                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-27-2008

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Precedential or Non-Precedential: Non-Precedential

Docket No. 06-1250




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"USA v. Holyfield" (2008). 2008 Decisions. Paper 1521.
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                                                            NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT

                                     ___________

                                     No. 06-1250
                                     ___________

                            UNITED STATES OF AMERICA

                                          vs.

                               CEDANO HOLYFIELD

                                      Appellant.
                                     ___________

                   On Appeal from the United States District Court
                        for the Western District of Pennsylvania
                           (D.C. Criminal No. 04-cr-00035-1)
                 District Judge: The Honorable Thomas M. Hardiman
                                     ___________

                             ARGUED November 1, 2007


            BEFORE: RENDELL, WEIS, and NYGAARD, Circuit Judges.


                               (Filed: February 27, 2008)
Karen S. Gerlach, Esq.
Renee Pietropaolo, Esq.(Argued)
Office of the Federal Public Defender
1001 Liberty Avenue
1450 Liberty Center
Pittsburgh, PA 15222
       Counsel for Appellant


Robert L. Eberhardt, Esq.
Laura S. Irwin, Esq. (Argued)
Office of the United States Attorney
700 Grant Street, Suite 4000
Pittsburgh, PA 15219
       Counsel for Appellee

                                       ___________

                                OPINION OF THE COURT
                                     ___________


NYGAARD, Circuit Judge.

                                              I.

       Cedrano Holyfield pleaded guilty to three counts of a four-count indictment

alleging various criminal charges stemming from a drug sale. His plea was conditional,

retaining the right to appeal the following issue: "Whether the District Court erred in

refusing to suppress the evidence seized from the car in which he was a passenger or from

his person." For the reasons that follow, we will affirm.

                                             II.

       Early one afternoon, Pittsburgh Police Detective Covington was conducting

surveillance of Lakeesha Harris in the parking lot of a Sunoco gas station. Detective

Covington was well-acquainted with Ms. Harris, having personally arrested her several

times for drug-related crimes. Harris was sitting in the driver's seat of her vehicle, which

was parked by the air pump with the hood up. Detective Covington was in an unmarked

vehicle parked a car-length or more away from Harris' car. Detective Covington was

supported by a “take-down team,” which consisted of Detectives Wydra and Klahre and
Officer Epler, who remained in an unmarked vehicle parked in an alley behind the station.

Four other officers were also parked in two squad cars a short distance from the station.

Detective Covington communicated his observations to the take-down team via two-way

radio.1

          Detective Covington observed Harris for approximately 45 minutes, during which

time she remained in her vehicle but made several calls on her cellular phone. During this

time, no one approached the vehicle to talk to Harris. After 45 minutes, a dark blue

Honda pulled into the Sunoco parking lot, driven by Holyfield. Holyfield was

accompanied by one passenger. Holyfield parked the Honda and walked toward Harris'

Ford. Detective Covington observed large bulges in each of Holyfield's pockets.

Holyfield then got into the front passenger seat of Harris' vehicle and engaged in a brief

conversation with her which Detective Covington was unable to hear. Holyfield next

reached into his pocket with his left hand and pulled out a large plastic shopping bag.

Detective Covington described each of these actions to the take-down team in

“play-by-play” fashion.




                1
                 The authorities’ presence at the Sunoco station resulted from an
anonymous tip that Lakeesha Harris would be purchasing a large quantity of crack
cocaine. The Government conceded at oral argument that the anonymous tip could not
serve as sufficient probable cause or reasonable suspicion to search or seize the
Defendant. We agree. Reasonable suspicion is predicated exclusively upon what
Detective Covington and the other officers witnessed while in a public place where they
had an unquestionable right to be.


                                          Page -3-
       Believing that a drug deal was taking place, Detective Covington called in the

take-down team. Within approximately ten seconds, Officer Epler and the other

detectives arrived at the Sunoco in their unmarked vehicle, accompanied by uniformed

police officers in squad cars. Sergeant Epler and Detective Wydra approached Harris'

vehicle on foot. Sergeant Epler had his gun drawn, and Detective Wydra yelled

“Pittsburgh Police!” while displaying his badge. Upon seeing the take-down team

approach, Holyfield tossed the plastic shopping bag onto the rear seat of Harris' vehicle.2

Detective Covington informed the take-down team that Holyfield tossed the bag. Sergeant

Epler approached the driver's side of Harris' vehicle and saw a gray plastic “Family

Dollar” shopping bag sitting on the rear seat. The bag was partially open and Sergeant

Epler could see a smaller baggie containing a small chunk of crack cocaine protruding.

