                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-30-2006

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Precedential or Non-Precedential: Non-Precedential

Docket No. 04-4666




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                                                              NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                     No. 04-4666


                          UNITED STATES OF AMERICA

                                          v.

                                 ELLIS GHOLSON,
                                             Appellant


            APPEAL FROM THE UNITED STATES DISTRICT COURT
              FOR THE EASTERN DISTRICT OF PENNSYLVANIA
                             D.C. Crim. 04-cr-00211
                 District Judge: The Honorable Cynthia M. Rufe


                      Submitted Under Third Circuit LAR 34.1(a)
                                 February 10, 2006


         Before: SCIRICA, Chief Judge, BARRY and FISHER, Circuit Judges


                            (Opinion Filed: May 30, 2006)


                                      OPINION


BARRY, Circuit Judge

                                          I.

      In the early morning hours of November 9, 2003, Temple University Police

Officers Monica Hankins and Sharon Erickson were stationed at a “stand-by post” outside
White Hall, a campus dormitory on North Broad Street in Philadelphia, Pennsylvania.

Officers stood guard at this location six days a week from 3 p.m to 3 a.m. because

students had been robbed or shot by non-students in the area, including in front of White

Hall.

        At 1:25 a.m., the officers, from a distance of about 50-75 feet, observed Ellis

Gholson standing on the stairs of White Hall, staring at the entrance. The officers thought

he looked out of place. He appeared “disheveled,” “dirty,” and “dazed.” (App. 30.) The

officers then saw him extend his left hand towards a student who was exiting the

dormitory, while keeping his right hand in his jacket pocket. The student saw Gholson,

and immediately retreated into the dormitory.

        Officer Hankins left the stand-by post and approached Gholson. As she drew

closer, a second student exited the dormitory and exchanged words with Gholson. Again,

Gholson had his left hand extended and his right hand firmly in his pocket. The second

student moved away from Gholson and quickly left the White Hall area.

        Officer Hankins asked Gholson if he was a Temple University student, and asked

to see university identification.1 Gholson ignored the Officer’s requests, and walked past

her onto North Broad Street. As this was happening, Officer Erickson left her police car,

approached Gholson from his left side, and ordered him to stop and present identification.

Gholson ignored her requests as well, and tried to run past her. Officer Erickson


1
 Under Temple University policy, employees and students are required to carry their
university identification with them at all times.
                                              2
attempted to stop Gholson by grabbing his left arm and shoulder. Following closely

behind, Officer Hankins radioed for backup, and grabbed Gholson by his right arm and

shoulder. A struggle ensued, and Gholson was placed against a wall that bordered the

sidewalk. Officer Erickson was able to handcuff Gholson’s left wrist, but he refused to

remove his right hand from his jacket pocket. The pocket “appeared to be heavy.” (App.

25.) As the three struggled, Gholson tried to turn the right side of his body towards

Officer Hankins. The officers were able to force Gholson to the ground as a third officer

arrived on the scene and assisted. Gholson finally removed his right hand from his pocket

after one of the officers sprayed him in the face with mace. A pat-down search revealed a

handgun in that pocket.

       Gholson was arrested and charged with one count of being a felon in possession of

a firearm, in violation of 18 U.S.C. § 922(g)(1). The District Court denied his motion to

suppress, finding that the officers had reasonable suspicion to stop him because he “fled

from police after they observed suspicious activity in a high crime area.” (App. 83.)

Additionally, the Court concluded that the officers had reasonable suspicion to believe

that he was armed and dangerous, and thus were justified in performing a pat-down,

which resulted in the discovery of the weapon. Gholson entered a conditional guilty plea,

and was sentenced to 57 months in prison. He appeals.2

                                            II.


2
 The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We have jurisdiction
under 28 U.S.C. § 1291.
                                             3
       Gholson contends that, in violation of the Fourth Amendment, the officers

illegally seized him and, as a result, the handgun found during the subsequent pat-down

must be excluded from evidence. We disagree, and will affirm.3

       The Fourth Amendment of the United States Constitution protects the “right of

people to be secure in their persons . . . against unreasonable searches and seizures.”

When a police officer merely approaches an individual and questions him, a “seizure” of

his person has not yet occurred, and therefore the Fourth Amendment is not implicated.

