United States v. Henry , 277 F. App'x 236 ( 2008 )

Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
5-6-2008
USA v. Henry
Precedential or Non-Precedential: Non-Precedential
Docket No. 06-3961
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2008
Recommended Citation
"USA v. Henry" (2008). 2008 Decisions. Paper 1267.
http://digitalcommons.law.villanova.edu/thirdcircuit_2008/1267
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2008 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 06-3961
____________
UNITED STATES OF AMERICA
v.
JEREMY A. HENRY
Jeremy Henry,
Appellant
____________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 05-cr-00215)
District Judge: Honorable Anita B. Brody
____________
Submitted Under Third Circuit LAR 34.1(a)
April 18, 2008
Before: SCIRICA, Chief Judge, AMBRO and FISHER, Circuit Judges.
(Filed: May 6, 2008)
____________
OPINION OF THE COURT
____________
FISHER, Circuit Judge.
Defendant Jeremy Henry appeals the District Court’s denial of his motion to
suppress a loaded handgun as evidence against him, resulting in a judgment of his guilt on
two violations of federal criminal law. For the reasons that follow, we will affirm.
I.
We write exclusively for the parties, who are familiar with the factual context and
legal history of this case. Therefore, we will set forth only those facts necessary to our
analysis.
On January 13, 2005, the Cheltenham Township Police Department established
surveillance of a Wendy’s Restaurant parking lot, after receiving a tip from a previously
relied-upon confidential informant about possible criminal activity at that location, which
was also in a high-crime area. The tip was that, at around 4:00 p.m., the informant saw an
individual drive into the parking lot in a silver Nissan Altima, get out of the car with a
large duffel bag, and drive off in another car, a silver Nissan Xterra, leaving the Altima in
the parking lot.
Shortly after the surveillance began at around 4:45 p.m., the officers saw a man –
later identified as Henry – drive into the parking lot at around 5:30 p.m. in a silver Nissan
Xterra but park at a corner away from the restaurant, where cars typically do not park
unless the lot was full. Henry remained in his vehicle but repositioned it in the parking
lot multiple times.
2
At about 6:30 p.m., several unrelated incidents in the neighborhood resulted in
heavy police activity in the vicinity of Wendy’s. At that point, Henry left the parking lot
in the Xterra. Approximately half an hour later, he returned and resumed moving the
Xterra around the parking lot every several minutes.
At around 7:30 p.m., Henry parked the Xterra next to the Altima. He placed a bag
and coat in the Altima and then began to walk back to the Xterra. At this time, Officer
Joseph O’Neill, in plainclothes, approached him and asked to talk to him. According to
O’Neill, Henry immediately tensed up and became visibly nervous. Henry also tried to
sidestep O’Neill so that the Xterra was in between them. A second officer, Dave
Chiofolo, approached Henry from behind. According to the officers, before either of
them touched him, Henry started reaching toward his waist.
Chiofolo then grabbed Henry’s arm, identified himself as an officer, and informed
him that he would conduct a pat-down search. He did so and felt a firearm beneath
Henry’s pants, in his pelvic area. When Henry began to resist, Chiofolo took Henry to the
ground and maintained his hold on the firearm while trying to restrain him. Henry did
eventually comply and was taken into custody. The officers recovered a .40 caliber
handgun from Henry’s person. The gun was loaded with eleven rounds of live
ammunition.
On April 14, 2005, Henry was indicted for illegal reentry after deportation in
violation of 8 U.S.C. § 1326(a) and (b)(2) and for possession of a firearm by an illegal
3
alien in violation of 18 U.S.C. § 922(g)(5)(A). An evidentiary hearing on Henry’s motion
to suppress the gun seized from him was conducted on November 8 and 9, 2005. The
District Court denied the motion.
On November 28, 2005, Henry pleaded guilty to both counts of the indictment,
while reserving the right to appeal the District Court’s ruling on the motion to suppress.
