United States v. Brian Gadsden ( 2011 )


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  •                                                                  NOT PRECEDENTIAL
    
                            UNITED STATES COURT OF APPEALS
                                 FOR THE THIRD CIRCUIT
                                      _____________
    
                                           No. 08-3220
                                          _____________
    
                                UNITED STATES OF AMERICA
    
                                                 v.
    
                                       BRIAN GADSDEN,
                                               Appellant
                                        _____________
    
                            Appeal from the United States District Court
                              for the Middle District of Pennsylvania
                              (D.C. Criminal No. 1-08-cr-00017-001)
                            District Judge: Honorable Sylvia H. Rambo
                                          _____________
    
                                     Argued January 11, 2011
                                         _____________
    
                 Before: SCIRICA, BARRY and VANASKIE, Circuit Judges
    
                                 (Opinion Filed: February 1, 2011)
                                         _____________
    
    James V. Wade, Federal Public Defender
    Frederick W. Ulrich, Assistant Federal Public Defender (Argued)
    Office of Federal Public Defender
    Suite 306
    100 Chestnut Street
    Harrisburg, PA 17101
    
    Counsel for Appellant
    
    Peter J. Smith, United States Attorney
    Michael A. Consiglio, Assistant United States Attorney (Argued)
    Eric Pfisterer, Assistant United States Attorney
    Office of United States Attorney
    228 Walnut Street, P.O. Box 11754
    220 Federal Building and Courthouse
    Harrisburg, PA 17108
    
    Counsel for Appellee
    
                                          _____________
    
                                    OPINION OF THE COURT
                                        _____________
    
    VANASKIE, Circuit Judge.
    
           Brian Gadsden pleaded guilty to a charge of possession of a firearm in furtherance
    
    of drug trafficking on the condition that he could appeal the District Court‟s denial of his
    
    motions to suppress evidence and an eyewitness identification. Because we conclude that
    
    the suppression motions were properly denied, we will affirm the Judgment of the
    
    District Court.
    
                                                  I.
    
           As we write only for the parties, who are familiar with the facts and procedural
    
    history of this case, we will set forth only those facts necessary to our analysis.
    
           On October 18, 2007, the United States Postal Service delivered a mysterious
    
    package to Allstar Auto, an auto supply business in Harrisburg, Pennsylvania. Over the
    
    course of that day, several people visited Allstar Auto to inquire about the parcel, the
    
    receipt of which was denied by Allstar Auto employees. The visitors threatened to “get
    
    the mailman on the route,” and one individual brandished a gun. (A. 121.) It was later
    
    discovered that the package contained many pounds of marijuana.
    
    
    
                                                  2
           On the morning of October 19, 2007, Angelica Matos, an employee of Allstar
    
    Auto who interacted with the individuals who inquired about the package, notified a local
    
    post office of the previous day‟s events, including the fact that a weapon had been
    
    brandished and some sort of threat had been made against the postal carrier who would
    
    have delivered the package. The post office relayed Matos‟s complaint to postal
    
    inspectors, who in turn contacted the Harrisburg Police Department for assistance. Victor
    
    Rivera, a Harrisburg detective who participated in the investigation, was told that at least
    
    two African-American individuals visited Allstar Auto regarding the package. One of the
    
    individuals might have been a woman. Detective Rivera was informed that a “red or
    
    burgundy vehicle,” likely a Volvo, was one of the cars that the suspects drove. (A. 97.)
    
    Detective Rivera also remembered hearing about “a dark brown or maroon Jeep
    
    Cherokee.” (A. 107.) A white minivan and a gray four-door Chrysler might also have
    
    been mentioned. (Id.) Detective Rivera was told that the individuals would return to
    
    Allstar Auto on October 19.
    
           Joseph Corrado, a postal inspector who also participated in the investigation, was
    
    told the suspects drove a red or burgundy vehicle, a dark brown Jeep, and a white
    
    minivan. He believed a gray Chrysler might have been used as well. Inspector Corrado
    
    was informed that as many as five African-American males were involved. He did not
    
    recall being told a woman was one of the suspects. He was, however, told that the
    
    suspects would come back to Allstar Auto on October 19 to retrieve the package.
    
