                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-30-2004

USA v. Bonner
Precedential or Non-Precedential: Precedential

Docket No. 03-1547




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"USA v. Bonner" (2004). 2004 Decisions. Paper 879.
http://digitalcommons.law.villanova.edu/thirdcircuit_2004/879


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                    PRECEDENTIAL           W. Penn Hackney, Esq.
                                           Karen S. Gerlach, Esq.
    UNITED STATES COURT OF                 Lisa B. Freeland, Esq. (Argued)
           APPEALS                         Office of Federal Public Defender
     FOR THE THIRD CIRCUIT                 1001 Liberty Avenue
                                           1450 Liberty Center
                                           Pittsburgh, PA 15222
             No. 03-1547
                                                  Counsel for Appellee

  UNITED STATES OF AMERICA,
                                                           OPINION
                    Appellant

                   v.                      COWEN, Circuit Judge.

       JERMANE E. BONNER                           Jermane Bonner fled from police
                                           after the car in which he was a passenger
                                           was stopped for a routine traffic violation.
   On Appeal from the United States        The police gave chase and, upon
              District Court               apprehending him, discovered that he was
for the Western District of Pennsylvania   carrying crack cocaine. The government
    (D.C. Criminal No. 02-cr-00046)        prosecuted Bonner for possession with the
 District Judge: Hon. Gary L. Lancaster    intent to distribute 50 grams or more of
                                           crack cocaine in violation of 21 U.S.C. §
                                           841(a)(1) and (b)(1)(A)(iii). The District
      Argued September 16, 2003            Court suppressed all evidence seized
                                           during the stop including the drugs. This
   BEFORE: MC KEE, SMITH and               appeal by the government followed.
      COWEN, Circuit Judges
                                                   In suppressing the evidence, the
        (Filed: March 30, 2004)            District Court held that the officers lacked
                                           a reasonable, articulable suspicion that
Mary Beth Buchanan, Esq.                   Bonner was involved in criminal activity.
Bonnie R. Schlueter, Esq. (Argued)         The District Court reasoned that the sole
Office of United States Attorney           basis for the stop was Bonner’s flight from
700 Grant Street                           police, and that under Illinois v. Wardlow,
Suite 400                                  528 U.S. 119, 120 S. Ct. 673, 145 L. Ed.
Pittsburgh, PA 15219                       570 (2000), and its progeny, mere flight
                                           when police appear on the scene is not
      Counsel for Appellant                sufficient to estab lish reasonable
                                           suspicion.
        We will reverse. Under the facts of        the patrol car, driving in the direction
this case we hold that the officers had            Bonner was running, then parked and
reasonable suspicion to stop Bonner.               continued the chase on foot.
Although flight alone is not enough to
justify a police stop, this is not a case of              Officer English eventually caught
flight upon noticing police. The officers in       Bonner by tackling him. Both officers
this case were effectuating a legitimate           then subdued and handcuffed Bonner.
traffic stop. During a traffic stop, police        While subduing him, Officer English
officers m ay exercise reasonable                  observed a clear plastic bag in Bonner’s
superintendence over the vehicle, its              hand. The bag contained seven golf ball
driver, and passengers. Because Bonner             sized rocks, which were later tested and
prevented the police from maintaining              found to be crack cocaine. The officers
oversight and control over the traffic stop        also seized $534.25 from Bonner during
by fleeing, we hold that the police had            the arrest.
reasonable suspicion to stop him.
                                                           The driver and other passenger
                     I                             were told to put the vehicle in park, turn
                                                   off the ignition, and step out of the vehicle.
       On March 8, 2001, Officers                  Both were handcuffed and detained for a
Harbaugh, English, Stewart, and Sweeney            brief period of time, then released with a
were in uniform and on duty at the police          citation for the traffic violations.
security booth at the entrance to the
Ohioview Acres housing project in Stowe                   We have jurisdiction under 18
T o w nship , Pen nsylv ania .          At         U.S.C. § 3731, and conduct plenary review
approximately 11:40 p.m., Officer                  of the District Court’s determination that
Harbaugh noticed a sports utility vehicle          the officers did not have reasonable
leaving the housing project that had one           suspicion to stop Bonner. Ornelas v.
headlight out and an expired inspection            United States, 517 U.S. 690, 116 S. Ct.
sticker. He signaled for the vehicle to            1657, 134 L. Ed. 2d 911 (1996); United
stop.    The driver, Nathan Stewart,               States v. Valentine, 232 F.3d 350 (3d Cir.
complied. In addition to the driver, there         2000). We review the District Court’s
were two passengers: the driver’s brother,         findings of fact for clear error. Ornelas,
Neil Stewart, in the back seat and Jermane         517 U.S. at 698, 116 S. Ct. at 1663.
Bonner in the front passenger seat.
                                                                         II
       As Officer Harbaugh approached
the driver’s side of the vehicle, Bonner                  As a preliminary matter, the
alighted and ran. Officer Stewart chased           government challenges the District Court’s
after him on foot, repeatedly yelling for          findings that the area was not a high crime
him to stop. Officer English gave chase in         area, and that the hour of the stop, 11:40

