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


1-11-2007

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Precedential or Non-Precedential: Non-Precedential

Docket No. 05-4211




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                                                               NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT


                                      No. 05-4211


                           UNITED STATES OF AMERICA


                                            v.

                                   RODNEY KEMP,

                                            Appellant




                    On Appeal from the United States District Court
                             for the District of New Jersey
                              (D.C. Criminal No. 04-657)
                     District Judge: Honorable Freda L. Wolfson


                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                  December 13, 2006

     Before: FUENTES and VAN ANTWERPEN, Circuit Judges, and PADOVA,*
                              District Judge.

                                (Filed January 11, 2007)
                                          ____

                                OPINION OF THE COURT

_____________
*The Honorable John R. Padova, District Judge of the Eastern District of Pennsylvania,
sitting by designation.
PADOVA, District Judge.

       Appellant Rodney Kemp was convicted by a jury on May 18, 2005, of one count of

possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1) & (2). On

September 1, 2005, the District Court sentenced Kemp to a term of 29 months of

imprisonment. On appeal, Kemp contends that the District Court erred in denying his pretrial

motion to suppress evidence resulting from an alleged illegal search and seizure. We have

jurisdiction pursuant to 28 U.S.C. § 1291. We will affirm.

                                               I.

       On February 7, 2004, at approximately 1:05 a.m., Mark Buehler, a police officer with

the Cherry Hill Police Department for almost 10 years, was on routine patrol when he

observed a gold-colored Lincoln Town Car, driven by Kemp and traveling east-bound on

Park Boulevard in Cherry Hill Township. According to Buehler, he was approximately 30

to 40 yards directly behind Kemp’s car when he noticed that one of its tail lights was broken.

Buehler recognized that a cracked tail light is a violation of the New Jersey Motor Vehicle

Code. Kemp, however, denies that his tail light was cracked or broken. Buehler initiated a

traffic stop and Kemp’s car came to a stop at the Parkview Motel. Buehler testified that

during the previous 10 years, he witnessed multiple arrests for prostitution, narcotics, and

weapon offenses at the Parkview Motel, and that he had a heightened sense of awareness as

a result of being in a high-crime area that was not well-lit, and because the location was not

easily accessible to other patrol vehicles. Buehler testified that as he was exiting his vehicle,



                                               2
he observed Kemp slump down onto the passenger seat at least two or three times, and he

noticed two women seated in the back seat of Kemp’s vehicle.

       Sergeant Kevin Wright, a police officer with the Cherry Hill Police Department for

14 years, observed Buehler initiate the traffic stop of Kemp’s car and pulled behind Buehler’s

vehicle. Wright testified that he also observed that Kemp’s driver’s side tail light was

cracked.

       Buehler approached Kemp’s car on the driver’s side, and Wright approached on the

passenger side.     Buehler asked Kemp for his license, registration, and insurance

documentation. Buehler testified that he had difficulty seeing the front seat and the floor of

Kemp’s car because there was trash and paperwork throughout the car’s interior, and because

Kemp was wearing a large jacket and kept turning to his side. Buehler further testified that

when Kemp turned to the side, he could not see Kemp’s hands, and did not know what Kemp

was doing. Buehler instructed Kemp to stop moving two or three times because he was

concerned for his safety and wanted to make sure that Kemp was not trying to conceal

something. According to Buehler and Wright, Kemp initially complied with each request,

but then went back to what he was doing. Wright also testified that Kemp was extremely

anxious while he was seated in his car, that he kept turning around and checking something

to his side, that he adjusted something in his pocket at least three times, and that he kept

looking down to the pocket area on his jacket. Buehler asked Kemp the names of the two

women in the back seat. Kemp was unable to answer. Buehler testified that, during this



                                              3
questioning, Kemp was argumentative and would not listen to his instructions, and the tone

of Kemp’s voice became increasingly loud. However, Kemp testified that he did not raise

his voice at the officers. Buehler testified that because of Kemp’s erratic behavior and non-

compliance with his questioning, he instructed Kemp to step out of the vehicle.

       According to Buehler, as Kemp stepped out of the car, Kemp stuck his hand into his

pocket. Buehler testified that he ordered Kemp to take his hand out of his pocket and that

initially Kemp did so. Kemp, however, testified that his hands were at his side when he

exited the car, that he did not “go for [his] pocket” at any time, and that the police officer did

not tell him to keep his hands away from his pockets. Buehler testified that Kemp began to

take several steps towards him and attempted to put his hand back in his pocket. Buehler

also observed a black convenience-store style bag in Kemp’s pocket. Buehler testified that

he had prior knowledge that such bags are used for narcotics and other criminal contraband.

