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


1-29-2009

USA v. Crandell
Precedential or Non-Precedential: Precedential

Docket No. 07-4004




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                                         PRECEDENTIAL

      UNITED STATES COURT OF APPEALS
           FOR THE THIRD CIRCUIT


                    No. 07-4004


          UNITED STATES OF AMERICA


                                     Appellant

                         v.

               RONALD CRANDELL
                a/k/a Ricky Crandell



     Appeal from the United States District Court
              for the District of New Jersey
       (D.C. Criminal Action No. 06-cr-00232)
    District Judge: Honorable Joseph A. Greenaway


             Argued September 25, 2008


Before: BARRY, AMBRO, and JORDAN, Circuit Judges

          (Opinion filed: January 29, 2009)
Christopher J. Christie
  United States Attorney
George S. Leone
  Chief, Appeals Division
Caroline A. Sadlowski (Argued)
  Assistant U.S. Attorney
Office of United States Attorney
970 Broad Street, Room 700
Newark, NJ 07102-0000

       Counsel for Appellant

Richard Coughlin
  Federal Public Defender
Lisa M. Mack, Esquire (Argued)
Louise Arkel, Esquire
Office of Federal Public Defender, 4th Floor
972 Broad Street
Newark, NJ 07102-0000

       Counsel for Appellee


                  OPINION OF THE COURT


AMBRO, Circuit Judge

        Three police officers were on routine patrol in a Hoboken,
New Jersey housing project when they received an anonymous tip
that a male with dreadlocks and blonde hair tips was seen carrying a
handgun somewhere in the area. The officers immediately believed
the description of the suspect matched the defendant, Ronald “Ricky”


                                   2
Crandell, whom they recognized for his distinctive appearance and
rap sheet. While searching for Crandell in the neighborhood, the
officers spotted him walking toward them. They approached him,
which led to a pat-down and the recovery of a gun.

         A federal grand jury indicted Crandell for possessing a
firearm as a convicted felon in violation of 18 U.S.C. § 922(g)(1).
Prior to trial, he moved to suppress evidence of the handgun as the
fruit of an illegal Fourth Amendment seizure. The District Court held
a suppression hearing. In a comprehensive opinion, the Court
presumed a seizure based on the anonymous tip, and granted the
motion to suppress.

       The Government appeals that ruling.1 It argues that Crandell
was not seized within the meaning of the Fourth Amendment; rather,
based on all the circumstances, the encounter was consensual.

        We agree that the threshold question of whether Crandell was
seized by the officers must be determined by evaluating all the
circumstances surrounding the encounter, as a presumption does not
suffice in this case. In so concluding, we explore why the tip, which
raised the officers’ suspicion and led to the encounter with Crandell,
does not affect the initial seizure inquiry. We thus remand for further
proceedings.

I.          Facts

            A.      The Anonymous Tip



     1
         We have appellate jurisdiction under 18 U.S.C. § 3731.

                                   3
        On July 15, 2005, three Hoboken Police Department
officers—Arbend Drishti, Angel Valez, and Jimmy Miller—were on
routine foot patrol in a residential area known as the Hoboken
Housing Authority. Officer Drishti received an anonymous and
uncorroborated tip from the police dispatch center about an armed
man seen somewhere in the Housing Authority.2 The police report
described “a black male with dread locks and blonde tips[,] wearing
a tan shirt and blue jeans[,] in possession of a handgun on his
waistband (small of his back).” Based on this description, Officers
Drishti and Valez immediately believed the armed man was Crandell.
Officer Valez recognized Crandell’s distinctive description because
Valez had seen Crandell’s picture on numerous occasions in roll call
and knew that he had been arrested several times in the area the
officers patrolled. After receiving the dispatch, the three officers
went to the intersection of Fifth and Jackson Streets in Hoboken to
search for Crandell because it is a “high crime area” that he
“frequents.” However, they did not see him at that location.

       B.      The Encounter with Police

       The officers walked south from the intersection, crossing
Jackson Street toward Fourth Street. “Approximately halfway
between Fourth Street and Fifth Street, [they] saw [Crandell] walking
toward them.”3 United States v. Crandell, 509 F. Supp. 2d 435, 439


       2
        Officer Drishti described the Housing Authority as
approximately twenty buildings located in an area that measures
four blocks by two blocks.
  3
  When approaching Crandell, Officer Valez observed that he
was wearing “loose jeans” and a “tan shirt.” Valez was unsure

                                 4
(D.N.J. 2007). Crandell did not react when he saw the three
uniformed officers and kept walking in their direction. The officers
approached Crandell in either a semi-circle or line formation and
Officer Valez spoke to him.

