                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-29-2007

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Precedential or Non-Precedential: Non-Precedential

Docket No. 05-4056




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                                                               NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT


                                     No. 05-4056


                          UNITED STATES OF AMERICA

                                          v.

                                 LAMONT COKER,

                                               Appellant



                     Appeal from the United States District Court
                        for the Eastern District of Pennsylvania
                       (D.C. Criminal Action No. 04-cr-00659)
                     District Judge: Honorable Timothy J. Savage


                      Submitted Under Third Circuit LAR 34.1(a)
                                   March 6, 2007

                   Before: SLOVITER and AMBRO, Circuit Judges
                            THOMPSON,* District Judge

                            (Opinion filed: March 29, 2007)



                                      OPINION


AMBRO, Circuit Judge


   *
   Honorable Anne E. Thompson, Senior United States District Judge for the District of
New Jersey, sitting by designation.
       Lamont Coker pled guilty to one count of possession of a firearm by a convicted

felon in violation of 18 U.S.C. § 922(g)(1), and was sentenced to a prison term of 192

months followed by five years of supervised release. He appeals to us on two issues: (1)

whether the District Court erred in denying his motion to suppress the firearm found in

the vehicle in which he was a passenger as well as statements made by him to law

enforcement officers following his arrest; and (2) whether the Government presented

sufficient evidence at the sentencing hearing to classify him as an armed career criminal.

We affirm the District Court’s rulings.

I. Background

       On the afternoon of July 20, 2004, Police Officers Donald Liebsch and Rahim

Montgomery were located near the intersection of Germantown Avenue and Clearfield

Street in Philadelphia, Pennsylvania when they heard gunshots. Already in their police

car, the two officers rushed to Germantown and Allegheny Avenues and saw a black

male, later identified as Jorge Prado, standing on the running board of a Cadillac Escalade

firing a gun. Officer Liebsch, gun drawn, ordered Prado to drop his weapon. Prado

complied and was immediately placed on the ground and put in handcuffs.

       Prado then pointed to a Crown Victoria as well as a Ford Taurus with Georgia

license plates, told the officers to “get those guys,” and indicated that each car was

involved in the incident. Officer Montgomery and a third police officer quickly took the

occupants of the Crown Victoria into custody near the scene of the shooting. The officers


                                             -2-
observed two guns inside that car. Liebsch, having already broadcast flash information

over the police radio about the Taurus, amended his broadcast to warn that the occupants

of the Taurus should be considered armed and dangerous.

       A few minutes after Liebsch’s broadcast, Police Officer Chauncey Ellison,

working with his partner, Officer Michael Alexander, noticed a black male walk away

from the area of the shootout and enter a gold Taurus with Georgia plates. The officers,

who were in an unmarked vehicle and in plain clothes, followed the car as it drove away.

       Officer Patrick Sitek, while in police headquarters, also heard Liebsch’s radio

transmission. Consequently, Sitek and his fellow officers joined in the pursuit of the

Taurus. Sitek saw the car near the intersection of Rising Sun Avenue and Marshall

Street. The officer maneuvered his car to block the Taurus’ passage. Sitek then got out

of his car, drew his gun, jumped on the hood of the Taurus, and ordered the occupants to

get out. Both the driver and the passenger, later identified as Coker, made furtive

movements below the dashboard that indicated to the officer that each occupant was

trying to reach for something. They eventually raised their hands after the officer

commanded them to do so several times.

       Coker and the driver were removed from the passenger compartment, placed in

handcuffs, and escorted to the back seat of Officer Ellison’s car. While in the police

vehicle, Coker was asked his name and address by Officer Ellison. Coker answered and

asked if he was going to be charged with gun possession. While Ellison was asking

Coker questions (without any Miranda warnings), Officer Sitek entered the Taurus and

                                            -3-
searched the passenger side glove compartment. He found a 9mm handgun. Coker was

promptly arrested and taken to the police station. He was interviewed there by Detective

Glenn Via and, after voluntarily waiving his Miranda rights, Coker admitted that he

possessed the handgun in order to kidnap Prado and hold him for ransom.

