Tuesday, June 05, 2018
Generic description of suspect sufficient to justify stop when analyzed under totality of the circumstances
In United States v. Foster, Appeal Nos. 16-3650 & 16-4225 (3d Cir. May 30, 2018), co-defendants challenged their convictions and sentences for being felons in possession of firearms. On February 5, 2015, a local barbershop employee called 911 to report two suspicious black males sitting in a Honda Accord in the shopping plaza's parking lot. When police arrived, the Accord promptly left the parking lot. The barbershop employee provided police with a picture of the Accord and its license plate. After running the plate, police learned that the Accord was reported stolen in an armed robbery. An email alert was sent to local law enforcement officers alerting them to the stolen vehicle and attaching the picture. The following morning, a police officer on routine patrol observed the Honda Accord sitting in the plaza parking lot with two black males inside. The officer left the lot briefly to call for backup and position himself to make a safe stop. When he returned, one of the men was standing outside the car and the other man was no longer in or near the car. The man standing next to the car, Defendant Foster, was fled from police, but was quickly apprehended and a gun was recovered from his person.
The second man, Defendant Payton, began walking away from the plaza. Another officer responded to a radio call regarding the Accord's missing second occupant. At the time he searching for the suspect around the plaza, the officer knew that he was looking for a black male and that two potentially armed and dangerous black males had been observed in a stolen Honda Accord the previous day. Within six minutes of the radio call, the officer observed Payton, a black man, walking calmly and leisurely along a road away from the plaza. The officer trailed Payton for about five minutes and radioed for a more detailed description of the suspect. Eventually, after seeing no other pedestrians in the area matching the general description of the suspect, the officer stopped and arrested Payton. A search of the Accord produced a rifle, duct tape, and gloves.
(1) Reasonable Suspicion to Stop Payton
On appeal, Payton challenged the district court's decision denying his motion to suppress evidence discovered as a result of his arrest because the only identifying information available before he was seized was that a black male had fled the plaza parking lot. The Third Circuit rejected this challenge, holding that the district court properly considered the totality of the circumstances known to the arresting officer combined with his 14 years' experience as a police officer in finding reasonable suspicion for the stop. While the Court acknowledged that the general description of the suspect, viewed in isolation, would not support a finding of reasonable suspicion. But the Court would not ignore the context of the stop. Payton was observed within six minutes of the radio call walking less than 2/10 of a mile away from the plaza and the stolen car. No one else matching the description of the second occupant was observed anywhere in the vicinity. Furthermore, the arresting officer had more than 14 years experience, was familiar with the area, and knew from experience that it was unusual to see an unknown pedestrian walking down that stretch of road. Based on all these factors, the Court upheld the district court's finding of reasonable suspicion.
(2) Introduction of Barbershop Employees' Testimony
The Third Circuit also upheld the district court's decision to allow the introduction of the barbershop employees' testimony regarding their observations of suspicious behavior the day before the arrest. The government identified a permissible non-propensity purpose for admitting the testimony - that it was relevant to establish motive to rob the bank or jewelry store in the plaza because it showed the defendants "casing" the businesses. The evidence was relevant to the motive theory and not unduly prejudicial because it directly rebutted the defendants' own arguments regarding motive.
(3) Sufficient Evidence Supported Constructive Possession
Payton argued that the evidence was insufficient to support constructive possession of the rifle recovered from the Accord. The Third Circuit affirmed the jury's guilty verdict, finding that the evidence demonstrated both Payton's proximity to the rifle and a plausible motive for Payton to possess the gun - armed robbery. The evidence also established that Payton was in the driver's seat of the Accord on the day of his arrest. Finally, Payton's own evasive conduct - fleeing the scene and providing false identification information upon arrested - further supported a finding that Payton was connected to the rifle.
(4) Sentencing Enhancements
The Third Circuit also upheld two sentencing enhancements applied by the district court because the defendants were unable to point to anything in the record disputing the accuracy of the factual findings relied upon by the district court in applying the enhancements.
Amendment 801 to § 2G2.2(b)(3)(F) is a substantive change to the Guidelines, and does not apply retroactively under § 2255
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