United States v. Michael Torres ( 2020 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 19-2940
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UNITED STATES OF AMERICA
v.
MICHAEL E. TORRES,
Appellant
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On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Criminal No. 1-17-cr-00392-001)
District Judge: Honorable Yvette Kane
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Submitted Under Third Circuit L.A.R. 34.1(a):
April 23, 2020
Before: PORTER, RENDELL and FISHER
Circuit Judges
(Filed: June 5, 2020)
____________
Heidi R. Freese, Federal Public Defender
Frederick W. Ulrich
OFFICE OF THE FEDERAL PUBLIC DEFENDER
100 Chestnut Street
Suite 306
Harrisburg, PA 17101
Counsel for Appellant Michael Torres
David J. Freed, United States Attorney
Carlo D. Marchioli,
OFFICE OF THE UNITED STATES ATTORNEY
228 Walnut Street, P.O. Box 11754
220 Federal Building and Courthouse
Harrisburg, PA 17108
Counsel for Appellee United States of America
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OPINION OF THE COURT
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PORTER, Circuit Judge.
After a bench trial, the District Court found Michael
Torres guilty of possessing a firearm as a convicted felon, in
violation of 18 U.S.C. § 922(g)(1). The District Court imposed
a fifteen-year mandatory-minimum sentence under 18 U.S.C.
§ 924(e) of the Armed Career Criminal Act (“ACCA”) because
it determined that Torres had three qualifying felony
convictions.
Torres raises two arguments on appeal. First, he
contends that the District Court erred by denying his motion to
suppress the firearm. Second, Torres argues that his prior
federal drug conspiracy conviction does not qualify as an
ACCA predicate offense because it encompasses his other two
substantive ACCA predicates. We will affirm. The firearm was
discovered during a valid investigative stop. And we will join
our sister circuits in holding that a drug conspiracy conviction
counts as an ACCA predicate offense, so long as it was distinct
in time from the underlying substantive offenses.
I
Officer Steven Pickel of the City of York Police
Department patrols York’s west end. The west end is a high-
crime area known for violent crime, such as homicides,
shootings, drug incidents, and aggravated assaults. York police
“regularly” investigate reports of “shots fired” in the west end,
“especially in the evening.” App. 48.
2
Around 6:00 p.m. on October 31, 2017, Officer Pickel
drove his patrol car along the border between the west end and
York College’s campus. A man in a parked vehicle flagged the
officer down. The man pointed to the only pedestrian on a
bridge. The man said that the pedestrian was “wearing a black
jacket with his hood up, blue jeans, and black sneakers” and
that he pulled out a gun and fired it twice into an old factory
building across the street. App. 48. The man was “adamant”
about this description.1 Id. The pedestrian was later identified
as Torres.
Instead of asking for the man’s name or recording his
license plate number, Officer Pickel immediately radioed for
backup and followed Torres in his patrol car. Officer Pickel
feared that Torres posed a potential danger to others. And he
knew from his training and experience that any delay would
make it very difficult to locate Torres.
As other officers arrived, Officer Pickel activated his
emergency lights and exited his patrol car. Based on the
information that Torres had discharged a firearm, Officer
Pickel drew his service pistol and ordered Torres to “get to the
ground.” App. 71. Torres complied, and two other officers,
including Officer Jonathan Hatterer, approached Torres.
Officer Hatterer knelt and asked Torres if he had a firearm.
According to Officer Hatterer, Torres said that he did and then
indicated that it was in his right pocket. Officer Hatterer
handcuffed Torres while another officer retrieved the firearm.
A grand jury indicted Torres and charged him with
violating 18 U.S.C. § 922(g)(1) by possessing a firearm as a
convicted felon. Torres pleaded not guilty and moved to
suppress the firearm. The District Court denied the motion. It
determined that the officers found the gun in Torres’s
possession during an investigatory stop under Terry v. Ohio,
392 U.S. 1 (1968), rather than during an arrest. It further
concluded that the stop was constitutional because Officer
Pickel had reasonable suspicion to conduct the stop.
The District Court then held a bench trial and found
Torres guilty. The Presentence Investigation Report (“PSR”)
1
Officer Pickel believed that his body camera captured the
encounter, but it malfunctioned.