       Prior to trial Coker moved to suppress the handgun and any statements made at the

police station. The District Court denied the motion. Coker then entered a conditional

guilty plea reserving the right to appeal both the ruling on the motion to suppress and any

sentence the Judge may impose. At the sentencing hearing the District Court adopted the

findings contained in the Presentence Report. It noted that the base offense level for

Coker’s crime under the federal Sentencing Guidelines was 24. It was increased to 28

because Coker possessed the firearm during an attempted kidnapping. The Judge

increased another six points to 34 because Coker is deemed an armed career criminal

under U.S.S.G. § 4B1.4(b)(3)(A) in light of three prior convictions for serious drug

offenses. This number was reduced to 32 because Coker accepted responsibility. The

resulting Guideline range was 210 to 262 months. The Judge ultimately sentenced Coker

to 192 months, a sentence below the Guideline range but above the fifteen year minimum

sentence required in 18 U.S.C. § 924(e)(1).




                                              -4-
II. Discussion

A. Suppression of Evidence

       Coker argues that the information the police received prior to stopping the Taurus

was insufficient to justify an investigatory stop. In addition, he contends that police

actions following the stop amounted to an arrest, not an investigatory stop, thereby

requiring a showing of probable cause.

       An investigatory (or Terry) stop requires only that the police have a reasonable

suspicion based on articulable facts that a crime has been committed, Terry v. Ohio, 392

U.S. 1, 21 (1968), whereas the arrest of a suspect requires that the police have probable

cause to do so, a more stringent standard. Illinois v. Wardlow, 528 U.S. 119, 123 (2000).

The District Court denied Coker’s motion to suppress because the police had a reasonable

suspicion based on articulable facts to justify the initial stop and because the officers’

actions following the stop did not transform a valid investigatory stop into an arrest.1 We

review the District Court’s denial of a motion to suppress for clear error as to the

underlying factual findings and we exercise plenary review over any question of law.

United States v. Coward, 296 F.3d 176, 179 (3d Cir. 2002).




   1
     The District Court alternatively ruled that Coker did not have standing to challenge
the search. It reasoned that a passenger who neither owns nor leases the car does not have
standing to challenge its search. Rakas v. Illinois, 439 U.S. 128, 132-34 (1978); United
States v. Baker, 221 F.3d 438, 442 (3d Cir. 2000). We need not discuss this issue since
the District Court’s denial of Coker’s motion to suppress is justified on another ground.

                                              -5-
       As for whether the police have reasonable suspicion to believe that “criminal

activity may be afoot” when they do an investigatory stop, information given to the police

by a witness or an informant can justify such a stop if the information is reliable. Adams

v. Williams, 407 U.S. 143, 146-47 (1972). According to the Supreme Court and our

Court, a witness’ recent report carries with it a strong indicia of reliability. See id.

United States v. Nelson, 284 F.3d 472, 482 (3d Cir. 2002). Additionally, information

obtained by the police via face-to-face contact is more reliable because “the officer has an

opportunity to assess the informant’s credibility and demeanor.” United States v.

Valentine, 232 F.3d 350, 354 (3d Cir. 2000). An informant’s reliability also increases

when information provided to police is later corroborated. See Alabama v. White, 496

U.S. 325, 332 (1990).

       Coker incorrectly argues that the information the officers relied on was insufficient

and too unreliable to warrant their stop of the Taurus. Officer Liebsch saw Prado

involved in a gunfight. Prado then informed the officer that men driving a Crown

Victoria and a Taurus with Georgia license plates were trying to get him. Based on

Prado’s tip, a Crown Victoria was stopped near the scene of the incident and two guns

were retrieved. This seizure corroborated much of Prado’s account of the incident,

making it reasonable for the officers to conclude that the information concerning the

Taurus’ involvement in the incident was also accurate. Officer Liebsch therefore acted

reasonably in believing that the passengers in the Taurus may be armed. This belief not

only justifies, but warrants, an investigatory stop of it.

