Tuesday, December 04, 2018

Circuit affirms denial of motion to suppress, but finds "possession in connection with another felony" enhancement applied in error

U.S. v. Hester, No. 16-3570, 2018 WL 6259314 (3d Cir. Nov. 30, 2018)

In this felon-in-possession of a firearm case, the Third Circuit affirmed the denial of a motion to suppress, but held that application of a sentencing enhancement for possession in connection with another felony was erroneous. 

Hester was a passenger in a car parked illegally in front of a corner store in Newark, New Jersey, at approximately 11:40 p.m.  Police observed the driver enter the corner store, which had a known history of narcotics sales.  When the driver returned to the car, a marked police car pulled up along the driver's side of the car, and an unmarked car pulled up behind it. The officers approached both sides of the car on foot, one approached the driver’s side window; three others approached and stood at the passenger's side of the vehicle.

The driver admitted that she did not have a driver’s license and that the car was not registered in her name.  Hester stated “We're good, officer. I can drive.” Hester then began to rise and exit the vehicle but, as he did so, one of the officers claimed to hear the sound of a gun hitting the floorboards, and another testified to seeing Hester drop a gun.  Hester attempted to run, but was apprehended. A gun was located at the foot of the passenger's seat. 

Hester was indicted for being a felon in possession of a firearm under 18 U.S.C. § 922(g)(1).  He moved to suppress the firearm, arguing that the police had seized him the moment that they parked, with lights flashing, alongside and behind the car, without reasonable suspicion. The district court denied the motion, concluding that the interaction with the police up until Hester's attempt to flee was a consensual encounter.  In the alternative, the District Court determined that, even if it assumed Hester had been seized when the officers boxed in the vehicle, such seizure was a Terry stop supported by reasonable suspicion because the car was illegally parked in front of a known narcotics front late at night in a high crime area.
Hester was convicted following a bench trial.  At sentencing, the parties disputed the applicability of a four-level enhancement for possession of a firearm in connection with another felony. U.S.S.G. § 2K2.1(b)(6)(B).  The Government sought the enhancement on the grounds that Hester's cousin had previously used the same firearm in an unrelated crime and had given it to Hester for disposal.  In support of this theory, the Government cited recordings of calls Hester made to relatives from jail in which he expressed regret that he had still been in possession of the firearm when he encountered the officers, having intended to dispose of it. The Government argued that this was tantamount to evidence tampering, a separate felony under New Jersey law. See N.J. Stat. Ann. § 2C:28-6.

The district court applied the enhancement, but then varied downward by four offense levels—the exact number added by the enhancement. Hester appealed both the denial of the motion to suppress and his sentence.

The Third Circuit held that the initial police contact in this case constituted a seizure rather than a consensual encounter, noting that when the driver reentered the idling parked car, it was no longer capable of simply driving away from the scene due to the change in circumstances signaled by the surrounding police cruisers.   Coupled with the subsequent directive to turn off the engine, the driver could not have felt free to drive away, and Hester likewise was not free to ignore the police presence and go about his business.  Further, the Court held that Hester submitted to the officers’ show of authority when he waited in the vehicle prior to and during questioning, before his momentary attempt to flee.  Finally, the Court found the officers had reasonable suspicion to detain the vehicle, including Hester, having seen “a vehicle illegally idling near a crosswalk, in front of a store with a known history of narcotics-related activity, close to midnight, in a high-crime area of Newark.” 

Regarding the Guidelines enhancement for use or possession “in connection with another felony offense,” U.S.S.G. § 2K2.1(b)(6)(B), the Court concluded it did not apply for two reasons.  First, the government did not establish by a preponderance that Hester had committed New Jersey evidence tampering, which requires “alteration, loss, or destruction of the evidence itself.”  Second, the district court incorrectly interpreted the provision, as a matter of law, in finding that the possession itself occurred “in connection with” a subsequent felony offense, when there was no facilitation of a secondary offense – the two alleged offenses were coextensive.

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The District Court's indication of the sentence it would impose before the defendant allocuted was not reversible plain error.

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