                                               2
pm, was not significant to the reasonable           U.S. 106, 109, 98 S. Ct. 330, 332, 54 L.
suspicion inquiry. In support of its                Ed. 2d 331 (1977). It is also well settled
contention that the Ohioview Acres                  that a police officer executing such a stop
housing project was a high crime area, the          may exercise reasonable superintendence
government submitted a log book of                  over the car and its passengers. Under
arrests made at the housing project over a          Mimms, the officer may order the driver
three-year period. As the District Court            out of the vehicle without any
found, the log book reflected that there            particularized suspicion. Mimms, 434
was an average of 1.3 arrests per week,             U.S. at 110-11, 98 S. Ct. at 333. The
and that most of the arrests were for               Supreme Court extended that bright line
misdemeanors and summary offenses.                  rule to allow the officer to order any
Considering the number of people who                passengers out of the car as well.
live in the housing project, the District           Maryland v. Wilson, 519 U.S. 408, 117 S.
Court found that this average reflected             Ct. 882, 137 L. Ed. 2d 41 (1997).
neither a high crime area nor trafficking in        Alternatively, the officer may order all of
narcotics. The government contends this             the occupants to remain in the car with
finding was clearly erroneous, and points           their hands up.         United States v.
to a news article as further evidence of the        Moorefield, 111 F.3d 10 (3d Cir. 1997).
level of crime present in the area. Even            In addition, the officer may pat down the
considering the news article, however, the          occupants of the vehicle and conduct a
evidence does not compel the conclusion             search of the passenger compartment, if he
that the District Court erred in finding that       has a reasonable suspicion that the
the housing project was not a high crime            occupants might be armed and dangerous.
area. The District Court found that the             Michigan v. Long, 463 U.S. 1032, 1049-
stop did occur at 11:40 p.m., but did not           50, 103 S. Ct. 3469, 3481, 77 L. Ed. 2d
consider that factor relevant to its analysis       1201 (1983) (permitting search of vehicle
of whether there was reasonable suspicion           during traffic stop); Mimms, 434 U.S. at
for the stop. The evidence does not                 111-112, 98 S. Ct. at 334 (permitting pat
compel a different conclusion.           We         down of driver upon reasonable
conclude that the fact finding by the               suspicion); Terry v. Ohio, 392 U.S. 1, 17,
District Court was not clearly erroneous.           88 S. Ct. 1868, 1877, 20 L. Ed. 2d 889
                                                    (1968); Moorefield, 111 F.3d at 13-14
                     III                            (permitting pat down of passenger upon
                                                    reasonable suspicion).
        It is uncontested that the initial
traffic stop was lawful under the Fourth                   The government asserts that the
Amendment.       A police officer who               police officers ordered Bonner and the
observes a violation of state traffic laws          other occupants to stay in the vehicle. At
may lawfully stop the car committing the            the suppression hearing, however, there
violation. Pennsylvania v. Mimms, 434               was conflicting testimony whether the

                                                3
officers said anything before Bonner ran.         its progeny, an officer may conduct a brief,
The District Court made no finding with           investigatory stop when that officer has “a
respect to what, if anything, the officers        reasonable, articulable suspicion that
said before Bonner got out of the vehicle         criminal activity is afoot.” Illinois v.
and ran. We will assume for the purpose           Wardlow, 528 U.S. 119, 123, 120 S. Ct.
of this opinion that the officers did not         673, 675, 145 L. Ed. 2d 570 (2000).
issue any commands before Bonner began            Although reasonable suspicion is less
running. But even absent a specific               demanding than probable cause, the Fourth
command, it is undisputed that Bonner, an         Amendment does require that an officer
occupant of the stopped vehicle, ran from         making a stop have some level of objective
the scene of a legitimate traffic stop            justification for that stop. United States v.
without authorization or consent of the           Sokolow, 490 U.S. 1, 7, 109 S. Ct. 1581,
officers. During such a stop, a police            1585, 104 L. Ed. 2d 1 (1989). In
officer has the authority and duty to             evaluating whether a particular stop was
control the vehicle and its occupants, at         justified, courts must look at the totality of
least for a brief period of time. 1 Bonner        the circumstances surrounding the stop.
prevented Officer Stewart from controlling        Sokolow, 490 U.S. at 8, 109 S. Ct. at 1586
the stop by running from the vehicle              (quoting United States v. Cortez, 449 U.S.
before the purpose of the stop was even           411, 417, 101 S. Ct. 690, 695, 66 L. Ed.2d
announced.                                        621(1981)). In effectuating a valid stop,
                                                  police officers are allowed to use a
       Under Terry v. Ohio, 392 U.S. 1, 88        reasonable amount of force. Graham v.
S. Ct. 1868, 20 L. Ed. 2d 889 (1968), and         Connor, 490 U.S. 386, 109 S. Ct. 1865,
                                                  104 L. Ed. 2d 443 (1989). Bonner argues
                                                  that flight, standing alone, is not sufficient
       1                                          to engender reasonable suspicion on the
         The Supreme Court has never
                                                  part of a police officer. Indeed, the
addressed the question of whether, during
                                                  Supreme Court has never held that
a lawful traffic stop, the police could
                                                  unprovoked flight alone is enough to
detain any passengers for the entire
                                                  justify a stop. The Supreme Court has
duration of the stop. Indeed, the Court
                                                  held, however, that flight upon noticing
explicitly left that question open when it
                                                  police, plus some other indicia of
held that the police could order passengers
                                                  wrongdoing, can constitute reasonable
out of the car during a stop. Maryland v.
                                                  suspicion. Wardlow, 528 U.S. at 125-26,
Wilson, 519 U.S. 408, 415 n. 3, 117 S. Ct.
                                                  120 S. Ct. at 676-77. The “plus” factor
882, 886 n. 3, 137 L. Ed. 2d 41 (1997).
                                                  was Wardlow’s mere presence in an area
That question is not before us, as Bonner
                                                  known for high narcotics trafficking.
fled before the purpose of the stop was
                                                  Wardlow, 528 U.S. at 124, 120 S. Ct. at
announced, and before the police could
                                                  676. In holding that flight plus presence in
exercise the initial control authorized by
                                                  a high crime area justified the stop, the
Wilson and other cases.

