United States v. Ali , 136 F. App'x 481 ( 2005 )

Opinions of the United
2005 Decisions States Court of Appeals
for the Third Circuit
6-10-2005
USA v. Ali
Precedential or Non-Precedential: Non-Precedential
Docket No. 04-1806
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 04-1806
UNITED STATES OF AMERICA
v.
SHUAIB ALI
Appellant
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 03-cr-0419-1)
District Judge: Honorable Legrome D. Davis
Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
June 9, 2005
Before: AMBRO, VAN ANTWERPEN, and TASHIMA * , Circuit Judges
(Filed: June 10, 2005)
OPINION OF THE COURT
*
The Honorable A. Wallace Tashima, Senior United States Circuit Judge for the Ninth
Circuit, sitting by designation.
VAN ANTWERPEN, Circuit Judge.
Appellant Shuaib Ali seeks review of a determination by the United States District
Court for the Eastern District of Pennsylvania that he was properly stopped and searched
pursuant to Terry v. Ohio, 392 U.S. 1 (1968), and consequently that the evidence
recovered from this search was properly admitted into evidence. For the following
reasons, we affirm.
I. Facts
Because we write solely for the parties, we need state only the facts pertinent to
our analysis. On May 4, 2002, Officer Francis Quinn and his partner were approached by
an agitated Bryant Bustion. Mr. Bustion reported that he had been driving when he
received a cellular telephone call from his daughter explaining that Appellant was holding
her hostage at gunpoint. After receiving this call, Mr. Bustion drove back to Philadelphia
and headed toward 5146 Carlisle Street, the address where his daughter told him she was
being held. It was in the vicinity of this address that Mr. Bustion happened upon Officer
Quinn. There is no indication in the record as to how much time had elapsed between
Mr. Bustion’s conversation with his daughter and his contact with Officer Quinn.
Officer Quinn then followed Mr. Bustion to 5146 Carlisle Street, approximately
one block away. Upon arrival, two men (and possibly one woman) were standing at the
corner of Carlisle Street and Duncanon Street, approximately 30-40 feet from 5146
Carlisle Street. Mr. Bustion exited his vehicle, and identified one of the men as
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Appellant, his daughter’s former boyfriend and the alleged kidnapper. As the police and
Mr. Bustion approached the men, neither fled, there was no visible indication that either
possessed a weapon, and neither was doing anything suspicious or unlawful.
Nonetheless, Officer Quinn left his vehicle, grabbed Appellant, took him to a nearby
fence, and proceeded to pat him down. As Officer Quinn was searching, Appellant
lowered one of his hands and removed a gun from underneath his sweatshirt. Officer
Quinn grabbed it, forced Appellant down onto the patrol car, and placed him under arrest.
It was only after the arrest was made that Mr. Bustion’s daughter exited 5146 Carlisle
Street and confirmed that Appellant had held her at gunpoint earlier in the day.
Appellant was indicted in United States District Court on one count of illegally
possessing a firearm in violation of 18 U.S.C. § 922(g)(1). The District Court denied a
motion to suppress all physical evidence, and Appellant consequently entered a
conditional guilty plea, reserving the right to appeal the District Court’s denial of his
suppression motion. Appellant was sentenced to a term of 32 months imprisonment,
followed by a 36-month term of supervised release. This sentence was the result of
enhancements based upon factual findings made by the District Court but not admitted in
the guilty plea. This timely appeal followed.
II. Jurisdiction and Standard of Review
The District Court had subject matter jurisdiction pursuant to 18 U.S.C. § 3231.
Our jurisdiction over the District Court’s denial of the suppression motion is grounded in
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28 U.S.C. § 1291. We exercise plenary review over both the District Court’s conclusions
regarding reasonable suspicion and its application of law to the facts of this case. United
States v. Robertson, 305 F.3d 164, 167-68 (3d Cir. 2002). We review the District Court’s
factual findings for clear error. Id. at 168 (quoting United States v. Riddick, 156 F.3d
505, 509 (3d Cir. 1998)).
III. Discussion
It is well-established that, consistent with the Fourth Amendment and the Supreme
Court’s holding in Terry v. Ohio, “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). One of the purposes of such a stop is the
protection of the police officer and innocent bystanders:
[W]here a police officer observes unusual conduct which leads him
reasonably to conclude in light of his experience that criminal activity may
be afoot and that the persons with whom he is dealing may be armed and
presently dangerous, where in the course of investigating this behavior he
identifies himself as a policeman and makes reasonable inquiries, and
where nothing in the initial stages of the encounter serves to dispel his
reasonable fear for his own or others’ safety, he is entitled for the protection
of himself and others in the area to conduct a carefully limited search of the
outer clothing of such persons in an attempt to discover weapons which
might be used to assault him.
