Opinions of the United
1995 Decisions States Court of Appeals
for the Third Circuit
5-8-1995
United States v Norman Edwards
Precedential or Non-Precedential:
Docket 93-5718
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Recommended Citation
"United States v Norman Edwards" (1995). 1995 Decisions. Paper 125.
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UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 93-5718
UNITED STATES OF AMERICA
V.
NORMAN EDWARDS,
Appellant
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
(D.C. Criminal No. 92-00590-3)
Argued November 30, 1994
Before: HUTCHINSON and NYGAARD, Circuit Judges
and GARTH, Senior Circuit Judge
(Opinion filed May 8, 1995)
KOJI F. FUKUMURA, ESQUIRE (Argued)
GAVIN P. LENTZ, ESQUIRE
Bochetto & Lentz
1500 Market Street
East Tower, Centre Square, 14th Floor
Philadelphia, PA 19102
Attorneys for Appellant
ELIZABETH S. FERGUSON, ESQUIRE (Argued)
EDNA B. AXELROD, ESQUIRE
FAITH S. HOCHBERG, ESQUIRE
Office of United States Attorney
970 Broad Street
Room 502
Newark, NJ 07102
Attorneys for Appellee
OPINION OF THE COURT
NYGAARD, Circuit Judge.
Norman Edwards appeals from an order denying his motion
to suppress evidence used to convict him for his role in credit
card fraud and theft. Because we find that the evidence was
obtained lawfully pursuant to Terry v. Ohio, 392 U.S. 1, 88 S.
Ct. 1868 (1968), we will affirm.
I.
The Fairfield Township Police broadcasted an all-points
transmission reporting a credit card fraud in progress at the
Midlantic Bank in Fairfield, New Jersey. While responding to the
bank, Officer Crapello testified that he received a second radio
message describing a red Chrysler LeBaron convertible with two
occupants and New York license plate "ZPT777" as "believed to be
involved or may be involved" in the suspected bank fraud.
Officer Crapello arrived at the bank approximately
ninety seconds after the first message, and saw a red Chrysler
LeBaron convertible in the bank parking lot bearing license plate
ZPT777. As the message had described, the car had two occupants,
later determined to be defendant Edwards and one Anthony Sears.
The convertible top was down, and both occupants were visible.
Officer Crapello pulled his patrol car in front of the
LeBaron. Officer Kane, in a second patrol car, boxed the LeBaron
in from behind to prevent or inhibit an escape attempt.
Officer Crapello approached the passenger side of the
LeBaron on foot, with the thumb snap of his holster released and
his hand on his service revolver. Officer Kane crouched behind
his patrol car door. A third patrol car arrived and Officer
Polizzi and a police dog also approached the suspects' vehicle.
When Officers Crapello and Polizzi were approximately
eight feet from the car, Polizzi instructed the dog to bark.
Until then, both occupants of the LeBaron appeared to be
sleeping. In response to the dog's bark, Edwards lifted his
head, looked around and then nudged Sears, who awoke with a
start. After instructing Edwards and Sears to put their hands
on the dashboard, Crapello saw a jacket on Edwards' lap. He
reached in and removed the jacket. When he patted the outside of
the jacket to check the pockets for weapons, Crapello detected "a
large, hard, bulky object" in its inner pocket. He removed a
manila envelope, folded once in half but not sealed, from the
jacket. Feeling the "hard, bulky" object in the envelope,
Officer Crapello unfolded it and looked inside for a weapon.
Instead of a weapon, he found several credit cards and New Jersey
drivers' licenses, which he determined from visual inspection to
be fraudulent.
Edwards was arrested and indicted for possession and
use of counterfeit credit cards. 18 U.S.C. § 1029(a). After an
evidentiary hearing on Edwards' motion to suppress the evidence
found in the manila envelope, the district court denied the
motion. United States v. Edwards, No. 92-590, slip op. at 9
(D.N.J. June 8, 1993). Apparently finding that the officers'
actions did not constitute an arrest, id. at 6-8, the district
court did not decide whether the officers had probable cause to
arrest before they opened the manila envelope.