        The District Court notes that the testimony of Officers Drishti
and Valez differs slightly with regard to what the officers said prior
to patting Crandell down. Id. at 440. Both accounts, however,
indicate Valez spoke to Crandell before he began the pat-down.
Officer Valez testified:

        As [Crandell] walked toward[] us, I stopped him . .
        . . and I told him I received information that [he]
        might have a weapon on [him] and I wanted to give
        [him] a pat down for our protection[.] I told
        [Crandell] he was free to leave at any time. . . . [Then
        Crandell] put his arms up . . . . [and,] as I was patting
        [Crandell] down, he hit my arm, he turned around and
        he ran [and] the weapon fell from the back of his
        pants.

Officer Drishti testified:

        Officer Valez said to [Crandell], is it all right if we
        pat you down for our safety? You can leave at any
        time. And [Crandell] said, yeah, what’s this all
        about? He started to get towards the fence[;] there


whether he could see Crandell’s dreadlocks beneath the towel on
his head, but was nonetheless confident it was Crandell because
“[I] know his face.”

                                   5
       was a fence there. I was on . . . Officer Valez’s left,
       Officer Miller was on his right, and as he was picking
       up to put his hand like toward[] the fence, he was
       asking, what’s this all about? And Officer Valez said,
       we got a call you might have a handgun on you. At
       that moment, as Officer Valez started to try to pat him
       down, he may have touched him once or twice, as
       soon as he got like towards the back area, Mr.
       Crandell turned abruptly and like knocked [Officer
       Valez’s] arm to the side and a handgun flew from the
       lower back area onto the sidewalk, and Mr. Crandell
       then proceeded to run south on Jackson . . . .

According to Drishti (obviously speaking with at least some
overstatement), the whole event took “a couple of seconds.” Officer
Miller recovered the gun while Officers Drishti and Valez chased
Crandell, but were unable to catch him at that time. Thereafter, a
warrant was issued and Crandell was arrested.

       C.      The Suppression Hearing

        After a federal grand jury indicted Crandell for possessing a
firearm as a convicted felon, he moved to suppress evidence of the
handgun as the fruit of an illegal Fourth Amendment seizure. The
District Court held a hearing and granted his motion to suppress, in
effect dismissing the charge against him. The Court ruled that the
seizure was illegal because the anonymous tip did not provide the
officers with reasonable suspicion to justify the stop. Id. at 437. In
so ruling, it presumed Crandell was seized at the outset of the
encounter, as the officers’ suspicion stemming from the tip tainted
the possibility of consensual interaction. Id. at 446–47 n.9. The


                                  6
Government appeals that ruling.

II.    Discussion

        We review a district court’s grant of “the motion 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. Givan, 320 F.3d 452, 458 (3d Cir. 2003) (citation
and internal quotations omitted) (alteration in original).

               A.      Was Crandell Seized?

        The Fourth Amendment protects individuals from
“unreasonable searches and seizures” of “their persons, houses,
papers, and effects.” U.S. Const. amend. IV. Because of the
Amendment’s language, we generally use the phrase “search and
seizure” when evaluating the Fourth Amendment issues involved in
suppression cases. But in certain circumstances, such as this, our
legal analysis is flipped; we begin with whether an individual was
seized, and, if so, whether it was valid, then the search analysis
follows.

        The Fourth Amendment generally requires that police officers
obtain a warrant based on probable cause to justify a seizure and
search. Terry v. Ohio, 392 U.S. 1, 20 (1968). Terry held, however,
that Fourth Amendment seizures can be legal absent a warrant in
certain circumstances, which may include brief investigative
detentions. Id. at 20 (describing beat cops’ encounters with citizens
“predicated upon . . . on-the-spot observations” as an example of
conduct that would not require a warrant).



                                   7
        A warrantless Fourth Amendment seizure needs an objective
and particularized justification. United States v. Mendenhall, 446
U.S. 544, 551 (1980). Under Terry, “an officer may, consistent with
the Fourth Amendment, conduct a brief, investigatory stop when the
officer has a reasonable, articulable suspicion that criminal activity
is afoot.” Illinois v. Wardlow, 528 U.S. 119, 123 (2000).
“Reasonable suspicion [required for a Terry stop] is a less demanding
standard than probable cause [necessary for an arrest] and requires a
showing considerably less than preponderance of the evidence. . . .
[R]easonable suspicion can arise from information that is less reliable
than that required to show probable cause.” United States v.
Valentine, 232 F.3d 350, 353 (3d Cir. 2000) (citations and internal
quotations omitted).