                                              4
Court explained, “the determination of            Terry, 392 U.S. at 34, 88 S. Ct. at 1886
reasonable suspicion must be based on             (White, J. concurring)). Moreover, a
commonsense judgments and inferences              refusal to cooperate with the police in a
about human behavior.” Wardlow, 528               consensual encounter, without more,
U.S. at 125, 120 S. Ct. at 676.                   cannot constitute reasonable suspicion for
                                                  a stop. Florida v. Bostick, 501 U.S. 429,
        In Wardlow, eight officers in a           437, 111 S. Ct. 2382, 2387, 115 L. Ed. 2d
four-car caravan converged on a                   389 (1991) (citations omitted).
neighborhood known for high narcotics
trafficking. Upon arriving in the area, two              In this case, however, Bonner did
of the officers noticed the defendant             not simply flee upon “noticing” police, nor
standing near a building, holding a bag.          did he simply refuse to cooperate during a
The defendant looked in the direction of          consensual encounter. Bonner fled from a
the officers and then fled. Wardlow, 528          lawful traffic stop, before the officers had
U.S. at 122, 120 S. Ct. at 675. Before he         the chance to announce the purpose of the
ran, the officers had no reason to suspect        stop.    He continued fleeing despite
the defendant of any wrongdoing, and had          repeated orders to stop, and he did not stop
no legitimate cause to detain him; the            running until he was tackled by Officer
defendant simply fled from the possibility        English. Bonner’s flight from a lawful
of a consensual encounter with the police.        police traffic stop, where that flight
                                                  prevented the police from discharging their
       Mere presence in an area known for         duty of maintaining oversight and control
high crime does not give rise to reasonable       over the traffic stop, provided the officers
suspicion for a stop. Brown v. Texas, 443         with reasonable suspicion to stop Bonner
U.S. 47, 52, 99 S. Ct. 2637, 2641, 61 L.          for further investigation. Flight from a
Ed. 2d 357 (1979). Police officers may            non-consensual, legitimate traffic stop (in
approach individuals without reasonable           which the officers are authorized to exert
suspicion or probable cause, and may              superintendence and control over the
question such individuals without                 occupants of the car) gives rise to
implicating the Fourth Amendment.                 reasonable suspicion.
Florida v. Royer, 460 U.S. 491, 497, 103
S. Ct. 1319, 1324, 75 L. Ed. 2d 229                                   IV
(1983). An individual approached in this
manner “need not answer any question put                  By reason of Bonner’s flight in the
to him; indeed, he may decline to listen to       course of a legitimate traffic stop, the
the questions at all and may go on his            officers had reasonable suspicion to stop
way.” Royer, 460 U.S. at 498, 103 S. Ct.          him. Upon effectuating the stop the drugs
at 1324 (citing Terry v. Ohio, 392 U.S. 1,        were revealed, giving probable cause to
32-33, 88 S. Ct. 1868, 1885-86 20 L. Ed.          arrest. The judgment of the District Court
2d 889 (1968) (Harlan, J. concurring);            entered on February 12, 2003, will be

                                              5
reversed. The case will be remanded to
the District Court for further proceedings
consistent with this opinion.




United States v. Bonner, No. 03-1547                because I believe these alternatives require
                                                    the D istrict Court to conduct
Smith, Concurring.
                                                    fundamentally different inquiries, even
        Because I agree that “flight from a         though the evidence offered for both may
non-consensual, legitimate traffic stop (in         be overlapping or even identical.
which the officers are authorized to exert
                                                           Here, the District Court found that
superintendence and control over the
                                                    “the government has not shown by a
occupants of the car) gives rise to
                                                    preponderance of the evidence that Ohio
reasonable suspicion,” I join Judge
                                                    View Acres is such an area.” After
Cowen’s opinion in full. Maj. op. at 5. I
                                                    reviewing the relevant evidence, the
write separately only to highlight an issue
                                                    District Court declared that evidence
implicated in the District Court’s fact-
                                                    “hardly makes Ohio View Acres a heavy
finding which we have not been required
                                                    crime and narcotics trafficking area.”
to address: whether under the flight “plus”
analysis of Wardlow, 528 U.S. 119, the                     What I am concerned about in these
government is required to prove the                 Wardlow-type cases is the fact-finder’s
existence of objective criteria for what            focus: should it be that of a federal judge,
constitutes a high crime area and that the          operating within the confines of a
stop occurred in such an area, or rather that       courtroom, who believes the area to be one
the government is required to prove that            of high crime, or that of a police officer
officers effecting the stop had a reasonable        who, based on         experience and an
articulable basis to believe that they were         awareness of crime and arrest data, had a
in a “high crime area.” 2 I point this out


                                                    in which there is a high volume of crime,
   2
    Judge Cowen describes this factor as            but does not qualify as a “high narcotics
whether the area was a “high crime area.”           trafficking area.” Because the test should
Maj. op. at 2. The District Court’s                 be the same for either analysis, however,
analysis, however, was more limited and             the distinction is not material for purposes
addressed only whether this was a “high             of this concurrence. For purposes of
narcotics trafficking area.” As there are           continuity, then, I adopt Judge Cowen’s
many crimes which do not involve                    articulation of the question–whether the
narcotics trafficking, an area could be one         area was a “high crime area.”

                                                6
basis to form a reasonable articulable             their own experience and specialized
belief that it is such an area?3 Obviously,        training to make inferences from and
the differences in focus are not only              dedu ctions abou t the cu mu lative
differences of experience and perspective.         information available to them that might
A judge engaged in adjudicative fact-              well elude an untrained person.”) (internal
finding will apply standards of credibility        quotation marks omitted); Ornelas v.
and proof that differ from the cognitive           United States, 517 U.S. 690, 699 (1996)
processes of an officer acting in the field.       (reviewing court must give the appropriate
                                                   weight to factual inferences drawn by local
                                                   law enforcement officers). In the same
        The touchstone of Terry v. Ohio is
                                                   way, an officer is in the position to know
its requirement that a court consider
                                                   the routines and patterns of a geographic
whether “the facts available to the officer
                                                   area, and whether it is more prone to
at the moment of the seizure or the search
                                                   crime. This knowledge may not be
‘warrant a man of reasonable caution in
                                                   reflected on arrest records and log sheets,
the belief’ that the action taken was
                                                   as arrests are not the only indicia of crime.
appropriate[.]” 392 U.S. at 21-22 (1968)
                                                   In any case, we need not resolve the issue
(citing Carroll v. United States, 267 U.S.
                                                   here.
132 (1925); Beck v. Ohio, 379 U.S. 89, 96-
97 (1964)). As explained by the Supreme                   I agree that the evidence offered by
Court in United States v. Cortez, 449 U.S.         the government does not compel the
411, 418 (1981), an officer’s suspicion that       conclusion that the District Court erred in
criminal activity is afoot may be informed         finding that Ohio View Acres was not a
by “various objective observations,                high crime area. And even if the District
information from police reports, if such are       Court were required to determine whether
available, and consideration of the modes          the officers had a reasonable articulable
or patterns of operation of certain kinds of       basis to believe it was a high crime area,
lawbreakers. From these data, a trained            such a finding would contribute nothing to
officer draws inferences and makes                 the result here because the government has
deductions–inferences and deductions that          demonstrated flight “plus” by other
might well elude an untrained person.”             evidentiary means.
See also United States v. Arvizu, 534 U.S.
                                                         Finally, although I join Judge
266, 274 (2002) (officers may “draw on
                                                   Cowen in reversing the District Court, I
                                                   echo the sentiments of Judge McKee
     3                                             expressed in Part III of his dissent.
     Wardlow did not resolve this issue
because it appears that in that case there                It should be a rare occasion when
was no dispute that the stop took place in         judges criticize, and thereby intrude into, a
a high crime area. In the case before us,          legitimate exercise of prosecutorial
the District Court did confront a factual          discretion. Nor should we routinely
dispute on this issue.

