United States v. Levan Morales

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 09-3866
UNITED STATES OF AMERICA
v.
LEVAN MORALES,
Appellant
On Appeal from the United States District Court
for the District of Delaware
(D.C. Crim. No. 1-08-00100-001)
Honorable Gregory M. Sleet, District Judge
Submitted under Third Circuit LAR 34.1(a)
June 25, 2010
BEFORE: SMITH, FISHER, and GREENBERG, Circuit Judges
(Filed: June 30, 2010)
OPINION OF THE COURT
GREENBERG, Circuit Judge.
This matter comes on before the Court on appellant Levan Morales’s appeal from
a judgment of conviction and sentence entered in this criminal case on September 25,
2009.1 Morales conditionally pled guilty to an indictment charging him with possession
of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2) after being convicted of
a crime punishable by imprisonment for a term exceeding one year. Morales entered the
plea pursuant to an agreement dated May 21, 2009, that preserved his right under Federal
Rule of Criminal Procedure 11(a)(2) to appeal from an order dated April 7, 2009, denying
his motion to suppress evidence. The Court entered the April 7, 2009 order after a trial-
type hearing at which the Court heard testimony from several witnesses. Under the plea
agreement, if we reversed on Morales’s appeal of the April 7, 2009 order he could
withdraw his plea of guilty. As we will explain, Morales raises two issues on this appeal,
both addressing his claim that the District Court should have granted his motion to
suppress. Morales’s contentions center on the application of Terry v. Ohio, 392 U.S. 1,
88 S. Ct. 1868 (1968). We regard this case as involving legal determinations and thus we
are exercising plenary review. See United States v. Laville, 480 F.3d 187, 190-91 (3d
Cir. 2007).
The District Court set forth the background of this case and its findings of facts
and conclusions of law in its memorandum of April 7, 2009, accompanying its order of
that day and thus we do not repeat those elements of its memorandum at length. It is
sufficient to note that Sergeant Michael Rodriguez and Detectives Danny Silva and
1
The District Court had subject matter jurisdiction pursuant to 18 U.S.C. § 3231. We
have appellate jurisdiction pursuant to 28 U.S.C. § 1291.
2
Randy Pfaff of the Wilmington Police Department stopped an automobile in which
Morales was a passenger and from which he alighted. At that time, by reason of certain
aspects of Morales’s conduct, Rodriguez suspected that he was carrying a concealed
firearm. Consequently, Rodriguez attempted to stop Morales from walking away from
the scene but initially was unsuccessful. However, by use of a Taser Rodriguez
incapacitated Morales following which Rodriguez rolled Morales over, searched him, and
recovered the firearm. An arrest and prosecution followed. During these events
Rodriguez was wearing a vest marked “police.” The District Court believed that Silva
and Pfaff were wearing similarly marked vests but there is no evidence in the record
supporting that belief.
The two issues Morales raises on appeal are:
1. When police effect a Terry stop by use of a Taser device, but
fail to adequately identify themselves as police officers, may
evidence be suppressed on the ground that the use of force
was unreasonable?
2. Did the District Court clearly err when it found that detectives
Pfaff and Silva were wearing ‘police’ vests during the course
of the Terry stop?
We are in full accord with the District Court’s disposition of this case and thus will
affirm. We, however, note the following. Regardless of whether the use of the Taser and
the methods used in the subsequent search constituted unreasonable uses of force, the
Terry search was justified. Accordingly, the possible illegality with respect to the use of
force did not invalidate the otherwise lawful recovery of the firearm. Thus, when viewed
3
in the suppression context in this case, Morales’s excessive use of force argument is
immaterial. See United States v. Watson, 558 F.3d 702, 704 (7th Cir. 2009). Nor does it
matter whether the Court erred in finding that Pfaff and Silva were wearing vests marked
“police” because they did not make the Terry stop. Plainly Rodriguez who made the stop
and made the search wore a vest marked “police.”
The judgment of conviction and sentence entered September 25, 2009, will be
affirmed.
4