United States v. Alexander Navedo

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________

No. 11-3413
_____________

UNITED STATES OF AMERICA

v.

ALEXANDER NAVEDO,

Appellant
_____________

On Appeal from the United States District Court
for the District of New Jersey
(D.C. No. 10-cr-00359-002)
District Judge: Hon. Garrett E. Brown, Jr.
_____________

Argued on April 11, 2012

Before: McKEE, Chief Judge, HARDIMAN, Circuit Judge,
and JONES, II, District Judge*

(Opinion Filed: September 12, 2012)

Darren M. Gelber, Esq. (argued)
Wilentz, Goldman & Spitzer, P.A.
90 Woodbridge Center Drive
P.O. Box 10
Woodbridge, NJ 07095

Attorney for Appellant

Paul J. Fishman

*
Hon. C. Darnell Jones, II, District Judge of the United States
District Court for the Eastern District of Pennsylvania, sitting
by designation.
1
 United States Attorney
John F. Romano, Esq. (argued)
Assistant U.S. Attorney
970 Broad Street, Suite 700
Newark, NJ 07102

Attorneys for Appellee

_____________

OPINION OF THE COURT
_____________

McKEE, Chief Judge:

Alexander Navedo appeals the denial of a motion to
suppress weapons that police discovered in his home after a
warrantless arrest. He argues that he was detained without
reasonable suspicion or probable cause to arrest and that the
weapons that were subsequently recovered from his
apartment should therefore have been suppressed. We agree.

I. BACKGROUND

On March 3, 2010, Henry Suarez and Saul DeLaCruz,
two Newark Police Department detectives, set up surveillance
in front of 315 Park Avenue in Newark, New Jersey. They
were in plain clothes and driving an unmarked car. Although
they were in front of 315 Park Avenue, they were actually
investigating a shooting that had occurred at 323 Park Avenue
two months earlier in January. 315 Park Avenue is a multi-
unit building located in a mixed residential and industrial
neighborhood. The officers arrived at approximately 7:30 to
8:00 pm; street lights were on and the streets were well
illuminated when they arrived.

The area is not a “high crime area,” and the police did
not have a description of anyone involved in the January
shooting.1 Before arriving and setting up their surveillance,

1
In addition to the shooting in January, the government relies
on a February 3, 2010 weapons complaint to police by a
2
the police had no knowledge or information whatsoever about
Alexander Navedo. Rather, Officer Suarez testified that they
set up surveillance in the area and maintained a presence
because of concerns that there may be some kind of
retaliation for the January shooting. J.A. at 32.

At approximately 8:30 pm, the detectives saw a man
(later identified as Navedo) come out of the entrance to 315
Park Avenue and stand on the porch, approximately twenty to
thirty feet from their unmarked parked car. Officer Suarez
testified that Navedo was not doing anything unusual. Soon
thereafter, a person later identified as Co-defendant Pozo,
approached Navedo from the street. Pozo was carrying a
bookbag, and Navedo walked down to speak with him.
According to Officer DeLaCruz‟s suppression testimony, the
conversation seemed cordial and friendly, and nobody
appeared threatened or threatening. J.A. at 84. After a few
minutes, Pozo took the bag he was carrying off his shoulder,
reached inside it, and pulled out an object. The officers then
observed Pozo holding what looked like a silver gun with a
black handle. Navedo never touched or possessed the gun. In
fact, it never left Pozo‟s hands, and neither officer observed
any conduct that would have suggested that Navedo was
doing anything illegal.2 According to Detective Suarez‟s
testimony at the suppression hearing, right before the police

woman claiming that her boyfriend threatened her with a gun,
to support its contention that reasonable suspicion existed as
to Navedo. See Appellee Br. at 2, 15; Reply Br. at 1-2. But
as discussed below, despite these isolated incidents—none of
which involved Navedo—nothing in the record supports a
finding this neighborhood was a high crime area, and the
District Court made no such finding.
2
Detective Suarez testified that “[w]e didn‟t know what was
going on at that time, all we saw was just the weapon and
two individuals walking up to the single person on the porch.
So, that‟s why we decided to get out of the vehicle.” J.A. at
50. He further explained: “we wasn‟t going to wait until he
actually pulled the gun out completely. We wanted to have
the advantage, that‟s why we jumped out of our vehicle to
make sure they didn‟t go any further than that and tried to
keep that weapon inside the bag.” Id. at 51.
3
approached the group, Navedo “was just leaning forward to
see what was inside the bag.” J.A. at 52.