        The first analytical step a court takes to evaluate the issues
involved in this type of motion to suppress is to determine whether
and when a citizen-police encounter implicates the Fourth
Amendment. “Before even addressing whether the police had
reasonable suspicion to approach [and engage an individual], the
District Court [must first inquire] into whether [the individual was]
‘seized’ by the police” within the meaning of the Fourth Amendment.
 United States v. Williams, 413 F.3d 347, 352 (3d Cir. 2005). Courts
regularly grapple with whether a particular encounter “amount[s] to
a ‘seizure’” of a person or “intrudes upon no constitutionally
protected interest.” Mendenhall, 446 U.S. at 552–53. Street
encounters between citizens and police officers, like the encounter in
this case, “are incredibly rich in diversity,” and “[o]bviously[] not all
personal intercourse between policemen and citizens involves
‘seizures’ of persons’” implicating the Fourth Amendment. Terry,
392 U.S. at 13, 19–20 n.16.



                                   8
        The Supreme Court has made clear that a Fourth Amendment
“seizure does not occur simply because a police officer approaches
an individual and asks a few questions.” Florida v. Bostick, 501 U.S.
429, 434 (1991). These encounters of short duration that do not
amount to Fourth Amendment seizures can be characterized as
“consensual” because the citizen has the ability to engage in or
terminate the encounter. See United States v. Wilson, 413 F.3d 382,
386–87 (3d Cir. 2005) (determining whether the further questioning
by the police officer after issuing a traffic citation was a consensual
encounter or a Fourth Amendment seizure). “When an encounter is
consensual, no reasonable suspicion is required.” United States v.
Kim, 27 F.3d 947, 950 (3d Cir. 1994).

        A seizure occurs only “when [a police officer], by means of
physical force or show of authority, has in some way restrained the
liberty of a citizen.” Terry, 392 U.S. at 19–20 n.16; see also Curley
v. Klem, 298 F.3d 271, 279 (3d Cir. 2002) (a “seizure occurs
[w]henever an officer restrains the freedom of a person to walk
away” (citations and internal quotations omitted) (alteration in
original)). The “show of authority” test “is an objective one: not
whether the citizen perceived that he was being ordered to restrict his
movement, but whether the officer’s words and actions would have
conveyed that to a reasonable person” in light of all the surrounding
circumstances. California v. Hodari D., 499 U.S. 621, 628 (1991)
(citing Mendenhall, 446 U.S. at 554) (stating that the individual must
submit to a show of authority to effect a seizure). The Supreme
Court cited several circumstances in Mendenhall that might indicate
a seizure, even where the person did not attempt to leave, including

       the threatening presence of several officers, the
       display of a weapon by an officer, some physical


                                  9
       touching of the person of the citizen, or the use of
       language or tone of voice indicating that compliance
       with the officer’s request might be compelled. In the
       absence of some such evidence, otherwise inoffensive
       contact between a member of the public and the
       police cannot, as a matter of law, amount to a seizure
       of that person.

446 U.S. at 554–55 (internal citations omitted).

        The label a court ultimately attaches to an encounter is more
than a legal abstraction of police conduct. In the evidentiary context
of the defendant’s criminal trial, it can affect “the admissibility
against [a defendant] of the evidence uncovered by the search and
seizure.” Terry, 392 U.S. at 12 (referred to as the “exclusionary
rule”). In situations like Crandell’s—where the criminal charge rests
solely on the physical evidence that is the subject of a motion to
suppress—a ruling in the defendant’s favor results in dismissing the
entire case against him.

        The basis of the District Court’s ruling to suppress the
handgun here was its initial presumption that the officers seized
Crandell within the meaning of the Fourth Amendment. In
presuming that a Fourth Amendment seizure occurred, the Court did
not evaluate the facts and circumstances surrounding the encounter,
but instead reasoned that the anonymous tip tainted the approach and
negated the possibility of consensual interaction between the police
officers and Crandell. Crandell, 509 F. Supp. 2d at 446–47 n.9
(“Accepting the Government’s argument would, in effect, undercut
the anonymous tip jurisprudence by allowing officers to sidestep the
reasonable suspicion requirement by merely asking for consent as


                                 10
they stopped suspects.”). The Court then examined our anonymous
tip case law in-depth to conclude that the officers did not have
“reasonable suspicion,” as Terry requires, to stop Crandell legally.
Id. at 437–51.