Terry, 392 U.S. at 30-31. This holding was expanded by the Court in Adams v. Williams,
407 U.S. 143 (1972), which held that a police officer may make a limited protective
search for concealed weapons when he has reason to believe that the suspect is armed and
dangerous, even though the officer had not personally observed behavior that would give
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rise to a reasonable suspicion. Id. at 147. In evaluating what is a reasonable, articulable
suspicion, we must consider the totality of the circumstances, including the police
officer’s knowledge, experience, and common sense judgments about human behavior.
See Robertson, 305 F.3d at 167; United States v. Valentine, 232 F.3d 350, 353 (3d Cir.
2000). When reviewing the totality of the circumstances, we must give substantial
deference to the inferences drawn by an officer on the scene. Valentine, 232 F.3d at 355.
Because Officer Quinn’s sole basis for searching Appellant was Mr. Bustion’s statement
that Appellant had held his daughter at gunpoint earlier in the day, the narrow question
before us is whether such information is sufficient to create the “minimal level of
objective justification” required to support a Terry stop and frisk. See, e.g., United States
v. Sokolow, 490 U.S. 1, 7 (1989).
It is beyond a doubt that police officers can base their reasonable suspicions upon
information offered by another person. Adams, 407 U.S. at 147. In Valentine, we
explained why a tip given face-to-face is inherently more reliable than would be an
anonymous tip conveying the same information. See Valentine, 232 F.3d at 554-55.
When a person with information relays it face-to-face to a police officer, the officer has
an opportunity to assess the informant’s veracity and demeanor. Id. Of equal importance,
an informant who offers a face-to-face tip and then remains with the police exposes
himself to criminal liability should it be discovered that he lodged a false complaint, thus
contributing to the informant’s belief in the information’s truthfulness. Id. (citing United
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States v. Christmas, 222 F.3d 141, 144 (4 th Cir. 2000)). Similarly, one who alerts law
enforcement of nearby criminal activity is exposed to a risk of retaliation from the person
named, making it less likely that he is lying. Id.In this case, each of these indicia of reliability were present. Mr. Bustion
approached Officer Quinn, and stated that his daughter had called him and said she was
being held at gunpoint one block away, and was noticeably agitated as he relayed this
information to the police. Mr. Bustion then offered to lead the police to the location
where his daughter said she was being held. Upon arrival, he left his vehicle and
approached Appellant, identifying Appellant as his daughter’s ex-boyfriend and
demanding that Appellant tell him where she was. At that point, there was sufficient
evidence for Officer Quinn to have a reasonable suspicion that Appellant may have been
armed, and had recently engaged in a violent felony. As such, he was justified in
searching Appellant for weapons, both for his safety as well as that of his partner and Mr.
Bustion.
We recognize that, in Valentine, we cautioned against the reliability of informants
who acquire information from stale or second-hand sources. Valentine, 232 F.3d at 354.
Indeed, the elapsed time between an informant’s observation and his reporting of a crime
or the person from which he acquired such information can significantly affect the
reliability of a tip. However, we cannot conclude, merely because Ms. Bustion spoke
with her father rather than a 911 operator and because Mr. Bustion was forced to drive an
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indeterminate distance to reach Officer Quinn, that the information was inherently
unreliable. It was sufficient to give Officer Quinn a reasonable suspicion that Appellant
had committed a crime and was armed, and Officer Quinn was thus justified in searching
Appellant for weapons. The District Court therefore properly admitted the gun into
evidence.
We turn next to Appellant’s assertion that the District Court improperly enhanced
his sentence with factual findings not made by a jury, in violation of United States v.
Booker, 543 U.S. __, 125 S.Ct. 738 (2005). It is undisputed that Appellant waived his
rights to attack the length of his sentence as part of his plea agreement absent a sentence
that exceeded the statutory maximum or an erroneous departure upward from an
otherwise applicable sentencing guideline range. Neither situation exists here. Where a
criminal defendant has voluntarily and knowingly entered into a plea agreement in which
he or she waives the right to appeal, the defendant is not entitled to resentencing in light
of Booker. United States v. Lockett, 406 F.3d 207, 213 (3d Cir. 2005). Because we are
satisfied that Appellant entered into a knowing and voluntary plea agreement, his
appellate waiver forecloses his argument under Booker.
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