NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 12-4375
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UNITED STATES OF AMERICA
v.
DERRICK GARVIN,
Appellant
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APPEAL FROM THE UNITED STATES DISTRICT COURT
OF THE EASTERN DISTRICT OF PENNSYLVANIA
(D.C. Cr. Action No. 2-11-cr-00480-001)
District Judge: Honorable Cynthia M. Rufe
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Submitted Under Third Circuit L.A.R. 34.1(a)
November 5, 2013
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Before: GREENAWAY, JR., VANASKIE, and ROTH, Circuit Judges.
(Opinion Filed: December 17, 2013)
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OPINION
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GREENAWAY, JR., Circuit Judge.
The instant appeal arises from the District Court’s denial of Appellant Derrick
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Garvin’s (“Appellant”) motion to suppress evidence. Appellant entered a conditional
guilty plea to one count of felon in possession of a firearm, in violation of 18 U.S.C. §
922(g)(1). Under the terms of the plea, he reserved the right to appeal the District
Court’s denial of his motion to suppress. This question is now before us. For the reasons
discussed below, we will affirm the District Court.
I. Facts and Procedural History
Because we write primarily for the benefit of the parties, we recount only the facts
essential to our discussion.
On April 6, 2011, at approximately 10:25 p.m., Philadelphia Police Officers
Michael Minor and Frank Dowd were on patrol in a marked police car when they
received a radio call reporting that a black man with a gun, wearing a black hooded
sweatshirt (“hoody”) and walking a dog, was at the intersection of 56th Street and
Greenway Street in front of a Chinese store. The radio flash provided no information
about the source of the tip, nor did it indicate that the subject of the flash had committed
any crime.
Officers Minor and Dowd arrived at 56th Street and Greenway Street in less than a
minute, and did not see anyone. As they turned onto 56th Street, they saw only one man
who met the flash description walking south along 56th Street about one-half block away
from the intersection provided by the tip. Appellant was the only person walking on that
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block at the time. Appellant wore a dark gray hoody, black jeans, a red shirt, and black
and white sneakers, and was walking with his dog. As the officers watched, a marked
police emergency patrol vehicle drove southbound past Appellant and parked at the
corner of 56th and Woodland Avenue, the next street south of Greenway. Appellant,
who had been walking south, abruptly turned around and began walking north.
Officers Minor and Dowd then stopped their vehicle alongside Appellant.
Appellant looked at them and walked up the steps of a residence at 1926 South 56th
Street and knocked on the door. The residence belongs to Essie Jackson, who lives alone.
Ms. Jackson is familiar with Appellant, as he lives a block from her home, and he had
been in her home in the past to visit with her son while her son lived with her. Ms.
Jackson could see Appellant at her door, and through the window in the door, heard him
say “Open the door.” (App. 13) Through the window, Office Minor observed her shake
her head “no.” (Id.) She did not open the door to let Appellant inside.
The officers subsequently emerged from the car onto the sidewalk, and instructed
Appellant to come down the stairs. The officers asked Appellant if he had any weapons
and he said no. Appellant was informed that Officer Dowd would conduct a frisk search
for weapons, and Appellant complied.
Officer Dowd found a handgun while conducting the frisk search around the
waistband of Appellant’s pants. The gun was later identified as a black semiautomatic
.40 caliber Glock 22, loaded with nine rounds of ammunition. Appellant told the officers
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that he had a permit to carry a concealed weapon. This statement was checked by the
police dispatcher and found to be false. At that point, Defendant was arrested,
handcuffed, and placed in the back of the patrol car.
Garvin argues that the District Court erred in denying his motion to suppress the
gun found during a Terry search because the stop and the resultant seizure were not
supported by probable cause or reasonable suspicion. Garvin contends that the resultant
seizure and search of his person, the evidence seized (the gun), and his subsequent
admission to carrying and owning the gun are all tainted by the illegality of the initial
stop under the “fruit of the poisonous tree” doctrine, and that the evidence must be
suppressed.
II. Jurisdiction and Standard of Review
The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction
under 28 U.S.C. § 1291. Our review of the District Court’s determination that there was
reasonable suspicion to seize Appellant and, thus, that the motion to suppress should be
denied, is plenary. Ornelas v. United States, 517 U.S. 690, 699 (1996) (“as a general
matter determinations of reasonable suspicion and probable cause should be reviewed de
novo on appeal,” but factual findings should be reviewed for clear error).
III. Analysis
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A. Reasonable Suspicion
In the absence of a warrant, “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.” Illinois v. Wardlow, 528 U.S. 119,
123 (2000) (discussing Terry v. Ohio, 392 U.S. 1 (1968)). The reasonable suspicion
framework first articulated in Terry v. Ohio requires less than probable cause, but there
must be “at least a minimal level of objective justification for making the stop.” Id. at
123. In determining whether there was reasonable suspicion, we consider the totality of
the circumstances. See United States v. Cortez, 449 U.S. 411, 417 (1981); United States
v. Brown, 448 F.3d 239, 249 (3d Cir. 2006). Among the “pertinent factor[s]” that an
officer may consider are whether the area is a high-crime area, a suspect’s “nervous,
evasive behavior,” and flight from police officers. Wardlow, 528 U.S. at 124.