                                               7
question in our opinions the policy                   Court precedent compels us to affirm the
decisions of Congress to federalize what              district court’s order suppressing the
has traditionally been state law street               evidence that was seized in this case.
crime. Our institutional role as judges is            Moreover, although I do not think the
limited by our jurisdiction and by the                circumstances here establish a Terry stop,
comity and respect we owe to coordinate               I do agree that we must begin our analysis
branches of government.                               with the Supreme Court’s decision in
                                                      Terry.
        That being said, the instant case
presents a series of events which the                 I. Terry v. Ohio
dissent characterizes as a prosecutorial
                                                              In Terry, the Supreme Court held
“switcheroo.” I cannot disagree with that
                                                      that a police officer may approach an
characterization, and I share the “concern
                                                      individual “for purposes of investigating
for the appearance of fairness” expressed
                                                      possibly criminal behavior even though
by Judge McKee. It is one thing for the
                                                      there is no probable cause to make an
government to assume an investigation
                                                      arrest,” and briefly detain him/her in order
initiated by state law enforcement
                                                      to fulfill “[a] legitimate investigative
officials, or even to adopt a prosecution
                                                      function [.]” 392 U.S. at 22.
commenced by state prosecutors. It is
quite another to seek a federal indictment                    The police officer in Terry
where the federal interest in the case is             approached and briefly detained two
recognized only after state prosecutors               individuals after observing their suspicious
have given the case their best shot in the            behavior from a distance and concluding
state courts and lost on an issue of state            that they were casing a store that they were
law. Not only does such a tactic offend               about to burglarize. The Terry Court held
fundamental notions of fairness, it is                that the Fourth Amendment allowed the
contrary to traditional notions of our                officer to briefly detain them in order to
federalism.                                           conduct a brief investigation into their
                                                      suspicious behavior.            Since the
                                                      individuals’ actions also suggested that
U.S. v. Bonner, No. 03-1547                           they might be armed, the Court also
                                                      concluded that the Fourth Amendment
McKee, Dissenting
                                                      allowed the officer “to conduct a carefully
        I must respectfully dissent, because          limited search of the outer clothing . . . in
I believe the majority’s analysis is                  an attempt to discover weapons which
inconsistent with Terry v. Ohio, 392 U.S.             might be used to assault [the officer].” Id.
1 (1968), and Illinois v. Wardlow, 528                at 30. The Court explained:
U.S. 119 (2000). Although I view this
                                                             The actions of [th e
case a bit differently than the district court,
                                                             defendants] were consistent
I nevertheless conclude that Supreme
                                                             with the officer’s hypothesis

                                                  8
              that these men were                         content than that required to
              c o n t e m p l a t in g a                  establish probable cause, but
              daylight robbery - -                        also in the sense that
              which,             it    is                 reasonable suspicion can
              reasonable               to                 arise from information that
              assume, would be                            is less reliable than that
              likely to involve the                       required to show probable
              use of weapons - -                          cause.
              and nothing in their
              conduct from the
              time he first noticed                Id. (internal quotation marks omitted)
              them until the time                  (quoting Alabama v. White, 496 U.S. 325,
              he confronted them                   330 (1990)). Accordingly, absent probable
              and identified                       cause, an individual’s detention must be
              himself as a police                  supported by “reasonable, articulable
              officer gave him                     suspicion that criminal activity is afoot.”
              sufficient reason to                 Illinois v. Wardlow, 528 U.S. 119, 123
              nega te               that           (2000). However, Bonner was “detained”
              hypothesis.                          after the vehicle he was riding in was
                                                   stopped for a traffic infraction, and the
                                                   Supreme Court has allowed greater
Id. at 28.                                         latitude in the context of traffic stops.
       Therefore, “under Terry v. Ohio and             A. Terry applied to traffic stops
subsequent cases, ‘an officer may,
                                                           Terry was first implicated in the
consistent with the Fourth Amendment,
                                                   context of a lawful traffic stop in
conduct a brief, investigatory stop if the
                                                   Pennsylvania v. Mimms, 434 U.S. 106
officer has a reasonable, articulable
                                                   (1977). There, a police officer legally
suspicion that criminal activity is afoot.’”
                                                   stopped a car for a traffic violation and
United States v. Valentine, 232 F.3d 350,
                                                   ordered the driver to get out. The officer
353 (3d Cir. 2000) (internal citation
                                                   was not motivated by any particularized
omitted).    The Supreme Court has
                                                   suspicion in doing so; rather, it was the
explained that:
                                                   officer’s policy to order drivers out of their
       Reasonable suspicion is a                   cars “as a matter of course whenever they
       less demanding standard                     had been stopped for a traffic violation.”
       than probable cause not only                Id. at 109-10. Once the driver was out of
       in the sense that reasonable                the car, the officer noticed a bulge under
       suspicion can be established                the driver’s jacket and the officer
       with information that is                    immediately conducted a “pat-down”
       different in quantity or                    search because he believed the bulge was

                                               9
a weapon. Id. at 111-12. As a result of that         minimal additional intrusion. Id. at 413-14.
search, a gun was seized, and the                     In addition, “the fact that there is more
defendant was thereafter arrested.                   than one occupant of the vehicle increases
                                                     the possible sources of harm to the
       The Supreme Court held that the
                                                     officer.” Moreover, “the motivation of a
search did not violate the Fourth
                                                     passenger to employ violence to prevent
Amendment. The Court reasoned that
                                                     apprehension. . . is every bit as great as
considerations of safety justified allowing
                                                     that of the driver.” Id. at 414.
police to order drivers to get out of their
vehicles during lawful traffic stops                   B. Bonner was not detained under
because weapons could be concealed                                  Terry
inside the vehicle in easy reach of the
                                                             The majority’s analysis assumes
driver. Since police could lawfully order
                                                     that we are confronted with a Terry stop,
the driver out of the vehicle, the Court
                                                     and the district court ultimately analyzed
concluded that, under Terry, the officer
                                                     the detention under Terry. However, after
was “justified in conducting a limited
                                                     reviewing the transcript of the suppression
search for weapons once he had reasonably
                                                     hearing, it is clear to me that the police
concluded that the person whom he had
                                                     officers who “stopped” Bonner were not
legitimately stopped might be armed and
                                                     basing their actions on any reasonable,
presently dangerous.” Id.
                                                     articulable suspicion as is required under
        The Court extended the rule of               Terry. They certainly never were able to
Mimms to include passengers of lawfully              explain their conduct by establishing any
stopped vehicles in Maryland v. Wilson,              such suspicion despite having every
519 U.S. 408 (1997). There, as in Mimms,             opportunity to do so during the
a traffic violation created the grounds to           suppression hearing. I think it telling that,
legally stop an automobile. The police               at the very beginning of the suppression
ordered the passenger out of the car as a            hearing, the district court asked the
precaution, not because of any suspicion of          government if Bonner was searched
illegality. The Wilson Court had no                  pursuant to a Terry stop. The court
difficulty concluding that the same                  inquired: “I understand that this is a
considerations of safety present when                warrantless search; is that a Terry v. Ohio
drivers are ordered to get out of a stopped          search?” App. at 127. The government’s
vehicle outweighed the minimal intrusion             response did not confirm a Terry stop.
on any passenger who is ordered out of a             Rather, counsel stated: “This was a search
car that has been legally stopped for a              incident to arrest.” Id.
traffic infraction. Id. at 414. The Wilson
                                                           It is not surprising that the
Court found that, “as a practical matter, the
                                                     government did not argue Terry initially
passengers are already stopped by the
                                                     because the testimony that the government
virtue of the stop of the vehicle,” and the
                                                     produced at the suppression hearing did
order to get out of the car creates only a

