                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-20-2008

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Precedential or Non-Precedential: Non-Precedential

Docket No. 06-5217




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                                                  NOT PRECEDENTIAL
                    IN THE UNITED COURT OF APPEALS
                         FOR THE THIRD CIRCUIT


                                   No. 06-5217


                         UNITED STATES OF AMERICA

                                        v.

                              TIMOTHY D. HALL,

                                             Appellant


                  On Appeal from the United States District Court
                     for the Western District of Pennsylvania
                              (D.C. No. 05-cr-00367-1)
                  District Judge: Honorable Terrence F. McVerry


                    Submitted Under Third Circuit LAR 34.1(a)
                                March 4, 2008

           Before: BARRY, JORDAN, and HARDIMAN, Circuit Judges.

                             (Filed: March 20, 2008)


                           OPINION OF THE COURT


JORDAN, Circuit Judge.
         Timothy D. Hall (“Hall”) appeals his conviction under 18 U.S.C. § 922(g) for

carrying a firearm after being convicted of a felony. We will affirm.1

I.       Background

         Because we write solely for the parties, we limit our factual recitation to that

which is relevant to our disposition of the appeal. On December 31, 2004, shortly after

two o’clock in the morning, Detective Love and three other officers of the Pittsburgh

Police Department were patrolling the area around 28th and Liberty Streets. The officers

were in an unmarked police car and were all dressed in plainclothes. The officers

observed a white GMC Yukon approach the intersection of 28th and Liberty Streets and

stop at the traffic light. They heard loud music emanating from the Yukon and noticed

that its windows were so heavily tinted that they could not see inside the vehicle. The

officers decided to stop the Yukon, so, after the traffic light changed, they followed the

SUV for a short distance and then activated their siren and lights. Instead of stopping,

however, the Yukon increased its speed. After traveling between one-quarter and one-

half mile, it swerved into the wrong lane, swerved back, and was forced to stop behind

another car waiting at a red light. Detective Love then approached the driver, who turned


     1
    The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction
under 28 U.S.C. § 1291. We review for clear error a district court’s factual findings from
a suppression hearing, and we exercise plenary review over legal rulings and mixed
questions of law and fact. United States v. Delfin-Colina, 464 F.3d 392, 395-96 (3d Cir.
2006) (citing United States v. Kiam, 432 F.3d 524, 527 (3d Cir. 2006)). We review the
District Court’s calculation and application of the Sentencing Guidelines for
reasonableness under an abuse-of-discretion standard. United States v. Ali, 508 F.3d 136,
142 (3d Cir. 2007) (citing Rita v. United States, 127 S. Ct. 2456, 2465 (2007)).
                                                2
out to be Hall, and ordered him to exit the Yukon. After Hall exited, Detective Love

noticed a bulge in Hall’s waistband. Detective Love immediately conducted a pat-down

search and recovered a 40 millimeter Ruger handgun, a weapon that Hall admitted he did

not have a license to carry. Hall was then placed under arrest. Further investigation

revealed that he was a convicted felon.

            A grand jury indicted Hall on a single count of violating 18 U.S.C. § 922(g)(1),

which prohibits convicted felons from carrying firearms. He initially pled not guilty and

filed two motions to suppress the gun seized during his arrest. The District Court denied

the motions, and Hall entered into a plea agreement, reserving the right to appeal the

denials of his motions to suppress.

            During the sentencing hearing, the District Court found by a preponderance of the

evidence that Hall’s prior felony convictions2 rendered him an armed career criminal

under 18 U.S.C. § 924(e)(1) and thus increased the applicable statutory minimum

sentence from 120 months imprisonment to 180 months. The District Court sentenced

Hall to 180 months imprisonment and five years supervised release. Hall then filed a

timely notice of appeal.

II.         Discussion

            On appeal, Hall contends that the police officers violated his Fourth Amendment

rights by stopping his vehicle without an objectively reasonable suspicion that a traffic



      2
          Those convictions include three drug convictions and one conviction for arson.
                                                 3
violation had occurred. He also contends that 18 U.S.C. § 924(e)(1) violates the Sixth

Amendment because it allows a judge, rather than a jury, to find facts which result in an

increase in a mandatory minimum sentence.

       The Fourth Amendment requires that all government seizures be reasonable, U.S.

Const. amend. IV, and a traffic stop is a seizure under the Fourth Amendment. Delaware

v. Prouse, 440 U.S. 648, 653 (1979) (citations omitted). Such stops have been

“historically reviewed under the investigatory detention framework first articulated in

Terry v. Ohio, 392 U.S. 1 (1968).” United States v. Delfin-Colina, 464 F.3d 392, 396 (3d

Cir. 2006). Under Terry’s framework, a traffic stop is reasonable if it is supported by “a

reasonable, articulable suspicion that criminal activity is afoot.” Id. (citations and internal

quotation marks omitted). “Reasonable, articulable suspicion is a ‘less demanding

standard than probable cause and requires a showing considerably less than

preponderance of the evidence.’” Id. (citing Illinois v. Wardlow, 528 U.S. 119, 123

(2000)).

