NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 10-1634
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UNITED STATES OF AMERICA
v.
EDWIN THOMAS,
Appellant
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Appeal from the United States District Court
for the District of New Jersey
(D.C. Criminal No. 09-cr-147)
District Judge: Honorable Susan D. Wigenton
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Submitted Under Third Circuit LAR 34.1(a)
March 10, 2011
Before: SCIRICA, AMBRO AND VANASKIE, Circuit Judges
(Filed April 12, 2011 )
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OPINION
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VANASKIE, Circuit Judge.
After his motion to suppress the evidence was denied, a jury found Appellant
Edwin Thomas (“Thomas”) guilty of a felon in possession of a firearm in violation of 18
U.S.C. § 922(g)(1). Thomas appeals, asserting that the District Court erroneously denied
his suppression motion as well as two mistrial motions, and that the prosecutors engaged
in misconduct. For the following reasons, we will affirm the Judgment of the District
Court.
I.
As we write only for the parties, who are familiar with the facts and procedural
history of this case, we will set forth only those facts necessary to our analysis.
On November 14, 2008, at approximately 9:00 p.m., Newark, New Jersey Police
Department Detectives Modesto Miranda and Edward Vernotica patrolled a public
housing neighborhood in a white, unmarked police vehicle. Both detectives were twenty-
five-year veterans of the police force. They knew that the neighborhood, which included
30 Ridgewood Avenue, was a high crime rate area where frequent drug dealings and
shootings occurred. The detectives turned into 30 Ridgewood Avenue which led to a
backyard parking lot. It was a misty, dark night, but street lights provided some
illumination of the area, where three to four pre-teenage children played.
As their car approached the parking lot, someone yelled “5-0.” Approximately
twenty feet or less away, the detectives saw Thomas. He dropped a duffel bag to the
ground, and walked towards the detectives. At that point, the detectives stopped and
exited the vehicle. The detectives, in plain clothes with their police badges hanging from
their necks, told Thomas to put his hands on the hood of the vehicle. After he failed to
produce any identification, Thomas was patted down and placed in the back seat of the
vehicle.
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Detective Miranda proceeded to position the vehicle so its headlights shined upon
the duffel bag. Again, both detectives exited the vehicle. As the bag lay undisturbed,
Detective Miranda observed the handle of a gun sticking out of the duffel bag.
Consequently, Detective Miranda immediately alerted Detective Vernotica to arrest
Thomas, and Detective Vernotica handcuffed Thomas and placed him under arrest.
Detective Miranda continued his investigation by shining his flashlight on the
open portion of the duffel bag, where he observed another gun. When the duffel bag was
eventually opened by police officers from the Crime Scene Unit, they recovered a
Romarm Cugir 7.62 millimeter semi-automatic rifle and an Armscor Philippines Model
1600 .22 caliber semi-automatic long rifle.
On June 8, 2009, counsel for Thomas filed a pre-trial motion asserting that
Thomas‟s stop and arrest violated the Fourth Amendment. In the afternoon of October
14, 2009, the day before the hearing on Thomas‟s motion to suppress, the government
faxed a letter to defense counsel summarizing materials it was required to produce under
Giglio v. United States, 405 U.S. 150 (1972). At the October 15, 2011 suppression
hearing, however, the District Court Judge, who had previously reviewed the Giglio
materials in camera, explained that the government failed to comply with the spirit and
intent of her order. The government was supposed to have produced the actual materials,
rather than a summary of the facts, to defense counsel. The court again ordered the
government to produce the appropriate Giglio materials, and the hearing on the
suppression motion was postponed.
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On the night of October 15, 2009, the government produced the Giglio materials,
and the suppression hearing was held on October 19, 2009. With respect to the two
firearms, the District Court, ruling from the bench, denied Thomas‟s motion to suppress
the evidence. The District Court found that there was reasonable suspicion to stop
Thomas, and that he had abandoned his duffel bag containing the two rifles. (J.A. 321-
22.)
Subsequently, on November 9, 2009, Thomas‟s jury trial commenced. During the
trial, defense counsel moved for a mistrial on two occasions. First, after a prosecutor
referred to Thomas‟s counsel as a public defender while cross-examining a defense
witness, counsel for Thomas moved for a mistrial. The District Court denied the motion
and provided a curative instruction to the jury. Defense counsel‟s second motion was
made after the government delivered its rebuttal closing argument. The District Court
also denied this motion for a mistrial. On November 13, 2009, the jury found Thomas
guilty. On February 22, 2010, he was sentenced to eighty-five months‟ imprisonment,
which was within the advisory guidelines range of seventy to eight-seven months. This
timely appealed followed.