        Our path differs from that of the District Court. We believe
it should have considered whether the encounter was consensual at
the outset instead of presuming that the police seized Crandell. The
Supreme Court requires us to evaluate all the objective circumstances
surrounding the encounter from the perspective of the “reasonable”
person who is the recipient of the police attention. See Bostick, 501
U.S. at 438 (stating the “Fourth Amendment inquiry [is] whether a
reasonable person would have felt free to decline the officers’
requests or otherwise terminate the encounter”). The subjective
intent underlying an officer’s approach does not affect the seizure
analysis. As noted above, a seizure does not occur simply because an
officer approaches an individual—and gun owners are no
exception—to ask questions. Valentine, 232 F.3d at 356 (citing
Bostick, 501 U.S. at 434); see also Williams, 413 F.3d at 353–54.
Therefore, a tip police received that motivates their encounter with
an individual merely serves to color the backstory at this stage.

        The Supreme Court considered a related question in United
States v. Drayton, 536 U.S. 194 (2002). It dealt with a citizen-police
encounter in the more restrictive confines of a bus. Three officers
boarded a Greyhound bus to conduct routine drug interdiction efforts.
Id. at 197. When they approached Drayton to question and request
consent to search him, they were suspicious that he had drugs on him.
Id. at 198–99. The officers had just searched and arrested his
traveling companion and seatmate, Brown, for carrying concealed
narcotics. Id. After arresting Brown, they focused their attention on


                                 11
Drayton. In analyzing whether the officers’ encounter with Drayton
was consensual, the Court reiterated Bostick’s holding that police
need not have any suspicion of wrongdoing to approach and request
consent to search an individual. Id. at 201 (citing Bostick, 501 U.S.
at 434–35). The Court acknowledged that the officers were
suspicious of Drayton even before they questioned and requested
consent to search him, yet it concluded that Drayton’s encounter was
consensual and he was not seized by police. It reasoned:

       It would be a paradox, and one most puzzling to law
       enforcement officials and courts alike, were we to
       say, after holding that Brown’s consent was voluntary
       [without the police having any suspicion of
       wrongdoing], that Drayton’s consent was ineffectual
       simply because the police at that point had more
       compelling grounds to detain him.

Id. at 207–08. Moreover, “[t]he fact the officers may have had
reasonable suspicion does not prevent them from relying on a
citizen’s consent to the search.” Id. at 207. Indeed, “‘consensual
encounters are important tools of law enforcement,’” particularly in
situations where officers are unsure whether they have the legal
authority to detain a suspect forcibly. Williams, 413 F.3d at 352
(quoting Johnson v. Campbell, 332 F.3d 199, 205 (3d Cir. 2003)).

         The Government suggests we should conclude that Crandell’s
encounter with the police was consensual because any findings of
fact to the contrary would be clearly erroneous. It thus requests that
we reverse the District Court’s order granting the motion to suppress,
rather than vacate it and remand. We decline. The District Court’s
role is to find facts and determine in the first instance whether


                                 12
Crandell was seized within the meaning of the Fourth Amendment
under the totality of the circumstances. See Bostick, 501 U.S. at 437.

        We note, however, that the Supreme Court’s analysis in
Drayton provides a framework for the District Court to bear in mind
when evaluating this issue. Though the police encounter there
occurred on a bus, the Court concluded that under all the
circumstances Drayton was not seized because “[t]here was no
application of force, no intimidating movement, no overwhelming
show of force, no brandishing of weapons, no blocking of exits, no
threat, no command, not even an authoritative tone of voice.”4
Drayton, 536 U.S. at 204. The Court also noted that “[i]t is beyond
question that had this encounter occurred on the street, it would be


   4
     In evaluating this issue, the District Court should also take
into consideration what the Supreme Court found was not
coercive in Drayton. For example, at the suppression hearing
the District Court seemed inclined to conclude that the mere
presence of three police officers was sufficient to render the
encounter a seizure. See Appellant’s App. V.II 66 (quoting the
District Court (hearing transcript): “you have three officers
approach you, and it would appear, I think, to the objective
observer, that the statement ‘you’re free to go’ was merely
perfunctory”). Drayton also involved three officers. 536 U.S.
at 197. The officers boarded the bus to question passengers and
conduct narcotics searches, and one of the officers positioned
himself next to the exit at the front of the bus. Yet the Supreme
Court did not find the mere presence of three officers coercive.
Id. at 203–05. With this note, we leave to the District Court in
the first instance the marshaling of evidence and weighing of all
the circumstances pertinent to the seizure issue.

                                 13
constitutional.” Id. (indicating the setting, such as a bus, was one
factor, but not determinative). Furthermore,

       the fact that in [an officer’s] experience only a few
       passengers have refused to cooperate does not suggest
       that a reasonable person would not feel free to
       terminate the [] encounter. . . . “While most citizens
       will respond to a police request, the fact that people
       do so, and do so without being told they are free not
       to respond, hardly eliminates the consensual nature of
       the response.”[5]

Id. at 205 (quoting INS v. Delgado, 466 U.S. 210, 216 (1984)).