Upon seeing what they believed was a gun, the officers
got out of their car and approached Navedo, Pozo, and Pozo‟s
companion. As they approached a fence surrounding the
building, the officers identified themselves. The officers
were able to clearly see that the object Pozo had in his
bookbag was indeed a gun before Pozo quickly threw it back
into his bag and ran. Detective Suarez chased Pozo and
ultimately overtook him and placed him under arrest.

As Detective Suarez was pursuing Pozo, Navedo ran
up the stairs to his home with Officer DeLaCruz pursuing
him into the building and up some stairs. DeLaCruz testified
that he chased Navedo into the house because he (the
detective) thought Navedo was involved in an illegal gun
transaction. J.A. at 88. As he chased Navedo, DeLaCruz
yelled: “Police. Stop.” J.A. at 69. With DeLaCruz in
pursuit, Navedo climbed two flights of stairs, reached the
third floor, and attempted to open the door to his apartment.
As Navedo was opening the front door to his apartment, he
was tackled by DeLaCruz. Officer DeLaCruz testified that
“the physical contact was as [Navedo] was opening his front
door—or his door to his apartment . . . .” J.A. at 92. The
following exchange occurred during the suppression hearing:

Q. And as you chased him up to the third floor, the
door that he turned towards, when he got there, was it
opened or closed?
A. From my vantage point, I saw him turn it open.
Q. Okay. And so when you—when you tackled him,
was that door opened or closed?
A. It was opened.
J.A. at 69-70.

After DeLaCruz tackled Navedo, both men fell to the
ground and landed inside the apartment. Officer DeLaCruz
testified that he handcuffed Navedo, and then observed a
shotgun, two long rifles on the bed, one on the floor, and a
stock of ammunition on the floor. He explained:

4
 After I detained the defendant, after I detained
him, during the small little encounter, that‟s
when I observed like a shotgun on the bed,
two—two long rifles on the bed, one on the
floor, and just an enormous amount of
ammunition on the floor. At that point in time,
we both stood up, I was able to detain him
quickly.

J.A. 70.3

After hearing the testimony of the two detectives,
Navedo, and a defense witness, the court denied Navedo‟s
suppression motion. The court ruled that the officers had
reasonable suspicion to stop Navedo and to question him
because Navedo was looking at a weapon in Pozo‟s bag. The
District Court reasoned that Navedo‟s flight elevated the
reasonable suspicion that justified the initial approach to
“probable cause for arrest and justified entry” into the
apartment under the theory of hot pursuit. J.A. at 142. The
court ruled that the physical evidence obtained inside
Navedo‟s apartment was admissible because there was
probable cause to arrest Navedo, based upon his flight. The
court explained: “The individuals ran, creating probable cause
for arrest and justified entry, hot pursuit into the apartment.
There certainly was a reasonable suspicion of criminal
activity, combined with flight looking at the totality of the
circumstances.” Id. The Court then summarized: “I do find
probable cause here based upon the reasonable suspicion,
together with the flight.” Id. at 144.

Navedo was charged with illegally possessing the
weapons that were recovered from inside his apartment, and
those weapons were admitted against him to support the sole
count upon which he was tried and convicted. Navedo now
appeals the resulting conviction.4

3
It appears that the District Court found that the third person
escaped. See J.A. at 140.
4
The District Court had jurisdiction under 18 U.S.C. § 3231.
Our review is proper pursuant to 28 U.S.C. § 1291.
We review a district court‟s order denying a motion to
suppress under a mixed standard of review, exercising
5
II. DISCUSSION

As we noted at the outset, Navedo‟s sole contention on
appeal is that the District Court erred in denying his
suppression motion. He claims that the police did not have
probable cause to arrest and therefore the evidence that was
seized upon their warrantless entry into his apartment should
have been suppressed.

A. GOVERNING PRINCIPLES.

The Fourth Amendment to the United States
Constitution provides:

The right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable
searches and seizures, shall not be violated, and no
Warrants shall issue, but upon probable cause,
supported by Oath or affirmation, and particularly
describing the place to be searched, and the persons or
things to be seized.

U.S. Const. amend. IV.