           Postal inspectors and Harrisburg detectives drove in unmarked vehicles to Allstar
    
    Auto on October 19 to investigate. Inspector Corrado and another postal inspector drove
    
                                                 3
    to Allstar Auto in Inspector Corrado‟s Chevy Blazer. Detective Rivera and other
    
    Harrisburg detectives drove in an unmarked burgundy Chevy Caprice that, according to
    
    Inspector Corrado, “scream[ed] law enforcement vehicle.” (A. 123.) Both vehicles
    
    parked in the Allstar Auto parking lot. From there, Detective Rivera and Inspector
    
    Corrado observed a burgundy four-door Saturn parked across the street from the store.
    
    Brian Gadsden was in the passenger‟s seat, and his brother Reginald was standing
    
    approximately thirty yards away from the vehicle, talking on his cell phone. Both
    
    Gadsdens were watching Allstar Auto. When Reginald saw the unmarked vehicles, he
    
    slowly walked back to his car. Brian, still seated in the passenger seat, “opened the door,
    
    leaned down so you couldn‟t see him anymore, and then proceeded to close the door.”
    
    (A. 98.) The Gadsdens then drove away.
    
           At that point the detectives and the postal inspectors conferred briefly and agreed
    
    that they should follow the Gadsdens‟ vehicle. After trailing the Saturn for a short
    
    amount of time, the police initiated a traffic stop. The officers asked for and received the
    
    Gadsdens‟ photo identifications and detained them in police vehicles. While the
    
    Gadsdens were being held, Detective Rivera and other officers drove back to Allstar Auto
    
    and told Matos that they had stopped two individuals. They then drove her to the scene
    
    to identify the Gadsdens. The police did not show Matos the Gadsdens‟ ID cards before
    
    bringing her to the scene of the stop.
    
           The police brought Matos to the Gadsdens in a vehicle with tinted windows.
    
    When Matos arrived, officers removed the Gadsdens from the police vehicle and Matos
    
    was driven to within approximately thirty feet from where the Gadsdens stood. She
    
                                                 4
    positively identified the Gadsdens as the men who were at her store the day before, and
    
    the police placed them under arrest. Then, approximately seven hours after the initial
    
    traffic stop, the police searched the area where the Gadsdens had parked their car across
    
    the street from Allstar Auto and found a nine-millimeter semiautomatic pistol. The gun‟s
    
    caliber matched ammunition that was found in the Gadsdens‟ car.
    
           On October 22, Inspector Corrado reviewed an Allstar Auto surveillance tape
    
    depicting Matos and her husband interacting with certain African-American males
    
    repeatedly over the course of October 18, during the daylight hours. Matos told Inspector
    
    Corrado that the individuals in the video were the men who were inquiring about the
    
    package of marijuana. According to Inspector Corrado, the individuals in the video were
    
    Brian and Reginald Gadsden.
    
           The Gadsdens were subsequently indicted on drug and weapons charges. They
    
    sought to suppress the evidence police obtained as a result of the stop and search, as well
    
    as Matos‟s positive identification. Brian Gadsden also attempted to suppress his
    
    statements to police on the grounds that he was never given his Miranda warnings. The
    
    District Court held a suppression hearing at which Detective Rivera and Inspector
    
    Corrado testified. Matos, however, did not testify. The post office employee to whom
    
    Matos made her complaint also did not testify.
    
           The District Court denied the motions to suppress. United States v. Gadsden, Nos.
    
    1:CR-08-017-01, 1:CR-08-017-02, 
    2008 WL 794944
     (M.D. Pa. Mar. 24, 2008). With
    
    respect to the traffic stop, the Court determined that the following facts gave rise to a
    
    reasonable suspicion: the Gadsdens were African-American men in a burgundy sedan
    
                                                  5
    and appeared to be casing Allstar Auto on the same day Matos said the suspects would
    
    return to her store, and the Gadsdens drove away upon seeing the “unmarked, but
    
    ostensible police vehicles.” Id. at *4. With respect to Matos‟s identification, the Court
    
    assumed without deciding that the identification was unnecessarily suggestive, but it
    
    found that there was no substantial likelihood of misidentification because Matos had
    
    ample opportunity to observe the Gadsdens, the identification happened within twenty-
    
    four hours of the initial encounter, and there was no evidence that Matos wavered in her
    
    identification of the Gadsdens. Id. at *5-6. Finally, the District Court determined that
    
    Brian Gadsden‟s claim that police failed to give him Miranda warnings was not credible.
    