                                                10
not establish a Terry stop. Rather, the              findings only when they are clearly
testimony was consistent with, but fell              erroneous, i.e. when they are “completely
short of establishing, a search incident to a        devoid of a credible evidentiary basis or
valid arrest. The seizure can not be
justified on that basis because the
testimony failed to establish probable
                                                     between establishing that an area is a “high
cause for an arrest other than mere flight.
                                                     crime area” versus establishing an officer’s
See United States v. Myers, 308 F.3d 251,
                                                     good faith belief that it is one. I do not
265-66 (3d Cir. 2002).4
                                                     suggest that the district court was correct
       When Officer English was asked                to the extent that it required the
why he chased Bonner he responded:                   government to prove that the area is
“They were exiting a high crime area,                actually “a high crime area” by a
known trafficking (sic), and the officers            preponderance of the evidence. Rather,
informed the Defendant to stop and get               the inquiry must be the subjective belief of
back into the vehicle, and he failed to              the arresting officer. However, it is clear
comply with the officer’s orders.” App. at           under Terry that the subjective belief must
148. However, the district court rejected            be objectively reasonable. Hill v.
the testimony that Bonner was ordered                California, 401 U.S. 797 (1971). Absent
back into the car as well as the officer’s           more than was offered at the suppression
testimony about a “high crime area” or one           hearing, the district court’s inquiry
known for “narcotics trafficking.” Id. at            undermined the objective reasonableness
17.5 We reverse the district court’s factual         of any subjective belief that the area in
                                                     question was a “high crime” area or known
                                                     for “narcotics trafficking.”
  4
    Despite its initial inquiry into a search                   Moreover, I think that the
incident to arrest, the district court did           requirement of an objectively reasonable
base its ruling on Terry. App. at 18-19              belief addresses Judge Smith’s concern
(“Bonner’s flight alone is insufficient to           that such determinations are being made
create a reasonable articulable suspicion            by judges in the comfort of their
that he was involved in criminal activity. .         courtrooms rather than by officers in the
. . Because this court finds that the                streets. See Concurring Op. at 2. Although
government failed to meet its burden of              proper deference must be afforded to the
showing Bonner’s stop was supported by               training, experience, and knowledge of
a reasonable articulable suspicion of                police officers, as well as the trying
criminal conduct, the stop and seizure               c i r c u ms t a n c e s f a c i n g t h em, th e
violated Bonner’s Fourth Amendment                   Constitution does not allow us to abdicate
rights.”).                                           our responsibilities in favor of their
                                                     judgments simply because we are
      5
      In his concurring opinion, Judge               operating within the comfortable confines
Smith correctly notes the distinction                of a courtroom or appellate chambers.

                                                11
bear no rational relationship to the                        had him in a grasp around
supporting data.” 6   Here, the district                    the waist; he continued to
court’s findings of fact are clearly                        try to get up and get away
supported by the record.                                    from me. . . . I informed
                                                            him numerous times to place
        There was conflicting testimony
                                                            his hands behind his back
about whether the officers said anything to
                                                            and quit resisting.
Bonner before he ran, and the court
discredited the officers’ conflicting                App. at 149. The officer was then asked
testimony that they did. Id. at 15. Thus, as         whether or not it was necessary to forcibly
Judge Smith summarizes in his concurring             place Bonner’s hands behind his back and
opinion, the issue before us may be                  Officer English confirmed that he was able
distilled as whether “flight from a non-             “to subdue the Defendant” together with
consensual, legitimate traffic stop . . . [by        Officer Sweeney and Officer Stewart. Id.
itself] gives rise to reasonable suspicion.”         Therefore, the district court was quite
See Concurring Op. at 1, and Maj. Op. at             correct in stating: “The only pertinent
9.                                                   factor is Bonner’s flight.” App. at 18.
       Bonner was chased, tackled and                        The majority states that Officer
handcuffed simply because he ran. That is            English observed a plastic bag in Bonner’s
abso lutely cons istent w ith Officer                hand “[w]hile subduing him.” Maj. Op. at
English’s testimony at the suppression               4. However, Officer English actually
hearing. Officer English was asked the               stated that he did not see the bag until after
following question: “[T]he reason M r.               Bonner had been handcuffed. Officer
Bonner was being chased was because he               English stated that after he was finally able
started running, correct?” The officer               to subdue Bonner, the officers discovered
responded: “That’s the reason the initial            that “he was clutching a plastic baggie. .
chase was started, I believe.” App. at 153.          .”. App. at 149. The other officer, Officer
Officer English described the stop as                Stewart, was never asked when he first
follows:                                             saw the baggie that Bonner was clutching.
                                                     The only relevant testimony on this record
        I eventually caught up with
                                                     is English’s testimony that he noticed the
        the Defendant, and we fell
                                                     bag after Bonner was subdued, not before
        to the ground. . . . The
                                                     or while he was being subdued. Officer
        Defendant continued to try
                                                     Stewart testified that he saw Officer
        to get up away from me. I
                                                     English take something out of Bonner’s
                                                     hand “[a]fter he was in handcuffs.” App.
    6                                                at 136.
      United States v. Taftsiou, 144 F.3d
287, 293 (3d Cir. 1998); see also United                  “It is the state’s burden to
States v. Perez, 280 F.3d 318, 336 (3d Cir.          demonstrate that the seizure it seeks to
2002).