The Fourth Amendment thus requires a warrant based
upon probable cause before police can arrest someone
(subject to certain exceptions). “While probable cause to
arrest requires more than mere suspicion, the law recognizes
that probable cause determinations have to be made „on the
spot‟ under pressure and do „not require the fine resolution of
conflicting evidence [required at a trial].‟” Paff v.
Kaltenbach, 204 F.3d 425, 436 (3d Cir. 2000) (quoting
Gerstein v. Pugh, 420 U.S. 103, 121 (1975)).

However, the realities of law enforcement allow police
officers to briefly detain an individual based upon “articulable
suspicion” and then to perform a limited protective
“patdown” for weapons during that detention “where a police

plenary review over legal determinations and reviewing
findings of fact for clear error. United States v. Lewis, 672
F.3d 232, 236-37 (3d Cir. 2012).

6
officer observes unusual conduct which leads him reasonably
to conclude in light of his experience that criminal activity
may be afoot .” Terry v. Ohio, 392 U.S. 1, 30 (1968).
Although the limited protective search or patdown is allowed
if the officer has “reasonable grounds” to believe that a
person is “armed and dangerous,” the Fourth Amendment
limits the scope of that search. Id. It must be a “carefully
limited search of the outer clothing of such persons in an
attempt to discover weapons which might be used to assault
him [or her].” Id.

The brief investigative detention is permissible if “the
police officer [can] point to specific and articulable facts
which, taken together with rational inferences from those
facts, reasonably warrant [the] intrusion.” Id.

In evaluating whether reasonable suspicion existed, a
court “must consider the totality of the circumstances,
including the police officer‟s knowledge, experience, and
common sense judgments about human behavior.” United
States v. Robertson, 305 F.3d 164, 167 (3d Cir. 2002).5

The reasonable suspicion required under Terry is
specific to the person who is detained. The circumstances
“must raise a suspicion that the particular individual being
stopped is engaged in wrongdoing.” United States v. Cortez,
449 U.S. 411, 418 (1981). The Supreme Court has never
viewed Terry as a general license to detain everyone within
arm‟s reach of the individual whose conduct gives rise to
reasonable suspicion. Rather, the Court has stressed that
“[t]his demand for specificity in the information upon which
police action is predicated is the central teaching of this
Court’s Fourth Amendment jurisprudence.” Id. (alteration in
original) (quoting Terry, 392 U.S. at 21 n.18) (internal
quotation marks omitted).

We do not suggest that the officers had to sit idly by
without approaching and investigating merely because they
could not be certain about what was transpiring. However,

5
We need not reach Appellant‟s argument that the District
Court improperly accepted the testimony of the testifying
officers over witnesses more sympathetic to Navedo.
7
given the limitations on investigative detentions under Terry,
and the Court‟s clear pronouncement in Cortez, they could
not detain Navedo merely because their reasonable suspicions
justified a brief investigative detention of Pozo.

The detectives conceded during the suppression
hearing that they had no information about Navedo. In
addition, the detectives conceded that when they left their
unmarked car to investigate, Navedo had until then merely
looked at the gun that Pozo was showing him and engaged in
brief conversation with Pozo and his companion. J.A. at 41-
47. That would not justify a reasonable suspicion as to
Navedo without more than appears on this record.

We are mindful that “reasonable suspicion of criminal
activity may be formed by observing exclusively legal
activity.” United States v. Ubiles, 224 F.3d 213, 217 (3d Cir.
2000). However, that does not negate the limitations endemic
in Terry as the Court emphasized in Cortez.

Here, police did not have any information from any
source that would have supported a reasonable suspicion that
Navedo was involved in firearms trafficking or that he
intended to purchase a gun from Pozo. As we have just
noted, the officers knew of nothing that would have suggested
Navedo was connected to any prior criminal activity.6 His
residence at 315 Park Avenue was not even the focus of
police surveillance. That surveillance was aimed at the
building at 323 Park Avenue. A shooting had been reported

