United States v. Tyrone Greene ( 2019 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 18-2923
___________
UNITED STATES OF AMERICA
v.
TYRONE GREENE,
Appellant
___________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. No. 3-15-cr-00015-001)
District Judge: Honorable A. Richard Caputo
___________
Submitted June 10, 2019
Before: HARDIMAN, PORTER, and COWEN, Circuit
Judges
(Filed: June 25, 2019)
Robert O’Hara
Jenny P. Roberts
Office of United States Attorney
235 North Washington Avenue
P.O. Box 309, Suite 311
Scranton, PA 18503
Attorneys for Appellee
Brandon R. Reish
31 North 7th Street
Strousburg, PA 18360
Quin M. Sorenson
Office of Federal Public Defender
100 Chestnut Street
Suite 306
Harrisburg, PA 17101
Attorneys for Appellant
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OPINION OF THE COURT
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HARDIMAN, Circuit Judge.
A jury found Tyrone Greene guilty of possessing a
firearm and ammunition in violation of 18 U.S.C. § 922(g)(1),
and the District Court sentenced him to sixty months in prison.
Greene appeals his judgment of conviction, claiming the
District Court erred when it denied two of his motions to
suppress. We will affirm.
I
Greene and his girlfriend, Jennifer Manley, were
traveling in a white van without its lights on when they were
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stopped by Officer Mark Stefanowicz of the Hanover
Township Police. Manley was driving, but she was unable to
produce a driver’s license, vehicle registration, or proof of
insurance. Instead, she gave Stefanowicz a New York state
benefits card and a rental car agreement in the name of Kevin
Hurtudo-Moreno that listed no other authorized drivers.
Greene told Stefanowicz that Hurtudo-Moreno was his brother.
While speaking with Manley and Greene, Stefanowicz
smelled unburnt marijuana emanating from the vehicle. Greene
then began acting suspiciously by “repeatedly seeking to leave,
and attempting to leave, the scene of the traffic stop . . .
initially standing up and then sitting back down in the
passenger seat when ordered out of the vehicle; and standing
up and reaching for his waistband, as though trying to conceal
something on his person.” United States v. Greene, 2017 WL
2180354, at *1 (M.D. Pa. May 18, 2017). Stefanowicz
responded to Greene’s suspicious behavior by patting him
down as permitted by Terry v. Ohio, 392 U.S. 1 (1968). In
doing so, Stefanowicz felt a bulge, the seal of a plastic baggie,
and the texture of its contents. Based on his extensive
experience, Stefanowicz immediately recognized the bag as
marijuana, so he had no need to manipulate it. After removing
the baggie, Stefanowicz placed Greene under arrest.
Incident to Greene’s arrest, Stefanowicz searched the
van and found .40 caliber bullets in the glove box and in
Manley’s purse. Stefanowicz then escorted Greene to the
police car, but while doing so, he noticed Greene bending over
and walking in unusual ways, as if to conceal something.
Another officer who had arrived on scene searched Greene
further and located a loaded, stolen handgun in his groin area.
The police arrested Manley and transported her to the
stationhouse apart from Greene.
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During booking at the stationhouse, Greene asked
Stefanowicz whether Manley would get in trouble.
Stefanowicz replied that she would, for “headlight violations,
no license, marijuana.” App. 160. Greene then volunteered that
he would “take the hit” for the gun and bullets. Id.
As relevant to this appeal, Greene moved to suppress
both his inculpatory statement and the gun and bullets seized
after he was arrested for possession of marijuana. We address
each argument in turn.
II1
During the booking process and before receiving any
warning under Miranda v. Arizona, 384 U.S. 436 (1966),
Greene expressed concern for his girlfriend by asking whether
Manley would get into trouble. Officer Stefanowicz responded
curtly (and accurately) that Manley was facing charges for
automobile and drug violations. Although Stefanowicz said
nothing about firearm or ammunition charges, Greene
volunteered that he would “take the hit” for the gun and bullets.
App. 160.
Greene argues that his inculpatory statement should
have been suppressed because it was procured in violation of
his Fifth Amendment right not to incriminate himself. That
argument is premised on Rhode Island v. Innis, 446 U.S. 291
(1980), where the Supreme Court held that a suspect must be
Mirandized before he is subjected to the functional equivalent
of interrogation—i.e., “any words or actions on the part of the
1
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).
