criminal activity is afoot.” Illinois v. Wardlow, 528 U.S. 119, 123
(2000).3 In this case, the District Court concluded that, because the
police had no suspicion that the individual in the parked van was
engaged in any unlawful activity, their approach of the van was an
impermissible stop in violation of the Fourth Amendment. The
United States, however, argues that the police did not need
reasonable suspicion because, merely by approaching the parked
van, they did not “stop” or “seize” Williams for purposes of the
Fourth Amendment.

        Thus, the central issue on appeal relating to the First Arrest
is whether Williams was seized within the meaning of the Fourth
Amendment when the police, who admitted they had no suspicion
that the individual in the parked van was engaged in any unlawful
activity, approached the van. If Williams was “seized” by the
police when they approached the parked van without probable
cause or reasonable suspicion to do so, then the District Court
correctly suppressed all evidence obtained in connection with the
ensuing arrest under the “fruits of the poisonous tree” doctrine.
See Wong Sun v. United States, 371 U.S. 471, 484 (1963).
However, if Williams was not “seized,” then the police could
approach the van without any reasonable suspicion or probable


       3
         Terry also permits an officer to conduct a frisk for weapons
if the officer believes that the suspect may be armed. 392 U.S. at
31. However, the frisk is a limited search which cannot be used as
a means to obtain evidence.

                                 -7-
cause, and the District Court’s ruling would be in error.4

        We begin by defining the term “seizure” when used in the
context of the Fourth Amendment. In the seminal Terry case, the
Supreme Court explained that a seizure occurs “when the officer,
by means of physical force or show of authority, has in some way
restrained the liberty of a citizen.” 392 U.S. at 19 n.16. More
recently, the Supreme Court has held that for there to be a seizure,
either the police must apply physical force to the person being
seized, or the person must submit to an assertion of police
authority. See California v. Hodari D., 499 U.S. 621, 626-28
(1991); see also Curley v. Klem, 298 F.3d 271, 279 (3d Cir. 2002)
(noting that “a seizure occurs whenever an officer restrains the
freedom of a person to walk away”) (internal citations and
quotations omitted). Thus, although even a brief investigatory stop
is considered a “seizure,” not every encounter between the police
and a citizen constitutes a seizure within the meaning of the Fourth
Amendment. See Johnson v. Campbell, 332 F.3d 199, 205 (3d Cir.
2003). As we have noted before, “consensual encounters are
important tools of law enforcement and need not be based on any
suspicion of wrongdoing.” Id. (citing Florida v. Bostwick, 501


       4
         We frame our analysis in this manner to address the basis
of the District Court’s ruling that the police’s “approach[] of the
van [did] not constitute a legitimate stop.” In so ruling, the District
Court cited to the Supreme Court’s decision in Adams v. Williams,
407 U.S. 143 (1972), for the proposition that “a police officer who
approached an individual sitting in [a] parked vehicle based on an
informant’s tip was not justified, because a stop requires specific
facts that reasonably lead the police officer to conclude that the
individual is engaged in criminal activity.” In fact, Adams v.
Williams held that the police did have reasonable suspicion, based
on an informant’s tip, to approach and stop the defendant who was
sitting in his car at 2:15 AM in a high crime area. 407 U.S. at 147.
We also note that the precise page cited from Adams v. Williams
by the District Court, 407 U.S. at 158, is part of the dissenting
opinion. In any event, Adams v. Williams has no bearing on this
case as it does not resolve whether the police “stopped” or “seized”
Williams when they approached the parked van.

                                 -8-
U.S. 429, 434 (1991)).

       The District Court clearly erred when it held that the police
lacked reasonable suspicion to approach the van. Before even
addressing whether the police had reasonable suspicion to approach
the van, the District Court should have inquired into whether
Williams had been “seized” by the police. We conclude that there
was no seizure because there was no use of physical force, nor was
there any show of authority when the police approached the van in
their marked cruiser, exited their vehicle, and approached the
parked van on foot. As the Supreme Court has noted, “[l]aw
enforcement officers do not violate the Fourth Amendment’s
prohibition of unreasonable seizures merely by approaching
individuals on the street or in other public places.” United States
v. Drayton, 536 U.S. 194, 200 (2002); see also Bostwick, 501 U.S.
at 434 (“Our cases make it clear that a seizure does not occur
simply because a police officer approaches an individual and asks
a few questions.”). The Fourth Amendment is simply not
implicated by the police approaching the parked van, contrary to
the District Court’s ruling.

