Opinions of the United
2009 Decisions States Court of Appeals
for the Third Circuit
1-13-2009
USA v. Adderly
Precedential or Non-Precedential: Non-Precedential
Docket No. 07-3753
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Recommended Citation
"USA v. Adderly" (2009). 2009 Decisions. Paper 2048.
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 07-3753
UNITED STATES OF AMERICA
v.
NEZZY ADDERLY,
Appellant
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Crim. No. 06-00548)
Honorable Bruce W. Kauffman, District Judge
Submitted under Third Circuit LAR 34.1(a)
December 3, 2008
BEFORE: AMBRO and GREENBERG, Circuit Judges,
and RODRIGUEZ, District Judge*
Filed: January 13, 2009
OPINION OF THE COURT
GREENBERG, Circuit Judge.
*The Honorable Joseph H. Rodriguez, Judge of the United States District Court for the
District of New Jersey, sitting by designation.
This matter comes on before this Court on an appeal from the District
Court from a judgment of conviction and sentence in this criminal case entered on
September 14, 2007. A grand jury indicted defendant-appellant Nezzy Adderly for being
a convicted felon in possession of a firearm in violation of 18 U.S.C. § 922(g) and being
an armed career criminal so that his sentence was subject to the enhanced sentence
provisions of 18 U.S.C. § 924(e). After Adderly moved to suppress the firearm as
evidence, the District Court held an evidentiary hearing on his motion on April 17, 2007,
at which six witnesses testified. On April 24, 2007, the Court denied the motion in a
memorandum and order setting forth findings of fact and conclusions of law.
Thereafter Adderly and the Government enter into a plea agreement pursuant to
which Adderly entered a plea of guilty preserving his right to appeal from the denial of
his motion to suppress. The District Court imposed the mandatory minium custodial
sentence of 180 months to be followed by a three-year term of supervised release.
Adderly now appeals, advancing the sole issue that the Court erred in denying his motion
to suppress.
The District Court had jurisdiction under 18 U.S.C. § 3231 and we have
jurisdiction under 28 U.S.C. § 1291. Inasmuch as this case involves a ruling under Terry
v. Ohio, 392 U.S. 1, 88 S.Ct. 1868 (1968), in which the Court made findings of fact and
reached conclusions of law, we exercise dual standards of review. First, we review the
Court’s factual findings for clear error and then we exercise de novo review over its
conclusions of law, including its finding that the police had reasonable suspicion to
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satisfy the criterion for a limited search under Terry when they recovered the firearm.
United States v. Roberson, 90 F.3d 75, 76-77 (3d Cir. 1996).
The District Court found that the Philadelphia police officers observed Barbara
Forrest engaged in drug sales transactions in front of a small bar in a high narcotics and
crime area in Philadelphia. After the transactions Forrest entered the bar, following
which the police rushed in to arrest her. As the police came in Adderly, who was in the
bar, ran for its back door. At the hearing Adderly gave an innocent explanation for this
incriminating conduct as he explained that he was a disc jockey at the bar and was going
to the door to retrieve his stereo equipment from his automobile. There is no suggestion
in the record, however, that the police officers who entered the bar knew either of
Adderly’s alleged employment or purpose in attempting to leave the bar and in his brief
he does not claim that they did. In any event, Adderly was not able to leave the bar
because the police stopped him and then patted him down and found the firearm.
In its factual findings the District Court concluded that the officer who conducted
the search “had reasonable suspicion to stop and frisk” Adderly because the police were
in a high crime area and knew that there was narcotics trafficking at the bar. Moreover,
the Court, notwithstanding Adderly’s innocent explanation for leaving the bar, in an
unassailable finding of fact believed that Adderly was attempting to flee and there is no
doubt at all that the officers believed the same thing. Of course, Adderly’s conduct was
highly suspicious because it was “unprovoked flight upon noticing the police.” Illinois v.
Wardlow, 523 U.S. 119, 125, 120 S.Ct. 673, 676 (2000).
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We recognize that it could be argued that the police should not have regarded
Adderly as a threat to them because he was attempting to leave the scene. Under this
argument inasmuch as a Terry search is justified by the need to discover weapons that
might be used to assault the police, it might seem reasonable to contend that by fleeing
Adderly was eliminating need for the search and to be safe the police merely had to allow
him to leave the bar. See Terry, 392 U.S. at 30, 88 S.Ct. at 1884. But the problem with
that argument is apparent because Adderly would not have left the area merely by exiting
the bar, so if he left the bar he would remain a threat so long as he was nearby.
Adderly cites Ybarra v. Illinois, 444 U.S. 85, 91, 100 S.Ct. 338, 342 (1979),
contending on the basis of that case that his mere presence at the bar did not justify the
search. Though clearly an officer does not automatically have reasonable suspicion
justifying a search merely because a crime is being committed in an area where the person
to be searched is present, Ybarra does not help him because there were more factors than
Adderly’s mere presence at the scene that justified the search here. In this case the events
were taking place in a high drug crime area, there were open drug transactions being
conducted, there were only six or seven people in the bar, and Adderly ran when the
police came into the bar. We are satisfied that when we “consider the totality of the
circumstances” the search was justified. United States v. Robertson, 305 F.3d 164, 167
(3d Cir. 2002).
The judgment of conviction and sentence entered September 14, 2007, will be
affirmed.
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