                                              -6-
       The fact that Officer Liebsch (the officer who received the information directly

from Prado) did not actually stop the Taurus is irrelevant. Our analysis “does not turn on

whether those relying on the [bulletin] were themselves aware of the specific facts which

led their colleagues to seek their assistance,” but instead turns on whether the officer who

issued the bulletin had a reasonable suspicion. United States v. Hensley, 469 U.S. 221,

231 (1985). As stated above, Officer Liebsch had a reasonable suspicion that the

occupants of the Taurus were involved in the gunfight with Prado and that the vehicle’s

passengers were armed. Relying on Liebsch’s alert, Officer Sitek and his fellow narcotics

officer were justified in stopping the Taurus. Supreme Court precedent does not require

the officer who relied on the alert, specifically Officer Sitek, to have independent

information that would warrant the investigatory stop. Id.

       The officers’ actions following the stop were also proper within the context of an

investigatory stop. When making such a stop, police officers “may take such steps as are

‘reasonably necessary to protect their personal safety and to maintain the status quo

during the course of the stop.’” United States v. Edwards, 53 F.3d 616, 619 (3d Cir. 1995)

(quoting Hensley, 469 U.S. at 235). Specifically, an officer may search

       the passenger compartment of an automobile, limited to those areas in which a
       weapon may be placed or hidden . . . if the officer possesses a reasonable belief
       based on specific and articulable facts which, taken together with rational
       inferences from those facts, reasonably warrant the officer in believing that the
       suspect is dangerous and the suspect may gain immediate control of weapons.

Michigan v. Long, 463 U.S. 1032, 1049-50 (1983) (internal quotations and citations

omitted). Long further states that it is irrelevant whether the occupants of the vehicle

                                             -7-
have been removed from the car before the search is conducted, because “if the suspect is

not placed under arrest, he would be permitted to reenter his vehicle and he will then have

access to any weapons inside.” Id. at 1051.

       After Officer Sitek blocked the Taurus’ passage he got out of his car, jumped on

the hood of the suspects’ vehicle with his gun drawn, and ordered both passengers to put

their hands up. The officer observed both the passenger and driver make furtive

movements toward the floor of the car. Based on the alert issued by Liebsch that the

passengers of the Taurus may be armed, it was reasonable for Officer Sitek to believe that

the occupants of the car were reaching for weapons. After they were removed from the

car, Officer Sitek conducted a limited search of the passenger compartment based on his

reasonable suspicion that Coker, et al., were reaching for weapons during the initial

confrontation. In the glove compartment, Officer Sitek found a 9mm handgun. These

actions were reasonable to protect the safety of all of the officers at the scene because

both occupants of the Taurus were not yet under arrest and would have eventually been

allowed to reenter their vehicle, giving them access to the handgun. In this context the

officer’s limited search of the automobile contemporaneously with a valid investigatory

stop is reasonable.

       Coker’s final argument is that a Terry analysis does not apply here because the

officers’ actions when they stopped the vehicle went beyond a mere investigatory stop to

an arrest that lacked probable cause. This argument plays out as follows: the officers’ act

of blocking the Taurus’ passage, Sitek’s act of jumping on the hood with gun drawn and

                                              -8-
handcuffing Coker and removing him from the car, in the aggregate, resulted in a de facto

arrest. As stated, police “may take such steps as are reasonably necessary to protect their

personal safety and maintain the status quo during the course of a stop.” Edwards, 53

F.3d at 619 (internal quotations and citations omitted). Most courts, including ours, have

concluded that blocking a suspect’s vehicle even with guns drawn is not an arrest per se.

Id. at 619-20; see also United States v. Perea, 986 F.2d 633, 636, 644 (2d Cir. 1993)

(blocking suspect’s car with three unmarked cars and approaching with weapons drawn

was not an arrest). Also, “there is no per se rule that pointing guns at people or

handcuffing them constitute[s] an arrest.” Baker, 50 F.3d at 1193. However, the use of

guns and handcuffs during an investigatory stop must be justified, and we are required to

look “at the intrusiveness of all aspects of the incident in the aggregate.” Id. This

includes the length and the scope of the detention. Edwards, 53 F.3d at 620 (citing Baker,

50 F.3d at 1192).

       The officers had ample justification to draw their weapons after they stopped the

Taurus. They had reliable information that the vehicle was involved in a shootout earlier

in the day with another vehicle. As Officer Sitek approached the car and jumped on the

hood he saw the car’s occupants reaching toward the floor. The officer was reasonable to

assume that both Coker and the driver were reaching for a gun. Placing them in

handcuffs thus was justified for officers’ safety.

