                                                                 NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                  _____________

                                       No. 08-3220
                                      _____________

                            UNITED STATES OF AMERICA

                                             v.

                                   BRIAN GADSDEN,
                                           Appellant
                                    _____________

                        Appeal from the United States District Court
                          for the Middle District of Pennsylvania
                          (D.C. Criminal No. 1-08-cr-00017-001)
                        District Judge: Honorable Sylvia H. Rambo
                                      _____________

                                 Argued January 11, 2011
                                     _____________

             Before: SCIRICA, BARRY and VANASKIE, Circuit Judges

                             (Opinion Filed: February 1, 2011)
                                     _____________

James V. Wade, Federal Public Defender
Frederick W. Ulrich, Assistant Federal Public Defender (Argued)
Office of Federal Public Defender
Suite 306
100 Chestnut Street
Harrisburg, PA 17101

Counsel for Appellant

Peter J. Smith, United States Attorney
Michael A. Consiglio, Assistant United States Attorney (Argued)
Eric Pfisterer, Assistant United States Attorney
Office of United States Attorney
228 Walnut Street, P.O. Box 11754
220 Federal Building and Courthouse
Harrisburg, PA 17108

Counsel for Appellee

                                      _____________

                                OPINION OF THE COURT
                                    _____________

VANASKIE, Circuit Judge.

       Brian Gadsden pleaded guilty to a charge of possession of a firearm in furtherance

of drug trafficking on the condition that he could appeal the District Court‟s denial of his

motions to suppress evidence and an eyewitness identification. Because we conclude that

the suppression motions were properly denied, 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 October 18, 2007, the United States Postal Service delivered a mysterious

package to Allstar Auto, an auto supply business in Harrisburg, Pennsylvania. Over the

course of that day, several people visited Allstar Auto to inquire about the parcel, the

receipt of which was denied by Allstar Auto employees. The visitors threatened to “get

the mailman on the route,” and one individual brandished a gun. (A. 121.) It was later

discovered that the package contained many pounds of marijuana.



                                              2
       On the morning of October 19, 2007, Angelica Matos, an employee of Allstar

Auto who interacted with the individuals who inquired about the package, notified a local

post office of the previous day‟s events, including the fact that a weapon had been

brandished and some sort of threat had been made against the postal carrier who would

have delivered the package. The post office relayed Matos‟s complaint to postal

inspectors, who in turn contacted the Harrisburg Police Department for assistance. Victor

Rivera, a Harrisburg detective who participated in the investigation, was told that at least

two African-American individuals visited Allstar Auto regarding the package. One of the

individuals might have been a woman. Detective Rivera was informed that a “red or

burgundy vehicle,” likely a Volvo, was one of the cars that the suspects drove. (A. 97.)

Detective Rivera also remembered hearing about “a dark brown or maroon Jeep

Cherokee.” (A. 107.) A white minivan and a gray four-door Chrysler might also have

been mentioned. (Id.) Detective Rivera was told that the individuals would return to

Allstar Auto on October 19.

       Joseph Corrado, a postal inspector who also participated in the investigation, was

told the suspects drove a red or burgundy vehicle, a dark brown Jeep, and a white

minivan. He believed a gray Chrysler might have been used as well. Inspector Corrado

was informed that as many as five African-American males were involved. He did not

recall being told a woman was one of the suspects. He was, however, told that the

suspects would come back to Allstar Auto on October 19 to retrieve the package.

       Postal inspectors and Harrisburg detectives drove in unmarked vehicles to Allstar

Auto on October 19 to investigate. Inspector Corrado and another postal inspector drove

                                             3
to Allstar Auto in Inspector Corrado‟s Chevy Blazer. Detective Rivera and other

Harrisburg detectives drove in an unmarked burgundy Chevy Caprice that, according to

Inspector Corrado, “scream[ed] law enforcement vehicle.” (A. 123.) Both vehicles

parked in the Allstar Auto parking lot. From there, Detective Rivera and Inspector

Corrado observed a burgundy four-door Saturn parked across the street from the store.

Brian Gadsden was in the passenger‟s seat, and his brother Reginald was standing

approximately thirty yards away from the vehicle, talking on his cell phone. Both

Gadsdens were watching Allstar Auto. When Reginald saw the unmarked vehicles, he

slowly walked back to his car. Brian, still seated in the passenger seat, “opened the door,

leaned down so you couldn‟t see him anymore, and then proceeded to close the door.”

(A. 98.) The Gadsdens then drove away.

       At that point the detectives and the postal inspectors conferred briefly and agreed

that they should follow the Gadsdens‟ vehicle. After trailing the Saturn for a short

amount of time, the police initiated a traffic stop. The officers asked for and received the

Gadsdens‟ photo identifications and detained them in police vehicles. While the

Gadsdens were being held, Detective Rivera and other officers drove back to Allstar Auto

and told Matos that they had stopped two individuals. They then drove her to the scene

to identify the Gadsdens. The police did not show Matos the Gadsdens‟ ID cards before

bringing her to the scene of the stop.