3
advised that Torres qualified for enhanced sentencing under 18
U.S.C. § 924(e) of the ACCA because he had at least three
prior convictions for serious drug offenses. The PSR identified
two state drug possession convictions, one federal drug
distribution conspiracy conviction, and a felony conviction for
attempted homicide. Torres objected to the enhancement,
arguing that, because the state drug possession offenses were
part of the federal drug distribution conspiracy, the drug
conspiracy conviction should not be counted as a separate
predicate offense. The District Court denied Torres’s
objection, applied the enhancement, and sentenced Torres to
the mandatory-minimum sentence: 180 months’
imprisonment. Torres timely appealed.
II2
Torres argues that the officers violated the Fourth
Amendment when they seized him, so the firearm should have
been suppressed. He maintains that the seizure amounted to an
arrest that lacked probable cause. Alternatively, he contends
that even if the seizure were an investigatory stop, Officer
Pickel lacked reasonable suspicion to detain him. We disagree.
Officer Pickel conducted a valid investigatory stop to ensure
officer safety and the safety of the community. And the stop
was supported by reasonable suspicion because Officer Pickel
received a reliable tip.
A
“Generally, for a seizure [of a person] to be reasonable
under the Fourth Amendment, it must be effectuated with a
warrant based on probable cause.” United States v. Robertson,
305 F.3d 164, 167 (3d Cir. 2002) (citing Katz v. United States,
389 U.S. 347, 356–57 (1967)). But a police officer may arrest
a person in a public place without a warrant if the officer
2
The District Court had jurisdiction under 18 U.S.C. § 3231.
We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. §
3742(a). For a motion to suppress, we review factual findings
for clear error and legal conclusions de novo. United States v.
Johnson, 592 F.3d 442, 447 (3d Cir. 2010). We review
challenges to the application of an ACCA enhancement de
novo. United States v. Henderson, 841 F.3d 623, 626 (3d Cir.
2016).
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possesses probable cause to believe the person committed a
felony. United States v. McGlory, 968 F.2d 309, 342 (3d Cir.
1992) (citing United States v. Watson, 423 U.S. 411, 421
(1976)). Or, “an officer may . . . conduct a brief, investigatory
stop when the officer has a reasonable, articulable suspicion
that criminal activity is afoot.” Illinois v. Wardlow, 528 U.S.
119, 123 (2000) (citing Terry, 392 U.S. at 30).
The Supreme Court has not established a bright-line
rule to distinguish a warrantless arrest from an investigatory
stop. But the “reasonableness of the intrusion is the
touchstone” of our analysis. Baker v. Monroe Township, 50
F.3d 1186, 1192 (3d Cir. 1995) (citing United States v. Sharpe,
470 U.S. 675, 682–83 (1985)). The Supreme Court “ha[s]
emphasized the need to consider the law enforcement purposes
to be served by the stop as well as the time reasonably needed
to effectuate those purposes.” Sharpe, 470 U.S. at 685(citations omitted). By these standards, Torres was subjected
to an investigatory stop.
To begin, “[t]here is no per se rule that pointing guns at
people, or handcuffing them, constitutes an arrest.” Baker, 50
F.3d at 1193 (collecting cases); see also United States v.
Edwards, 53 F.3d 616, 619 (3d Cir. 1995) (surrounding a
suspect “with weapons ready, and even drawn, does not
constitute an arrest per se”). Terry recognized that when
officers are investigating a suspect who the officers reasonably
believe “is armed and presently dangerous to the officer[s] or
to others, it would . . . be clearly unreasonable to deny the
officer[s] the power to take necessary measures to determine
whether the person is in fact carrying a weapon and to
neutralize the threat of physical harm.” 392 U.S. at 24.
Torres’s case resembles the factual scenario we
encountered in United States v. Johnson, 592 F.3d 442 (3d Cir.
2010). In Johnson, a witness called a 911 dispatcher to report
that she saw two men struggling before hearing a gunshot. Id.
at 445. After the gunshot, the witness watched a white taxicab
depart the scene. Id. A short time later, police spotted a white
taxicab in the vicinity and stopped it. Id. Officers surrounded
the taxicab with guns drawn. Id. at 445–46. They ordered the
occupants out of the car and handcuffed the defendant and the
taxi driver so that they could “safely clear the vehicle and
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gather information about the [reported] shooting.” Id. at 446.