Reasonable suspicion may be “based on acts capable of innocent explanation.” United
States v. Valentine, 232 F.3d 350, 356 (3d Cir. 2000). The circumstances, however,
“must raise a suspicion that the particular individual being stopped is engaged in
wrongdoing.” Cortez, 449 U.S. at 418.
In determining whether there was reasonable suspicion to seize Appellant, we may
consider everything that occurred until the moment he was seized. See Valentine, 232
F.3d at 358.
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B. The District Court’s Decision
The District Court denied Garvin’s motion to suppress in a detailed opinion.
United States v. Garvin, No. 11-480-01, 2012 WL 1970385 (E.D. Pa. May 31, 2012).
The District Court found that, because Appellant’s gun was concealed in his waistband,
the anonymous tip was credible because such “information was not available to any
observer but indicated that the informant had personal knowledge that [Appellant] was
armed.” (App. 17.) Nonetheless, “the tip alone was not sufficient to support an
investigatory stop” because “some individuals are legally permitted to carry guns . . . .”
(Id.) Therefore, reasonable suspicion that an individual is carrying a gun, without more,
is not evidence of criminal activity afoot. (Id.) The District Court then appropriately
proceeded to consider whether the stop was supported by other factors.
The District Court relied on two specific actions that Appellant undertook which
Officers Minor and Dowd “reasonably interpreted as evasive.” (Id.) First, Appellant
abruptly changed directions when a marked police vehicle passed him driving
southbound and stopped at the corner. Second, when Officers Minor and Dowd pulled up
and stopped beside him in a second marked police vehicle, Appellant went up the stairs to
a residence – not his own – and sought entry. The District Court acknowledged that
neither of the two acts of evasion nor the tip alone would give rise to reasonable
suspicion; however, “taken together, along with other factors such as the lateness of the
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hour, his oral demand that Essie Jackson open the door, Ms. Jackson’s refusal to open the
door to admit him to her home, and justifiable inferences the officers made based on their
experience and training,” gave rise to Officers Minor and Dowd having reasonable
suspicion that supported a Terry stop of Appellant. (Id. at 18.)
Having found that the officers had reasonable suspicion to support a brief
investigatory stop, the District Court then found that the officers were authorized to take
reasonably necessary steps to protect their personal safety. “Given the content of the
flash information they had received, an above-the-clothes pat-down for a gun was
warranted.” (Id. at 19.)
The District Court reasoned that because the Terry stop was supported by
reasonable suspicion, the gun found during the Terry stop and further investigation
confirming it was unaccompanied by a permit to carry a concealed weapon provided
probable cause to make the arrest. As such, Garvin’s fruit of the poisonous tree argument
was without merit, and his statements subsequent to the arrest were not suppressed. (Id.)
C. The Officers had Reasonable Suspicion
The officers had reasonable suspicion to stop Garvin and conduct a subsequent
over-the-clothes pat-down given the content of the anonymous tip in order to secure their
personal safety. The seizure and search were lawful and the District Court correctly
denied Garvin’s motion to suppress.
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Garvin relies on the fact that the tip, being anonymous, did not provide the
reasonable suspicion required to make a Terry stop, and that the tip did not have
sufficient corroboration to elevate it to reasonable suspicion. We disagree. Here, the tip
was corroborated by the police officers’ personal observations to provide reasonable
suspicion for the stop. See United States v. Nelson, 284 F.3d 472, 483 (3d Cir. 2002)
(officers were able to corroborate details provided in phone tip, so that the totality of the
circumstances bolstered the reasonable suspicion necessary to justify the Terry stop).1
Garvin insists that the other factors considered by the District Court, including the
hour and Garvin’s decision to turn away from the police also do not provide officers with
reasonable suspicion. This misses the mark. The District Court conceded that each
individual factor would not give rise to reasonable suspicion, but that all of the factors,
when taken together, are sufficient. The District Court observed that the tip, the lateness
of the hour, the officers’ experience, the abrupt change of direction Appellant made upon
seeing a marked police vehicle, and Appellant’s attempt to enter someone else’s home
upon being approached by Officers Minor and Dowd, all gave rise to form the
particularized and objective basis for stopping Appellant.
The District Court is correct: while each factor “alone is susceptible to innocent
explanation, and some factors are more probative than others, taken together, they
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See also United States v. Lawrence, 327 F. App’x 378, 379 (3d Cir. 2009)
(finding that anonymous tip regarding four black males in precise location indicated by
caller was corroborated by the defendant’s attempt to conceal something as officers
approached, and gave rise to a finding of reasonable suspicion).
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suffice[] to form a particularized and objective basis for [the stop].” United States v.
Arvizu, 534 U.S. 266, 267 (2002). Therefore, the totality of the circumstances warranted
a finding of reasonable suspicion, which permitted the officers to conduct the
investigatory stop.
Further, Garvin was only detained briefly while the officers investigated whether
the gun he was carrying was legal or illegal. The arrest only occurred after determining
that Garvin did not have a permit to carry a concealed weapon, and was therefore
supported by probable cause. The District Court properly denied Garvin’s motion to
suppress the weapon found during the search, and the subsequent confession made after
being read his Miranda rights.
IV. Conclusion
For the aforementioned reasons, we will affirm the District Court’s denial of
Appellant’s motion to suppress.
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