United States v. Martin ( 2003 )

Opinions of the United
2003 Decisions States Court of Appeals
for the Third Circuit
4-16-2003
USA v. Martin
Precedential or Non-Precedential: Non-Precedential
Docket 02-1435
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 02-1435
___________
UNITED STATES OF AMERICA,
v.
TYRONE MARTIN,
Appellant.
__________________
On Appeal from the United States District Court
For the Eastern District of Pennsylvania
(D.C. Crim. No. 00-cr-00710)
District Judge: Eduardo C. Robreno
____________________
Argued on February 13, 2003
BEFORE: ALITO and McKEE, Circuit Judges, and SCHWARZER, * Senior
District Judge
(Filed: April 16, 2003)
JOSEPH D. MANCANO (ARGUED)
Britt, Hankins, Schaible & Moughan
Two Penn Center Plaza, Suite 515
Philadelphia, PA 19102
Attorney for Tyrone Martin, Appellant
JOSEPH G. POLUKA (ARGUED)
*
Honorable William W Schwarzer, Senior District Judge, Northern District of
California, sitting by designation.
Assistant United States Attorney
PATRICK L. MEEHAN
United States Attorney
LAURIE MAGID
Deputy United States Attorney for Policy and
Appeals
ROBERT A. ZAUZMER
Assistant United States Attorney, Senior
Appellant Counsel
615 Chestnut Street, Suite 1250
Philadelphia, PA 19106
Attorneys for Appellee United States of
America
_______________________
OPINION OF THE COURT
_______________________
SCHWARZER, Senior District Judge
Tyrone Martin appeals from his conviction of possession with intent to
distribute cocaine base in violation of 21 U.S.C. § 841(a)(1) and carrying a firearm in
relation to a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1). Martin contends
that the district court committed two errors entitling him to a new trial: (1) that the court
erred in denying his motion to suppress evidence illegally seized from his vehicle, and (2)
that it erred in receiving testimony from the government’s expert witness regarding
Martin’s intent. We review the district court’s factual findings for clear error and exercise
plenary review of the court’s application of the law to those facts. United States v. Peréz
280 F.3d 318, 336 (3rd Cir. 2002). We have jurisdiction pursuant to 28 U.S.C. § 1291, and
affirm.
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(1) On the night of February 6, 2000, between the hours of 3:30 and
11:30 p.m., Officers Whitaker and Fletcher were patrolling a section of Northwest
Philadelphia in an unmarked car wearing plainclothes. The 35th district, to which they had
been assigned for five and four years, respectively, had recently received calls from
citizens concerning drug activity in the area, and the officers knew of those calls and, while
on duty that night, observed narcotics sales in the area. At around 11:00 p.m., the officers
saw a gold 2000 Ford Expedition circle the block three or four times. The officers
observed that the vehicle had New Jersey plates and bore an emblem indicating that it was a
rental car. It had snowed recently, and as a result of the plowing, only one lane was open on
Medary Street. As Martin circled the block, his car came face to face with the unmarked
police car in the one lane open to traffic, and both cars stopped. The officers identified
themselves as policemen, ordered Martin out of his car and asked to see his driver’s
license. This investigatory stop eventually led to a search of the car, which disclosed a gun,
ammunition and drugs.
While there appeared to be inconsistencies in the arresting officers’
testimony, the district court found it undisputed that the following facts were known by the
police officers before they approached Martin’s vehicle: (1) Martin was driving his vehicle
late at night; (2) he circled the block three or four times; (3) the area of the block was one
where there was on-going drug activity; (4) he was driving a rented vehicle with out-of-state
tags; and (5) the two officers respectively had four and five years’ experience as
Philadelphia police officers.
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Martin contends that these five factors do not amount to unusual conduct and
do not create reasonable suspicion of criminal activity to justify the stop of Martin’s
vehicle. We disagree. In United States v. Arvizu, 534 U.S. 266 (2002), the Court rejected
the lower court’s “evaluation . . . of . . . the listed factors in isolation from each other.” Id.
at 274. “[R]eviewing courts . . . must look at the ‘totality of the circumstances’ of each
case to see whether the detaining officer has a ‘particularized and objective basis’ for
suspecting legal wrongdoing.” Id. at 273 (citations omitted).
Here, the information known to the officers at the time of the investigatory
stop is substantially similar to that which was known to the officers in United States v.
Rickus, 737 F.2d 360 (3rd Cir. 1984). There, we held that an investigatory stop by
experienced police officers was supported by reasonable suspicion where the officers first
observed the defendants’ vehicle driving through a closed business district at 3:30 a.m. at
15-20 miles per hour below the speed limit and then turn into a residential area that had
recently been victimized by a spate of burglaries. 737 F.2d at 365. We think our decision
in Rickus is dispositive.1
(2) Martin also contends the district court erred in receiving certain
testimony from the government’s expert witness. The prosecutor asked Detective Matthew
McDonald, “hearing all of the evidence and reviewing the relevant documents and testimony
and exhibits, can you form an opinion as to . . . whether the amount of drugs in this case as
1
Martin’s appeal does not challenge the subsequent search of his vehicle for lack of
probable cause.
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found in the lab, 24.49 grams, was consistent with possession with intent to distribute?”
The witness responded, “[y]es, sir, I have no doubt that the drugs possessed in this case were
possessed with the intent to distribute.” Later in the examination, the prosecutor asked the
witness whether, if the amount of drugs were 2.86 grams rather than 24.49 grams, his
opinion would change. The witness responded, “if it stood alone, it would be certainly
questionable, but due, again, to the totality of the situation, I think that two or three grams
would be held for resale also.”
Because Martin did not object or move to strike, we review for plain error.
Plain error requires a showing there was “(1) an error; (2) which is clear or obvious; and (3)
which affects substantial rights (i.e., it affected the outcome of the district court
proceedings).” United States v. Navarro, 145 F.3d 580, 584-85 (3d Cir. 1998) (citing
United States v. Olano, 507 U.S. 725, 733-34 (1993)). Citing United States v. Watson,
260 F.3d 301 (3rd Cir. 2001), Martin argues that the government violated Federal Rule of
Evidence 704 by eliciting testimony from Detective McDonald regarding Martin’s mens
rea. However, the prosecutor’s questions in Watson asked whether the witness had
“formed an opinion, as to whether or not the substance . . . was possessed with the intent to
distribute . . .?” Id. at 305-06. The court held that “the Government violated Rule 704(b)
by repeatedly eliciting from its experts testimony as to Watson’s mental state and the
purpose of his actions.” Id. at 310. Here, the prosecutor asked a different
question—whether the amount of drugs found was consistent with intent to distribute—not
aimed at eliciting testimony as to Martin’s particular state of mind. Although Detective
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McDonald’s answer referred to Martin’s intent, and may have been subject to being struck
had Martin moved to strike, the court’s failure to strike it sua sponte was not plain error
and did not affect Martin’s substantial rights.
For the foregoing reasons, we affirm.
___________________________
TO THE CLERK:
Please file the foregoing opinion.
/s/ William W. Schwarzer
Senior District Judge
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