                                                                                                                           Opinions of the United
1995 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-8-1995

United States v Norman Edwards
Precedential or Non-Precedential:

Docket 93-5718




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                   UNITED STATES COURT OF APPEALS
                       FOR THE THIRD CIRCUIT


                             No. 93-5718


                      UNITED STATES OF AMERICA

                                 V.

                           NORMAN EDWARDS,
                                       Appellant


         ON APPEAL FROM THE UNITED STATES DISTRICT COURT
                 FOR THE DISTRICT OF NEW JERSEY
                 (D.C. Criminal No. 92-00590-3)


                      Argued November 30, 1994


         Before:    HUTCHINSON and NYGAARD, Circuit Judges
                   and GARTH, Senior Circuit Judge

                    (Opinion filed    May 8, 1995)



KOJI F. FUKUMURA, ESQUIRE (Argued)
GAVIN P. LENTZ, ESQUIRE
Bochetto & Lentz
1500 Market Street
East Tower, Centre Square, 14th Floor
Philadelphia, PA 19102
Attorneys for Appellant

ELIZABETH S. FERGUSON, ESQUIRE (Argued)
EDNA B. AXELROD, ESQUIRE
FAITH S. HOCHBERG, ESQUIRE
Office of United States Attorney
970 Broad Street
Room 502
Newark, NJ 07102
Attorneys for Appellee



                        OPINION OF THE COURT
NYGAARD, Circuit Judge.

           Norman Edwards appeals from an order denying his motion

to suppress evidence used to convict him for his role in credit

card fraud and theft.     Because we find that the evidence was

obtained lawfully pursuant to Terry v. Ohio, 392 U.S. 1, 88 S.

Ct. 1868 (1968), we will affirm.

                                  I.

            The Fairfield Township Police broadcasted an all-points

transmission reporting a credit card fraud in progress at the

Midlantic Bank in Fairfield, New Jersey.     While responding to the

bank, Officer Crapello testified that he received a second radio

message describing a red Chrysler LeBaron convertible with two

occupants and New York license plate "ZPT777" as "believed to be

involved or may be involved" in the suspected bank fraud.

            Officer Crapello arrived at the bank approximately

ninety seconds after the first message, and saw a red Chrysler

LeBaron convertible in the bank parking lot bearing license plate

ZPT777.    As the message had described, the car had two occupants,

later determined to be defendant Edwards and one Anthony Sears.

The convertible top was down, and both occupants were visible.

            Officer Crapello pulled his patrol car in front of the

LeBaron.   Officer Kane, in a second patrol car, boxed the LeBaron

in from behind to prevent or inhibit an escape attempt.

            Officer Crapello approached the passenger side of the

LeBaron on foot, with the thumb snap of his holster released and

his hand on his service revolver.      Officer Kane crouched behind

his patrol car door.    A third patrol car arrived and Officer
Polizzi and a police dog also approached the suspects' vehicle.

            When Officers Crapello and Polizzi were approximately

eight feet from the car, Polizzi instructed the dog to bark.

Until then, both occupants of the LeBaron appeared to be

sleeping.    In response to the dog's bark, Edwards lifted his

head, looked around and then nudged Sears, who awoke with a

start.      After instructing Edwards and Sears to put their hands

on the dashboard, Crapello saw a jacket on Edwards' lap.     He

reached in and removed the jacket.     When he patted the outside of

the jacket to check the pockets for weapons, Crapello detected "a

large, hard, bulky object" in its inner pocket.     He removed a

manila envelope, folded once in half but not sealed, from the

jacket.   Feeling the "hard, bulky" object in the envelope,

Officer Crapello unfolded it and looked inside for a weapon.

Instead of a weapon, he found several credit cards and New Jersey

drivers' licenses, which he determined from visual inspection to

be fraudulent.

