Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
9-9-2008
USA v. Broadus
Precedential or Non-Precedential: Non-Precedential
Docket No. 06-3770
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 06-3770
UNITED STATES OF AMERICA
v.
TROY BROADUS,
Appellant
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Crim. No. 04-cr-00061)
District Judge: Hon. Cynthia M. Rufe
Submitted Under Third Circuit LAR 34.1(a)
September 8, 2008
Before: SLOVITER, FUENTES and NYGAARD, Circuit Judges
(Filed: September 9, 2008)
OPINION
SLOVITER, Circuit Judge.
Troy Broadus (“Broadus”) appeals the District Court’s denial of his motion to
suppress and its refusal to give an innocent possession jury instruction.
I.
In the evening of December 1, 2003, Philadelphia Police Officers Curtis Younger
and Jacob Williams were on routine patrol in a known high crime area of Philadelphia.
Shortly after 9 p.m., they observed a black 2001 Chevrolet Tahoe without a registration
sticker, in violation of the Pennsylvania Motor Vehicle Code, 75 Pa. Cons. Stat. Ann. §
1332(b). After the officers ordered the vehicle to stop, Officer Williams approached the
driver side while Officer Younger approached the front passenger side where Broadus
was sitting. Younger noticed that Broadus was continuously leaning to his left and
pressing his elbow against his left side when Younger opened the passenger door to
illuminate the inside of the car. According to Younger, Broadus acted nervously and
repeatedly stated, “[e]verything’s cool, it’s all cool.” Supp. App. at 19.
Broadus tried to step out of the car, but was told by Officer Younger to “relax.”
Supp. App. at 19. Younger directed Broadus to put down a box of Chinese food he was
holding and to keep his hands in view. When Broadus leaned down to put the food on the
floor of the car, Younger touched Broadus’ chest and felt his heart “pounding hard.”
Supp. App. at 20. The left part of Broadus’ body was turned away from Younger, and his
left elbow and hand remained pressed to his left side.
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“Fearing [Broadus] might be concealing a firearm,” Officer Younger conducted a
safety frisk by reaching into the vehicle and touching Broadus’ left waist and hip area.
Supp. App. at 20. Younger felt the handle of a handgun, and so alerted Officer Williams
through the use of a code word. Williams then drew his gun as Younger handcuffed
Broadus inside the car for safety reasons. Younger then recovered a loaded Ruger .357
Magnum revolver from Broadus’ waistband. Broadus told Younger that he did not have a
permit to carry the gun, but asked Younger to “give [him] a break” because he was taking
the gun to a relative who owned a bar.1 Supp. App. at 23. Broadus was then placed under
arrest, and was later charged with one count of being a felon in possession of a firearm, in
violation of 18 U.S.C. § 922(g).2 Broadus pled not guilty, and his appointed counsel filed
a motion to suppress evidence on June 2, 2004. The District Court denied the motion
after holding a hearing, finding that Officer Younger’s pat-down of Broadus for weapons
was reasonable under Terry v. Ohio, 392 U.S. 1 (1968).
Prior to closing arguments at the end of a two-day trial, Broadus’ counsel informed
the District Court that he was not requesting an innocent possession jury charge because
1
The gun was lawfully owned by Broadus’ cousin, Fred
Broadus, who had a valid license for it. At trial, Fred Broadus
testified that he was a bar owner who on the night in question was
having a party at his bar and unintentionally left his gun in the car
when he was dropped off at the bar.
2
The original indictment charged Broadus with a violation
of 18 U.S.C. §§ 922(g) and 924(e). A second superseding
indictment contained the same § 922(g) charge and added
additional factors relating to sentencing enhancements.
3
“[i]t would be inconsistent with” the defense theory that Broadus did not possess the gun.3
Supp. App. at 113-14. Broadus’ counsel changed his mind after the government’s rebuttal
argument which referred to Broadus’ comment that he was taking the gun to his cousin,
but the District Court denied the request for an innocent possession instruction. The Court
also denied the jurors’ request during their deliberations for a written copy of the knowing
possession charge, instead re-reading those instructions orally. Broadus’ counsel again
renewed his admittedly “very belated request” for an innocent possession charge, which
the Court again denied. Supp. App. at 154. The jury found Broadus guilty of the § 922(g)
charge.
Broadus filed timely post-verdict motions, which were denied, and he was
sentenced to thirty months imprisonment followed by three years supervised release.
Broadus timely appeals his conviction.
II.
A. Terry Weapons Frisk
We review the District Court’s denial of the motion to suppress for clear error as to
the underlying factual findings and we exercise plenary review over the Court’s
application of the law to those facts. United States v. Perez, 280 F.3d 318, 336 (3d Cir.
3
The defense theory at trial was that Broadus should not
have been arrested because the gun was found between the
vehicle’s center console and the passenger seat rather than in
Broadus’ waistband.
4
2002).
The “general rule” under the Fourth Amendment is that “warrantless searches are
presumptively unreasonable . . . .” Horton v. California, 496 U.S. 128, 133 (1990).