6
For reasons known only to the Government, the Assistant
United States Attorney who drafted the Appellees‟s brief in
this case saw fit to inform this Court that: “[p]rior to this
incident, Navedo had amassed a significant criminal record,
including convictions for endangering the welfare of a child,
grand theft auto, and possession of controlled dangerous
substances.” Appellee Br. at 3. However, the Government
does not suggest that either of the detectives involved in this
case had any prior knowledge of any of the individuals
involved in this case including Navedo, and the record here is
clearly to the contrary. We therefore are at a loss to
understand why the Government would think it relevant or
proper to include such a gratuitous statement in its brief.
8
at that address, and the shooting was not even that recent.
The stop here appears to be based on nothing more than an
attempt to transfer the reasonable suspicion the police had as
to Pozo onto Navedo.7 Yet, as the Supreme Court explained
in Ybarra v. Illinois, 444 U.S. 85, 91 (1979), “a person‟s mere
propinquity to others independently suspected of criminal
activity does not, without more, give rise to probable cause to
search that person .” There, the Court stated:
“Notwithstanding the absence of probable cause to search
Ybarra, the State argues that the action of the police in
searching him and seizing what was found in his pocket was
nonetheless constitutionally permissible. . . . We are unable to
take even the first step required by this argument.” Id. at 92.
Although the Court in Ybarra was discussing probable cause
to arrest rather than the reasonable suspicion for a stop under
Terry, the Court‟s pronouncement is equally applicable to this
situation. See Brown v. Texas, 443 U.S. 47, 49-52 (1979).

Here, the District Court concluded that Navedo‟s flight
gave rise to the police probable cause to arrest. Accordingly,
we must determine whether flight under the circumstances
here, gave Detective DeLaCruz probable cause to arrest
Navedo.8

B. NAVEDO’S FLIGHT.

7
Navedo concedes the police officers may have had at least
reasonable suspicion to conduct a Terry stop of Pozo based
on his possession of a weapon. See Reply Br. at 5-6 (“While
Pozo‟s possession of the gun clearly called for reasonable
suspicion, if not probable cause, to detain Pozo, these factors
simply do not give rise to a reasonable suspicion that Navedo
was doing anything other than standing next to Pozo.”).
8
Detective DeLaCruz‟s testimony regarding the arrest was
not very precise. However, it appears from his testimony that
he “detained” Navedo before he saw the guns which would
have been in plain view after Navedo opened his door while
fleeing into his apartment from the detective. J.A. at 69-70.
However, since we conclude that there was no probable cause
to arrest Navedo in the first place, we need not attempt to
determine whether DeLaCruz saw the weapons before or after
he arrested him.
9
 In Illinois v. Wardlow, 528 U.S. 119 (2000), the
Supreme Court discussed when “unprovoked flight” could
lead to a warrantless arrest. There, officers patrolling an area
known for heavy narcotics trafficking observed Wardlow
holding an opaque bag as he stood next to a building. Id. at
121-22. Wardlow fled after seeing the police officers, but
two of the officers caught up with him, and briefly detained
him. Id. at 122. Upon stopping him, they conducted a
patdown search for their own protection because, in their
experience, “it was common for there to be weapons in the
near vicinity of narcotics transactions.” Id. While conducting
the patdown an officer “squeezed the bag [Wardlow] was
carrying and felt a heavy, hard object similar to the shape of a
gun.” Id. Inside that bag, the officers discovered a .38-
caliber handgun with five live rounds of ammunition and they
arrested Wardlow. Id.

The trial court denied Wardlow‟s suppression motion
and he appealed the resulting conviction for illegal possession
of the firearm, arguing that it had been seized improperly.

The Illinois Supreme Court affirmed the reversal of the
trial court‟s denial of Wardlow‟s suppression motion. The
Illinois Supreme Court agreed with the intermediate appellate
court‟s ruling “concluding that the gun should have been
suppressed because the [police] did not have reasonable
suspicion sufficient to justify an investigative stop pursuant to
Terry.” Id. The court relied on Florida v Royer, 460 U.S.
491 (1983), in explaining that “sudden flight in [a high crime
area] does not create a reasonable suspicion justifying a Terry
stop.” Wardlow, 528 U.S. at 122. Since the United States
Supreme Court in Royer had held that an individual may
ignore police questioning and simply go on his/her way, the
Illinois Supreme Court concluded that “flight may simply be
an exercise of [that right] and, thus, could not constitute
reasonable suspicion justifying a Terry stop.” Wardlow, 528
U.S. at 122-23. The Illinois high court had refused to hold
that the fact of being in a high crime area supported a finding
of reasonable suspicion, sufficient to support an investigative
stop even though such flight “standing alone” would not
justify the stop. Id. at 123.