            Edwards was arrested and indicted for possession and

use of counterfeit credit cards.     18 U.S.C. § 1029(a).   After an

evidentiary hearing on Edwards' motion to suppress the evidence

found in the manila envelope, the district court denied the

motion.     United States v. Edwards, No. 92-590, slip op. at 9

(D.N.J. June 8, 1993).    Apparently finding that the officers'

actions did not constitute an arrest, id. at 6-8, the district
court did not decide whether the officers had probable cause to

arrest before they opened the manila envelope.

                                 II.

                         A.   Terry Analysis

            The district court held that Officer Crapello's actions

in opening the envelope without a warrant were justified under

Terry, supra.   A Terry stop is permissible when the police have a

reasonable suspicion based on articulable facts that a crime has

been committed.   Id. at 21, 88 S. Ct. at 1880-81.     Edwards does

not argue that the police lacked reasonable suspicion to conduct

an investigatory Terry stop.    Instead, he argues that both the

subsequent Terry protective pat down and the ultimate search of

the envelope were unlawful.

                   1. Reasonableness of the Frisk

            First, Edwards argues that the police had no reason to

believe he was armed and dangerous, and thus could not lawfully

conduct a Terry protective pat down.    In Terry, the Supreme Court

held that a police officer, during the course of a Terry stop,

may conduct a "reasonable search for weapons for the protection

of the police officer, where he has reason to believe that he is

dealing with an armed and dangerous individual...."       Id. at 27,
88 S. Ct. at 1883.    The test is "whether a reasonably prudent man

in the circumstances would be warranted in the belief that his

safety or that of others was in danger."       Id. (citations

omitted).    Finally, in determining whether the officer acted
reasonably under the circumstances, "due weight must be given,

not to his inchoate and unparticularized suspicion or 'hunch,'

but to the specific reasonable inferences which he is entitled to

draw from the facts in light of his experience."    Id. (citations

omitted).

            We will accept the district court's factual findings

regarding the circumstances of the stop unless they are clearly

erroneous, and exercise plenary review over whether these facts

so found, create a reasonable inference that the suspect is

dangerous and the protective frisk was reasonably calculated to

discover a weapon.    See United States v. Coggins, 986 F.2d 651,

654 (3d Cir. 1991).

            We find no error in the district court's conclusion

that Officer Crapello had reason to believe that he could be

facing armed and dangerous felons.    That this fraud occurred at a

bank in broad daylight could lead one to believe that the

perpetrators might have armed themselves to facilitate their

escape if confronted.    Although the radio bulletin did not

describe this response as a bank robbery, it is reasonable to

conclude that the suspects might use force and be armed.

                         2. The Envelope Search

            Edwards also argues that, even if the pat down was

reasonable, it was not reasonable to open the envelope.     "The

sole justification of the search in [a Terry stop] is the
protection of the police officer and others nearby, and it must
therefore be confined to an intrusion, reasonably designed to

discover guns, knives, clubs, or other hidden instruments for the

assault of the police officer."      Terry, 392 U.S. at 29, 88 S. Ct.

at 1884.

            We agree with the district court that Officer Crapello

was justified in opening the envelope.     He was justifiably

concerned that a small-caliber handgun might be concealed in the

envelope.    Upon careful examination of the evidence in the

record, we conclude that the district court was well within its

discretion when it decided that Officer Crapello could reasonably

have believed that a weapon might be concealed in the envelope.

The four-by-six inch envelope was packed full of nineteen hard

plastic cards -- whether credit cards or drivers' licenses --

which the record demonstrates created the feel of a hard, bulky

object.    Moreover, the government presented the district court

with tangible evidence that a small-caliber handgun, in its

holster, fits inside the envelope and has roughly the same feel

inside the envelope as did the credit cards it contained.       In the

hasty examination necessitated by a protective search, Officer

Crapello could reasonably have confused the square, bulky mass of

credit cards and drivers' licenses for a small handgun sheathed

in a square, leather holster that masked its outlines.

            B.   Did the Police Conduct Amount to an Arrest?

            Edwards argues that the police conduct in this case,

especially by boxing in the suspects' vehicle and by the overall
display of force, transformed what began as a Terry stop into a

de facto arrest.   Further, Edwards argues that the police lacked

probable cause to make an arrest and hence could not lawfully

seize the items in the manila envelope pursuant to a search

incident to arrest.   Because we find that the police conduct in

this case did not constitute an arrest, it is unnecessary for us

to consider whether there was probable cause.

