                                                                  NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                     ______

                                        No. 15-2985
                                       ____________

                            UNITED STATES OF AMERICA,

                                             v.

                                 TERRELL HAYWOOD,
                                             Appellant
                                    ____________

                 On Appeal from the United States District Court for the
                                 District of New Jersey
                            (D.N.J. No. 2-14-cr-00462-001)
                     District Judge: Honorable William J. Martini

                    Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                                   November 3, 2016

           Before: CHAGARES, HARDIMAN, and SCIRICA, Circuit Judges.

                                (Filed: November 7, 2016)
                                      ____________

                                         OPINION
                                       ____________




       
        This disposition is not an opinion of the full court and, pursuant to I.O.P. 5.7,
does not constitute binding precedent.
CHAGARES, Circuit Judge.

       Defendant Terrell Haywood appeals the District Court’s denial of his motion to

suppress a firearm that he contends was seized in violation of his Fourth Amendment

rights. For the following reasons, we will affirm.

                                             I.

       We write solely for the parties and therefore recite only the facts that are necessary

to our disposition.

       At 1:00 p.m. on April 26, 2014, three police officers — Detective Hugo Ribeiro

and Detective Sergeant Anthony DeMattia of the New Jersey State Police, and Essex

County Detective Sergeant Brian Ruane — were patrolling a Newark, New Jersey

neighborhood1 in an unmarked truck. Detective Ribeiro was sitting in the rear passenger

side of the vehicle, Detective DeMattia in the front passenger side, and Detective Ruane

in the driver’s seat. The truck was heading north on Hobson Street; as it passed through

the intersection with Nye Avenue, Detective Ribeiro looked left and saw Haywood

walking on the sidewalk east on Nye, toward the truck. Detective Ribeiro could clearly

see the front of Haywood’s body, who at this point was about “ten to twelve feet” away.

Appendix (“App.”) 81. Detective Ribeiro testified that Haywood was wearing “gray

sweatpants, like a gray hooded shirt, and a black vest over the gray hooded shirt.” App.



       1The police were patrolling this particular neighborhood as part of the TIDE
program, a state initiative designed to increase police presence in areas afflicted with high
incidents of violent crime.

                                             2
77. Detective Ribeiro claims that Haywood’s vest was open 2 and that he could see a

bulge in the right jacket pocket that he thought may be a handgun. As the truck drove

through the intersection, Detective Ribeiro said to the others “something to the effect” of:

“‘I think he has a gun.’ . . . ‘Can we stop him?’” App. 79.

       The truck then reversed back through the intersection, at which point Haywood

was crossing the street. Haywood turned to look at the truck, and Detective Ribeiro

noticed “what look[ed] to be a handle of a firearm” where he had seen the bulge, though

he did not tell the other officers his observation. App. 79-80. Haywood continued to

walk east on Nye, and the truck turned to pull up beside him.

       Detective Ribeiro exited the rear passenger side of the vehicle and, as the other

officers also exited, announced that they were police and instructed Haywood to put his

hands up. None of the officers had their weapons drawn. Haywood immediately

complied, raising his hands and dropping a water bottle that he had been carrying.

Detective DeMattia took both of Haywood’s hands and put Haywood’s back against the

truck, and then released a hand, according to Detective Ribeiro, to give Detective Ribeiro

access to Haywood. Detective Ribeiro claims that he immediately reached into

Haywood’s right pocket and retrieved a handgun. Haywood contends that the evidence

shows that Detectives DeMattia and Ribeiro frisked Haywood’s waist area as if they did

not know that there was anything in his pockets. After announcing that he had found a




       2
        At the suppression hearing, Detective DeMattia also testified that Haywood’s
vest was open. According to Haywood, his vest was closed.

                                             3
gun, Detective Ribeiro disarmed the weapon while Detectives DeMattia and Ruane

tackled Haywood to the ground and arrested him.

       A grand jury charged Haywood with one count of possession of a firearm by a

convicted felon in violation of 18 U.S.C. § 922(g)(1). Haywood filed a motion to

suppress all evidence seized by the police, alleging that he was subjected to an

unconstitutional stop and frisk. The District Court held an evidentiary hearing on

Haywood’s motion on October 14, 2014, and on October 17, denied the motion in a

ruling from the bench. App. 183-92. Haywood eventually pleaded guilty on the

condition that he would be able to appeal the Court’s decision. 3 On August 6, 2015, the

Court sentenced Haywood to 92 months of imprisonment followed by three years of

supervised release.

       At the hearing, Detectives Ribeiro and DeMattia testified, and the parties

introduced into evidence the handgun, Haywood’s clothing, satellite images of Hobson

Street and Nye Avenue, the police report, and a video recording taken from a security

camera showing the arrest. The District Court watched the video “very closely” and

found that it corroborated the officers’ testimony.4 App. 188. Considering the officers’

“demeanor on the stand; forthrightness . . . ; [and] accuracy to which [they] recollect[ed]


       3Haywood initially entered an unconditional guilty plea after the District Court’s
decision on the suppression motion, but later withdrew his plea and entered a new
conditional plea pursuant to Federal Rule of Criminal Procedure 11(a)(2).
       4Specifically, the Court found that the video shows Haywood’s back and thus
does not, as Haywood argues, show whether Haywood’s vest was open or closed. The
Court also found the video to show that Detective Ribeiro immediately reached for
Haywood’s right pocket to retrieve the gun.