Wright also testified that he observed a bulge, consistent with a weapon, in Kemp’s jacket

pocket, and a black plastic convenience-store bag coming out of the jacket pocket. Wright

testified that his concern for his safety was very high due to Kemp’s actions, his apparent

focus on his jacket pocket, and his agitation. Wright observed Kemp attempt to place his

hand into the jacket pocket containing the bulge. Wright testified that he told Kemp to keep

his hands out of his pockets, but that Kemp immediately put his hand in his pocket, and

replied that “there is nothing in here.”

       According to Buehler, Wright then approached Kemp from behind, and reached



                                                4
forward to touch Kemp’s pocket. Kemp then “clinched down on the pocket with his elbow,”

and “lower[ed] his stance in an aggressive manner.” Wright then grabbed Kemp’s right wrist

and pulled Kemp’s hand away from the pocket, while Buehler grabbed Kemp’s left wrist.

Buehler testified that Kemp struggled and kicked, and attempted to reach back into his jacket

pocket. Kemp denies that he kicked, pushed, or touched the officers in any way. Buehler

and Wright, while maintaining control of Kemp’s arms, brought him to the rear of the car.

Wright testified that Kemp did not willingly go to the rear of the car, and that Kemp was

extremely agitated and screaming. Wright testified that Officer Timothy Tedesco arrived at

the scene, and upon Wright’s instruction, removed the object from Kemp’s right jacket

pocket. Tedesco informed Buehler and Wright that it was a gun. Kemp was placed under

arrest and transported to the Cherry Hill Police Station. Kemp’s car was towed and

impounded.

       Kemp testified that, prior to picking up the two women who were in his car at the time

of this incident, he gave a ride to two men who left a bag on the back seat of his car. Kemp

further testified that he put the bag into his pocket without looking into it. According to

Kemp, he provided Buehler with his documentation, and then proceeded to wait in the car

for 10 to 15 minutes, until the police officers asked him to exit the car and walk to the back

of the vehicle. Kemp testified that the police officers threw him on the car and went into his

pocket.

       On February 7, 2005, Kemp filed a motion to suppress evidence seized from him at



                                              5
the time of his arrest. The District Court held suppression hearings on March 3, 2005 and

April 22, 2005. Kemp’s counsel acknowledged during the evidentiary hearings that there

were no pictures or records indicating the condition of Kemp’s car at the time of the incident.

The District Court denied the motion on May 3, 2005. A jury convicted Kemp of possession

of a weapon by a convicted felon on May 18, 2005. This appeal followed.

                                              II.

       This Court reviews the District Court’s denial of a motion to suppress for clear error

as to the underlying factual findings and exercises plenary review of the District Court’s

application of the law to those facts. United States v. Perez, 280 F.3d 318, 336 (3d Cir. 2002)

(citing United States v. Riddick, 156 F.3d 505, 509 (3d Cir. 1998)). Consequently, a district

court’s conclusions regarding reasonable suspicion are subject to plenary review. United

States v. Robertson, 305 F.3d 164, 167-68 (3d Cir. 2002).

                                             III.

       Kemp first argues that the police lacked probable cause to conduct a stop of his

vehicle and, therefore, any evidence obtained as a result of this unlawful stop should be

suppressed. Kemp notes that the Government’s justification for the stop was the supposed

presence of a broken tail light. However, Kemp argues that Buehler’s assertion that Kemp’s

tail light was broken was not corroborated by any other evidence, such as photographs of the

vehicle, to show that the tail light was indeed broken. Kemp further argues that Buehler’s

testimony, viewed as a whole, lacks credibility. Therefore, Kemp contends that the District



                                              6
Court erred when it credited Buehler’s testimony and accepted as fact that the tail light was

broken.

       The question of whether the tail light was broken is a question of fact which we

review for clear error. Perez, 280 F.3d at 336. Under the clear error standard, we will

uphold a district court’s factual findings unless they “(1) [are] completely devoid of

minimum evidentiary support displaying some hue of credibility, or (2) bear[] no rational

relationship to the supportive evidentiary data.” United States v. Antoon, 933 F.2d 200, 204

(3d Cir. 1991) (quoting Krasnov v. Dinan, 465 F.2d 1298, 1302 (3d Cir. 1972)). The District

Court’s factual finding that Kemp’s tail light was broken is supported by the evidence. The

District Court properly credited the testimony of Buehler, which was corroborated by the

testimony of Wright. See United States v. Voight, 89 F.3d 1050, 1080 (3d Cir. 1996)

(holding that it is not the role of the appellate courts to weigh the credibility of witnesses).

Therefore, Kemp’s contention that the traffic stop of his vehicle was unlawful due to a lack

of probable cause is without merit.