After Sergeant Epler informed Detective Wydra that crack cocaine was in the back seat of

Harris' vehicle, Detective Wydra ordered Holyfield out of the vehicle, handcuffed him,

and searched him. He found a .40 caliber Glock semi-automatic pistol in Holyfield's

right front pocket. Sergeant Epler recovered the large shopping bag and discovered that it

              2
                 Although the Government contends that the officers had not left their
vehicle when Holyfield threw the bag onto the back seat, the record is ambiguous on this
point. Detective Covington testified, “[t]hey [the officers] were in the parking lot. He saw
them coming, then he tossed the bag. I don't know exactly how far they were to their car.
But he didn't toss the bag until he saw them coming.” (R. 67). Sergeant Epler could not
remember how the bag got into the back seat. (R. 75). Detective Wydra testified that
when approaching the vehicle on foot he was aware through a radio transmission that a
bag had been thrown onto the rear seat, but did not specify exactly when that radio
transmission was received. (R. 78).


                                          Page -4-
contained four baggies of crack cocaine. The detectives then asked Holyfield if he would

consent to the search of his Honda. He refused, saying that there wasn't anything in the

car and that the car “did not have anything to do with it.” Holyfield later said, “I don't

care if y'all search, but y'all have to get consent from Chaz,” the passenger in Holyfield's

car whose real name is Charles Coleman.

                                             III.

       In addressing whether an unconstitutional seizure occurred, we apply the clear

error standard with respect to the factual findings.3 See United States v. Kiam, 432 F.3d

524, 527 (3d Cir.2006). With respect to the ultimate legal question of whether a seizure

occurred, we exercise plenary review. Although our standard of review is plenary, we are

mindful that a district court is always at an institutional advantage in reviewing a Terry-

stop because it has observed the testimony of witnesses and has a particular understanding

of local conditions and situations when making its determination. See Ornelas v. United

States, 517 U.S. 690, 698 (1996).

                                             IV.



              3
                  Holyfield devotes a large part of his brief to contesting the District
Court's findings of fact. Throughout his brief, Holyfield challenges what he perceives to
be "factual errors" of the District Court. As we have indicated, on an appeal of a district
court's denial of a motion to suppress, we review the court's finding of the underlying
facts for clear error and accord plenary review to its application of the law to those facts.
See United States v. Givan, 320 F.3d 452, 458 (3d Cir.2003). We have found no clear
error in the District Court's factual findings. The District Court explained the basis for
these findings thoroughly, and they are well supported in the record.


                                           Page -5-
       Holyfield raises three arguments on appeal: first, he maintains that what began as

a Terry-stop escalated into a de facto arrest for which probable cause was lacking;

second, that there was no probable cause for the Terry-stop in the first place; and finally,

that because his stop and arrest violated the Fourth Amendment to the Constitution, all

the evidence thereby gained should have been suppressed by the District Court. We first

review Holyfield’s contention that the police had insufficient information to support the

investigatory stop.

                                             A.

       The Fourth Amendment permits the police to conduct “a brief, investigatory stop

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

Illinois v. Wardlow, 528 U.S. 119, 123 (2000). To determine whether the circumstances

support an investigatory stop, we take into account the “totality of the circumstances —

the whole picture.” United States v. Cortez, 449 U.S. 411, 417-18 (1981). Under this

approach, “even factors independently ‘susceptible to innocent explanation’ can

collectively amount to reasonable suspicion.” United States v. Brown, 448 F.3d 239, 252

(3d Cir. 2006). Also, police officers may rely on “their own experience and specialized

training to make inferences from and deductions about the cumulative information

available to them, that ‘might well elude an untrained person.’” United States v. Arizu,

534 U.S. 266, 273 (2000).




                                          Page -6-
       Under this standard, we hold that the District Court properly determined that the

police had sufficient information to justify the investigatory stop at issue here. The

reasonable suspicion was based on Detective Covington's observations of Harris, whom

he knew to have been involved in drug rings, giving the illusion of car trouble at the gas

station but making no effort to fix her car or the situation. Detective Covington also

observed Holyfield approaching Harris' car with "bulging pockets." Further, instead of

making an attempt to help with the car, or walking up to the driver’s side of Harris' car,

Detective Covington watched as Holyfield went directly into the front passenger seat;

and, after a brief conversation, he pulled a large shopping bag from his bulging pocket.