       The police brought Matos to the Gadsdens in a vehicle with tinted windows.

When Matos arrived, officers removed the Gadsdens from the police vehicle and Matos

was driven to within approximately thirty feet from where the Gadsdens stood. She

                                             4
positively identified the Gadsdens as the men who were at her store the day before, and

the police placed them under arrest. Then, approximately seven hours after the initial

traffic stop, the police searched the area where the Gadsdens had parked their car across

the street from Allstar Auto and found a nine-millimeter semiautomatic pistol. The gun‟s

caliber matched ammunition that was found in the Gadsdens‟ car.

       On October 22, Inspector Corrado reviewed an Allstar Auto surveillance tape

depicting Matos and her husband interacting with certain African-American males

repeatedly over the course of October 18, during the daylight hours. Matos told Inspector

Corrado that the individuals in the video were the men who were inquiring about the

package of marijuana. According to Inspector Corrado, the individuals in the video were

Brian and Reginald Gadsden.

       The Gadsdens were subsequently indicted on drug and weapons charges. They

sought to suppress the evidence police obtained as a result of the stop and search, as well

as Matos‟s positive identification. Brian Gadsden also attempted to suppress his

statements to police on the grounds that he was never given his Miranda warnings. The

District Court held a suppression hearing at which Detective Rivera and Inspector

Corrado testified. Matos, however, did not testify. The post office employee to whom

Matos made her complaint also did not testify.

       The District Court denied the motions to suppress. United States v. Gadsden, Nos.

1:CR-08-017-01, 1:CR-08-017-02, 2008 WL 794944 (M.D. Pa. Mar. 24, 2008). With

respect to the traffic stop, the Court determined that the following facts gave rise to a

reasonable suspicion: the Gadsdens were African-American men in a burgundy sedan

                                              5
and appeared to be casing Allstar Auto on the same day Matos said the suspects would

return to her store, and the Gadsdens drove away upon seeing the “unmarked, but

ostensible police vehicles.” Id. at *4. With respect to Matos‟s identification, the Court

assumed without deciding that the identification was unnecessarily suggestive, but it

found that there was no substantial likelihood of misidentification because Matos had

ample opportunity to observe the Gadsdens, the identification happened within twenty-

four hours of the initial encounter, and there was no evidence that Matos wavered in her

identification of the Gadsdens. Id. at *5-6. Finally, the District Court determined that

Brian Gadsden‟s claim that police failed to give him Miranda warnings was not credible.

Id. at *6. After the Court denied the motions to suppress, Brian Gadsden pleaded guilty

to a charge of possession of a firearm in furtherance of drug trafficking on the condition

that he could appeal the denial of his suppression motions. The District Court sentenced

him to sixty months‟ imprisonment, and he now appeals.1

                                              II.

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

pursuant to 28 U.S.C. § 1291. We review the District Court‟s denial of Gadsden‟s

motions to suppress “for clear error as to the underlying facts, but exercise plenary

review as to its legality in light of the court‟s properly found facts.” United States v.

Gatlin, 613 F.3d 374, 378 (3d Cir. 2010) (internal quotation marks omitted).


1
 Reginald Gadsden pleaded guilty to a charge of conspiracy to possess with intent to
distribute marijuana and was sentenced to seventy-seven months‟ imprisonment. He
appealed his sentence and we affirmed. United States v. Gadsden, No. 08-4366, 2011
WL 179621 (3d Cir. Jan. 20, 2011).
                                              6
                                              A.

       Gadsden argues that the police unlawfully stopped his vehicle. He maintains that

Matos‟s tip conveyed only that the suspects were African-American males. He

emphasizes that the car the Gadsdens drove, a Saturn, was not among the cars identified

to law enforcement officials. He also argues that the Gadsdens‟ conduct on the morning

of October 19 did not justify a stop.

       A police officer may initiate a brief investigatory stop under Terry v. Ohio, 392

U.S. 1 (1968), if he has “a reasonable, articulable suspicion that criminal activity is

afoot.” Illinois v. Wardlow, 528 U.S. 119, 123 (2000). “[T]he „reasonable suspicion‟

analysis is objective; subjective motive or intent is not relevant for Terry purposes.”

United States v. Goodrich, 450 F.3d 552, 559 (3d Cir. 2006). “To determine whether

reasonable suspicion exists, we must consider the totality of the circumstances—the

whole picture.” United States v. Robertson, 305 F.3d 164, 167 (3d Cir. 2002) (internal

quotation marks omitted). “„[R]easonable suspicion‟ is measured before the search;

information acquired subsequent to the initial seizure cannot retroactively justify a Terry

stop.” Goodrich, 450 F.3d at 559. Conduct justifying a stop may be “ambiguous and

susceptible of an innocent explanation.” Wardlow, 528 U.S. at 125. “Courts give

considerable deference to police officers‟ determinations of reasonable suspicion, and the

cases are steadily increasing the constitutional latitude of the police to pull over

vehicles.” United States v. Mosley, 454 F.3d 249, 252 (3d Cir. 2006) (citation omitted).