10
 The United States Supreme Court disagreed. That
Court reasoned that: “unprovoked flight is simply not a mere
refusal to cooperate. Flight, by its very nature, is not „going
about one‟s business‟; in fact, it is just the opposite.” Id. at
125. The Supreme Court held that, under the circumstances
there, Wardlow‟s flight was sufficient to allow the police to
detain him and investigate further. Id. (“Officer Nolan was
justified in suspecting that Wardlow was involved in criminal
activity, and, therefore, in investigating further.”). However,
it was the information that the police obtained during the brief
investigative stop that allowed the brief Terry detention to
blossom into probable cause for arrest. Even under the far
more suspicious circumstances there, Wardlow‟s flight did
not justify an arrest. Rather, the Court explained: “Allowing
officers confronted with such flight to stop the fugitive and
investigate further is quite consistent with the individual‟s
right to go about his business or to stay put and remain silent
in the face of police questioning.” Id.

In his opinion concurring in part and dissenting in part,
Justice Stevens explained that in reaching its holding, the
majority had rejected both the bright line per se rule
advocated by the Government, and the opposing per se rule
that the defendant advocated. 528 U.S. at 126-27 (Stevens, J.,
concurring in part and dissenting in part). The Government
had argued that the Court should allow a Terry stop whenever
“anyone . . . flees at the mere sight of a police officer,” and
the defendant had asked the Court to hold that “the fact that a
person flees upon seeing . . . police can never, by itself, . . .
justify a temporary investigative stop.” Id. at 126. Justice
Stevens explained: “[t]he Court today wisely endorses neither
per se rule. Instead, [it concludes reasonable suspicion] . . .
must be determined by looking to „the totality of the
circumstances—the whole picture.” Id. at 126-27.

Justice Stevens further explained that the appropriate
Terry inquiry when one flees from police must address “the
degree of suspicion that attaches to a person‟s flight—or,
more precisely, what commonsense conclusions can be drawn
[from it].” Id. at 128 (internal quotation marks omitted). He
detailed several possible motivations for flight—some of
which were innocent and innocuous and some of which were
not. Id. at 128-30.

11
 He then quoted century-old precedent to explain why
flight could not always be equated with guilt:

[I]t is a matter of common knowledge that men
who are entirely innocent do sometimes fly
from the scene of a crime through fear of being
apprehended as the guilty parties, or from an
unwillingness to appear as witnesses. Nor is it
true as an accepted axiom of criminal law that
“the wicked flee when no man pursueth, but the
righteous are as bold as a lion.”

528 U.S. at 131 (quoting Alberty v. United States, 162 U.S.
499, 511 (1896)) (internal quotation marks omitted). He
stressed that this was particularly true in view of the modern
tensions between police and certain demographic groups.
“Among some citizens, particularly minorities and those
residing in high crime areas, there is also the possibility that
the fleeing person is entirely innocent, but, . . . believes that
contact with the police can itself be dangerous, apart from any
criminal activity associated with the officer‟s sudden
presence.” Id. at 132.9

It is therefore clear from the discussion by both Justice
Stevens and the majority that Wardlow cannot be used to
justify stopping everyone who flees from police. A careful
reading of the majority‟s opinion makes this abundantly clear.
The majority stressed the underlying circumstances of the
investigative detention at issue in upholding the investigative
stop of Wardlow. The Court explained:

[Officers] Nolan and Harvey were
among eight officers in a four-car caravan that
was converging on an area known for heavy
narcotics trafficking, and the officers
anticipated encountering a large number of
people in the area, including drug customers

9
In a lengthy footnote, Justice Stevens cited several articles
and studies that document the extent to which Black and
Latino residents of certain communities are distrustful of
police and the problems that arise from the distrust. See id. at
132 n.7.
12
 and individuals serving as lookouts. It was in
this context that Officer Nolan decided to
investigate Wardlow after observing him flee.

Id. at 124 (majority opinion) (emphasis added) (citation
omitted). It must be remembered that the context the Court
was explaining justified a brief investigative stop under Terry.
The Court did not suggest that flight under those
circumstances would have been sufficient to arrest Wardlow
without more; and it is clear from the Court‟s discussion that
it would not have been adequate for the probable cause
required for an arrest.

As we noted earlier, when police saw Wardlow, he
was holding an opaque bag. Since police had every reason to
believe that the people assembled on the sidewalk included
drug dealers and their customers, Wardlow‟s flight “in this
context,” would certainly give rise to a reasonable suspicion
that he was fleeing because of what was in the bag.
Accordingly, police could legally investigate and they could
take reasonable and limited precautions to ensure their safety
during the brief stop required for that investigation. There,
police could not be reasonably sure of their safety during the
stop without taking steps to determine if Wardlow had a
weapon in the bag he was carrying. Once they felt what
appeared to be a weapon, the circumstances of its discovery
gave them probable cause to believe that Wardlow was
engaged in illegal activity and he was arrested.