However, the Supreme Court has recognized a number of exceptions to this rule; the one
relevant to this case is the Terry “stop and frisk.” See United States v. Ubiles, 224 F.3d
213, 217 (3d Cir. 2000). In Terry, 392 U.S. at 27, the Supreme Court held that a police
officer may conduct a reasonable search for weapons for his/her own protection without
violating the Fourth Amendment “where [s/he] has reason to believe that [s/he] is dealing
with an armed and dangerous individual . . . . The officer need not be absolutely certain
that the individual is armed; the issue is whether a reasonably prudent [person] in the
circumstances would be warranted in the belief that [his/her] safety or that of others was in
danger.” To make a showing of reasonable suspicion, “[t]he officer must be able to
articulate more than an inchoate and unparticularized suspicion or ‘hunch’ . . . .” Ubiles,
224 F.3d at 217 (citations and internal quotation marks omitted). Reviewing courts must
make the reasonable-suspicion determination based on the totality of circumstances. See
United States v. Arvizu, 534 U.S. 266, 273 (2002).
Although Broadus’ nervousness was not alone enough to support the inference that
he was concealing a weapon, see United States v. McKoy, 428 F.3d 38, 41 (1st Cir. 2005),
the circumstances in this case are closer to our decision in United States v. Moorefield,
111 F.3d 10, 11-12, 14 (3d Cir. 1997), where we reversed the district court’s suppression
5
of the firearm seized from the defendant, who was a passenger in a car subject to a lawful
traffic stop. We held that the defendant’s “furtive hand movements and refusal to obey the
officers’ orders,” specifically the order to remain in the car with his hands in view, as well
as the fact that the defendant leaned back and appeared to shove something toward his
waist, constituted suspicious behavior. Id. at 14. Indeed, “Moorefield’s behavior
embodied the kind of specific, articulable facts that Terry contemplates and, therefore,
warranted a pat-down search for weapons.” Id.
We dispose of this case similarly. Pursuant to a lawful traffic stop, Officer
Younger “lawfully ordered [Broadus] to remain in the car with his hands in [view].” Id. at
13. The pat-down for weapons was also lawful because Officer Younger “pointed to
‘specific and articulable facts which, taken together with rational inferences from those
facts,’ reasonably warranted the pat-down.” Id. at 14 (quoting Terry, 392 U.S. at 21).
Broadus acted nervously, his heart was pounding, he attempted to get out of the car, and he
repeatedly stated that “everything’s cool.” Supp. App. at 19. Although nervousness
standing alone does not justify a Terry frisk, “such behavior may be considered as a factor
in the totality of circumstances.” United States v. Brown, 188 F.3d 860, 865 (7th Cir.
1999). The totality of the circumstances also included Broadus continually moving his left
arm and hand to his left side, almost preventing Younger from seeing his left hand even
though Younger had asked him to keep his hands in view. Furthermore, the traffic stop
took place in a high crime neighborhood, which is a relevant, although not by itself
6
sufficient, factor in the Terry analysis. See Illinois v. Wardlow, 528 U.S. 119, 124 (2000).
Because an “officer need not be absolutely certain that the individual is armed; the issue 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,” Terry, 392 U.S. at 27, Officer Younger’s
pat-down search of Broadus was reasonable under the Fourth Amendment.
B. Innocent Possession Instruction
We review the District Court’s refusal to give certain jury instructions for abuse of
discretion. See Gov’t of V.I. v. Isaac, 50 F.3d 1175, 1180 (3d Cir. 1995). “As a general
proposition, ‘a defendant is entitled to an instruction as to any recognized defense for
which there exists evidence sufficient for a reasonable jury to find in his favor,’” even
when the defenses are contradictory. Id. (quoting Mathews v. United States, 485 U.S. 58,
63 (1988)). However, the District Court’s failure to instruct on innocent possession “will
be upheld if there was no basis in the evidence from which a reasonable jury could have
found that defense.” Id. at 1182.
Although the Court of Appeals for the District of Columbia has adopted the
innocent possession defense to a felon-in-possession charge, see United States v. Mason,
233 F.3d 619 (D.C. Cir. 2001), this court has not done so. In any event, even if we
followed Mason, Broadus cannot establish that he fits within that holding. In Mason, the
court held that a narrow innocent possession defense may apply where “(1) the firearm
was attained innocently and held with no illicit purpose and (2) possession of the firearm
7
was transitory . . . .” 233 F.3d at 624. In order to satisfy the second element, “‘a
defendant’s actions must demonstrate both that he had the intent to turn the weapon over
to the police and that he was pursuing such an intent with immediacy and through a
reasonable course of conduct.’” Id. (citation omitted). Only when both of these
requirements are met is possession “‘excused and justified as stemming from an
affirmative effort to aid and enhance social policy underlying law enforcement.’” Id.
(citation omitted).
As the District Court noted, Broadus primarily relies on his statement to Officer
Younger that the gun was his cousin’s and he was returning it to him at the bar as
sufficient evidence to entitle him to an innocent possession jury instruction. Under Mason,
the innocent possession defense applies only to a defendant whose actions show that s/he
intended to return the firearm to the police, not to another citizen; here, nothing in the
record shows that Broadus intended to turn the gun over to the police or “‘that he was
pursuing such an intent with immediacy and through a reasonable course of conduct.’” Id.
(citation omitted); see also United States v. Hendricks, 319 F.3d 993, 1007-08 (7th Cir.
2003). Broadus had the opportunity to promptly notify Officer Younger of the weapon
when Younger approached the car, but he failed to do so. In fact, the evidence indicates
that Broadus tried to prevent Younger from finding the gun by constantly leaning to his
left and pressing his elbow against his left side. Thus, “[w]ithout any evidentiary support
that [Broadus] took appropriate action to turn the weapon over to the police, the [D]istrict
8
[C]ourt properly refused [Broadus’] request to give the ‘innocent possession’ instruction.”
Hendricks, 319 F.3d at 1008.
III.
For the above-stated reasons, we will affirm the judgment of the District Court.
9