       Under this standard, the focus is not on the officers’ actual motivation for stopping

Hall, but is instead on whether the circumstances of the stop give rise to an objectively

reasonable suspicion of illegal activity. Whren v. United States, 517 U.S. 806, 813

(1996). The government has the burden of establishing the existence of a reasonable

suspicion. See Delfin-Colina, 464 F.3d at 397 (“[A] police officer does have the inital

burden of providing the ‘specific, articulable facts’ to justify a reasonable suspicion to

believe that an individual has violated the traffic laws.”) (citations omitted).

                                              4
        The government offers two reasons why the Pittsburgh police officers had a

reasonable suspicion that Hall had committed a traffic violation. First, they reasonably

suspected that the heavy window tinting on Hall’s vehicle violated 75 Pa. Stat. Ann. §

4524(e)(1), which, with the exception of tinted windows installed by a vehicle‘s

manufacturer, prohibits tinting which prevents an outsider from viewing the interior of

the vehicle.3 Second, the officers reasonably suspected that the loud music emanating

from Hall’s vehicle violated a Pittsburgh city ordinance which prohibits the transmission,

from a vehicle, of noise which is “plainly audible” to an officer within 75 feet of the

vehicle. Pittsburgh, Pa., Code § 601.04(e)(1) (2007).

        Hall argues that the tint on his windows did not provide the necessary reasonable

suspicion because the officers had no way of knowing at the time of the stop whether the

tint was part of the original equipment or was applied after the vehicle was manufactured.

He further argues that his loud music did not justify the stop because the Pittsburgh anti-

noise ordinance is unconstitutionally vague. Finally, Hall argues that his attempt to elude

the officers did not provide reasonable suspicion because all of the officers in the



  3
      75 Pa. Stat. Ann. § 4524(e) provides in pertinent part as follows:
(e)     Sun screening and other materials prohibited.--
        (1)    No person shall drive any motor vehicle with any sun screening device or
               other material which does not permit a person to see or view the inside of
               the vehicle through the windshield, side wing or side window of the vehicle.
        (2)    This subsection does not apply to:
               (I)    A vehicle which is equipped with tinted windows of the type and
                      specification that were installed by the manufacturer of the
                      vehicle ... .
                                             5
unmarked car were wearing plainclothes rather than uniforms. He points to 75 Pa. Stat.

Ann. § 3733(c)(1), which provides that a defense to a charge of eluding police is that the

police vehicle is “unmarked, [and] not occupied by a police officer who was in uniform

and displaying a badge or other sign of authority.”

       We conclude that each of Hall’s arguments lacks merit. Regardless of whether

Hall’s tinted windows were installed by the manufacturer of his vehicle, the window tint

provided reasonable suspicion justifying the stop. The reasonable suspicion analysis does

not “deal with hard certainties, but with probabilities.” United States v. Cortez, 449 U.S.

411, 418 (1981). Additionally, the specific facts supporting an officer’s reasonable

suspicion must “be seen and weighed not in terms of library analysis by scholars, but as

understood by those versed in the field of law enforcement.“ Id. Finally, as long as an

“objective review of the record evidence establishes reasonable grounds to conclude that

the stopped individual has in fact violated [a] traffic-code provision,” the stop is

constitutional “even if the officer is mistaken about the scope of activities actually

proscribed... .” Delfin-Colina, 464 F.3d at 399. Here, it is undisputed that Hall’s tinted

windows prevented anyone from viewing the interior of the Yukon, and that such tinting

is, with limited exception, a violation of Pennsylvania law. Viewing these facts from the

perspective of a reasonable law enforcement officer on the scene, the window tint on

Hall’s vehicle was sufficient to establish reasonable suspicion that Hall had violated a

traffic ordinance. The officers’ inability to determine at the time of the stop whether



                                              6
Hall’s windows were tinted by the Yukon’s manufacturer does not mean that the stop was

unsupported by reasonable suspicion.

       Hall’s attack on the Pittsburgh anti-noise ordinance cannot succeed because he did

not raise it in the District Court. “It is well established that failure to raise an issue in the

district court constitutes a waiver of the argument.” Brenner v. Local 514, United Bhd. of

Carpenters, 927 F.2d 1283, 1298 (3d Cir. 1991).4 Hall’s reliance on § 3733(c)(1) is also

misplaced. The officers’ reasonable suspicion based on the window tint arose before Hall

attempted to elude them. Therefore, Hall’s potential defense to an eluding charge cannot

negate the reasonable suspicion which initially justified the stop.

       Finally, Hall’s argument that the District Court violated his Sixth Amendment

rights by finding the fact of his prior convictions is foreclosed by Almendarez-Torres v.

United States, 523 U.S. 224, 247 (1998) (holding that the Constitution does not bar a

judge from finding the fact of a prior conviction). The Supreme Court has recently

reaffirmed the validity of Almendarez-Torres. See James v. United States, 127 S. Ct.

1586, 1600 n.8 (2007) (“To the extent that [the defendant] contends that the simple fact of

his prior conviction was required to be found by a jury, his position is baseless.”).

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




  4
     Because we decline to address the constitutionality of the anti-noise ordinance, and in
light of our conclusion that Hall’s tinted windows justified the initial stop, we express no
opinion about whether the anti-noise ordinance justified the stop of Hall’s vehicle.
                                                7