    Id. at *6. After the Court denied the motions to suppress, Brian Gadsden pleaded guilty
    
    to a charge of possession of a firearm in furtherance of drug trafficking on the condition
    
    that he could appeal the denial of his suppression motions. The District Court sentenced
    
    him to sixty months‟ imprisonment, and he now appeals.1
    
                                                  II.
    
           The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction
    
    pursuant to 28 U.S.C. § 1291. We review the District Court‟s denial of Gadsden‟s
    
    motions to suppress “for clear error as to the underlying facts, but exercise plenary
    
    review as to its legality in light of the court‟s properly found facts.” United States v.
    
    Gatlin, 
    613 F.3d 374
    , 378 (3d Cir. 2010) (internal quotation marks omitted).
    
    
    1
     Reginald Gadsden pleaded guilty to a charge of conspiracy to possess with intent to
    distribute marijuana and was sentenced to seventy-seven months‟ imprisonment. He
    appealed his sentence and we affirmed. United States v. Gadsden, No. 08-4366, 
    2011 WL 179621
     (3d Cir. Jan. 20, 2011).
                                                  6
                                                  A.
    
           Gadsden argues that the police unlawfully stopped his vehicle. He maintains that
    
    Matos‟s tip conveyed only that the suspects were African-American males. He
    
    emphasizes that the car the Gadsdens drove, a Saturn, was not among the cars identified
    
    to law enforcement officials. He also argues that the Gadsdens‟ conduct on the morning
    
    of October 19 did not justify a stop.
    
           A police officer may initiate a brief investigatory stop under Terry v. Ohio, 
    392 U.S. 1
     (1968), if he has “a reasonable, articulable suspicion that criminal activity is
    
    afoot.” Illinois v. Wardlow, 
    528 U.S. 119
    , 123 (2000). “[T]he „reasonable suspicion‟
    
    analysis is objective; subjective motive or intent is not relevant for Terry purposes.”
    
    United States v. Goodrich, 
    450 F.3d 552
    , 559 (3d Cir. 2006). “To determine whether
    
    reasonable suspicion exists, we must consider the totality of the circumstances—the
    
    whole picture.” United States v. Robertson, 
    305 F.3d 164
    , 167 (3d Cir. 2002) (internal
    
    quotation marks omitted). “„[R]easonable suspicion‟ is measured before the search;
    
    information acquired subsequent to the initial seizure cannot retroactively justify a Terry
    
    stop.” Goodrich, 450 F.3d at 559. Conduct justifying a stop may be “ambiguous and
    
    susceptible of an innocent explanation.” Wardlow, 528 U.S. at 125. “Courts give
    
    considerable deference to police officers‟ determinations of reasonable suspicion, and the
    
    cases are steadily increasing the constitutional latitude of the police to pull over
    
    vehicles.” United States v. Mosley, 
    454 F.3d 249
    , 252 (3d Cir. 2006) (citation omitted).
    
           Gadsden has not shown that the District Court‟s factual findings are clearly
    
    erroneous. The District Court found that at the time of the Terry stop, law enforcement
    
                                                  7
    officers had been told that at least two and up to five persons had been casing Allstar
    
    Auto and had been inquiring about a package to have been delivered through the postal
    
    service; at least two of the five individuals were African-American; a weapon had been
    
    brandished; a threat of some sort had been made against the postal carrier; the persons
    
    casing the store on October 18 said they would return the next day; and vehicles
    
    associated with the individuals included a red four-door sedan, possibly a Volvo. The
    
    District Court also found that when investigators arrived at Allstar Auto on the morning
    
    of October 19, “they saw a tableau that was similar, if not identical to the picture painted
    
    by the complaint filed that morning.” Gadsden, 
    2008 WL 794944
    , at *4. Two black
    
    men, one inside and the other near a burgundy sedan, appeared to be watching Allstar
    
    Auto from across the street. The Gadsdens‟ behavior once the detectives and postal
    
    inspectors arrived at Allstar Auto further aroused the investigators‟ suspicion. Reginald
    
    Gadsden, who had been talking on a cell phone approximately thirty yards away from his
    
    car, slowly walked back to the Saturn while looking at the unmarked vehicles. Brian
    
    Gadsden, seated in the passenger seat, opened the door, crouched down so he could not
    
    be seen, and then closed the door.
    