II.
The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction
pursuant to 28 U.S.C. § 1291.
A.
On appeal, Thomas challenges the denial of his motion to suppress the two rifles
and his mistrial motions based upon purported prosecutorial misconduct. Generally, the
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Fourth Amendment prohibits “unreasonable searches and seizures. . . .” U.S. Const.
amend. IV. Thomas‟s suppression motion, presented in the context of a brief encounter
between Thomas and Detectives Miranda and Vernotica, is governed by the analysis
announced in Terry v. Ohio, 392 U.S. 1 (1968). See Illinois v. Wardlow, 528 U.S. 119,
123 (2000).1 In Terry, the Supreme Court observed that “a police officer may in
appropriate circumstances and in an appropriate manner approach a person for purposes
of investigating possibly criminal behavior even though there is no probable cause to
make an arrest.” 392 U.S. at 22. Thus, pursuant to Terry, “an officer may, consistent
with the Fourth Amendment, conduct a brief, investigatory stop when the officer has a
reasonable, articulable suspicion that criminal activity is afoot.” Wardlow, 528 U.S. at
123. Indeed, the “Fourth Amendment does not require a policeman who lacks the precise
level of information necessary for probable cause to arrest to simply shrug his shoulders
and allow a crime to occur or a criminal to escape.” Adams v. Williams, 407 U.S. 143,
145 (1972).
We “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.” United States v. Arvizu, 534 U.S. 266, 273 (2002) (quoting United States
v. Cortez, 449 U.S. 411, 417-18 (1981)). “This process allows officers to draw on their
own experience and specialized training to make inferences from and deductions about
1
We review the District Court‟s denial of a motion to suppress for clear error as to
the underlying factual findings, and exercise plenary review of the District Court‟s
application of the law to those facts. United States v. King, 604 F.3d 125, 134 (3d Cir.
2010).
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the cumulative information available to them that „might well elude an untrained
person.‟” Arvizu, 534 U.S. at 273 (quoting Cortez, 449 U.S. at 418). Relevant contextual
considerations in a Terry analysis include a “high crime area[,]” Adams, 407 U.S. at 144,
“nervous, evasive behavior[,]” Wardlow, 528 U.S. at 124, as well as “commonsense
judgments and inferences about human behavior.” Id. at 125.
Here, Thomas first argues that he was arrested when the detectives placed his
hands on the hood of the unmarked police vehicle, patted him down, and placed him in
the backseat. “[G]ood police work[,]” however, may require “an intermediate response”
short of an arrest, such as a “brief stop of a suspicious individual, in order to determine
his identity or to maintain the status quo momentarily while obtaining more information,
[which] may be most reasonable in light of the facts known to the officer at the time.”
Adams, 407 U.S. at 145-46. That is precisely what occurred here. The detectives asked
Thomas for identification, but he was unable to produce any. Thus, Thomas was placed
in the back seat of the vehicle so the detectives could verify who he was, determine if
there were any outstanding arrest warrants issued against him, and assess the situation
pertaining to the dropped duffel bag. Accordingly, Thomas‟s argument is unpersuasive.
Thomas also argues that there was no reasonable suspicion to stop him because his
actions were not indicative of criminal behavior. This Court has “acknowledged,
however, that reasonable suspicion does not require that the suspect‟s acts must always
be themselves criminal.” United States v. Valentine, 232 F.3d 350, 356 (3d Cir. 2000)
(“In many cases the Supreme Court has found reasonable suspicion based on acts capable
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of innocent explanation.”). The District Court properly found that Detectives Miranda
and Vernotica had reasonable suspicion to conduct a Terry stop.
The facts, in pertinent part, are undisputed. The encounter between Thomas and
the detectives occurred in a high crime area, which was the site of frequent drug dealing
and shootings. Further, approximately one month before Thomas‟s encounter, a
homicide had taken place in the same neighborhood. The detectives were familiar with
the area and that it was a high crime rate area. Additionally, it was nighttime, and
Thomas dropped the duffel bag when he was alerted that the police were in the vicinity
and he saw the detectives‟ vehicle approaching. Although three to four pre-teenage
children were playing in the general location of the parking lot, no one was specifically in
the grassy area where Thomas dropped his duffel bag.