Officers then discovered a handgun in plain view in the
backseat of the car. Id. Under these facts, we held that the
officers conducted an investigatory stop, not an arrest. Id. at
448.
So, too, here. Officer Pickel received a tip that Torres,
just moments before, had discharged a firearm in a high-crime
area. A brief encounter with police ensued. Only thirty-five
seconds elapsed between the time when Officer Pickel ordered
Torres to stop and when police secured Torres’s firearm.3
Thus, the seizure was an investigatory stop—not an arrest.
B
Because Torres was subjected to an investigatory stop,
we next ask whether the stop was supported by reasonable
suspicion. Wardlow, 528 U.S. at 123. It was.
Reasonable suspicion exists if an officer can “articulate
more than an inchoate and unparticularized suspicion or hunch
of criminal activity.” Id. at 124 (quotation marks and citation
omitted). “Reasonable suspicion requires only a particularized
and objective basis for suspecting criminal activity” based on
“the totality of the circumstances.” United States v. Green, 897
F.3d 173, 183 (3d Cir. 2018) (citations, quotation marks, and
alteration omitted). “We afford significant deference to a law
enforcement officer’s determination of reasonable suspicion.”
United States v. Foster, 891 F.3d 93, 104 (3d Cir. 2018).
Because Officer Pickel acted on an informant’s tip, we
must decide whether the tip was reliable. United States v.
Torres, 534 F.3d 207, 210–11 (3d Cir. 2008). In doing so, we
consider whether: (1) the information was provided to the
police in person, allowing an officer to assess directly the
informant’s credibility; (2) the informant could be held
responsible if his allegations are untrue; (3) the information
would not be available to the ordinary observer; (4) the
3
Torres tries to distinguish Johnson, arguing that Officer
Pickel did not have as much detailed information as the officers
in Johnson. But this goes to whether Officer Pickel had
reasonable suspicion—not whether the encounter amounted to
an arrest.
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informant had recently witnessed the alleged criminal activity
at issue; and (5) the informant’s information accurately
predicted future activity. United States v. Brown, 448 F.3d 239,
249–50 (3d Cir. 2006).
These factors are not exhaustive, and “a tip need not
bear all of the indicia [of reliability]—or even any particular
indicium—to supply reasonable suspicion.” Torres, 534 F.3d
at 213 (citation omitted). “Other factors can bolster what would
otherwise be an insufficient tip,” including “the presence of a
suspect in a high[-]crime area[.]” Id. at 211 (alteration and
citation omitted). At bottom, we must discern whether the tip
had “sufficient indicia of reliability . . . for us to conclude that
the officers possessed an objectively reasonable suspicion” to
justify the stop. Brown, 448 F.3d at 250 (quoting United States
v. Nelson, 284 F.3d 472, 481 (3d Cir. 2002)).
Based on the Brown factors, the tip was reliable. First,
Officer Pickel interacted with the tipster face-to-face and thus
could assess his credibility. The tipster waved down Officer
Pickel and adamantly explained what he had personally
witnessed. Second, Officer Pickel would likely be able to hold
the man accountable if his allegation were untrue. Although
Officer Pickel did not know the tipster’s name or his car’s
license plate number, he did know what the man looked like
and the make of the car that he drove. Third, the tipster had just
witnessed the alleged criminal activity. See Navarette v.
California, 572 U.S. 393, 400 (2014) (observing that a
statement “made under the stress of excitement caused by a
startling event . . . weigh[s] in favor of the [tipster’s] veracity”).
The fact that Torres was in a high-crime area also favors
reliability. See Torres, 534 F.3d at 211. Shootings were
reported “regularly” in the west end. App. 48. Considering all
the circumstances, and “given . . . the danger posed by an
armed criminal, we think that if [Officer Pickel] had done
nothing and continued on [his] way after receiving the
informant’s tip, [he] would have been remiss.” United States v.
Valentine, 232 F.3d 350, 356 (3d Cir. 2000). In short, Officer
Pickel had reasonable suspicion based on the totality of the
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circumstances. See Green, 897 F.3d at 183. Thus, Torres’s
Fourth Amendment argument fails.4
III
Torres next argues that he is not subject to the ACCA’s
enhanced mandatory-minimum sentence under § 924(e).