       Thereafter, as the police approached the van on foot, they
noticed in plain and open view from a distance of twelve or thirteen
feet such activities that created at least a reasonable suspicion that
criminal activity was taking place. In particular, Officer Cornelius
saw Williams holding a large ziplock bag with a green leafy
substance appearing to be marijuana, as well as several smaller
ziplock bags in his lap.5 When Williams noticed the officers


       5
         At oral argument, counsel for Defendant argued that
Officer Cornelius had no reason to conclude that the green leafy
substance being bagged in the rear of the van was marijuana, and
that it could have been oregano, basil, or even spinach. Whether
oregano, basil, or spinach are the types of products that are
routinely bagged in the rear of a van on the Virgin Islands is a
determination we are not required to make. Under Terry v. Ohio
and its progeny, Officer Cornelius could rely on his skill and
experience in concluding that the green, leafy substance was
marijuana, and in our view this was sufficient to support reasonable

                                 -9-
approaching, he attempted to discard all the bags in his lap and
hands. At this point, the fact of Williams discarding the bags
containing a green leafy substance appearing to be marijuana was
sufficient to transform reasonable suspicion into probable cause,
and the officers thus had justification to conduct a search of the van
and arrest Williams. See United States v. Burton, 288 F.3d 91, 100
(3d Cir. 2002) (“The automobile exception to the warrant
requirement permits law enforcement to seize and search an
automobile without a warrant if probable cause exists to believe it
contains contraband.”).6

       Williams makes several attempts to salvage the District
Court’s suppression order, all without merit. First, he argues that
the police did in fact engage in a “show of authority” when they
approached the van because they were wearing “quasi-military
police uniform[s].” This argument is unconvincing. As the
Supreme Court has noted, whether an officer is wearing a uniform
has “little weight in the analysis” because “[o]fficers are often
required to wear uniforms and in many circumstances this is cause
for assurance, not discomfort.” Drayton, 536 U.S. at 204.


suspicion. See United States v. Robertson, 305 F.3d 164, 168 (3d
Cir. 2002) (noting that the officer’s skill and experience were
“indispensable to evaluation of reasonable suspicion”).
       6
         We note that the officers did not state that they believed
they had probable cause as they approached the van. However, this
does not preclude our finding that probable cause nonetheless
existed as a matter of law. An analysis of Fourth Amendment
issues involves “an objective assessment of the officer’s actions in
light of the facts and circumstances confronting him at the time and
not on the officer’s actual state of mind at the time the challenged
action was taken.” United States v. Johnson, 63 F.3d 242, 246 (3d
Cir. 1995) (quoting Maryland v. Macon, 472 U.S. 463, 470-71
(1985)). “The fact that the officer does not have the state of mind
which is hypothecated by the reasons which provide the legal
justification for the officer’s action does not invalidate the action
so long as the circumstances, viewed objectively, justify that
action.” Id. (quoting Scott v. United States, 436 U.S. 128, 138
(1978)).

                                -10-
Moreover, in this case, the record indicates that Williams did not
even notice the officers approaching the van in their “quasi-military
police uniforms,” until after Officer Cornelius saw the green leafy
substance, at which point the officers already had reasonable
suspicion that justified a show of authority. Williams cannot
persuasively claim that he submitted to a show of authority when
he did not even see the officers approach.

        Second, Williams argues that the police’s approach
constituted a seizure because he had a heightened expectation of
privacy in the van. This argument is without merit. The fact that
Williams was seated within the van, rather than standing on the
street, is irrelevant in this matter. It is well-established that police
officers who lack reasonable suspicion may approach and question
people seated in vehicles in public places. See, e.g., Johnson, 332
F.3d at 206 (holding that police officers did not “stop” defendant
sitting in car until a few seconds into the encounter when it became
clear that defendant was not free to go); United States v.
Hendricks, 319 F.3d 993, 999 (7th Cir. 2003) (finding no seizure
where officer approached a vehicle parked at gas station); see also
4 Wayne R. LaFave, Search and Seizure § 9.3(a), at 96-97 (3d ed.
1996) (“[I]f an officer merely walks up to a person standing or
sitting in a public place (or, indeed who is seated in a vehicle
located in a public place) and puts a question to him, this alone
does not constitute a seizure.”). Here, the van was parked in a
public place with the rear doors open. The police could approach
the parked van without any reasonable suspicion, just as they could
approach an individual standing on the street without any
reasonable suspicion. Merely approaching an individual, whether
standing or in an automobile, does not constitute a seizure under
the Fourth Amendment.7




       7
        Williams argues that suppression was appropriate because
there was no evidence that the marijuana belonged to him. This
argument need not be addressed by this Court because it is not
relevant to determining whether the police conducted an unlawful
seizure, although it may be raised in a relevancy motion to the
District Court or before a jury should the matter go to trial.

                                 -11-
       B.        Second Arrest

       Williams cross-appeals from the District Court’s denial of
his motion to suppress with respect to his arrest of January 29,
2004. However, as the United States argues, we lack jurisdiction
to hear Williams’ interlocutory cross-appeal.

        It is well-settled that a criminal defendant may not file an
immediate appeal of an order denying a pretrial motion to suppress
evidence. See Di Bella v. United States, 369 U.S. 121, 131 (1962)
(“Orders granting or denying suppression in the wake of such
proceedings are truly interlocutory, for the criminal trial is then
fairly in train.”); Carroll v. United States, 354 U.S. 394 (1957); see
also United States v. Jones, 994 F.2d 1051, 1054 n.4 (3d Cir.
1993). Indeed, we have previously held that an order denying a
motion to suppress evidence is “interlocutory” and “if error has
been committed, it may be rectified [only] on appeal from the final
judgment.” See United States v. Johnson, 690 F.2d 60, 62 (3d Cir.
1982) (citations omitted). Although an order granting suppression
of evidence is not considered a final order, the United States is
specifically permitted by 18 U.S.C. § 3731 to bring an interlocutory
appeal.8 Section 3731 affords no such right to criminal defendants.