                                                12
justify on the basis of the reasonable              392 U.S. at 24. Nevertheless, the Court
suspicion was sufficiently limited in scope         remained cognizant of “the nature and
and duration to satisfy the conditions of an        quality of the intrusion” of the person
investigative seizure.” Florida v. Royer,           detained. Id.     It concluded that the
460 U.S. 491, 500 (1983). Terry, like               authority conferred on the Fourth
Mimms and Wilson, recognized that                   Amendment for a brief detention must be
officers who briefly detain individuals for         “narrowly drawn. . . to permit a reasonable
investigation based upon articulable                search for weapons for the protection of
suspicion need to protect themselves and            the police officer, where he has reason to
that concerns for the safety of the officer         believe that he is dealing with an armed
and others justify certain limited steps            and dangerous individual, regardless of
consistent with that concern. The Terry             whether he has probable cause to arrest the
Court explained:                                    individual for the crime.” Id. at 27. Thus,
                                                    “[t]he manner in which the seizure and
       [W]e can no t blind
                                                    search were conducted is . . . as vital a part
       ourselves to the need for law
                                                    of the inquiry as whether they were
       enforcement officers to
                                                    warranted at all.” Id. at 28.
       protect themselves and other
       prospective victims of                              As noted above, the Mimms Court
       violence in situations where                 held that police may order the driver of a
       they may lack probable                       lawfully stopped automobile to step out of
       cause for an arrest. When                    the car for the officer’s own protection,
       an officer is justified in                   stating that “a significant percentage of
       believing that an individual                 murders of police officers occurs when the
       whose suspicious behavior                    officers are making traffic stops.” 434 U.S.
       he is investigating at close                 106, 110 (1977) (internal citation and
       range is armed and                           quotation marks omitted). The danger is
       dangerous to the officer or                  reduced with only minimal additional
       to others, it would appear to                intrusion by allowing officers to “control”
       be clearly unreasonable to                   the situation to the extent of ordering
       deny the officer the power                   occupants out of the car. “Establishing a
       to take necessary reasonable                 face-to-face confrontation diminishes the
       measures to determin e                       possibility, otherwise substantial, that the
       whether the person is in fact                driver,” or passenger, “can make
       carrying a weapon and to                     unobserved movements; this, in turn,
       neutralize the threat of                     reduces the likelihood that the officer will
       physical harm.                               be the victim of an assault.” Id. “The risk
                                                    of harm to both the police and the
                                                    occupants is minimized if the officers
                                                    routinely exercise unquestioned command


                                               13
of the situation.” Michigan v. Summers,             the suppression court that was precisely
452 U.S. 692, 702-03 (1981) (internal               the justification for the search. However,
citation omitted). 7                                absent probable cause to arrest Bonner, the
                                                    search can not be sustained as a search
        However, my colleagues have
                                                    incident to an arrest. United States v.
severed the rule from its analytical
                                                    Myers, 308 F.3d 251, 265-66 (3d Cir.
moorings. They are applying the rule here
                                                    2002). Moreover, even if we view this as
even though the police did not even
                                                    a Terry stop, I would still conclude that the
attempt to explain their actions in terms of
                                                    district court’s suppression order was
any perceived threat from Bonner getting
                                                    correct because there is nothing to
out of the car and any danger arose from
                                                    establish reasonable suspicion but
chasing, tackling, and subduing an
                                                    Bonner’s flight.
occupant of a stopped vehicle who was
merely trying to leave. Of course, I do not                In addition, as noted above, the
mean to suggest that flight necessarily             scope and duration of the detention
eliminates the danger the Court was                 authorized under Terry must be consistent
concerned with in Terry, Mimms or                   with the articulable suspicion underlying
Wilson. However, I think it a stretch to            the detention; that is the sine qua non of
equate law enforcement’s need to control            Terry. It is the basis for eliminating the
a driver or passenger with the officers’            requirement of probable cause before
need to control Bonner here. Officer                detaining someone. As the Court stated in
English clearly testified that Bonner was           Florida v. Royer, 460 U.S. 491, 500
chased and handcuffed because he ran                (1983), “an investigative detention must
away from a stopped car. No other                   be temporary and last no longer than is
justification is offered, except by my              necessary to effectuate the purpose of the
colleagues. Accordingly, I believe this             stop. Similarly, the investigative methods
seizure can only stand only if it can be            employed should be the least intrusive
justified as a search incident to a valid           means reasonably available to verify the
warrantless arrest.                                 officer’s suspicions in a short period of
                                                    time.” Terry does not authorize police to
       The government no doubt realized
                                                    chase, tackle and handcuff one who runs
this and therefore, as explained above, told
                                                    away from them based solely on flight.
                                                    Moreover, I do not believe other precedent
                                                    can support that level of intrusion either.
    7
      In United States v. Moorefield, 111
F.3d 10, 12-13 (3d Cir. 1997), we held that           II. Detention Based on Flight Alone
police could order a passenger in a                         To determine if Bonner was
lawfully stopped car to remain inside with          legitimately detained based solely on his
his/her hands in the air based upon the             flight, we must examine two Supreme
same considerations of safety relied upon           Court cases regarding an individual’s right
in Mimms and Wilson.