None of these circumstances are present here. This was
not the proverbial “high crime area,” and police had no reason
to suspect that Navedo was demonstrating anything other than
curiosity at the sight of a gun in Pozo‟s backpack. See, e.g.,
United States v. Goodrich, 450 F.3d 552, 561 (3d Cir. 2006)
(Terry stop in an area with a reputation for theft of anhydrous
ammonia after ten to fifteen previous reported thefts of the
chemical). The evidence of a prior shooting in January and a
report of a domestic disturbance involving a gun in February,
without more, did not provide sufficient evidence to conclude
that the area surrounding 315 Park Avenue was a high crime
area, and as we noted earlier, the District Court made no
finding that this was a high crime area. This is also not the
case in which police officers patrolled an area known for

13
heavy narcotics trafficking where police expected to
encounter drug dealers, their customers, or “lookouts” as in
Wardlow.

We do not mean to suggest that the outcome would be
different here if this had happened in a “high crime area,” nor
do we suggest that police should ignore the overall character
of a neighborhood when assessing the significance of
“unprovoked flight.” We just note that the discussion in
Wardlow does not suggest that someone‟s unprovoked flight
will necessarily justify a Terry stop merely because that
person happens to reside in a high crime area. In fact, as
Justice Stevens explains at some length, persons residing in
such areas may be particularly apprehensive of police for
reasons totally unrelated to their own involvement in a crime.
Rather, such flight and the setting in which it occurs, is
merely one of many factors police may reasonably consider
before making an investigative stop under Terry. The flight
must, however, still be assessed in context with all of the
circumstances surrounding it. See Wardlow, 528 U.S. at 124.

But, even absent a finding of a high crime area or other
relevant characteristics, the Government interprets Wardlow
to hold that flight in and of itself is sufficient to establish
probable cause. In doing so, the Government relies in part on
United States v. Laville, 480 F.3d 187 (3d Cir. 2007). See
Appellee Br. at 18. The argument misinterprets Wardlow. As
we have previously stated, “the Supreme Court has never held
that unprovoked flight alone is enough to justify a stop.”
United States v. Bonner, 363 F.3d 213, 217 (3d Cir. 2004)
(discussing flight in the context of a vehicle stop).

“While „reasonable suspicion‟ is a less demanding
standard than probable cause and requires a showing
considerably less than preponderance of the evidence, the
Fourth Amendment requires at least a minimal level of
objective justification for making the [initial] stop.”
Wardlow, 528 U.S at 123. We have explained that “flight
upon noticing police, plus some other indicia of wrongdoing,
can constitute reasonable suspicion.” Bonner, 363 F.3d at
217 (emphasis added). Despite the government‟s reliance on
Laville, we have not held that mere unprovoked flight from

14
approaching police would support probable cause to arrest,
nor could we, given the Supreme Court‟s pronouncements.

In Laville, we did state that: “It is well established that
where police officers reasonably suspect that an individual
may be engaged in criminal activity, and the individual
deliberately takes flight when the officers attempt to stop and
question him, the officers generally no longer have mere
reasonable suspicion, but probable cause to arrest.” 480 F.3d
at 195 (emphasis added) (internal quotation marks omitted).
There are two problems with the Government‟s reading of
Laville. First, it does not apply here with the force the
Government believes because, as we have explained, the
reasonable suspicion supporting the stop focused on Pozo, not
on Navedo. Second, the Government‟s position ignores our
cautionary note that flight will “generally” support probable
cause. Whether that higher threshold is reached must, of
course, turn on an examination of the totality of the
circumstances surrounding the flight, as well as the nature of
the conduct that gave rise to the underlying reasonable
suspicion for the investigative stop.