          The Supreme Court has stated that, when police officers

make an investigative stop, they may take such steps as are

"reasonably necessary to protect their personal safety and to

maintain the status quo."   United States v. Hensley, 469 U.S.

221, 235, 105 S. Ct. 675, 684 (1985).   "Under the Terry cases,

the reasonableness of the intrusion is the touchstone, balancing

the need of law enforcement officials against the burden on the

affected citizens and considering the relation of the policeman's

actions to his reason for stopping the suspect."   Baker v. Monroe

Township, No. 94-5069, 1995 WL 125470, at *4 (3d Cir. Mar. 22,

1995).

           The vast majority of courts have held that police

actions in blocking a suspect's vehicle and approaching with

weapons ready, and even drawn, does not constitute an arrest per

se.   In United States v. White, 648 F.2d 29, 31 (D.C. Cir.),
cert. denied, 454 U.S. 924, 102 S. Ct. 424 (1981), the court held

that police officers' actions in blocking the defendant's car

with their cruisers and approaching with guns drawn did not
amount to an arrest, but instead constituted a reasonable Terry

stop in response to an anonymous tip concerning drug activity.

See also United States v. Perea, 986 F.2d 633, 644 (2d Cir. 1993)

(blocking suspect's car with three unmarked cars and approaching

with weapons drawn was not an arrest); United States v. Lechuga,

925 F.2d 1035, 1041 (7th Cir. 1991) ("sandwiching" suspects' car

with unmarked police cars and one officer approaching with his

gun drawn was not an arrest); United States v. Jackson, 918 F.2d

236 (1st Cir. 1990) (blocking suspect's vehicle with two police

cruisers, approaching with guns drawn, ordering suspects to put

their hands on dashboard and subsequently frisking them did not

constitute arrest); United States v. Jones, 759 F.2d 633, 637

(8th Cir.) (officers' actions in blocking vehicle, approaching

with guns drawn and ordering suspect out of car was not an

arrest), cert. denied, 474 U.S. 837, 106 S. Ct. 113 (1985).

          While Edwards emphasizes the fact that he was not "free

to leave" the scene, this does not mark the point where a Terry

stop escalates into an arrest, since in neither a stop nor an

arrest is a suspect free to leave.   As stated by the Jones court

in considering at what point a stop becomes an arrest:
          The test is not, as argued by [defendant],
          whether a reasonable person would have felt
          free to leave under the circumstances: That
          concern marks the line between a fourth
          amendment seizure of any degree and a
          consensual encounter which does not require
               any minimal objective justification.
759 F.2d at 637 (citing Immigration & Naturalization Serv. v.

Delgado, 466 U.S. 210, 215, 104 S. Ct. 1758, 1762 (1984); United

States v. Mendenhall, 446 U.S. 544, 553-54, 100 S. Ct. 1870,

1876-77 (1980)).     Clearly, a Terry stop is a seizure, Terry, 392

U.S. at 16, 88 S. Ct. at 1877, and one seized is by definition

not free to leave.    Of course, we distinguish the length of time

a suspect may be detained before the detention becomes a full-

scale arrest, which we consider as a factor in evaluating the

reasonableness of the detention as a whole in light of the

circumstances.   Baker, supra, 1995 WL 125470, at *4.

          Applying these considerations to the facts before us,

we hold that the officers' stop and detention of Edwards did not

rise to the level of an arrest.    The police acted reasonably in

blocking the suspects' vehicle to conduct a brief investigation.

                                 III.

          We conclude that appellant was not arrested until

Officer Crapello opened the manila envelope and formally arrested

both suspects.   Moreover, because we find the police were within

the bounds of Terry in stopping and frisking Edwards, we hold

that the district court properly denied his motion to suppress

the credit cards seized by police from the manila envelope in his

possession.   Accordingly, we will affirm.