                                               14
to walk away from police officers; Florida          person who is no more than suspected of
v. Royer, 460 U.S. 491 (1983), and Illinois         criminal activity, the police may not carry
v. Wardlow, 528 U.S. 119 (2000).                    out a full search of the person. . . . Nor
                                                    may the police seek to verify their
           A. Florida v. Royer
                                                    suspicions by means that approach the
       In Royer, the Supreme Court held             conditions of arrest.” Id. (citing Dunaway
that there is no obligation to submit to            v. New York, 442 U.S. 200, 207-09
inquiries when approached by police. The            (1979)).
Court also held that refusal to submit to
                                                            The majority notes that Bonner was
police questioning or cooperate with a
                                                    the occupant of a stopped vehicle who “ran
police inquiry does not, without more,
                                                    from the scene of a legitimate traffic stop
furnish the necessary grounds for
                                                    without authorization or consent of the
detention. 460 U.S. at 497-98.
                                                    officers,” and assume that analysis under
       Prior to Terry v. Ohio [],                   Mimms and Wilson is appropriate. Maj.
       any restraint on the person                  Op. at 6 (emphasis added). However,
       amounting to a seizure for                   under Royer, it is irrelevant that Bonner
       the purposes of the Fourth                   left the vehicle without the police officers’
       Amendment was invalid                        authorization. Royer did not condition an
       unless justified by probable                 individual’s right to go on his/her way on
       cause.      Terry created a                  first obtaining police permission. In fact,
       limited exception to this                    conditioning the right to leave a police
       general rule: search and                     inquiry on the street on obtaining
       seizures are justifiable under               “authorization or consent” would totally
       the Fourth Amendment if                      negate Royer’s holding. As the majority
       there is articulable suspicion               correctly notes, a refusal to cooperate with
       that a person has committed                  the police in a consensual encounter,
       or is about to commit a                      without more, can not co nstitute
       crime.                                       reasonable suspicion for a stop. Maj. Op.
                                                    at 9 (quoting Florida v. Bostick, 501 U.S.
                                                    429, 437 (1991)).
Id. at 498 (citations omitted).
                                                            The difficulty with analyzing this
        Thus, the Royer Court reinforced            case stems not from Royer but from
the fact that Terry did not create a license        Illinois v. Wardlow, 528 U.S. 119 (2000).
to detain for investigation in the absence          The Court’s language there creates some
of articulable suspicion. The Court also            tension with its prior holding in Royer
stressed that “[d]etentions may be                  even though the Wardlow Court was
‘investigative’ yet violative of the Fourth         careful to explicitly reaffirm the holding in
Amendment absent probable cause.” Id. at            Royer.
499. “In the name of investigating a

                                               15
          B. Illinois v. Wardlow                    c i r c u m s ta n c e s , a l l o w i n g o f f i c e rs
                                                    “confronted with such flight to stop the
        In Wardlow, the Court held that
                                                    fugitive and investigate further is quite
police properly conducted a Terry stop of
                                                    consistent with the individual’s right to go
an individual who fled after looking in the
                                                    about business or to stay put and remain
direction of an approaching police caravan
                                                    silent in the face of police questioning.”
in “an area known for heavy narcotics
                                                    Id. at 125. “It was in this context that
trafficking.” 528 U.S. at 121. The Court
                                                    [police] decided to investigate Wardlow
summarized Royer as holding “that when
                                                    after observing him flee.” Id. at 124
an officer, without reasonable suspicion or
                                                    (emphasis added). When the pursuing
probable cause, approaches an individual,
                                                    police officer caught Wardlow, he
an individual has a right to ignore the
                                                    immediately conducted a “pat-down search
police and go about his business.” Id. at
                                                    for weapons. . . because in his experience,
125. However, the Court also noted that
                                                    it was common for there to be weapons in
flight is one of the circumstances that must
                                                    the near vicinity of narcotics transactions.”
be considered under Terry. Id. In doing
                                                    Id. at 121-22.
so, however, the Court reiterated that “any
refusal to cooperate, without more, does                    The context here is quite different,
not furnish the minimal level of objective          and we should not be so quick to ignore
justification needed for a detention or             the Supreme Court’s pronouncement in
seizure.” Id. (quoting Florida v. Bostick,          Royer that one who is approached by
501 U.S. 429, 437 (1991)).                          police “need not answer any question put
                                                    to him; he may decline to listen to the
        A close reading of the Court’s
                                                    questions at all and may go on his way.”
opinion in Wardlow resolves any apparent
                                                    Royer, 460 U.S. at 498 (citing Terry v.
tension. It was not Wardlow’s flight that
                                                    Ohio, 392 U.S. 1, 32-33 (1968)). Of
justified his detention. Rather, it was
                                                    course, Bonner did not walk away; he ran.
flight in context with the other
                                                    The Court in Wardlow noted that running
circumstances in that case.             The
                                                    away is more consistent with guilt than
circumstances included the fact that police
                                                    with going about one’s business. 528 U.S.
were “patrolling an area known for heavy
                                                    at 125 (“[U]nprovoked flight is simply not
narcotics trafficking.” Id. at 121. In fact,
                                                    a mere refusal to cooperate. Flight, by its
the police were traveling in a caravan
                                                    very nature, is not ‘going about one’s
“because they expected to find a crowd of
                                                    business’; in fact, it is just the opposite.”).
people in the area, including lookouts and
                                                    That was clearly true in Wardlow’s case
[drug] customers.” Id. As the police
                                                    because the area where he was found, the
caravan approached Wardlow, police saw
                                                    drug activity there and the bag in his hand
him look at them and run, holding a bag as
                                                    combined with his flight to create the
he fled. Given the context, police could
                                                    articulable suspicion required under Terry.
reasonably conclude that he was a drug
                                                    Here, there is only flight, and my
dealer, purchaser, or lookout. Under those

                                               16
colleagues concede that “the Supreme                see the importance of whether the purpose
Court has never held that unprovoked                of the stop had been announced or not as
flight alone is enough to justify a stop.”          the majority’s analysis would surely be the
Maj. Op. at 8.                                      same if Officer Stewart had announced the
                                                    purpose of the stop.                Moreover, an
       I doubt that the Court in Wardlow
                                                    individual who exercises his or her
intended to stretch its focus on running to
                                                    constitutional right to leave a police
the extent that the rule in Royer would be
                                                    officer will inevitably prevent the police
swallowed, especially since the Court
                                                    officer “from controlling the stop” and
disclaimed any such intent. Thus, I am
                                                    completing an investigation. Given the
skeptical that the Supreme Court intended
                                                    o f f i c e r s ’ t e s ti m o n y, our Fo u r t h
to announce a rule under Royer and
                                                    Amendment inquiry must focus on
Wardlow that would cause the Fourth
                                                    Bonner’s flight, not the resultant loss of
Amendment to rest upon the speed with
                                                    control or the inability of police to
which one chooses to leave an officer’s
                                                    announce the reason for the stop.
presence.      Under such a rule the
fundamental guarantees of the Fourth                        Bonner could have been briefly
Amendment would vary with a suspect’s               detained inside of the vehicle, and he
gait. Until the Supreme Court announces             could also have been detained pursuant to
such a rule, I am not willing to conclude           an order to step outside of the vehicle. In
that someone in Bonner’s situation is free          both situations, the detention would be
to walk away from a lawfully stopped                justified by very real concerns about the
vehicle, but not free to walk too quickly           officers’ safety.      That is not what
away or run.                                        happened. The majority’s focus misses the
                                                    point. Absent circumstances that permit
       My colleagues repeatedly stress that
                                                    the kind of detention authorized by Mimms
“Bonner prevented Officer Stewart from
                                                    and its progeny, this case must be analyzed
controlling the stop by running from the
                                                    under the more restrictive lens of Terry,
vehicle before the purpose of the stop was
                                                    Royer, and Wardlow. Under the precedent
even announced.” Maj. Op. at 7.8 I fail to
                                                    of those cases, flight alone does not give
                                                    rise to probable cause, or reasonable
                                                    suspicion. Similarly, police can not rely
   8
     See also Maj. Op. at 6-7 (“[A] police          upon some undefined and untethered
officer has the authority and duty to               notion of “control” to prevent someone
control the vehicle and its occupants”); id         from walking away from an interrogation
at 7, n.1 (“. . .Bonner fled before the             in the absence of probable cause or
purpose of the stop was announced, and              articulable suspicion where circumstances
before the police could exercise the initial
control authorized by Wilson and other
cases.”); id. at 9 (“[Bonner’s] flight              duty of maintaining oversight and control
prevented the police from discharging their         over the traffic stop. . . .”).