Specifically, he maintains that, because his federal drug
conspiracy conviction encompassed his two state drug
possession convictions, the federal drug conspiracy conviction
cannot count as one of the necessary predicate offenses. We
disagree.
Under the ACCA, a fifteen-year mandatory-minimum
sentence applies to any defendant who violates 18 U.S.C.
§ 922(g)(1) after receiving three or more convictions “for a
violent felony or a serious drug offense, or both, committed on
occasions different from one another[.]” 18 U.S.C. § 924(e)(1)
(emphasis added). To decide whether convictions were
committed on different occasions, we apply the separate
episode test and analyze whether the offenses were “distinct in
time.” United States v. Schoolcraft, 879 F.2d 64, 73 (3d Cir.
1989) (per curiam).
We have held that three robberies carried out in four
days were separate episodes because they “occurred on
separate occasions” “and targeted different geographic
locations and victims[.]” United States v. Blair, 734 F.3d 218,
228–29 (3d Cir. 2013) (quotation marks and citations omitted).
In Blair, we cited with approval the decisions of two other
Courts of Appeals, which held that robbery offenses were
4
Torres faults Officer Pickel for failing to corroborate the tip
before pursuing him. But we will not “second-guess the
officer[’s] decision to pursue the suspect immediately. The
officer[] knew [that] the suspect was still in the vicinity[ ]
and[,] had [the officer] stalled for more lengthy questioning of
the informant, the armed suspect could have escaped
detection.” United States v. Valentine, 232 F.3d 350, 355 (3d
Cir. 2000). Torres also attacks the reliability of the tip because
he claims it came from an anonymous source. The identity of
the source is irrelevant because the tip bore sufficient indicia
of reliability under the totality of circumstances. United States
v. Torres, 534 F.3d 207, 211 (3d Cir. 2008)
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separate episodes even when committed less than an hour
apart. Id. at 229 (citing United States v. Pope, 132 F.3d 684,
692 (11th Cir. 1998), and United States v. Brady, 988 F.2d 664,
668–70 (6th Cir. 1993) (en banc)).
We have not decided whether a felony conspiracy
conviction qualifies as an ACCA predicate offense when it
encompasses a defendant’s other substantive predicate
convictions. Our sister circuits have unanimously concluded
that it does. For example, in United States v. Melbie, the Eighth
Circuit held that a drug possession offense that occurred
“during the period” of a drug conspiracy offense counted as a
separate ACCA predicate because “the possession offense was
a discrete episode in a series of events.” 751 F.3d 586, 587 (8th
Cir. 2014). The Eleventh and Sixth Circuits have adopted
Melbie’s approach. See United States v. Longoria, 874 F.3d
1278, 1282 (11th Cir. 2017) (per curiam); United States v.
Pham, 872 F.3d 799, 802–03 (6th Cir. 2017).
We agree and hold that a conspiracy offense counts as
an ACCA predicate offense even when it covers other
substantive ACCA predicate offenses, so long as the
conspiracy offense is a “separate episode” that was distinct in
time from the other offenses. See Schoolcraft, 879 F.2d at 73–
74. A defendant’s participation in a conspiracy may be broader
than his underlying ACCA predicate convictions. Thus, the
relevant inquiry is whether a defendant’s underlying
convictions were distinct episodes in the course of conduct
constituting his participation in the drug conspiracy.
We have no difficulty concluding that Torres’s drug
possession offenses were “distinct in time” from his drug
conspiracy offense. Torres’s two state drug possession
offenses occurred in July 2004 and July 2005, respectively. Yet
his involvement in the federal drug conspiracy continued
between July 2004 and February 2006. As Torres admitted
while pleading guilty to the conspiracy charge, he committed
numerous other overt acts: packing and dispensing drugs and
handling money; attempting homicide to recover stolen drugs;
contacting co-conspirators and the ringleader on numerous
occasions; and exercising responsibility over large amounts of
crack cocaine. Thus, Torres’s participation in the conspiracy
was broader than his two drug possession offenses. And rather
9
than withdraw from the conspiracy, he returned to it, even after
his state drug convictions.
* * *
For these reasons, we will affirm the District Court’s
judgment.
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