United States v. McIntosh , 293 F. App'x 861 ( 2008 )

Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
9-22-2008
USA v. McIntosh
Precedential or Non-Precedential: Non-Precedential
Docket No. 07-2744
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Recommended Citation
"USA v. McIntosh" (2008). 2008 Decisions. Paper 508.
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
Case No: 07-2744
UNITED STATES OF AMERICA
v.
RICHARD MCINTOSH,
Appellant
On Appeal from the United States District Court
for the Western District of Pennsylvania
District Court No. 06-CR-233
District Judge: The Honorable Nora B. Fischer
Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
September 9, 2008
Before: SCIRICA, Chief Judge, McKEE and SMITH, Circuit Judges
(Filed: September 22, 2008)
OPINION
SMITH, Circuit Judge.
A grand jury indictment charged Richard McIntosh with being a felon in
possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). McIntosh moved to
suppress certain statements and the firearm. In a thorough and well-reasoned
1
memorandum opinion, the United States District Court for the Western District of
Pennsylvania denied McIntosh’s motion to suppress. Thereafter, a jury convicted
McIntosh of the offense charged. The District Court sentenced McIntosh to, inter alia, 33
months of imprisonment. McIntosh appealed, contending that the District Court erred by
denying his motion to suppress.1
This Court reviews the legal determinations of a district court ruling on a
suppression motion, including the existence of reasonable suspicion, under a de novo
standard. Ornelas v. United States, 517 U.S. 690, 691 (1996); United States v. Goodrich,
450 F.3d 552, 557 n.5 (3d Cir. 2006). The factual findings are reviewed for clear error.
United States v. Myers, 308 F.3d 251, 255 (3d Cir. 2002).
McIntosh contends that the District Court erred at each step in its analysis by
concluding that: the agents had a reasonable suspicion to support their investigatory stop;
the pat-down was constitutionally permissible; McIntosh was not in custody while
speaking to the agents on the sidewalk, or during the short ride to McIntosh’s home;
McIntosh’s statements prior to being Mirandized 2 were voluntary; and consent to search
the house was also voluntary. We find neither legal nor factual error.
We agree with the District Court that the agents had a reasonable suspicion to
support the investigatory stop. See United States v. Hensley, 469 U.S. 221, 229 (1985);
1
The District Court had jurisdiction under 18 U.S.C. § 3231. Appellate jurisdiction exists
under 28 U.S.C. § 1291.
2
See Miranda v. Arizona, 384 U.S. 436 (1966).
2
United States v. Brown, 448 F.3d 239, 244 n.7 (3d Cir. 2006). The evidence of record
established that the agents had been informed by another participant in the robbery that
McIntosh was involved in the robbery of a pawn shop. In light of the fact that six of the
stolen firearms were still unaccounted for and that the other robber was in custody, there
was also a reasonable suspicion that McIntosh had possession of one or more of these
firearms and may have been attempting to dispose of them. These circumstances further
justified the protective pat-down.
McIntosh asserts that his statements and the firearm should have been suppressed
because he was seized by the police on the street and interrogated without the benefit of
being Mirandized. McIntosh fails, however, to identify any factual finding that is
unsupported by the record or to explain how the Court erred in its legal analysis. After
careful review of the record, we find no reason to disturb the District Court’s
determination that McIntosh was not in custody while speaking with the officers on the
sidewalk.
Finally, McIntosh’s attack upon the voluntariness of his statements and the consent
to search the house lack merit in light of the evidentiary support in the record for the
District Court’s factual determinations. Accordingly, we will affirm the judgment of the
District Court.