                                               17
do not suggest the safety concerns so                Commonwealth of Pennsylvania charged
central to Terry, Mimms and their progeny.           Bonner with possession with the intent to
Of course, as I explain above, it is not the         distribute crack cocaine as well as several
arresting officers here who attempt to               misdemeanors and summary offenses.
explain Bonner’s arrest in terms of                  Defending himself in the Court of
“control”; it is the majority. The officers          Common Pleas, Bonner moved to suppress
quite simply state that Bonner was arrested          the physical evidence seized from him
because he ran; and so he was.                       upon his arrest. He argued that the police
                                                     lacked reasonable suspicion to initially
        Today we therefore hold that
                                                     detain him. Following a hearing on his
“[f]light from a nonconsensual, legitimate
                                                     suppression motion, the Court of Common
traffic stop (in which the officers are
                                                     Pleas granted Bonner’s motion and
authorized to exert superintendence and
                                                     suppressed the evidence that was seized
control over the occupants of the car) gives
                                                     from him on November 29, 2001.
rise to reasonable suspicion.” Maj. Op. at
9. This is a troubling resolution of a close                The Commonwealth thereafter
and difficult case. Reasonable minds can             appealed the court’s suppression order to
easily disagree about the application of             the Superior Court.       However, the
Wardlow and Royer to the circumstances               Commonwealth was not content to wait
here. In the final analysis, it may well be          until the state appellate court could
that the Supreme Court will resolve the              resolve its appeal. On March 13, 2002,
tension I see between those two cases.               Bonner was indicted in federal court for
However, until that day comes, I simply              possessing a controlled substance with
can not agree with the majority’s                    intent to distribute. App. at 4, 9. The
application of Supreme Court precedent.              Commonwealth thereafter withdrew its
                                                     appeal before the Superior Court of
  III. The Procedural Posture of this
                                                     Pennsylvania could rule on it.
             Prosecution
                                                            The state suppression ruling was
        There is an additional, and
                                                     based upon that court’s interpretation of
troubling aspect of this case that requires a
                                                     the Pennsylvania Constitution and the
brief comment.         Inasmuch as the
                                                     ruling of the district court is, of course,
possession of the controlled substance
                                                     based upon the U nited S tates
found in Bonner’s possession after his
                                                     Constitution.9 Accordingly, the Rooker-
arrest constituted an offense under both
state and federal law, prosecutors initially
had the option of prosecuting him in state
                                                        9
court or in federal court. For reasons not               The Pennsylvania Supreme Court has
apparent on this record, prosecutors                 held that Art. I, § 8 of the Pennsylvania
initially filed state charges and he was             Constitution affords greater protection
prosecuted in state court where the                  than the Fourth Amendment of the United
                                                     States Constitution despite the almost

                                                18
Feldman doctrine is not implicated by               cooperation and communication between
what can best be described as a                     state and federal prosecutors who executed
prosecutorial “switchero o.” 10                     this hand-off in order to execute an end
Nevertheless, I am still concerned that             run around the adverse decision of the
state and federal prosecutors apparently            Court of Common Pleas. Although we
chose to shift this case to federal court           have jurisdiction here and must exercise it,
while the appeal of the state court’s               this procedural history does not reflect
suppression order was pending. I think it           well on the criminal justice system and
fair to assume a significant level of               undermines the appearance of fairness so
                                                    important to its proper functioning. “[T]o
                                                    perform its high function in the best way[,]
identical language of the two constitutional        ‘justice must satisfy the appearance of
prov isions. See Commonw ealth v.                   justice.’” In re Murchison, 349 U.S. 133,
Edmunds, 526 Pa. 374, 398 (1991)                    136 (1955) (quoting Offutt v. United
(refusing to adopt a good faith exception           States, 348 U.S. 11, 14 (1954)). In the
to the warrant requirement as set forth in          future, I would hope that concern for the
United States v. Leon, 468 U.S. 897                 appearance of fairness will constrain
(1984)).                                            prosecutors from engaging in the kind of
    10                                              unexplained tactical manipulation that
       See District of Columbia Court of
                                                    appears so evident here.
Appeals v. Feldman, 460 U.S. 462, 482
(1983); Rooker v. Fidelity Trust Co., 263
U.S. 413, 415-16 (1923). See also
Williamson B.C. Chang, Rediscovering the
Rooker Doctrine, 31 H ASTINGS L.J. 1337,
1350 (1980) (“[I]f [federal and state] trial
courts could readily annul the judgments
of each other on the merits, the
prerequisite of finality in the judicial
system would be destroyed.”); 18 JAMES
W M. M OORE ET AL., M OORE’S F EDERAL
P RACTICE ¶ 133.30[3][a] (3d ed. 2003).
        Under Rooker-Feldman, lower
federal courts cannot entertain a
constitutional claim if it has been
previously adjudicated in state court, or if
the relief requested in the claim requires
either determining that the state court's
decision is wrong or voiding the state
court’s ruling. Gulla v. North Strabane
Twp., 146 F.3d 168, 171 (3d Cir. 1998).

                                               19