II.
A. Terry Analysis
The district court held that Officer Crapello's actions
in opening the envelope without a warrant were justified under
Terry, supra. A Terry stop is permissible when the police have a
reasonable suspicion based on articulable facts that a crime has
been committed. Id. at 21, 88 S. Ct. at 1880-81. Edwards does
not argue that the police lacked reasonable suspicion to conduct
an investigatory Terry stop. Instead, he argues that both the
subsequent Terry protective pat down and the ultimate search of
the envelope were unlawful.
1. Reasonableness of the Frisk
First, Edwards argues that the police had no reason to
believe he was armed and dangerous, and thus could not lawfully
conduct a Terry protective pat down. In Terry, the Supreme Court
held that a police officer, during the course of a Terry stop,
may conduct a "reasonable search for weapons for the protection
of the police officer, where he has reason to believe that he is
dealing with an armed and dangerous individual...." Id. at 27,
88 S. Ct. at 1883. The test is "whether a reasonably prudent man
in the circumstances would be warranted in the belief that his
safety or that of others was in danger." Id. (citations
omitted). Finally, in determining whether the officer acted
reasonably under the circumstances, "due weight must be given,
not to his inchoate and unparticularized suspicion or 'hunch,'
but to the specific reasonable inferences which he is entitled to
draw from the facts in light of his experience." Id. (citations
omitted).
We will accept the district court's factual findings
regarding the circumstances of the stop unless they are clearly
erroneous, and exercise plenary review over whether these facts
so found, create a reasonable inference that the suspect is
dangerous and the protective frisk was reasonably calculated to
discover a weapon. See United States v. Coggins, 986 F.2d 651,
654 (3d Cir. 1991).
We find no error in the district court's conclusion
that Officer Crapello had reason to believe that he could be
facing armed and dangerous felons. That this fraud occurred at a
bank in broad daylight could lead one to believe that the
perpetrators might have armed themselves to facilitate their
escape if confronted. Although the radio bulletin did not
describe this response as a bank robbery, it is reasonable to
conclude that the suspects might use force and be armed.
2. The Envelope Search
Edwards also argues that, even if the pat down was
reasonable, it was not reasonable to open the envelope. "The
sole justification of the search in [a Terry stop] is the
protection of the police officer and others nearby, and it must
therefore be confined to an intrusion, reasonably designed to
discover guns, knives, clubs, or other hidden instruments for the
assault of the police officer." Terry, 392 U.S. at 29, 88 S. Ct.
at 1884.
We agree with the district court that Officer Crapello
was justified in opening the envelope. He was justifiably
concerned that a small-caliber handgun might be concealed in the
envelope. Upon careful examination of the evidence in the
record, we conclude that the district court was well within its
discretion when it decided that Officer Crapello could reasonably
have believed that a weapon might be concealed in the envelope.
The four-by-six inch envelope was packed full of nineteen hard
plastic cards -- whether credit cards or drivers' licenses --
which the record demonstrates created the feel of a hard, bulky
object. Moreover, the government presented the district court
with tangible evidence that a small-caliber handgun, in its
holster, fits inside the envelope and has roughly the same feel
inside the envelope as did the credit cards it contained. In the
hasty examination necessitated by a protective search, Officer
Crapello could reasonably have confused the square, bulky mass of
credit cards and drivers' licenses for a small handgun sheathed
in a square, leather holster that masked its outlines.
B. Did the Police Conduct Amount to an Arrest?
Edwards argues that the police conduct in this case,
especially by boxing in the suspects' vehicle and by the overall
display of force, transformed what began as a Terry stop into a
de facto arrest. Further, Edwards argues that the police lacked
probable cause to make an arrest and hence could not lawfully
seize the items in the manila envelope pursuant to a search
incident to arrest. Because we find that the police conduct in
this case did not constitute an arrest, it is unnecessary for us
to consider whether there was probable cause.
