Opinions of the United
2005 Decisions States Court of Appeals
for the Third Circuit
10-7-2005
USA v. Myers
Precedential or Non-Precedential: Non-Precedential
Docket No. 04-2348
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 04-2348
UNITED STATES OF AMERICA
v.
KENNETH KASAN MYERS,
Appellant
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
D.C. Crim. No. 03-cr-00480
District Judge: The Honorable William H. Yohn, Jr.
Submitted Under Third Circuit LAR 34.1(a)
September 13, 2005
Before: SLOVITER, BARRY, and SMITH, Circuit Judges
(Opinion Filed: October 7, 2005)
OPINION
BARRY, Circuit Judge
On July 31, 2003, a grand jury returned an indictment against Kenneth Kasan
Myers, charging him with possession of a firearm by a convicted felon and possession of
a firearm with a removed, obliterated, or altered serial number, in violation of 18 U.S.C. §
922(g)(1) and § 922(k). On February 5, 2004, Myers pled guilty to both counts,
conditioned on his right to appeal the District Court’s earlier denial of his suppression
motion. On May 11, 2004, the District Court sentenced Myers to 51 months
imprisonment. This timely appeal followed.1
On appeal, Myers argues that his Fourth Amendment rights were violated when
police officers grabbed his wrists and searched his person without reasonable suspicion
and, thus, that his motion to suppress the evidence of that search should have been
granted. Myers argues as well that his sentence violated United States v. Booker, 125
S.Ct. 738 (2005). We will affirm.
I. Background
On April 9, 2003, at approximately 11:00 p.m., two anonymous 911 calls were
received by the Philadelphia Police Department dispatcher. The callers both claimed that
they had heard gunshots. The first caller stated that there were six or seven shots,
possibly at the corner of Marston and Tasker streets. The caller did not provide a
description of the shooter or shooters. The second caller stated that there were five or six
shots fired, and that the shooters were two black males, one wearing a red jogging suit
and the second wearing all black. A Computer Aided Dispatch (“CAD”) report indicated
1
The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We have
jurisdiction under 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291.
2
that two black males had fled the scene, one wearing a jacket with “NBA” on it.
Officer Adrienne Suder responded to the scene of the shooting and spoke to a
woman who claimed to have called 911. Suder found seven spent .380 caliber cartridge
casings and three copper projectiles. Officers Shawn Rinier and Edward Nelson testified
that they, too, responded to the scene, but did not participate in any investigation.
Officer Rinier also testified that, later that evening, he spoke to a man in his late
teens named Stuart, whom both Rinier and Nelson knew from the area. According to
Rinier, who did not file a report of the conversation, Stuart told him that a group of black
males followed him and one of the males shot at him. Stuart described the shooter as
being in his early twenties and wearing a blue and white jacket with blue sleeves and an
NBA logo on the back. The District Court found that this testimony was not corroborated
and that it was “incredible” that if Rinier had a description as distinctive as Stuart had
supposedly given, he would not have filed a report.
The following night, Officers Rinier and Nelson, wearing plain clothes and driving
in an unmarked car with Officer Raymond Tancredi, were patrolling in the area of the
shooting, an area Tancredi described as “nasty” and where shootings occurred daily. 249-
50a. They saw a black male wearing a blue and white jacket who appeared to fit the
description of the person they were looking for in connection with the shooting. As they
got closer, however, they realized that the back of the jacket did not have an NBA logo on
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it, and therefore did not match the “flash.” 2
A few minutes later, the officers observed a black female and two black males.
The officers noticed that a man subsequently identified as the defendant, Kenneth Kason
Myers, was wearing a blue and white jacket with an NBA logo on the back. As Nelson
put it, Myers was wearing “the jacket we were looking for.” 182a. Rinier added that the
jacket, which was unique, matched “the exact information” which he testified had been
provided by Stuart. 100a. Tancredi testified that they were “keeping an eye out for that
jacket . . . [which] was kind of an odd jacket for that area and that was the – the jacket
was worn by the person, who was supposedly doing the shooting.” 218-19a.
The officers stopped their vehicle next to where Myers was standing. Rinier asked
Myers if he could talk to him. Myers looked at Rinier and made “a sudden movement,
turning his body, reaching toward his waistband.” 101-102a. Rinier could not see Myers’
hands, but Tancredi believed he was attempting to “take something or move something.”
222a. The officers exited the vehicle and displayed their badges, which hung on metal
chains around their necks, and Rinier and Nelson identified themselves as police officers.