The District Court concluded that, “[i]n light of [the detective's] personal knowledge of

Harris' drug-trafficking history, the dubious nature of her car trouble, and Holyfield's

conduct, the reasonable observer sitting in [the detective's] position would conclude that

‘criminal activity may be afoot.’ Accordingly, [the detective] was justified in ordering

the take-down team to enter the gas station.” District Court opinion at A6 (citation

omitted).

       We agree. The totality of the circumstances here show that Detective Covington

did possess reasonable cause to believe that criminal activity might be happening. Many

of the factors typically used to justify a Terry-stop are present here. For example, Harris'

and Holyfield's conduct conformed to criminal profiles. Although Holyfield maintains

that neither he nor Harris acted "nervous or evasive," their actions speak otherwise.



                                          Page -7-
Holyfield threw the bag of drugs into the back seat of the vehicle as officers approached,

and Harris exited the vehicle and attempted to escape. Detective Covington was

accompanied by four other officers when he confronted Harris and Holyfield, and there is

no evidence that the site of the confrontation was poorly lit --- indeed it was in the middle

of the day. Most importantly, though, Detective Covington saw bulges in Holyfield's

clothing that could suggest that he was carrying drugs. While on its own, "bulges" in

someone's pants cannot create a reasonable suspicion, it can be considered in conjunction

with other factors under the totality of the circumstances. See e.g. United States v.

Linkous, 285 F.3d 716, 720-21 (8th Cir. 2002) (reasonable suspicion established due to,

inter alia, bulge in pants).

       Finally, we note that the police officers were at that particular location because of

an anonymous tip.     The contents of this tip are not part of the record but the existence of

the tip is. Although the District Court did not factor the tip’s contents into its reasonable

suspicion analysis, the existence of the tip itself is part of the totality of the circumstances

surrounding Holyfield’s arrest, and explains the officers’ presence at and surveillance of

the gas station.

       When viewed through the prism of these officers’ experience, the totality of the

circumstances raised reasonable suspicion that the Appellant was engaging in criminal

activity. See Cortez, 449 U.S. at 417-18. It was not necessary for the police to have reason

to believe Holyfield had drugs in his car. It was sufficient that they had a reasonable



                                            Page -8-
suspicion that he was currently involved in illegal drug transactions in Harris' car. We

find no error in the District Court’s conclusion.

                                             B.

       Next, we turn to Holyfield’s argument that the police officers’ actions in detaining

him amounted to a de facto arrest for which they lacked probable cause. Although we

find his argument meritless, we recognize that the line between a proper Terry stop and an

improper de facto arrest is elusive and not easily drawn. See United States v. Sharpe, 470

U.S. 675, 685 (1985).

       In considering whether a stop is “so minimally intrusive as to be justifiable on

reasonable suspicion,” id. (quoting United States v. Place, 462 U.S. 696, 709 (1983)), we

consider the duration of the stop, the law enforcement purposes justifying the stop,

whether the police diligently sought to carry out those purposes given the circumstances,

and alternative means by which the police could have served their purposes. Id. at 684-87.

In determining whether a person has been “seized” for the purposes of the Fourth

Amendment, the Supreme Court has instructed that: “a person has been ‘seized’ within

the meaning of the Fourth Amendment only if, in view of all the circumstances

surrounding the incident, a reasonable person would have believed that he was not free to

leave.” United States v. Mendenhall, 446 U.S. 544, 554 (1980). See also Florida v.

Bostick, 501 U.S. 429, 435 (1991) (“When police attempt to question a person who is

walking down the street or through an airport lobby, it makes sense to inquire whether a



                                          Page -9-
reasonable person would feel free to continue walking.”). Here, we think it fair to

conclude that a reasonable person in Holyfield’s position would not have felt free to

leave. That belief, however, does not negate a conclusion that Holyfield was being

detained for a Terry-search instead of being actually arrested. As we have explained, a

suspect is not free to leave during a Terry-stop just as he or she is not free to leave once

arrested. United States v. Edwards, 53 F.3d 616, 619-20 (3d Cir. 1995).