           Given the considerable deference accorded to police officers, who must make
    
    split-second judgments in dangerous contexts, we cannot say that the facts, as found by
    
    the District Court, were insufficient to support a reasonable suspicion that the Gadsdens
    
    were engaged in illegal activity. Accordingly, we will affirm the District Court‟s denial
    
    of Gadsden‟s motion to suppress evidence obtained as a result of the Terry stop.
    
                                                 B.
    
                                                  8
           Gadsden also argues that the procedure that the police used to identify him was
    
    unnecessarily suggestive. He further maintains that because Matos did not testify at the
    
    suppression hearing, the District Court did not have a sufficient factual basis for
    
    determining that the procedure did not pose a substantial risk of misidentification.
    
           Our assessment of an identification procedure contains two steps. “The first
    
    question is whether the initial identification procedure was unnecessarily or
    
    impermissibly suggestive.” United States v. Stevens, 
    935 F.2d 1380
    , 1389 (3d Cir. 1991)
    
    (internal quotation marks omitted). When determining whether a procedure is
    
    unnecessarily suggestive, we focus on “the suggestiveness of the identification, and . . .
    
    whether there was some good reason for the failure to resort to less suggestive
    
    procedures.” Id. (emphasis and internal quotation marks omitted). Second, we ask
    
    “whether the procedure was so conducive to . . . mistaken identification or gave rise to
    
    such a substantial likelihood of . . . misidentification that admitting the identification
    
    would be a denial of due process.” Id. (internal quotation marks omitted). In
    
    determining whether misidentification was likely, we consider the “totality of
    
    circumstances including: the witness‟s initial opportunity to view the suspect at the
    
    crime scene and degree of attention at that time, the witness‟s level of certainty in the
    
    disputed identification, the length of time between initial viewing and disputed
    
    identification, and the accuracy of any intervening description of the suspect occurring
    
    between those two events.” United States v. Mathis, 
    264 F.3d 321
    , 330 (3d Cir. 2001).
    
           The United States has conceded that the identification procedure in this case was
    
    suggestive. Like the District Court, we will assume, without deciding, that the procedure
    
                                                   9
    used to identify Gadsden was unnecessarily suggestive. And, like the District Court, we
    
    conclude that the procedure used to identify Gadsden did not give rise to a substantial
    
    likelihood of misidentification. Inspector Corrado testified that the surveillance
    
    videotape showed that Matos had an opportunity to observe the Gadsdens, in the
    
    daylight, over the course of several hours. The District Court acted within its bounds in
    
    admitting Inspector Corrado‟s hearsay testimony that Matos identified the individuals in
    
    the surveillance video as the people who inquired about the package. See United States v.
    
    Raddatz, 
    447 U.S. 667
    , 679 (1980) (“At a suppression hearing, the court may rely on
    
    hearsay and other evidence, even though that evidence would not be admissible at trial.”).
    
    The record contains no indication that Matos wavered in her identification. Fewer than
    
    twenty-four hours passed between Matos‟s initial interaction with the Gadsdens and her
    
    subsequent identification of them. And, while Matos provided only a general description
    
    of the Gadsdens in her complaint to the post office, her description was nonetheless
    
    accurate. Accordingly, the District Court properly denied Gadsden‟s motion to suppress
    
    Matos‟s identification.
    
                                                C.
    
           Finally, Gadsden argues that his statements to police should have been suppressed
    
    because they resulted from the allegedly illegal stop and identification. Having
    
    determined that the stop and identification were lawful, we conclude that Gadsden‟s
    
    statements should not have been suppressed.
    
                                                III.
    
    
    
                                                10
           In sum, Gadsden‟s motions to suppress were properly denied. Accordingly, we
    
    will affirm the Judgment of the District Court.
    
    
    
    
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