On August 23, 2006, the District Court sentenced Henry to 57 months’ imprisonment.
Henry then filed a timely notice of appeal.
II.
We have jurisdiction under 28 U.S.C. § 1291. United States v. Yamba, 506 F.3d
251, 253 n.2 (3d Cir. 2007). We review “the District Court’s denial of a motion to
suppress for clear error as to the underlying factual findings and exercise[] plenary review
of the District Court’s application of the law to those facts.” United States v. Perez, 280
F.3d 318, 336 (3d Cir. 2002).
Here, Henry does not dispute the District Court’s factual findings. The arguments
Henry does make are that the officers had no reasonable suspicion either (1) to seize his
person or (2) to conduct a pat-down search of his person, as required under Terry v. Ohio,
392 U.S. 1 (1968).1 Terry and its progeny establish that investigatory stops short of
1
Our resolution of these arguments obviates the need to address Henry’s additional
argument that the District Court erred in finding that the officers’ initial approach of
Henry was a citizen encounter rather than a Fourth Amendment seizure. As we will
explain, we believe that the officers already had reasonable suspicion to seize Henry
when they first approached him.
4
traditional arrest are valid when supported by an officer’s reasonable suspicion that
criminal activity “may be afoot.” United States v. Arvizu, 534 U.S. 266, 273 (2002)
(internal quotation marks and citations omitted). The scope of a valid Terry stop includes
a brief detention of the person and a pat-down search for weapons. See 392 U.S. at
22-24, 27; Yamba, 506 F.3d at 256.
Here, the District Court gave ample reasons why the officers had reasonable
suspicion to believe that criminal activity may be afoot. Initially, the tip came from an
informant on which Officer O’Neill had relied in the past, so the informant was not
anonymous. See United States v. May, 399 F.3d 817, 823 (6th Cir. 2005) (explaining the
difference between anonymous and known confidential informants, the latter requiring
less stringent scrutiny of their veracity, reliability, and basis of knowledge). Then, hours
of surveillance by the two officers corroborated the tip and provided the additional
information to create reasonable suspicion. See United States v. Brown, 448 F.3d 239,
251 (3d Cir. 2006) (explaining that reasonable suspicion can be established by a tip plus
one or more factors such as presence of suspect in a high-crime area and suspect’s
behavior that conforms to officers’ specialized knowledge of criminal activity).
For example, Henry’s use of two cars to, from, and within the Wendy’s parking lot
over a period of several hours suggested that he was not a patron of the restaurant.
Second, the officers testified that they had personal knowledge that the parking lot was
located in a high-crime area. Third, the fact that Henry parked the Nissan Xterra on the
5
far side of the lot when it was not full, then repositioned it numerous times, then did not
meet anyone else there, suggested that he might be scoping out the location for criminal
activity, such as a drug transaction, robbery, or burglary. Fourth, the officers’ suspicion
was heightened by Henry’s driving away when marked police cruisers entered the area to
respond to unrelated incidents, only to return when the coast appeared clear. Under the
totality of the circumstances, see Arvizu, 534 U.S. at 273, we conclude that the officers’
own training and experience, combined with their observations of and inferences from
Henry’s behavior, gave them reasonable suspicion to effect a Terry stop.
With respect to Henry’s second argument, he does not argue that the scope of the
officers’ pat-down search extended beyond a search for weapons, but instead argues that
the officers had no reasonable suspicion to believe that he was armed and dangerous. The
facts defeat his argument. Officer Chiofolo did not conduct a pat-down search as part of
the Terry stop until Henry tried to separate himself from O’Neill by the Xterra and
reached his hand beneath his pants at the waist. These movements gave Chiofolo
reasonable suspicion to believe that “the person[] with whom he is dealing may be armed
and presently dangerous.” Terry, 392 U.S. at 30.
III.
For the foregoing reasons, we will affirm the District Court’s judgment.
6