       We have also taken into consideration the locale of the encounter, United States v.

Lockett, 406 F.3d 207, 211 (3d Cir. 2005), whether the officers controlled or blocked the

person's movement, id., whether the encounter involved physical force or show of

authority; Williams, 413 F.3d at 352; and the length of the detention, Edwards, 53 F.3d at

620. We construe the record in the light most favorable to the Government. United

States v. Riddick, 156 F.3d 505, 509 (3d Cir. 1998).

       Under an objective standard of reasonableness, the police did not subject Holyfield

to a de facto arrest. When making an investigatory 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.’ ” Edwards, 53 F.3d at 618 (quoting United

States v. Hensley, 469 U.S. 221, 235, 105 S.Ct. 675, 83 L.Ed.2d 604 (1985)). “Under the

Terry cases, the reasonableness of the intrusion is the touchstone, balancing the need of

law enforcement officials against the burden on the affected citizens and considering the

relation of the policeman's actions to his reason for stopping the suspect.” Id. (quoting



                                          Page -10-
Baker, 50 F.3d at 1192). Relevant to the specific context of this case is our prior

acknowledgment that “[t]here is no per se rule that pointing guns at people, or

handcuffing them, constitutes an arrest.” Baker, 50 F.3d at 1193 (citing cases). The “use

of guns and handcuffs must be justified by the circumstances,” however, and “we must

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

       The encounter at issue here took place in an open area, during day light hours — as

was the case in Lockett, supra., 406 F.3d at 211. Further, the record does not show that

police blocked Harris' car (in which Holyfield sat as a passenger). The record only

indicates that other officers arrived in their vehicles, but does not indicate that Harris's

vehicle was blocked or trapped. And, even if they had blocked the car's egress, the police

may still conduct an investigatory stop by blocking a vehicle in which the criminal

suspect is riding, and may approach the vehicle with weapons at the ready on a reasonable

suspicion that its occupants are armed. See e.g. United States v. Jackson, 918 F.2d 236,

238 (1st Cir.1990). Further, no direct physical force was used against Holyfield.

Additionally, the fact that the police officers had their guns drawn does not convert this

stop into a de facto arrest. See Baker, 50 F.3d at 1193.

       Second, There is nothing in the record to indicate that the police delayed in acting

or subjected Holyfield to any duration of time that might raise appropriate questions about

the duration of the Terry-stop. Nor is there any indication that Holyfield was detained for

any longer period of time than was necessary to allow the officers to perform a careful



                                           Page -11-
check to satisfy themselves that there was no danger from accessible weapons and to

“confirm or dispel their suspicions quickly.” See United States v. Sharpe, 470 U.S. 675,

682 (1985). Moreover, this is not a case in which a significant period of time elapsed

between the initial stop of the car and the discovery of contraband. Cf. United States v.

Sowers, 136 F.3d 24, 28 (1st Cir. 1998) (“Even though at least thirty minutes elapsed

between the time of the stop and the discovery of what appeared to be contraband, we see

no basis for disrupting the district court's founded conclusion that no de facto arrest

transpired.”).

       Under these circumstances, we cannot say that the District Court erred by

concluding that a reasonable person, standing in Holyfield's shoes, would have

understood that he was being briefly detained for inquiry and investigation, not arrested.

See Berkemer v. McCarty, 468 U.S. 420 (1984). Several aspects of the initial stop support

the District Court’s conclusion. First, at no time before the drugs and weapons were

discovered was Holyfield placed in handcuffs. Second, there is no evidence that Holyfield

was treated harshly by the officers or physically handled beyond the limited pat-frisk

officers conducted immediately after Holyfield was removed from the car. Third, none of

the officers told Holyfield that he was under arrest until after the contraband was seized.

Finally, all of the events-including the search of the car and the interrogation of its

occupants-took place on a public street — indeed at a public gas station. The totality of




                                          Page -12-
the circumstances demonstrates that there was a valid Terry-stop. The District Court did

not err by denying Holyfield's motion to suppress the evidence.