Florida v. Royer, 460 U.S. 491, 497 (1983). Because no seizure has occurred, an

individual approached in this way “need not answer any question put to him; indeed, he

may decline to listen to the questions at all and may go on his way.” Id. at 498. A Fourth

Amendment “seizure” takes place when an officer has “in some way restrained the liberty

of a citizen” by either “means of physical force, or show of authority.” Terry v. Ohio,

392 U.S. 1, 19 n.16 (1968). A seizure by physical force is effectuated by “the mere

grasping or application of physical force with lawful authority.” California v. Hodari D.,

499 U.S. 621, 624 (1991). A seizure by show of authority is completed when, under all

of the circumstances, a reasonable person would have believed that he was “not free to

decline the officers’ requests or otherwise terminate the encounter,” Florida v. Bostick,

501 U.S. 429, 439 (1991), and where the suspect actually submits to the show of



3
 In our review, we will not disturb the District Court’s findings of fact unless clearly
erroneous, and will review its legal conclusions de novo. United States v. Coggins, 986
F.2d 651, 654 (3d Cir. 1993).
                                             4
authority. Hodari D., 499 U.S. at 626.

       A seizure, in the usual case, must be justified by a warrant or probable cause.

Shuman v. Penn Manor Sch. Dist., 422 F.3d 141, 147 (3d Cir. 2005). If an officer,

however, “has a reasonable, articulable suspicion that criminal activity is afoot,” he or she

may conduct a “brief, investigatory stop,” i.e., a “Terry stop,” in the absence of a warrant

or probable cause. Illinois v. Wardlow, 528 U.S. 119, 123 (2000). “The test is one of

reasonableness given the totality of the circumstances, which can include [the

defendant’s] location, a history of crime in the area, [the defendant’s] nervous behavior

and evasiveness, and [the officer’s] ‘commonsense judgments and inferences about

human behavior.’” Johnson v. Campbell, 332 F.3d 199, 206 (3d Cir. 2003) (quoting

Wardlow, 528 U.S. at 124-25).

       The Supreme Court has said that certain behaviors are, in and of themselves,

insufficient to provide an officer with reasonable suspicion to stop. One’s mere presence

in a high crime area, Brown v. Texas, 443 U.S. 47, 52 (1979), or refusal to cooperate with

police, Florida v. Bostick, 501 U.S. 429, 437 (1991), or unprovoked flight, Wardlow, 528

U.S. at 125-26, are, without more, not enough to justify a Terry stop. Presence in a high

crime area, plus unprovoked flight, or some other indicia of wrongdoing, however, can

give rise to reasonable suspicion. Wardlow, 528 U.S. at 125-26. In Wardlow, the

Supreme Court found that reasonable suspicion existed where a defendant, who was in an

area known for a high volume of narcotics trafficking, was holding a bag and fled the

scene upon seeing police officers. Id. at 121-22.

                                             5
       Here, the officers had reason to suspect criminal activity at least as early as when

Officer Erickson grabbed Gholson’s left shoulder and arm as he was attempting to flee

from the officers after refusing to identify himself. His appearance was disheveled and

his behavior curious, behavior similar to that Officer Erikson, at least, had investigated in

prior campus crimes in this high crime area where students were robbed after being asked

for money or directions.4 (App. 64.)

       Officers must be permitted to “‘draw on their own experience and specialized

training to make inferences from and deductions about the cumulative information

available to them.’” Johnson, 332 F.3d at 206 (quoting United States v. Arvizu, 534 U.S.

266, 273 (2002)). Here, given the totality of the circumstances, the officers made the

common sense judgment that criminal activity was afoot. Gholson’s seizure did not

violate the Fourth Amendment.

       The officers were also justified in searching Gholson for a weapon. “When 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,”

the officer may frisk the suspect “to determine whether the person is in fact carrying a

weapon and to neutralize the threat of physical harm.” Terry, 392 U.S. at 24.


4
 Gholson argues that there is no factual basis to support the officers’ suspicion that he
was committing a robbery. But Gholson did not have to be committing a robbery in order
for the officers to have reasonable suspicion to believe that he was. As the Supreme
Court explained in Wardlow, “sometimes behavior giving rise to reasonable suspicion is
entirely innocent,” and it is an “accepted . . . risk that officers may stop innocent people.”
528 U.S. at 130 n.4.
                                              6
       Here, the officers observed Gholson keep his right hand in his jacket pocket during

his interaction with the two students on the dormitory steps. Gholson refused to remove

his hand from the pocket when the officers demanded that he do. Officer Hankins

“physically could tell” that the “pocket appeared to be heavy.” (App. 25.) During the

struggle with the officers, Gholson attempted to move the right side of his body, with his

hand in the pocket, towards Officer Hankins. The officers had every reason to believe

that Gholson was concealing a weapon in the pocket. It was eminently reasonable to

conduct the pat-down that revealed the handgun.

                                           III.

       The judgment of sentence will be affirmed.




                                             7