      Despite the clear import of the case law, Williams
nonetheless seeks to get around the bar on interlocutory appeal by


       8
           The relevant portion of 18 U.S.C. § 3731 states:

                 An appeal by the United States shall lie to a court of
                 appeals from a decision or order of a district court
                 suppressing or excluding evidence or requiring the
                 return of seized property in a criminal proceeding,
                 not made after the defendant has been put in
                 jeopardy and before the verdict or finding on an
                 indictment or information, if the United States
                 attorney certifies to the district court that the appeal
                 is not taken for purpose of delay and that the
                 evidence is a substantial proof of a fact material in
                 the proceeding.

                                   -12-
relying on the collateral order doctrine, an argument which we
must reject.9 The Supreme Court, on numerous occasions, has
emphasized the narrowness of the collateral order doctrine in the
criminal context. See Cobbledick v. United States, 309 U.S. 323,
325 (1940) (noting that the policies underlying the finality rule are
“especially compelling in the administration of criminal justice”);
Carroll, 354 U.S. at 403 (noting that while “certain orders relating
to a criminal case may be . . . appealable[,] [t]he instances in
criminal cases are very few”).10 Our Court has also noted the
heightened interest in the idea of finality in the criminal context.
We have, for example, observed that “[i]n the context of a criminal
case, the collateral order doctrine is used sparingly because of the
need to effectively and efficiently conclude criminal proceedings,
without piecemeal interruptions.” Gov’t of V.I. v. Rivera, 333 F.3d
143, 150 n.16 (3d Cir. 2003); see also United States v. Fiumara,
605 F.2d 116, 118 (3d Cir. 1979) (noting that “[t]he collateral order
doctrine has been applied, though sparingly, in the criminal
context” but that “the rule of finality has particular force in
criminal prosecutions because encouragement of delay is fatal to
the vindication of the criminal law”) (quoting United States v.

       9
        Under the collateral order doctrine, “a district court order
entered prior to final judgment is immediately appealable if it (1)
conclusively determines the disputed question, (2) resolves an
important issue completely separate from the merits of the case,
and (3) is effectively unreviewable on appeal from a final
judgment.” United States v. McDade, 28 F.3d 283, 288 (3d Cir.
1994).
       10
         The Supreme Court’s views have been influenced by the
fact that “[p]romptness in bringing a criminal case to trial has
become increasingly important as crime has increased, court
dockets have swelled, and detention facilities have become
overcrowded.” Flanagan v. United States, 465 U.S. 259, 264
(1984). Other reasons for the narrowness of the collateral order
doctrine in the criminal context lie in the Sixth Amendment
guarantee of a speedy trial and the corresponding “societal interest
in providing a speedy trial which exists separate from, and at times
in opposition to, the interests of the accused.” Id. (quoting Barker
v. Wingo, 407 U.S. 514, 519 (1972)).

                                -13-
MacDonald, 435 U.S. 850, 854 (1978)).

         In light of the foregoing concerns, courts have consistently
ruled that a pretrial ruling on a suppression motion is not a
collateral order under 28 U.S.C. § 1291 because the motion
“presents an issue that is involved in and will be part of a criminal
prosecution in process at the time the order is issued.” See DiBella
v. United States, 369 U.S. 121, 127 (1962); see also United States
v. McDade, 28 F.3d 283, 302 (3d Cir. 1994) (noting that it is
“settled that a ruling on the admissibility of evidence at a criminal
trial is not completely separate from the merits of the case”). We
see no reason to depart from long-standing practice in order to
exercise jurisdiction over Williams’ cross-appeal under the
collateral order doctrine.

       Finally, Williams relies on the following state court
decisions for the proposition that we have “inherent jurisdiction”
over the cross-appeal: Commonwealth v. Barnes, 452 A.2d 1355
(Pa. Super. Ct. 1982), abrogated by Commonwealth v. Slaton, 556
A.2d 1343 (Pa. Super. Ct. 1989); Lopez v. State, 638 So.2d 931
(Fla. 1994); and State of Wisconsin v. Thiel, 491 N.W.2d 94 (Wis.
Ct. App. 1992). These cases are inapposite, however, because
irrespective of the practice in certain states, we must follow the
well-established standards in the federal courts. Accordingly,
Williams must await for a final judgment in this matter before he
may appeal the District Court’s denial of the suppression order
with regards to the Second Arrest.

                                III.

        For the foregoing reasons, we will reverse the order of the
District Court in matter No. 04-2807 suppressing evidence seized
in connection with the August 27, 2003 arrest and remand for
further proceedings. With regards to the District Court’s order
relating to the January 29, 2004 arrest in matter No. 04-2903, we
will dismiss the cross-appeal for want of jurisdiction.




                                -14-
