                                                                                                                           Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-30-2003

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Precedential or Non-Precedential: Non-Precedential

Docket 02-3241




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                                               NOT PRECEDENTIAL

       UNITED STATES COURT OF APPEALS
            FOR THE THIRD CIRCUIT


                      No. 02-3241


           UNITED STATES OF AMERICA

                           v.

                 MARQUIS HOLM ES,
                          Appellant


       Appeal from the United States District Court
         for the Western District of Pennsylvania
             (D.C. Criminal No. 01-cr-00041E)
      District Judge: Honorable Sean J. McLaughlin


               Argued May 13, 2003
Before: RENDELL, SMITH and ALDISERT, Circuit Judges.

                  (Filed May 30, 2003)


                                Karen S. Gerlach, Esq. [ARGUED]
                                Office of Federal Public Defender
                                1001 Liberty Avenue
                                1450 Liberty Center
                                Pittsburgh, PA 15222
                                   Counsel for Appellant

                                Bonnie R. Schlueter, Esq.
                                Michael L. Ivory, Esq.
                                Christine A. Sanner, Esq. [ARGUED]
                                Office of U.S. Attorney
                                633 U.S. Post Office & Courthouse
                                Pittsburgh, PA 15219
                                   Counsel for Appellee
                                        ____________

                                 OPINION OF THE COURT


RENDELL, Circuit Judge.

       Following his conditional guilty plea on a charge of possession with the intent to

deliver crack cocaine, Marquis Holmes appeals from the District Court’s denial of his

Motion to Suppress. The District Court had jurisdiction under 18 U.S.C. § 3231, and we

have jurisdiction under 28 U.S.C. § 1291. We will affirm.

       As we write solely for the parties, we need not detail the factual background of this

appeal. Holmes argues that the police were without probable cause to arrest him, and

thus that the evidence obtained pursuant to that arrest should have been suppressed. In

response, the government primarily contends that the actions of the police did not rise to

the level of an arrest, but instead merely constituted a stop valid under cases such as Terry

v. Ohio, 392 U.S. 1 (1968). Alternatively, the government maintains that even if Holmes

was immediately arrested, there was plenty of evidence to establish probable cause.

       In reviewing a suppression order, we review the district court’s findings of fact for

clear error and conclusions of law de novo. See, e.g., United States v. Myers, 308 F.3d

251, 255 (3d Cir. 2002). We construe the record in the light most favorable to the

government, but “refrain from drawing inferences that are either not supported by the

record, or contrary to it, in an effort to uphold an arrest.” Id.

       We agree that the police officers’ actions here were clearly supported by probable

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cause. Probable cause is not a rigid or fixed standard. Instead, it is a “fluid concept,” a

common sense determination evaluated carefully on each unique set of facts. Illinois v.

Gates, 462 U.S. 213, 232 (1983); United States v. Burton, 288 F.3d 91, 98 (3d Cir. 2002).

It requires “only a probability or substantial chance of criminal activity, not an actual

showing of such activity.” Gates, 462 U.S. at 243 n.13. For cases, like the one here,

involving warrantless arrests, we have recently stated the standard as follows:

       Probable cause exists whenever reasonably trustworthy information or

       circumstances within a police officer's knowledge are sufficient to warrant a

       person of reasonable caution to conclude that an offense has been committed by

       the person being arrested. . . . “[T]he determination that probable cause exists for

       a warrantless arrest is fundamentally a factual analysis that must be performed by

       the officers at the scene. It is the function of the court to determine whether the

       objective facts available to the officers at the time of arrest were sufficient to

       justify a reasonable belief that an offense was being committed.”

Myers, 308 F.3d at 255 (quoting United States v. Glasser, 750 F.2d 1197, 1206 (3d Cir.

1984)); see also Beck v. Ohio, 379 U.S. 89, 96 (1964). Although “probable cause must

ultimately be decided by the courts, not the police,” Myers, 308 F.3d at 255, we must take

care to “remember that police officers may well ‘draw inferences and make deductions . .

. that might well elude an untrained person.’” Id. (quoting United States v. Cortez, 449

U.S. 411, 418 (1981)).



                                               3
       Contrary to Holmes’s attempted characterization, this was not simply a case of the

police unjustifiably relying on an untrustworthy informant; indeed, the record is replete

with evidence from which the police could have reasonably concluded that Holmes was

likely engaged in criminal activity. First, the police had the statements of the confidential

informant, whose tips had proven reliable in the past. She stated that a large black man,

who was being driven around by a car salesman named Russ, had sold her crack in the

apartment of a man named Gino. Second, the police had the statements of McDeavitt

(also known as Russell Lawrence), which independently corroborated everything the

confidential informant had stated: He was a car dealer named Russ who was driving

around Holmes – a large black man – and was assisting Holmes in selling crack in the

apartment of a man named Gino. This story was echoed by the concerned citizen in the

neighborhood, who stated that a large black man had been going to Gino’s apartment and

that traffic increased in the area when he was there. He also stated that a Brenda Baker

was at Gino’s frequently, confirming a similar statement of McDeavitt’s.

       In addition, the police confirmed McDeavitt’s statement that Holmes had previous

drug and firearms convictions and was presently under supervision. The police also had

the benefit of the recorded phone conversation between M cDeavitt and Holmes.

Although the discussion was not particularly specific or enlightening, it did suggest that

the two were indeed participating in some illicit behavior, likely involving drugs. Finally,

on the day of the failed buy/bust, McDeavitt showed up with the crack he was supposed



                                              4
to deliver – presumably from Holmes – in addition to a quantity of crack supposedly to be

delivered to another of Holmes’s customers, an individual who was known by the police

to be involved in the Oil City crack traffic. And, when the police arrived at Marini’s

apartment, McDeavitt, Marini, and Holmes were there, just as McDeavitt had said.

       In light of all this evidence, Holmes’s challenge to the officers’ reliance on

McDeavitt’s statements is unconvincing. In evaluating the worth of an informant’s

report, we employ a “totality of the circumstances” approach, considering, among other

factors, the informant’s veracity, reliability, and basis of knowledge. Gates, 462 U.S. at

230; see also United States v. Roberson, 90 F.3d 75, 77 (3d Cir. 1996). Here, despite the

fact that both the guns-for-drugs exchange and buy/bust ultimately failed to occur, the

“totality of the circumstances” clearly supports McDeavitt’s reliability. His statements

were made against his penal interest and from his direct involvement, and many of them

were independently corroborated or otherwise turned out to be true. Further, McDeavitt

worked with the police extensively and in person, giving the officers ample opportunity to

evaluate his trustworthiness, and there is no evidence that any of the officers involved

ever doubted his credibility. Little more is necessary under our case law. See, e.g.,

United States v. Nelson, 284 F.3d 472, 482-84 (3d Cir. 2002); United States v. Valentine,

232 F.3d 350, 353-56 (3d Cir. 2000).

       The “reasonably trustworthy information or circumstances within” the officers’

knowledge here was certainly “sufficient to warrant a person of reasonable caution to



                                              5
conclude that an offense ha[d] been committed by” Holmes. Accordingly, we will

AFFIRM.

_________________________




                                          6
TO THE CLERK OF COURT:

    Please file the foregoing not precedential opinion.




                                              /s/ Marjorie O. Rendell
                                              Circuit Judge




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