Myers continued to fidget with his hands, moving them towards the right side of his
waistband. Rinier then grabbed Myers’ wrists, put Myers’ hands on the hood of the
2
A “flash” is a description generally provided over a police radio. Agent Poole, an
ATF agent, testified that he had been told by Officers Rinier and Nelson that there was a
radio flash of an attempted shooting, that the shooter was a “black male, early twenties,
white jacket, blue sleeves, NBA logo” and that Stuart confirmed that information. 276a.
4
vehicle, and told him not to move them. Rinier was concerned that Myers might have a
weapon. 104a. Myers refused to cooperate, moved his hands back to the area of his
waist, and pressed his body against the vehicle in an attempt, Tancredi believed, to
conceal a weapon.
Both Officers Rinier and Tancredi grabbed the back part of Myers’ pants and
pulled him away from the vehicle so that his waistband area could be frisked by Tancredi.
Tancredi, who had seen a bulge in the area of Myers’ front right pocket, felt a hard object
on Myers’ right side and realized it was the butt of a gun. Tancredi removed what was
identified as a .380 caliber handgun.
The District Court carefully considered the testimony of the eight witnesses who
appeared at the suppression hearing. As noted above, the Court found the “entire
testimony in connection with the report from Stuart to be lacking in credibility,” 10a, and
did not consider it. The Court did, however, find all the remaining testimony with
reference to what occurred on April 9th and 11th to be credible – the officers had a
“flash” describing the shooter as a young black male wearing a unique blue and white
NBA jacket, a description “confirmed by all the paperwork, the reports . . . and the CAD
report and also the fact . . . that on April the 11th, Rinier, Nelson and Tancredi were all
looking for somebody with an NBA jacket.” 10a-11a, 15a. Additionally, the Court found
that the officers were in a high crime area, late at night, and were investigating a shooting
that occurred just a few blocks away.
5
Rightly or wrongly, the District Court did not believe that, without more, the
“flash” description from an unknown source of unknown reliability provided the requisite
reasonable suspicion for a Terry stop. See Terry v. Ohio, 392 U.S. 1 (1968). The Court
did, however, believe that it was permissible, in light of the facts set forth above, for the
officers to approach Myers on the street and ask to talk to him. When they did so, the
Court found, Myers turned away, moved his hands to his waistband and was fidgeting.
He continued to move his hands towards his waist even after being told not to do so. At
that point, the Court noted, the officers were “obviously” concerned for their safety. 17a.
When Myers “continued to put his hands . . . in his waist – then, they were justified as a
matter of law to grab his hands and place them on the hood of the car, since at that point
they had reasonable suspicion to conduct a pat down search as a result of a Terry stop.”
18a. The pat down disclosed the gun Myers had in his waistband, and provided probable
cause for his arrest. The motion to suppress was denied.
II. Discussion
We review the denial of a motion to suppress for clear error as to the underlying
factual determinations, and exercise plenary review over the application of the law to
those facts. United States v. Lockett, 406 F.3d 207, 211 (3d Cir. 2005).
To justify a Terry stop, an officer “must be able to point to specific and articulable
facts which, taken together with rational inferences from those facts, reasonably warrant
that intrusion.” Terry, 392 U.S. at 21. To determine whether official suspicion was
6
reasonable, we must measure what the officers knew before they conducted the patdown.
Florida v. J.L., 529 U.S. 266, 271 (2000). Moreover, “the evaluation of the totality of the
circumstances must give rise to a particularized suspicion[.]” United States v. Nelson, 284
F.3d 472, 478 (3d Cir. 2002). The Supreme Court has also repeatedly recognized that
even a series of apparently innocent acts, taken together, can amount to reasonable
suspicion. See, e.g., United States v. Arvizu, 534 U.S. 266, 274-75 (2002).
We have set forth the facts in some detail. Those facts, and the application of the
law to those facts, lead inexorably to the conclusion that the officers conducted a lawful
investigative stop because they reasonably suspected on the basis of articulable facts both
criminal activity and danger to themselves. Indeed, as defense counsel observed during
the suppression hearing, “I certainly agree with the Government that, if my client reached
for his waist . . . in a high-crime area where there had been lots of shootings, we would
say that the officers, themselves, were remiss of [sic] their responsibilities for not having
restrained the client and, at least, patted him down for their safety.” 172a.
III. Booker
Myers also seeks a remand for resentencing in light of United States v. Booker,
125 S.Ct. 738 (2005). We reject this request. Myers waived his right to appeal his
sentence in all respects relevant here. We will dismiss this aspect of his appeal as
inconsistent with the appellate waiver in his plea agreement. See Lockett, 406 F.3d at
212-14.
7
IV. Conclusion
For the foregoing reasons, we will affirm the judgments of conviction and
sentence.
8