                                             C.

       As a final argument, Holyfield argues that the police lacked probable cause to

arrest him. Therefore, he argues, all evidence and statements obtained or derived from

the initial arrest and stop should have been suppressed. This argument is meritless.

The officers possessed a reasonable suspicion of criminal activity sufficient to justify a

Terry-stop of Holyfield. After executing this investigatory stop, the officers had probable

cause to arrest Holyfield based on Harris' questionable behavior; the bulges in Holyfield's

pockets, Holyfield's behavior in approaching Harris' car (not acting like he was there to

help with her car trouble, but proceeding directly into the passenger seat), Holyfield's

removal of a bulge from his pocket, and then – as the officers approached – throwing the

bag into the back seat, Harris' fleeing the scene, and Officer Epler's plain view

observation of the crack cocaine in the back seat of the car.

       Particularly noteworthy is that the crack cocaine was in plain view. Our decision in

United States v. Menon, 24 F.3d 550, 559 (3d Cir. 1994) is controlling. In Menon, we set

forth three requirements for plain view seizures. First, the officer must not have violated

the Fourth Amendment in arriving at the place where the evidence was in plain view.

Officer Epler – who discovered the evidence – was lawfully present at the gas station.




                                          Page -13-
       Second, the incriminating character of the evidence must be "immediately

apparent. Id. Epler testified that he immediately believed the clear bag he saw in the

back seat of Harris' car to contain crack cocaine. The District Court found him credible

and Holyfield does not challenge this credibility determination. Therefore, the officer

correctly determined the crack cocaine to be immediately incriminating based on his

knowledge and experience. There is no error here either.

       Finally, we instructed that the officer must have a lawful right of access to the

object itself. Id. There is no real difficulty here – the crack cocaine was in plain view,

right in front of the officer on the back seat of the car. The vehicle was parked in a public

place at the time the drugs were observed as well. Neither was any expectation of privacy

on Holyfield's part violated by the officer's actions. As the Supreme Court has instructed,

"plain view doctrine is grounded on the proposition that once police are lawfully in a

position to observe an item, its owner's privacy interest in that item is diminished."

Illinois v. Andreas, 463 U.S. 765, 771 (1983).

                                             V.

       There is ample evidence here to support the District Court's denial of the motion to

suppress and we will affirm the District Court’s determination.




                                    Page -14-
RENDELL, Circuit Judge, dissenting.

       I respectfully disagree with the majority’s reasoning that the initial stop here was

lawful because the officers had a “reasonable, articulable suspicion that criminal activity

[was] afoot.” Illinois v. Wardlow, 528 U.S. 119, 123 (2000). I suggest the facts do not

support that finding.

       First, as to the “tip,” the majority is wrong when it says that the existence of the tip

can be considered, even though the Government, Holyfield, and the District Court agreed

at trial that it was not to be factored into the equation. It cannot be both considered and

not considered. It should not be considered at all.4

       Second, the references to Harris’ “drug-trafficking history” and to her

“involve[ment] in drug rings” misstate the paltry record on this point. Detective

Covington’s only testimony on the issue was that he knew that Harris had a “drug history”

and that he had arrested her approximately three times for unspecified misconduct. [App.

102, 112.] The testimony reveals nothing more.

       Lastly, the time of Harris’ flight and the time of Holyfield’s throwing the bag into

the backseat are unclear, but both appear to have occurred as the police were already in

the process of descending on the scene, exiting two cars with at least one gun drawn.




              4
                If anything, the Government’s withdrawal of the tip from consideration
equates to its being found to be unreliable and therefore clearly off limits for our
reasonable suspicion analysis. See, e.g., Florida v. J.L., 529 U.S. 266 (2000); United
States v. Brown, 448 F.3d 239 (3d Cir. 2006).

                                          Page -15-
       From the innocuous facts adduced, a reasonable officer could just as easily

conclude that Holyfield was bringing Harris her lunch. (I note that I do not fault Harris

for making calls rather than looking under the hood and attempting to fix her car. I would

probably have been sitting in the car, just like her, awaiting some assistance.) The facts

fall far short of providing a reasonable, articulable suspicion of criminal activity. I would

REVERSE the denial of the suppression motion and REMAND.

______________




                                          Page -16-