       Gadsden has not shown that the District Court‟s factual findings are clearly

erroneous. The District Court found that at the time of the Terry stop, law enforcement

                                              7
officers had been told that at least two and up to five persons had been casing Allstar

Auto and had been inquiring about a package to have been delivered through the postal

service; at least two of the five individuals were African-American; a weapon had been

brandished; a threat of some sort had been made against the postal carrier; the persons

casing the store on October 18 said they would return the next day; and vehicles

associated with the individuals included a red four-door sedan, possibly a Volvo. The

District Court also found that when investigators arrived at Allstar Auto on the morning

of October 19, “they saw a tableau that was similar, if not identical to the picture painted

by the complaint filed that morning.” Gadsden, 2008 WL 794944, at *4. Two black

men, one inside and the other near a burgundy sedan, appeared to be watching Allstar

Auto from across the street. The Gadsdens‟ behavior once the detectives and postal

inspectors arrived at Allstar Auto further aroused the investigators‟ suspicion. Reginald

Gadsden, who had been talking on a cell phone approximately thirty yards away from his

car, slowly walked back to the Saturn while looking at the unmarked vehicles. Brian

Gadsden, seated in the passenger seat, opened the door, crouched down so he could not

be seen, and then closed the door.

       Given the considerable deference accorded to police officers, who must make

split-second judgments in dangerous contexts, we cannot say that the facts, as found by

the District Court, were insufficient to support a reasonable suspicion that the Gadsdens

were engaged in illegal activity. Accordingly, we will affirm the District Court‟s denial

of Gadsden‟s motion to suppress evidence obtained as a result of the Terry stop.

                                             B.

                                              8
       Gadsden also argues that the procedure that the police used to identify him was

unnecessarily suggestive. He further maintains that because Matos did not testify at the

suppression hearing, the District Court did not have a sufficient factual basis for

determining that the procedure did not pose a substantial risk of misidentification.

       Our assessment of an identification procedure contains two steps. “The first

question is whether the initial identification procedure was unnecessarily or

impermissibly suggestive.” United States v. Stevens, 935 F.2d 1380, 1389 (3d Cir. 1991)

(internal quotation marks omitted). When determining whether a procedure is

unnecessarily suggestive, we focus on “the suggestiveness of the identification, and . . .

whether there was some good reason for the failure to resort to less suggestive

procedures.” Id. (emphasis and internal quotation marks omitted). Second, we ask

“whether the procedure was so conducive to . . . mistaken identification or gave rise to

such a substantial likelihood of . . . misidentification that admitting the identification

would be a denial of due process.” Id. (internal quotation marks omitted). In

determining whether misidentification was likely, we consider the “totality of

circumstances including: the witness‟s initial opportunity to view the suspect at the

crime scene and degree of attention at that time, the witness‟s level of certainty in the

disputed identification, the length of time between initial viewing and disputed

identification, and the accuracy of any intervening description of the suspect occurring

between those two events.” United States v. Mathis, 264 F.3d 321, 330 (3d Cir. 2001).

       The United States has conceded that the identification procedure in this case was

suggestive. Like the District Court, we will assume, without deciding, that the procedure

                                               9
used to identify Gadsden was unnecessarily suggestive. And, like the District Court, we

conclude that the procedure used to identify Gadsden did not give rise to a substantial

likelihood of misidentification. Inspector Corrado testified that the surveillance

videotape showed that Matos had an opportunity to observe the Gadsdens, in the

daylight, over the course of several hours. The District Court acted within its bounds in

admitting Inspector Corrado‟s hearsay testimony that Matos identified the individuals in

the surveillance video as the people who inquired about the package. See United States v.

Raddatz, 447 U.S. 667, 679 (1980) (“At a suppression hearing, the court may rely on

hearsay and other evidence, even though that evidence would not be admissible at trial.”).

The record contains no indication that Matos wavered in her identification. Fewer than

twenty-four hours passed between Matos‟s initial interaction with the Gadsdens and her

subsequent identification of them. And, while Matos provided only a general description

of the Gadsdens in her complaint to the post office, her description was nonetheless

accurate. Accordingly, the District Court properly denied Gadsden‟s motion to suppress

Matos‟s identification.

                                            C.

       Finally, Gadsden argues that his statements to police should have been suppressed

because they resulted from the allegedly illegal stop and identification. Having

determined that the stop and identification were lawful, we conclude that Gadsden‟s

statements should not have been suppressed.

                                            III.



                                            10
       In sum, Gadsden‟s motions to suppress were properly denied. Accordingly, we

will affirm the Judgment of the District Court.




                                            11