In Laville, Virgin Islands police received a telephone
call informing them that a boat carrying thirty-two
undocumented aliens had run aground on a reef and that
several of the aliens were coming ashore. Id. at 189. Laville
was subsequently arrested and convicted of conspiring to
bring illegal aliens into the United States for financial gain.
Prior to trial, Laville moved to suppress certain evidence
arguing that he was arrested without probable cause, and we
affirmed the District Court‟s denial of that suppression
motion. In rejecting Laville‟s argument that his stop and
arrest violated the Fourth Amendment, we explained that
when police Officer Santos arrived at the wharf in question,
he confirmed that a boat had run aground and was stranded
with people still onboard. Id. at 194. A witness had pointed
out four individuals who identified themselves as Cubans
who had been on the stranded boat and they told the officer
that others were still onboard. Id. The officer confirmed that
persons suspected of being on the boat were “around the
corner,” and the witness offered to “point them out.” Id. at
194 (internal quotation marks omitted). The officers then
walked around the corner and saw Laville and his

15
companions, who fled as the officers approached. Id. at 194-
95. “Taking these facts together with all reasonable
inferences, . . . Santos . . . had, at the very least, reasonable
suspicion to believe that criminal activity was afoot.” Id. at
195 (citation omitted). We stated that that reasonable
suspicion would have justified a brief detention to investigate
under Terry even absent any additional information. Id.
However, Laville‟s subsequent attempt to leave when Santos
approached under these circumstances “elevated Santos‟s
reasonable suspicion to the level of probable cause for an
arrest.”Id.

Contrary to the Government‟s reliance on Laville, the
facts there demonstrate the type of information police need
before flight can, by itself, elevate reasonable suspicion to
probable cause. We explained that although “[t]he arresting
officer need not have contemplated the specific offense for
which the defendant ultimately will be charged,” the officer
must have “reasonably trustworthy information or
circumstances within an arresting officer‟s knowledge . . . to
warrant a person of reasonable caution to conclude that an
offense has been or is being committed by the person being
arrested.” Id. at 194 (emphasis added). The officers in
Laville had tips from a citizen informant as to the specific
identity of a person suspected of entering the country illegally
and the knowledge that a boat had run aground moments
before the arrests. Moreover, the arrest in Laville occurred in
the Virgin Islands and was therefore tantamount to a border
search that requires far less justification than an arrest that
does not implicate the nation‟s interest in the security of its
borders. See United States v. Hyde, 37 F.3d 116, 122 (3d Cir.
1994) (“[W]e perceive the interest of the United States in
warrantless searches without probable cause at this „internal‟
border to be little different from its interest in such searches at
its international borders.”) (explaining that the geographical
location of the Virgin Islands meant that police were afforded
greater leeway in conducting warrantless searches).10 The
facts here are a far cry from the circumstances that justified
the stop and arrest in Laville.

10
In Hyde, we upheld the constitutionality of suspicionless
customs checkpoints at the airports in the Virgin Islands.
Hyde, 37 F.3d at 117, 123.
16
 Our holding today reiterates that unprovoked flight,
without more, can not elevate reasonable suspicion to detain
and investigate into the probable cause required for an arrest.
Rather, a person whom police approach is free to avoid a
potential encounter with police by leaving the scene, and the
rate of acceleration of the person‟s gate as s/he leaves away is
far too ephemeral a gauge to support a finding of probable
cause, absent some other indicia of involvement in criminal
activity. See Florida v. Bostick, 501 U.S. 429, 437 (1991);
Royer, 460 U.S. at 497-98 (“The person approached,
however, need not answer any question put to him; indeed, he
may decline to listen to the questions at all and may go on his
way. He may not be detained even momentarily without
reasonable, objective grounds for doing so; and his refusal to
listen or answer does not, without more, furnish those
grounds.” (citations omitted)). Unprovoked flight can only
elevate reasonable suspicion to probable cause if police have
“reasonably trustworthy information or circumstances” to
believe that an individual is engaged in criminal activity, as
was the case in Laville. 480 F.3d at 194.

As discussed at length above, none of those
circumstances are present here. The police had no reason to
suspect that Navedo was himself involved in criminal
activity, and even if they had appropriately formed such a
suspicion, they would only have been entitled to detain and
investigate, not arrest. We conclude, therefore, that the police
lacked probable cause to arrest Navedo under the
circumstances here and that the District Court erred in
denying his motion to suppress the physical evidence that was
seized following that arrest.

III. CONCLUSION

For the reasons set forth above, we will remand this
case to the District Court with instructions that it vacate the
order denying Navedo‟s motion to suppress.11

11
Since we conclude that the arrest was not supported by
probable cause, we need not reach Navedo‟s argument that
the police violated the Fourth Amendment when they entered
his apartment building during the chase that preceded his
arrest.
17
USA v. Navedo, No. 11-3413
HARDIMAN, Circuit Judge, dissenting.