       If the District Court determines that, under all the
circumstances, Crandell was seized by the officers when they
approached him, then reasonable suspicion to conduct a Terry stop
must exist. At this stage, the Court in normal course would consider
the significance of the anonymous tip in providing a basis for
reasonable suspicion.

       This normal course does not apply here, however. The
Government opted not to appeal the District Court’s ruling that the
anonymous tip did not provide the officers with a basis for reasonable
suspicion to stop and frisk Crandell. Crandell, 509 F. Supp. 2d


   5
    At the suppression hearing, one of the officers testified that
he “has never had anybody say, well, thank you, officer, I
choose to walk away.” As the Supreme Court discussed, this
type of statement does not affect whether Crandell was free to
go.

                                 14
at 447–51. It thereby concedes that the officers’ basis for suspicion
did not rise to the constitutionally required standard of “reasonable
suspicion” to validate a Terry stop. Without reasonable suspicion,
the seizure of Crandell would be illegal and the gun obtained in
connection with the ensuing pat-down search would properly be
suppressed under the metaphorical “fruit of the poisonous tree”
doctrine. Wong Sun v. United States, 371 U.S. 471, 487–88 (1963).
In such a circumstance, even if Crandell consented to the pat-down
search, his “search consent” would be overborne by the
unconstitutional stop. See id.

       Thus, this case pivots on whether Crandell was seized. Only
if he was not seized within the meaning of the Fourth Amendment
would the District Court proceed to the search inquiry set out below.

       B.      Assuming Crandell was not seized, was the search
               of him consensual?

       If the District Court determines that Crandell was not seized
during his encounter with police, then the Court must evaluate
whether he voluntarily consented to the pat-down search for
weapons.6 “‘[A] search conducted pursuant to consent is one of the


   6
    Wilson is an example of an encounter where we considered
a citizen’s consent to search. 413 F.3d at 388. We first
determined “that no seizure occurred, i.e., that Wilson’s
continued encounter with [the officer] was consensual,” and thus
we did not need to reach Wilson’s argument that the officer did
not have reasonable suspicion to justify the questioning. Id. at
388 n.6. We next evaluated whether Wilson’s consent to the
search of his bag was voluntary. Id. at 388 (concluding that

                                 15
specifically established exceptions to the warrant requirement.’”
Wilson, 413 F.3d at 388 (alteration in original) (quoting Givan, 320
F.3d at 459).7

       Consent to a search is determined by examining all the
circumstances, similar to the inquiry of whether a seizure occurred.
Givan, 320 F.3d at 459. If the initiation of the encounter and the pat-
down search are close in time, as they are here, then the respective
consent analyses of the seizure and search will turn on similar facts.
See Drayton, 536 U.S. at 206. “‘[T]he critical factors comprising a


Wilson gave his voluntary consent to the search and thus there
was no Fourth Amendment violation).
   7
    An officer must place his hands on an individual to conduct
a pat-down search, which leads logically to the contention that
this act constitutes a seizure. Mendenhall dealt with this
conflation of seizure and search by explaining that in Terry

       [o]bviously the officer “seized” Terry and
       subjected him to a “search” when he took hold of
       him . . . and patted down the outer surfaces of his
       clothing. What was not determined in that case,
       however, was that a seizure had taken place
       before the officer physically restrained Terry for
       purposes of searching his person for weapons.
       The Court “assume[d] that up to that point no
       intrusion upon constitutionally protected rights
       had occurred.”

446 U.S. at 552–53 (internal citations omitted).

                                  16
totality of the circumstances inquiry include the setting in which the
[search] consent was obtained, the parties’ verbal and non-verbal
actions, and the age, intelligence, and educational background of the
consenting [party].’” Wilson, 413 F.3d at 388 (quoting Givan, 320
F.3d at 459). This consent inquiry does not require officers to inform
citizens of their right not to cooperate when “seeking permission to
conduct a warrantless consent search.” Drayton, 536 U.S. at 206
(citations omitted); id. at 207 (stating no “extra weight” should be
given “to the absence of this type of warning”).

                          CONCLUSION

        The District Court needs to determine on remand whether the
officers’ encounter with Crandell was consensual or constituted a
Fourth Amendment seizure, as this will determine whether it needs
to proceed to the remaining suppression issue. We thus vacate its
ruling that granted the motion to suppress and remand this case for
further proceedings consistent with this opinion.




                                 17
