                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-13-2009

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Precedential or Non-Precedential: Non-Precedential

Docket No. 07-3753




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Recommended Citation
"USA v. Adderly" (2009). 2009 Decisions. Paper 2048.
http://digitalcommons.law.villanova.edu/thirdcircuit_2009/2048


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                                                             NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT


                                     No. 07-3753


                           UNITED STATES OF AMERICA

                                           v.

                                 NEZZY ADDERLY,

                                                             Appellant


                    On Appeal from the United States District Court
                       for the Eastern District of Pennsylvania
                              (D.C. Crim. No. 06-00548)
                     Honorable Bruce W. Kauffman, District Judge


                      Submitted under Third Circuit LAR 34.1(a)
                                 December 3, 2008

                BEFORE: AMBRO and GREENBERG, Circuit Judges,
                       and RODRIGUEZ, District Judge*

                                Filed: January 13, 2009


                              OPINION OF THE COURT


GREENBERG, Circuit Judge.



*The Honorable Joseph H. Rodriguez, Judge of the United States District Court for the
 District of New Jersey, sitting by designation.
       This matter comes on before this Court on an appeal from the District

Court from a judgment of conviction and sentence in this criminal case entered on

September 14, 2007. A grand jury indicted defendant-appellant Nezzy Adderly for being

a convicted felon in possession of a firearm in violation of 18 U.S.C. § 922(g) and being

an armed career criminal so that his sentence was subject to the enhanced sentence

provisions of 18 U.S.C. § 924(e). After Adderly moved to suppress the firearm as

evidence, the District Court held an evidentiary hearing on his motion on April 17, 2007,

at which six witnesses testified. On April 24, 2007, the Court denied the motion in a

memorandum and order setting forth findings of fact and conclusions of law.

       Thereafter Adderly and the Government enter into a plea agreement pursuant to

which Adderly entered a plea of guilty preserving his right to appeal from the denial of

his motion to suppress. The District Court imposed the mandatory minium custodial

sentence of 180 months to be followed by a three-year term of supervised release.

Adderly now appeals, advancing the sole issue that the Court erred in denying his motion

to suppress.

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

jurisdiction under 28 U.S.C. § 1291. Inasmuch as this case involves a ruling under Terry

v. Ohio, 392 U.S. 1, 88 S.Ct. 1868 (1968), in which the Court made findings of fact and

reached conclusions of law, we exercise dual standards of review. First, we review the

Court’s factual findings for clear error and then we exercise de novo review over its

conclusions of law, including its finding that the police had reasonable suspicion to

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satisfy the criterion for a limited search under Terry when they recovered the firearm.

United States v. Roberson, 90 F.3d 75, 76-77 (3d Cir. 1996).

       The District Court found that the Philadelphia police officers observed Barbara

Forrest engaged in drug sales transactions in front of a small bar in a high narcotics and

crime area in Philadelphia. After the transactions Forrest entered the bar, following

which the police rushed in to arrest her. As the police came in Adderly, who was in the

bar, ran for its back door. At the hearing Adderly gave an innocent explanation for this

incriminating conduct as he explained that he was a disc jockey at the bar and was going

to the door to retrieve his stereo equipment from his automobile. There is no suggestion

in the record, however, that the police officers who entered the bar knew either of

Adderly’s alleged employment or purpose in attempting to leave the bar and in his brief

he does not claim that they did. In any event, Adderly was not able to leave the bar

because the police stopped him and then patted him down and found the firearm.

       In its factual findings the District Court concluded that the officer who conducted

the search “had reasonable suspicion to stop and frisk” Adderly because the police were

in a high crime area and knew that there was narcotics trafficking at the bar. Moreover,

the Court, notwithstanding Adderly’s innocent explanation for leaving the bar, in an

unassailable finding of fact believed that Adderly was attempting to flee and there is no

doubt at all that the officers believed the same thing. Of course, Adderly’s conduct was

highly suspicious because it was “unprovoked flight upon noticing the police.” Illinois v.

Wardlow, 523 U.S. 119, 125, 120 S.Ct. 673, 676 (2000).

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       We recognize that it could be argued that the police should not have regarded

Adderly as a threat to them because he was attempting to leave the scene. Under this

argument inasmuch as a Terry search is justified by the need to discover weapons that

might be used to assault the police, it might seem reasonable to contend that by fleeing

Adderly was eliminating need for the search and to be safe the police merely had to allow

him to leave the bar. See Terry, 392 U.S. at 30, 88 S.Ct. at 1884. But the problem with

that argument is apparent because Adderly would not have left the area merely by exiting

the bar, so if he left the bar he would remain a threat so long as he was nearby.

       Adderly cites Ybarra v. Illinois, 444 U.S. 85, 91, 100 S.Ct. 338, 342 (1979),

contending on the basis of that case that his mere presence at the bar did not justify the

search. Though clearly an officer does not automatically have reasonable suspicion

justifying a search merely because a crime is being committed in an area where the person

to be searched is present, Ybarra does not help him because there were more factors than

Adderly’s mere presence at the scene that justified the search here. In this case the events

were taking place in a high drug crime area, there were open drug transactions being

conducted, there were only six or seven people in the bar, and Adderly ran when the

police came into the bar. We are satisfied that when we “consider the totality of the

circumstances” the search was justified. United States v. Robertson, 305 F.3d 164, 167

(3d Cir. 2002).

       The judgment of conviction and sentence entered September 14, 2007, will be

affirmed.

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