                                             4
the information that [they] testified to,” the Court found the officers to be credible

witnesses, noting that there were no material inconsistencies between the officers’

testimony and the video. App. 189-90. Finally, the Court found that the basis for the

stop was supported by the fact that the officers did not turn to pull alongside Haywood

until after Detective Ribeiro was able to see Haywood and observe the bulge in his

pocket.

                                             II. 5

       “A brief, investigatory stop is valid under Terry v. Ohio, 392 U.S. 1 (1968), ‘when

the officer has a reasonable, articulable suspicion that criminal activity is afoot.’” United

States v. Gatlin, 613 F.3d 374, 378 (3d Cir. 2010) (quoting Illinois v. Wardlow, 528 U.S.

119, 123 (2000)). Once a stop occurs, the officer may conduct “a reasonable search for

weapons” if he has “reason to believe that he is dealing with an armed and dangerous

individual.” Terry, 392 U.S. at 27. If either the stop or the search is unreasonable, any

evidence obtained as a result must be suppressed. Gatlin, 613 F.3d at 378 (citing United

States v. Johnson, 592 F.3d 442, 447 (3d Cir. 2010)).

       When reviewing a district court’s order denying a motion to suppress, we review

findings of fact for clear error but exercise plenary review over legal determinations.

United States v. Lewis, 672 F.3d 232, 236-37 (3d Cir. 2012). “A finding is clearly

erroneous when although there is evidence to support it” we are “left with the definite



       5The District Court had original jurisdiction over this matter pursuant to 18 U.S.C.
§ 3231. We have appellate jurisdiction over the District Court’s denial of Haywood’s
motion to suppress under 28 U.S.C. § 1291.

                                              5
and firm conviction that a mistake has been committed.” United States v. Price, 558 F.3d

270, 276-77 (3d Cir. 2009) (quoting United States v. Pelullo, 173 F.3d 131, 135 (3d Cir.

1999)). In other words, if the district court’s finding is “plausible in light of the record

viewed in its entirety,” we will not reverse it even if we “would have weighed the

evidence differently.” Id. (citation omitted). On review, we construe the record in the

light most favorable to the government. United States v. Myers, 308 F.3d 251, 255 (3d

Cir. 2002).

       Haywood challenges only the District Court’s factual findings at the evidentiary

hearing. His challenge is predicated on five arguments. First, he was wearing a heavy

sweatshirt on the day of his arrest — not a lightweight shirt as Detective Ribeiro testified

— rendering it unlikely that Detective Ribeiro could have seen a bulge through the thick

material. Second, the video supports Haywood’s contention that his vest was closed,

which would have obstructed Detective Ribeiro’s ability to see the gun. Third, because

of the truck’s position relative to Haywood, Detective Ribeiro could not have had a view

of Haywood’s right side when he claims to have seen the handle protruding from

Haywood’s pocket. Fourth, contrary to the officer’s testimony, the video shows that

Detective Ribeiro frisked Haywood’s midsection instead of reaching immediately for the

right pocket. Fifth, the video shows that the officers looked “surprised” when they

discovered Haywood’s gun, indicating that they did not expect to find a weapon.

Haywood contends that these inconsistencies compromise the testifying officers’

credibility and undermine their claim that they stopped Haywood because Detective

Ribeiro suspected that Haywood had a gun.

                                               6
       At best, Haywood posits interpretations of the evidence that are plausible

alternatives to those offered by the government and found by the District Court. For

example, the video does not clearly show whether Haywood’s vest was open or closed, or

whether Detective Ribeiro first frisked Haywood’s midsection instead of reaching

directly for Haywood’s right pocket. But Haywood does not point to evidence that leaves

us with a “definite and firm conviction that a mistake has been committed.” Price, 558

F.3d at 277. For instance, regardless of whether the officers arguably appear “surprised”

by the discovery of the gun, such behavior is consistent with the officers’ testimony that

Detective Ribeiro did not tell his colleagues when he spotted the gun handle protruding

from Haywood’s pocket. Additionally, we have no basis on which to conclude that the

heavier fabric of Haywood’s sweatshirt would have concealed the gun from Detective’s

Ribeiro’s view, and any mistake in the officers’ description of Haywood’s clothing does

not disturb the deference we owe to the District Court’s finding that the officers’

testimony was otherwise forthright and credible. Especially when construing the record

in the light most favorable to the government, none of Haywood’s theories entails a

conclusion that the District Court committed clear error.

                                            III.

       For the foregoing reasons, we will affirm the judgment of the District Court.




                                             7