       There is also no evidence in the record that Coker’s detention was unreasonably

long. As noted, following the stop he was handcuffed and placed in the back of a police

                                             -9-
car. When Officer Sitek found the handgun in the glove compartment of the Taurus he

had probable cause to arrest Coker, and he did so. We detect nothing indicating that the

actions of the police before the arrest went beyond an investigatory stop.2

        We conclude that the officers had reasonable suspicion to stop the Taurus. Their

actions following the stop were proper and did not turn an investigatory stop into an

arrest. As the search and seizure were constitutional, the statements made to the police

following the arrest will not be suppressed. Accordingly, the District Court properly

denied Coker’s motion to suppress both the gun and the statements made to the police.

B. Sentencing

       Coker also asserts that the evidence presented by the Government at sentencing was

insufficient to establish the application of the armed career criminal enhancement. The

Armed Career Criminal Act, 18 U.S.C. § 924(e), imposes a 15-year term of imprisonment

on defendants who are convicted under 18 U.S.C. § 922(g)(1) of possessing a firearm and

who have three prior convictions for a serious drug offense.3 Coker does not deny his

three previous controlled substance convictions in Pennsylvania. He instead challenges

the evidence the District Judge relied on to make the determination that Coker was indeed

   2
     Because we agree with the District Court that the officers’ actions did not transform
the Terry stop into an arrest, it is unnecessary for us to consider whether there was
probable cause to arrest Coker before the gun was found in the glove compartment. See
Edwards, 53 F.3d at 619.
   3
     A serious drug offense is defined as “an offense under State law, involving
manufacturing, distributing, or possessing with intent to manufacture or distribute, a
controlled substance…for which a maximum term of imprisonment of ten years or more
is prescribed by law.” 18 U.S.C. § 924(e)(2)(A)(ii).

                                            -10-
an armed career criminal.

       The fact of prior convictions is not an element of the crime and need not be found

by a jury. See Almendarez-Torres v. United States, 523 U.S. 224, 239-248 (1998); United

States v. Ordaz, 398 F.3d 236, 240-41 (3d Cir. 2005). There is no per se rule that

certified copies of judgments of conviction are required before a judge “may determine

that the defendant’s prior convictions are for [serious drug offenses] within the meaning

of [18 U.S.C. § 924(e)(2)(A)(ii)].” United States v. Watkins, 54 F.3d 163, 168 (3d Cir.

1995). That a criminal defendant was previously convicted of a crime may be confirmed

by the terms of the plea agreement, the charging document, the transcript of colloquy

between judge and defendant, or some other comparable judicial record of this

information. See Shepard v. United States, 544 U.S. 13, 16 (2005) (holding that inquiry

under the Armed Career Criminals Act to determine statutory elements of prior

conviction is limited to judicial records and may not include documents that simply

purport facts, like police reports).

       The District Court here was presented during the sentencing hearing with the bill

of information and the criminal complaint outlining three previous convictions in the

Philadelphia Court of Common Pleas. Each document, certified by the Philadelphia

Court of Common Pleas and given to the District Court, shows that Coker was convicted

three separate times for controlled substance crimes involving cocaine base. The

information provided in these documents “enabled the district court to ascertain with

certainty the statutes of conviction [35 Pa. Cons. Stat. § 780-113(a)(3))] and [that] the

                                            -11-
statutes of conviction encompass only conduct that falls within” the definition of “serious

drug offense.” Watkins, 54 F.3d at 168.

       Coker’s reliance on Shepard to argue that the Government did not adequately

prove the fact of convictions is misplaced. The District Court did not look outside the

judicial record to determine if Coker’s previous three convictions were serious drug

offenses. The statute he violated multiple times and the court documents provided by the

Government at sentencing were sufficient to make such a determination.

                                     *    *    *     *   *

       We affirm the District Court’s decision not to suppress evidence and Coker’s

sentence.




                                              -12-
