United States v. Hakeem Brown , 565 F. App'x 98 ( 2014 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 13-3346
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UNITED STATES OF AMERICA
v.
HAKEEM BROWN,
Appellant
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On Appeal from the United States District Court
for the District of Delaware
(D.C. Crim. No. 1:12-cr-00023-001)
District Judge: Honorable Gregory M. Sleet
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Submitted Under Third Circuit L.A.R. 34.1(a)
March 20, 2014
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Before: CHAGARES, GREENAWAY, JR., and VANASKIE, Circuit Judges.
(Opinion Filed: May 2, 2014)
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OPINION
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VANASKIE, Circuit Judge.
Appellant Hakeem Brown entered a conditional plea of guilty to possession of
heroin with intent to distribute, in violation of 21 U.S.C. § 841(a)(1), and possession of a
firearm after having been convicted of a crime punishable by imprisonment for a term
exceeding one year, in violation of 18 U.S.C. § 922(g)(1). Under the terms of the plea,
Brown reserved the right to appeal the District Court’s denial of his motion to suppress.
For the reasons discussed below, we will affirm the District Court’s denial of Brown’s
motion.
I.
Because we write primarily for the parties, we will recount only the facts essential
to our discussion.
On February 24, 2012, Officer Robert Fox of the Wilmington Police Department
received information from a confidential informant that a person known as “Hakeem”
was “frequently armed and would have a firearm when he is driving . . . .” (App. 78.)
The informant described “Hakeem” as a bearded black male, approximately 5’9” and 190
pounds, who customarily drove a dark blue sport-utility vehicle with “rims.” (App. 39.)
Based on this information, another officer displayed a photo of a suspect to the informant,
and the informant identified that person as the brother of “Hakeem.” From this the
officers surmised that “Hakeem” might be defendant Hakeem Brown, who also appeared
in the police database. Officer Fox displayed a picture of Brown to the informant, who
confirmed that Brown was the person he had been describing. A criminal history check
of Brown revealed that he had been previously convicted of a felony.
That same afternoon, Officer Fox arranged for the informant, who at the time was
under arrest at the Wilmington police station, to place a series of cell phone calls to
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Brown. During the ensuing calls, which were played aloud “on speakerphone” and
monitored by at least two officers on each occasion, (App. 40), Brown and the informant
discussed an apparently prearranged plan to conduct a “home invasion” together later that
evening, (App. 41). The two agreed that they would meet beforehand near the
intersection of Lower Oak and Brown Streets in Wilmington.
As the hour of the planned gathering approached, Officer Fox instructed the
informant to find out, using “street terminology,” if Brown would be bringing a firearm.
(App. 83.) During the next call, the informant asked Brown if he “had his jawn,” to
which Brown responded that he was en route and that “he did have it.” (App. 46.) Later,
when Brown called the informant to confirm that he was in the vicinity of their meeting
point, the informant asked Brown if he was “strapped,” to which Brown responded
affirmatively. (App. 48.) Officer Fox testified that both carrying a “jawn” and being
“strapped” were references to possession of a firearm. (App. 46, 48.)
As these calls took place, Detective Steven Barnes and other members of the
Wilmington Police Department established surveillance positions near the intersection of
Lower Oak and Brown Streets. Shortly after the final call between Brown and the
informant, Barnes observed a dark blue Suburban with rims approach the meeting
location and secure a nearby parking spot. Several police vehicles moved in to block the
Suburban’s exit. Barnes, on foot, approached the driver’s-side door of the Suburban with
his weapon drawn. After confirming that Brown’s hands were visible and empty, Barnes
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holstered his weapon, removed Brown from the driver’s seat, and handcuffed him.
Detective Barnes initially performed a limited pat down of Brown’s waist area for
weapons, but found nothing. A moment later he moved Brown a short distance from the
vehicle and conducted a second, more thorough frisk, which revealed a quantity of heroin
secreted inside one of Brown’s pockets. Other officers then transported Brown to the
Wilmington Police Department. Brown’s vehicle, too, was taken to the station, where it
was searched by Officer Fox and others. They recovered a loaded handgun and
additional ammunition from hidden compartments inside the vehicle, and a black ski
mask from the back seat. While processing Brown’s arrest at the station, officers found
an additional four bags of heroin on his person. Brown later made incriminating
statements to police while being interviewed after his arrest.
On April 12, 2012, Brown was indicted by a federal grand jury for one count each
of (1) interference with commerce by threats or violence, in violation of 18 U.S.C. §
1951; (2) possession of a firearm in furtherance of a crime of violence, in violation of 18
U.S.C. § 924(c)(1)(A)(i); (3) possession of heroin with intent to distribute, in violation of
21 U.S.C. § 841(a)(1) and (b)(1)(C); and (4) possession of a firearm after having been
convicted of a crime punishable by imprisonment for a term exceeding one year, in
violation of 18 U.S.C. § 922(g)(1). Brown moved to suppress the evidence recovered
from his person and his vehicle, as well as his later statements to police. On September
11, 2012, the District Court held an evidentiary hearing, after which it denied Brown’s
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motion to suppress in a detailed written opinion filed January 8, 2013.
On April 8, 2013, Brown entered a conditional plea of guilty under Rule 11(a)(2)
to possession of heroin with intent to distribute, in violation of 21 U.S.C. § 841(a)(1), and
possession of a firearm after having been convicted of a crime punishable by
imprisonment for a term exceeding one year, in violation of 18 U.S.C. § 922(g)(1). On
July 8, 2013, the District Court imposed a sentence of 60 months’ imprisonment, 6 years
of supervised release, and a $200 special assessment. Judgment was entered on July 15,
2013. Brown filed a timely notice of appeal.
II.
