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


11-13-2007

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Precedential or Non-Precedential: Non-Precedential

Docket No. 06-3840




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Recommended Citation
"USA v. Waters" (2007). 2007 Decisions. Paper 222.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/222


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                                           NOT PRECEDENTIAL




     IN THE UNITED STATES COURT
              OF APPEALS
         FOR THE THIRD CIRCUIT


                 NO. 06-3840


       UNITED STATES OF AMERICA

                      v.

            MELVIN E. WATERS
                Appellant




      On Appeal From the United States
                  District Court
    For the Middle District of Pennsylvania
    (D.C. Crim. Action No. 05-cr-00436-1)
   District Judge: Hon. William W. Caldwell


Submitted Pursuant to Third Circuit LAR 34.1(a)
               October 25, 2007

BEFORE: FISHER, STAPLETON and COWEN,
             Circuit Judges

     (Opinion Filed November 13, 2007 )
                               OPINION OF THE COURT




STAPLETON, Circuit Judge:

       Appellant Melvin E. Waters moved to suppress a handgun. The District Court

held an evidentiary hearing at which the only witness was Andrew Cooper, a probation

officer. Following the hearing, the District Court made the following findings of fact:

               Officer Cooper began supervising the Defendant in September 2004.
       During that time, he saw the Defendant once or twice a month at either
       Waters’ work, his home, or at Cooper’s office. On May 23, 2005, Cooper
       observed the Defendant on a street corner and decided to speak with him.
       Because Cooper rarely saw Waters outside his job or home, he believed that
       this would be a good opportunity to determine that the Defendant was in
       compliance with his probation restrictions. He exited his car and proceeded
       to engage Waters in what he termed a “regular probation conversation.”
               Toward the end of the conversation, Officer Cooper asked the
       Defendant if he was in possession of any contraband. Waters did not
       respond to the question and dropped his head. Officer Cooper then asked
       the Defendant if he could search him for contraband and Waters failed to
       respond. The Defendant then turned and ran. Cooper attempted to stop him
       by grabbing Waters’ jacket and shirt but the Defendant was able to rip out
       of his clothing and continue to flee.
               Officer Cooper chased the Defendant and Waters eventually stopped
       and surrendered to Officer Cooper. Prior to his stopping, the probation
       officer witnessed the Defendant throw an object that he believed to be a
       gun. A gun was found on the flat roof of a garage near the point at which
       Cooper saw the Defendant throw something.

App. at 9-10.

       Waters concedes that a probationer may be searched and/or seized by his probation



                                            2
officer if the latter has a “reasonable suspicion” of improper conduct. Waters insists,

however, that “Cooper had no reasonable suspicion that Waters was engaged in any

improper activity.” Appellant’s Br. at 11.

       The District Court found as facts that before any search or seizure occurred Waters

(1) declined to respond and dropped his head, thereby avoiding eye contact, when asked

by his probation officer whether he was in possession of contraband, (2) declined to

respond when then asked for consent to a search, and (3) “turned and ran.” At that point,

we agree with the District Court that a probation officer in Cooper’s position would have

a reasonable suspicion that Waters might be in possession of something that violated the

terms of his probation.

       Accordingly, we will affirm the judgment of the District Court.




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