                                                                                                                           Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-9-2003

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Precedential or Non-Precedential: Non-Precedential

Docket No. 02-3095




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                                              NOT PRECEDENTIAL

                       IN THE UNITED STATES COURT OF APPEALS
                                FOR THE THIRD CIRCUIT

                                           No. 02-3095
                                      _________________

                              UNITED STATES OF AMERICA

                                                    v.

                                       ISAAC GARDNER
                                              a/k/a
                                        RONALD SMITH
                                    Isaac Gardner, Appellant
                           ____________________________________

                         On Appeal From the United States District Court
                             For the Eastern District of Pennsylvania
                                      (D.C. No. 01-cr-610-01)
                          District Judge: Honorable Clarence Newcomer
                         _______________________________________

                           Submitted Under Third Circuit LAR 34.1(a)
                                        June 23, 2003
                            Before: SLOVITER, AMBRO, BECKER,
                                        Circuit Judges.

                                        (Filed July 9, 2003 )

                                   _______________________

                                          OPINION
                                   _______________________

BECKER, Circuit Judge.

       Issac Gardner was charged in a single-count indictment with being a felon in possession

of a firearm, in violation of 18 U.S.C. § 922(g)(1). After the district court denied his motion to

suppress the gun, Gardner entered a plea of guilty to the indictment, reserving his right to appeal
the adverse suppression ruling. Gardner was sentenced to 72 months imprisonment. Gardner now

appeals from the District Court’s order denying his motion to suppress, alleging that the Terry

stop and subsequent frisk do not pass muster under the Fourth Amendment. We disagree, hence

we will affirm. We have jurisdiction pursuant to 28 U.S.C. § 1291.

                                                  I.

        During the late evening hours of September 7, 2000, the Quick Six tavern was robbed by

a lone gunman. Shortly before 10:58 pm, a woman called 911 to report that the tavern was just

robbed. Less than two minutes later, based on the woman’s description of the gunman, a police

radio dispatcher alerted all patrol cars in the district about a “robbery in progress, point of gun,

committed by a black male, white T-shirt, blue jeans, 6 foot high.” Officer Gerard Attewell

arrived at the bar almost immediately and gathered additional details about the incident from the

victim, a barmaid. Officer Attewell confirmed and updated the information. The updated bulletin

was broadcast over police radio, stating that the perpetrator of the robbery was “a black male, six

foot in height, with an Afro, wearing a white T-shirt that had a black label on the back, and dark

or blue jeans ... last seen on foot.”

        Less than ten minutes after the robbery, and fewer than four blocks away from the scene

of the crime, Officer Jose Silva, who was responding to the call, passed an automobile that was

traveling away from the bar in a suspiciously slow manner. He saw that the vehicle contained

three black males. It appeared to Silva that the passenger in the front right seat of the automobile

fit the description reported on the police radio. Officer Silva described the front seat passenger

as a black male wearing a white T-shirt who appeared to have an afro-like hairdo and, based on

his height while seated in the car, appeared to be tall in stature. Silva decided to stop the car and


                                                  2
investigate, thinking that the robber, who was on foot according to the bulletin, could have gotten

into a vehicle.

       While Officer Silva awaited backup, he noticed that the passenger sitting on the rear seat

leaned down as if to place something on the floor. Once backup arrived, Silva approached the car

with a flashlight. He saw the butt of a handgun protruding from underneath the front seat. All of

the occupants of the car were asked to step out and were frisked. Gardner, who had been sitting

in the front passenger seat, was wearing a blue flannel shirt, a white T-shirt, blue jeans and black

boots. A handgun was found in his waistband. Gardner was indicted for being a felon in

possession of a firearm under 18 U.S.C. § 922(g)(1).

                                                 II.

       This court exercises plenary review of a district court’s determination of whether police

had reasonable suspicion to conduct a Terry stop. See Ornelas v. United States, 517 U.S. 690,

699-700 (1996); United States v. Valentine, 232 F.3d 350, 353 (3d Cir. 2000).

       Under Terry v. Ohio, 392 U.S. 1 (1968) “where a police officer observes unusual conduct

which leads him reasonably to conclude in light of his experience that criminal activity may be

afoot and that the persons with whom he is dealing may be armed... he is entitled for the

protection of himself and others to conduct a carefully limited search of the outer clothing of

such persons in an attempt to discover weapons which might be used to assault him.” Id. at 30.

Therefore, in determining whether the police had a basis for conducting a Terry stop, two matters

must be considered: first, whether the police officer had reasonable suspicion to justify the initial

stop; and second, whether the officer had reasonable suspicion that the person detained was

armed and dangerous.


                                                  3
A. The Investigative Stop

       Under Terry, a police officer “may in appropriate circumstances and in an appropriate

manner approach a person for purposes of investigating possibly criminal behavior even though

there is no probable cause to make an arrest.” Id. at 22. Therefore, “an officer may, consistent

with the Fourth Amendment, conduct a brief, investigatory stop when the officer has a

reasonable, articulable suspicion that ‘criminal activity may be afoot.’” Illinois v. Wardlow, 528

U.S. 119, 123 (2000), quoting Terry, 392 U.S. at 30.