The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction
under 28 U.S.C. § 1291. We exercise de novo review over the District Court’s legal
determinations as to probable cause, but review underlying factual findings only for clear
error. Ornelas v. United States, 517 U.S. 690, 699 (1996).
III.
Brown’s sole argument on appeal is that the police, upon discovering that Brown
did not have a firearm on his person, lacked probable cause to arrest him, and thus also
lacked authority to search his nearby vehicle incident to arrest. To conduct a warrantless
arrest, police must have probable cause, which exists “whenever reasonably trustworthy
information or circumstances within a police officer’s knowledge are sufficient to
warrant a person of reasonable caution to conclude that an offense has been committed by
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the person being arrested.” United States v. Myers, 308 F.3d 251, 255 (3d Cir. 2002)
(citing Beck v. Ohio, 379 U.S. 89, 91 (1964)). We assess the existence of probable cause
from the perspective of an objective law enforcement officer considering the totality of
the circumstances. Id. (quoting United States v. Glasser, 750 F.2d 1197, 1206 (3d Cir.
1984)). Under the “collective knowledge” doctrine, information known to any one
investigating officer is imputed to the officers actually conducting the arrest. See United
States v. Whitfield, 634 F.3d 741, 745 (3d Cir. 2010).
The District Court here found that probable cause to arrest Brown for unlawful
possession of a firearm rested upon several factors: “the officers’ knowledge that Brown
was a convicted felon, the informant’s visual identification of ‘Hakeem’ as Brown,
Brown’s statements to the informant indicating that he had a handgun, his appearance at
the planned meeting location, and the informant’s accurate description of Brown’s
vehicle . . . .” (App. 15–16.) And because the police had reasonable cause to believe that
Brown’s vehicle contained “evidence of the offense of arrest,” i.e., a firearm, the District
Court concluded that they were permitted to search that vehicle incident to Brown’s
arrest. (App. 18 (quoting Arizona v. Gant, 556 U.S. 332, 351 (2009)).)
We agree with the District Court’s conclusions. This case involved a day-long
investigation in which Officer Fox and others gleaned information about unlawful
possession of a firearm from an in-custody informant. They listened in as the informant,
under their supervision, repeatedly called Brown, his cohort, and discussed an upcoming
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home invasion. The informant identified Brown from a photograph, which allowed
police to verify that Brown had a felony record and would be committing a crime if he in
fact was in possession of a firearm. The informant then twice obtained unequivocal
confirmation from Brown that he had brought a firearm with him en route to their
meeting point. All that remained was for the police surveillance team to verify Brown’s
arrival at the meeting point in the vehicle described by the informant, which occurred
precisely as scheduled.
We conclude that the police had probable cause to arrest Brown upon his arrival at
the meeting point. Although the Wilmington police may have had ample reason to
distrust the informant, a recent arrestee with no track record of reliability, the monitored
phone calls confirmed that the planned home invasion was no mere fiction created by the
informant to curry favor with law enforcement. Brown’s subsequent arrival in the correct
vehicle at the prearranged time and place reinforced that conclusion. In sum, the totality
of the circumstances available to the police at the time of Brown’s arrival justified an
objectively reasonable belief that Brown was committing the offense of unlawful
possession of a firearm.
Brown makes much of the fact that Detective Barnes’ frisk of Brown’s person
revealed no firearm. This, according to Brown, exposed the informant’s forecast as
unfounded. Brown likens this case to Myers, in which we concluded that a police officer,
responding to a domestic dispute involving an armed male, lacked probable cause to
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arrest the defendant where no firearm was immediately visible and no other crime had
occurred in the officer’s presence. 308 F.3d at 261–62. He also analogizes the facts to
Johnson v. Campbell, 332 F.3d 199 (3d Cir. 2003), in which we found no reasonable
suspicion to justify an investigative stop where a motel clerk reported that the defendant
was acting suspiciously, but the police, upon approach, observed nothing unusual.
This case bears not even passing similarity to Myers or Johnson. The police here
acted on a tip from an informant that the defendant was in unlawful possession of a
firearm. The tip was powerfully corroborated by monitored phone conversations and
accurate predictive content. And perhaps most importantly for purposes of responding to
Brown’s argument, the tipster did not predict that the gun would be found in Brown’s
waistband—rather, the information provided was only that Brown, who was traveling in a
vehicle, “had” the gun as he traveled to the planned meeting. (App. 46.) Thus, it was of
limited significance that Detective Barnes’ frisk of Brown’s person revealed no weapons.
The investigating officers retained an objectively reasonable belief that the contraband at
issue would be found in Brown’s vehicle, which they were authorized to search incident
to arrest. See Gant, 556 U.S. at 351.
To recap, the simple fact of Brown’s on-schedule arrival at the launching point of
an intended home invasion, taken in light of the foregoing conversations overheard by
police and Brown’s status as a convicted felon, provided the police with probable cause
to arrest Brown for a violation of § 922(g). Even after the pat down, the police remained
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justified in arresting Brown and searching, incident to arrest, the vehicle from which he
had just been removed. Accordingly, the District Court was correct in denying the
motion to suppress.
IV.
For the aforementioned reasons, we will affirm the District Court’s judgment of
conviction entered July 15, 2013.
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