The Supreme Court has stated that, when police officers
make an investigative stop, they may take such steps as are
"reasonably necessary to protect their personal safety and to
maintain the status quo." United States v. Hensley, 469 U.S.
221, 235, 105 S. Ct. 675, 684 (1985). "Under the Terry cases,
the reasonableness of the intrusion is the touchstone, balancing
the need of law enforcement officials against the burden on the
affected citizens and considering the relation of the policeman's
actions to his reason for stopping the suspect." Baker v. Monroe
Township, No. 94-5069, 1995 WL 125470, at *4 (3d Cir. Mar. 22,
1995).
The vast majority of courts have held that police
actions in blocking a suspect's vehicle and approaching with
weapons ready, and even drawn, does not constitute an arrest per
se. In United States v. White, 648 F.2d 29, 31 (D.C. Cir.),
cert. denied, 454 U.S. 924, 102 S. Ct. 424 (1981), the court held
that police officers' actions in blocking the defendant's car
with their cruisers and approaching with guns drawn did not
amount to an arrest, but instead constituted a reasonable Terry
stop in response to an anonymous tip concerning drug activity.
See also United States v. Perea, 986 F.2d 633, 644 (2d Cir. 1993)
(blocking suspect's car with three unmarked cars and approaching
with weapons drawn was not an arrest); United States v. Lechuga,
925 F.2d 1035, 1041 (7th Cir. 1991) ("sandwiching" suspects' car
with unmarked police cars and one officer approaching with his
gun drawn was not an arrest); United States v. Jackson, 918 F.2d
236 (1st Cir. 1990) (blocking suspect's vehicle with two police
cruisers, approaching with guns drawn, ordering suspects to put
their hands on dashboard and subsequently frisking them did not
constitute arrest); United States v. Jones, 759 F.2d 633, 637
(8th Cir.) (officers' actions in blocking vehicle, approaching
with guns drawn and ordering suspect out of car was not an
arrest), cert. denied, 474 U.S. 837, 106 S. Ct. 113 (1985).
While Edwards emphasizes the fact that he was not "free
to leave" the scene, this does not mark the point where a Terry
stop escalates into an arrest, since in neither a stop nor an
arrest is a suspect free to leave. As stated by the Jones court
in considering at what point a stop becomes an arrest:
The test is not, as argued by [defendant],
whether a reasonable person would have felt
free to leave under the circumstances: That
concern marks the line between a fourth
amendment seizure of any degree and a
consensual encounter which does not require
any minimal objective justification.
759 F.2d at 637 (citing Immigration & Naturalization Serv. v.
Delgado, 466 U.S. 210, 215, 104 S. Ct. 1758, 1762 (1984); United
States v. Mendenhall, 446 U.S. 544, 553-54, 100 S. Ct. 1870,
1876-77 (1980)). Clearly, a Terry stop is a seizure, Terry, 392
U.S. at 16, 88 S. Ct. at 1877, and one seized is by definition
not free to leave. Of course, we distinguish the length of time
a suspect may be detained before the detention becomes a full-
scale arrest, which we consider as a factor in evaluating the
reasonableness of the detention as a whole in light of the
circumstances. Baker, supra, 1995 WL 125470, at *4.
Applying these considerations to the facts before us,
we hold that the officers' stop and detention of Edwards did not
rise to the level of an arrest. The police acted reasonably in
blocking the suspects' vehicle to conduct a brief investigation.
III.
We conclude that appellant was not arrested until
Officer Crapello opened the manila envelope and formally arrested
both suspects. Moreover, because we find the police were within
the bounds of Terry in stopping and frisking Edwards, we hold
that the district court properly denied his motion to suppress
the credit cards seized by police from the manila envelope in his
possession. Accordingly, we will affirm.