       We agree with the district court’s conclusion that Officer Silva witnessed sufficient

conduct giving rise to a reasonable suspicion of criminal wrongdoing. After hearing the flash

bulletin information about the armed robbery, Officer Silva decided to drive toward the crime

location while surveying for the individual. Less than 10 minutes after the crime, and a few

blocks away from the bar, Silva’s attention was diverted when he saw a car traveling in the

opposite direction in a suspiciously slow manner. Officer Silva testified that as he passed the car

that he was observing, he saw a black male, wearing a white T-shirt who appeared to have an

afro-like hairdo and, based on his height while seated in the car, appeared to be tall in stature.

Given the proximity in space and time to the scene of the crime, the similarity to the description

broadcast and the suspicious way in which the vehicle was traveling, we conclude that Officer

Silva had a particular and objective basis for believing that criminal activity was afoot.

       Gardner argues that Officer Silva could not have seen his white T-shirt, since he was

wearing a blue flannel shirt over it. The driver of the vehicle, Jackson, testified that the defendant

wore a flannel blue shirt over his white T-shirt the night they were stopped. However, the District

Court did not find Jackson’s testimony credible. And, while Agent Wilson testified that Gardner


                                                  4
was wearing the blue flannel shirt when he was removed from the vehicle, the court found that

the defendant could have put on the blue flannel shirt while Officer Silva waited for backup. The

District Court concluded that no evidence was offered to call into question Officer Silva’s

testimony. The District Court’s finding was not clearly erroneous, hence we will not disturb it.

       Gardner also argues that Officer Silva’s conclusion that the robber could have gotten into

a vehicle is only conjecture, and that any attempt to justify the Terry stop would elevate

speculation and conjecture to the level of articulable facts. We disagree. The Supreme Court has

said that “we cannot demand scientific certainty from judges or law enforcement officers where

none exists. Thus, the determination of reasonable suspicion must be based in common sense

judgments and inferences about human behavior.” Id. at 125. When making reasonable-suspicion

determinations courts “must look at the ‘totality of the circumstances.’” United States v. Arvizu,

534 U.S. 266, 273 (2002). In addition, “[d]eference... is to given to the officer’s conclusions

based on the officer’s experience.” United States v. Brown, 159 F.3d 147, 149 (3d Cir. 1998).

       In United States v. Jackson, 652 F.2d 244 (2d Cir. 1981), witnesses reported that a bank

robber had fled on foot. Two detectives, who were driving around in search of the suspect, saw

an automobile driven by a person that seemed to match the description of the suspect. The

detectives thought that the driver was acting suspiciously by deliberately ignoring the commotion

caused by the police cars near the bank. The car was eventually stopped. Once the driver was

observed in full, it became clear that he did not match the description. Further investigation,

however, disclosed the suspect hiding in the trunk of the car. The Second Circuit found that “[a]ll

the factors created a reasonable suspicion that the driver was linked to the robbery. . . . Thus, it

was entirely appropriate for the Dodge to be pulled over for an investigation.” Id. at 249 (note


                                                  5
omitted).

       Similarly, in this case Officer Silva reasonably believed that the defendant fit the

description of the robber. Furthermore, the vehicle was near the scene of the crime minutes after

it occurred. And finally, the car was traveling at a suspiciously low speed. Consistent with

Jackson, we hold that these facts created a reasonable suspicion that the defendant was involved

in the robbery, making the stop of the vehicle reasonable under Terry.

2. The Protective Search

       In Terry, the Supreme Court recognized that in light of the “need for law enforcement

officers to protect themselves and other prospective victims of violence,” an officer is allowed to

conduct a limited search for weapons. Terry, 392 U.S. at 24. The court stated that “[w]hen an

officer is justified in believing that the individual whose suspicious behavior he is investigating

at close range is armed and presently dangerous to the officer or to others, it would appear to be

clearly unreasonable to deny the officer the power to take necessary measures to determine

whether the person is in fact carrying a weapon and to neutralize the threat of physical harm.” Id.

Therefore, “an officer is allowed to conduct a reasonable search for weapons, where he has

reason to believe that he is dealing with an armed and dangerous individual, regardless of

whether he has probable cause to arrest the individual for a crime.” Id. at 27.

       On these facts, Officer Silva was justified in believing that the occupants of the car were

armed and presently dangerous. First, he was possibly dealing with an armed robber. Second, he

had seen the passenger in the back of the car make suspicious movements. Most importantly,

when he initially approached the car he noticed the butt of a handgun on the floor of the back

seat. All of these facts would undoubtedly justify a reasonable prudent person to believe that his


                                                 6
safety or that of others was in danger.

       The order of the District Court will be affirmed.




                                                7
TO THE CLERK:

     Please file the foregoing Opinion.

                                              BY THE COURT:



                                              /s/ Edward R. Becker
                                              Circuit Judge




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