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police (other than those normally attendant to arrest and
custody) that the police should know are reasonably likely to
elicit an incriminating response from the suspect.” Id. at 301
(footnotes omitted). Greene cites our decisions in United
States v. Calisto, 838 F.2d 711, 717 (3d Cir. 1988), and United
States v. Benton, 996 F.2d 642, 644 (3d Cir. 1993), to argue
that his circumstances amounted to the functional equivalent
of interrogation. Neither case helps Greene.
In Calisto, we found an officer’s remark about the
possible arrest of the suspect’s daughter did not create a
reasonable expectation that the suspect would make an
inculpatory statement. 838 F.2d at 718. In that case, in front of
the suspect, one officer informed another that both men’s and
women’s clothing had been found in the bedroom where
methamphetamine was found, and the second officer
responded, “[w]ell, then we’ll have to get an arrest warrant for
the daughter.” Id. at 713. We reasoned that the officers need
not have expected the father’s inculpatory response because
the officer’s comment was not directed at the father; it was the
kind of remark officers normally make in the course of their
duties; and it was not provocative. Id. at 713, 718. And because
the father did not show any “signs of being emotionally upset
or overwrought,” officers were not on notice that he would be
particularly susceptible to such a remark. Id. at 718.
In Benton, we held that an officer’s remark about seeing
the armed robbery suspect dispose of his gun did not create a
reasonable expectation that the suspect would make an
inculpatory response. 996 F.2d at 643. The officer “did nothing
more than tell [the suspect] why he was being arrested,” and
the suspect’s response that no one saw him throw the gun away
was unforeseeable. Id. at 644. Nevertheless, in dicta, we
suggested that telling a suspect that other members of his
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family would be implicated in the crime, “thus encouraging
him to speak to accept sole responsibility,” might make the
suspect feel “compelled to respond” and render his response
excludable. Id. Greene mainly relies on this counterexample,
and facts distinguishing his case from Calisto and Benton, to
argue that his statement resulted from the functional equivalent
of interrogation.
Coercion is the touchstone for identifying
circumstances that make an inculpatory statement excludable.
See Innis, 446 U.S. at 301. Thus, an officer’s mere “words or
actions” (as opposed to questions) may so coerce a suspect as
to render his inculpatory response excludable. Id. We rely on
the circumstances at the time a suspect made the incriminating
statement to determine whether it resulted from the functional
equivalent of interrogation. Benton, 996 F.2d at 644. And we
review de novo “whether the police conduct found to have
occurred constitutes custodial interrogation,” while reviewing
factual findings for clear error. Calisto, 838 F.2d at 717.
Here, Officer Stefanowicz’s remark did not constitute
the functional equivalent of interrogation because Greene’s
response was unforeseeable. See id. at 716. Greene asked for
the information he now claims coerced him into confessing.
Stefanowicz’s answer to Greene’s question was a brief and
accurate description of what his girlfriend was facing.
Moreover, the charges Manley faced were unrelated to the
conduct—possessing the gun and bullets—to which Greene
confessed. The record does not show Greene was “emotionally
upset or overwrought,” id. at 718, or that other circumstances
created such coercive influence that Stefanowicz should have
known Greene would likely incriminate himself. Instead,
Greene’s “statement was simply gratuitous,” and the District
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Court did not err by declining to suppress it. Benton, 996 F.2d
at 644.
III
Greene next claims the District Court erred when it
denied his motion to suppress the gun and bullets, which he
contends were the inadmissible fruits of an illegal pat-down.
Under Minnesota v. Dickerson, police may seize contraband
during a lawful pat-down if the contraband’s “contour or mass
makes its identity immediately apparent.” 508 U.S. 366, 375
(1993). This “plain-feel doctrine” permits an officer to seize an
object when, given his training and experience, he develops
probable cause to believe it is contraband (1) by the time he
concludes it is not a weapon and (2) “in a manner consistent
with a routine frisk.” United States v. Yamba, 506 F.3d 251,
257, 259 (3d Cir. 2007).
Here, Officer Stefanowicz, based on his extensive
experience in drug investigations, identified a bag of marijuana
in Greene’s pocket during a lawful pat-down. He did not
manipulate the bulge—and had no need to do so—because he
immediately recognized it by its feel and texture. See id. at 260.
This occurred during a lawful Terry pat-down before the
officers determined whether Greene was armed. See United
States v. Graves, 877 F.3d 494, 500 (3d Cir. 2017). For these
reasons, the District Court did not err when it denied Greene’s
motion to suppress the gun and bullets found during a search
incident to his arrest for marijuana possession.
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* * *
Police lawfully obtained Greene’s incriminating
statement as well as the gun and bullets that supported his
conviction under 18 U.S.C. § 922(g)(1). We will affirm.
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