       Kemp next argues that, even if the stop was lawful, the police had no right to conduct

a Terry frisk as they lacked grounds to believe that he was armed and dangerous. In Terry

v. Ohio, 392 U.S. 1 (1968), the Supreme Court created a narrowly drawn exception to the

rule that warrantless searches are presumptively unreasonable by allowing a police officer

to conduct a brief investigatory search without a warrant. A police officer may conduct such

a stop “only if the officer can ‘point to specific and articulable facts which, taken together



                                               7
with rational inferences from those facts, reasonably warrant that intrusion.’” Johnson v.

Campbell, 332 F.3d 199, 205 (3d Cir. 2003) (quoting Terry, 392 U.S. at 21). The Court also

recognized in Terry that an officer making a reasonable investigatory stop should have the

opportunity to protect himself from attack by a hostile suspect. Adams v. Williams, 407 U.S.

143, 146 (1972) (citing Terry, 392 U.S. at 24). Therefore, when making a Terry stop, an

officer is permitted to make a limited protective search for concealed weapons when the

individual gives the officer reason to believe he or she may be armed and dangerous. Id.

(citing Terry, 392 U.S. at 30).

       Buehler and Wright had reasonable suspicion that Kemp was armed and dangerous,

and, therefore, they were justified in conducting a protective search for weapons. Buehler

and Wright pointed to specific and articulable facts, which taken together with rational

inferences from these facts, reasonably warranted the protective search. The traffic stop

occurred in a high-crime area that was not well-lit and not easily accessible to other patrol

vehicles. Buehler observed Kemp slump down onto the passenger seat at least two or three

times after he pulled over Kemp’s vehicle. Kemp kept turning to his side. Kemp, though he

initially followed Buehler’s commands to stop moving, continued moving to his side, was

argumentative, and became increasing loud. Kemp put his hand in his jacket pocket after he

stepped out of the car and, although he removed it when asked, he stepped toward Buehler

and put his hand back in his jacket pocket. In response to Wright’s demand that Kemp keep

his hands out of his pockets, Kemp immediately put his hand in his pocket and replied, “there



                                             8
is nothing in here,” which the officers knew was untrue based on their observations. Under

the totality of these circumstances, there was reasonable suspicion that Kemp was armed and

dangerous, and therefore, Buehler and Wright were justified in conducting a protective

search for weapons.

       Finally, Kemp argues that if the police had authority to conduct a protective weapons

search, the police exceeded the permissible scope of a such a search and, instead, conducted

a full search and seizure. Kemp argues that the officers exceeded the scope of Terry by

forcibly restraining him, removing him to the rear of the car, and reaching into his pocket to

remove an object without first conducting a pat-down of the outer layer of his clothing.

       During a Terry stop, officers may take additional steps that are “reasonably necessary

to protect their personal safety and to maintain the status quo during the course of the stop.”

United States v. Hensley, 469 U.S. 221, 235 (1985). Buehler and Wright acted in a

reasonable manner in using a moderate amount of force to physically restrain Kemp so that

they could continue their investigatory stop because they reasonably suspected Kemp was

armed; Kemp repeatedly disobeyed orders from the officers to keep his hands in view and

not to reach into his jacket pocket; and, when Wright attempted to conduct a pat-down, Kemp

took a defensive stance and clenched down on the pocket where the officers suspected a

weapon to be located.

       Additionally, the officers did not exceed the scope of Terry when Tedesco reached

into Kemp’s pocket. A search conducted pursuant to a Terry stop must be limited in scope



                                              9
to its protective purposes. Adams, 407 U.S. at 146. Generally, a protective search consists

of a pat-down of the exterior clothing of a detained individual. Terry, 392 U.S. at 21; Sibron

v. New York, 392 U.S. 40, 65 (1968) (noting that protective searches will typically be

confined to “a limited patting of the outer clothing of the suspect for concealed objects which

might be used as instruments of assault”). However, the Supreme Court has also held that,

in the context of a Terry stop, a police officer’s reaching into the particular spot where a gun

was thought to be hidden constituted a limited intrusion designed to insure the officer’s

safety and was reasonable. Adams, 407 U.S. at 148. In Adams, the police officer, in the

process of conducting a Terry stop, reached into a car and removed a gun from an

individual’s waistband. Id. Here, the police officers had a reasonable suspicion that Kemp

was armed and that the weapon was located in Kemp’s right jacket pocket. As in Adams,

rather than conducting a full pat-down, the officers conducted a more limited search by going

directly to the area that they reasonably suspected contained a weapon. Consequently,

reaching into Kemp’s pocket to retrieve what the officers suspected to be a weapon was a

permissible Terry search, and the officers’ conduct did not violate the Fourth Amendment.

       For the foregoing reasons, we will affirm Kemp’s conviction.




                                              10