Therefore, viewed in their totality, the facts provide the requisite “minimal level of
objective justification for making the stop.” United States v. Sokolow, 490 U.S. 1, 7
(1989) (quotation omitted). Indeed, “we think that if the [detectives] had done nothing
and continued on their way after [witnessing Thomas drop the duffel bag], the
[detectives] would have been remiss.” Valentine, 232 F.3d at 356. Accordingly, the
detectives had sufficient reasonable suspicion to effectuate a Terry stop.
Further, the District Court correctly concluded that Thomas abandoned the duffel
bag containing the rifles, thereby justifying the search of its contents. “Although a person
has a privacy interest in the contents of his personal luggage, he forfeits that interest
when he abandons his property.” United States v. Fulani, 368 F.3d 351, 354 (3d Cir.
2004) (citation omitted); see Abel v. United States, 362 U.S. 217, 241 (1960) (explaining
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that an individual has no reasonable expectation of privacy in abandoned property).
Abandonment analysis under the Fourth Amendment focuses on an individual‟s
reasonable expectation of privacy. Fulani, 368 F.3d at 354. We “must determine from
an objective viewpoint whether [Thomas‟s duffel bag] has been abandoned.” Id. Finally,
proof of Thomas‟s intent to abandon his property must be established by clear and
unequivocal evidence, id., which “may be inferred from „words spoken, acts done, and
other objective facts.‟” United States v. Thomas, 864 F.2d 843, 846 (D.C. Cir. 1989)
(quoting United States v. Colbert, 474 F.2d 174, 176 (5th Cir. 1973)).
Thomas dropped the duffel bag in a grassy area in the parking lot located behind
housing units, then walked away. Any individual in the area would have had access to
the duffel bag. Therefore, we can infer that Thomas had no reasonable expectation of
privacy in the bag. See United States v. Dickens, 695 F.2d 765, 778 (3d Cir. 1982)
(“Expecting privacy in a building staircase accessible to other tenants and the general
public [where police officers discovered weapons in a plastic bag] cannot be considered
reasonable.”), abrogated on other grounds as recognized by In re Grand Jury
Empaneling of Special Grand Jury, 171 F.3d 826, 828 (3d Cir. 1999). Additionally,
because Thomas dropped the duffel bag and walked away from it before he was stopped
by the detectives, he is foreclosed from arguing that the abandonment was “precipitated
by an unlawful seizure,” thus mandating its exclusion. United States v. Coggins, 986
F.2d 651, 653 (3d Cir. 1993). Accordingly, the District Court did not err in denying
Thomas‟s suppression motion, nor in determining that he abandoned the duffel bag.
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B.
Thomas challenges the denial of mistrial motions that were premised upon alleged
prosecutorial misconduct. He also claims prosecutorial misconduct in connection with
the delay in providing Giglio materials.
As we explained in United States v. Morena, 547 F.3d 191, 193-94 (3d Cir. 2008):
Improper prosecutorial conduct rises to the level of constitutional error
“when the impact of the misconduct is to distract the trier of fact and thus
raise doubts as to the fairness of the trial.” Marshall v. Hendricks, 307 F.3d
36, 67 (3d Cir. 2002). The test for prosecutorial misconduct is whether the
conduct “„so infected the trial with unfairness as to make the resulting
conviction a denial of due process‟” in light of the entire proceeding. Id. at
64 (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974)). In
conducting this analysis, this Court assesses the prosecutor‟s improper
actions, the weight of properly admitted evidence and any curative
instructions given by the trial court. Moore v. Morton, 255 F.3d 95, 112-
113 (3d Cir. 2001).
When contemporaneous objections of prosecutorial misconduct are asserted, we review
the “District Court‟s ruling . . . for abuse of discretion.” United States v. Brennan, 326
F.3d 176, 182 (3d Cir. 176). “Any non-contemporaneous objections are subject to plain
error review.” Id.
Regardless of what standard of review we apply, we find that the government did
not commit misconduct. First, the government‟s belated disclosure of the Giglio
materials, albeit unjustified, does not rise to a level that warrants setting aside the
conviction. In this regard, Thomas has not shown how he was prejudiced by the timing
of the disclosure. Second, the government did not badger any defense witness, but
instead engaged in an appropriate cross-examination. Third, although the government
erred in referring to the fact that Thomas was represented by a public defender, the
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District Court took adequate steps to remedy the situation by providing curative
instructions. Finally, the government‟s rebuttal argument was not inappropriate.
Accordingly, we fail to find any alleged prosecutorial misconduct sufficient to warrant a
mistrial or setting aside the verdict on appeal.
III.
For the foregoing reasons, we will affirm the Judgment of the District Court.
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