The majority reverses the District Court‘s decision to
deny Alexander Navedo‘s motion to suppress evidence after
finding that Newark police officers Saul De La Cruz and
Henry Suarez (the Officers) did not possess reasonable
suspicion to believe Navedo was about to engage in criminal
activity. My disagreement with that finding necessitates this
respectful dissent.
I

A

Reasonable suspicion requires ―a particularized and
objective basis for suspecting the person stopped of criminal
activity.‖ United States v. Cortez, 449 U.S. 411, 417–18
(1981). While officers may not rely on an ―inchoate . . .
suspicion or hunch,‖ Terry v. Ohio, 392 U.S. 1, 27 (1968), it
is well-established that they may ―draw on their own
experience and specialized training to make inferences from
and deductions about the cumulative information available to
them that ‗might well elude an untrained person,‘‖ United
States v. Arvizu, 534 U.S. 266, 274 (2002) (quoting Cortez,
449 U.S. at 417–18). Accordingly, reasonable suspicion does
not require evidence of a crime and need not be based on
purely nefarious conduct. ―[E]ven factors independently
‗susceptible to innocent explanation‘ can collectively amount
to reasonable suspicion.‖ United States v. Brown, 448 F.3d
239, 252 (3d Cir. 2006) (quoting Arvizu, 534 U.S. at 273).

My colleagues conclude that the Officers‘ pre-flight
observations could not reasonably have led them to suspect
that Navedo was about to engage in criminal activity. They

1
do so in spite of their concession that the Officers had
reasonable suspicion as to another party to the encounter,
Juan Pozo. (See Maj. Typescript at 8, 9–10.) In doing so, the
majority fails to acknowledge critical portions of the Officers‘
testimony and usurps the factfinding province of the District
Court.

According to the Officers, both of whom were deemed
credible by the District Court, around 8:30 p.m., they noticed
Navedo exit 315 Park Avenue and stand at the top of the
stairs to his porch. Officer Suarez testified that drug
purchasers often wait for deliveries outside their homes in this
manner. Moments later, Pozo and another man approached
Navedo and spoke to him for several minutes; the interaction
appeared ―cordial‖ and ―friendly.‖ Pozo then opened a
backpack and began to withdraw what ―appeared [to both
Officers] to be a gun‖ and a holster. (JA 36, 64, 88.) Navedo
never touched the gun, but he ―lean[ed] forward to see what
was inside the bag‖ and looked unsurprised to see the gun.
(JA 51–52, 67, 89.) Conceding that Navedo ―had not
engaged in any illegal activity, per se‖ at that point, (JA 46–
47), ―the way [Pozo and Navedo] were both speaking to each
other, the way the weapon was taken out of the backpack
being shown, . . . [and] the interest [Navedo] showed towards
the weapon‖ led Officer De La Cruz to believe that ―a gun
transaction was going to transpire,‖ (JA 88–89). The District
Court explicitly credited De La Cruz‘s testimony that he saw
Navedo ―being shown the gun in what appeared to be a gun
transaction.‖ (JA 140–41.)

I find nothing in the record that would permit us to
overturn the District Court‘s finding that the Officers
suspected Pozo and Navedo were about to engage in a gun
transaction. Nor can I conclude that it was unreasonable for

2
them to infer that such a gun sale was likely criminal under
New Jersey law. In New Jersey, ―[n]o person shall . . .
receive, purchase, or otherwise acquire a handgun unless [he]
. . . is licensed as a dealer . . . or has first secured a permit to
purchase a handgun.‖ N.J. Stat. Ann. § 2C:58-3(a).
Crucially, when the legality of a gun transaction, or even
mere possession, ―depends on . . . a license or permit[,]‖ New
Jersey law ―presume[s] that [the individual involved] does not
possess such a license or permit . . . until he establishes to the
contrary.‖ Id. § 2C:39-2(b). Therefore, the Officers‘
suspicion that Pozo‘s and Navedo‘s actions denoted illegal
enterprise was reasonable.1

1
That reasonable suspicion existed does not mean the
Officers required such suspicion at the time they approached
Navedo‘s porch. ―A seizure does not occur every time a
police officer approaches someone to ask a few questions.
Such consensual encounters are important tools of law
enforcement and need not be based on any suspicion of
wrongdoing.‖ Johnson v. Campbell, 332 F.3d 199, 205 (3d
Cir. 2003); accord United States v. Drayton, 536 U.S. 194,
204–05 (2002); Florida v. Royer, 460 U.S. 491, 497 (1983).
Officers may ―pose questions, ask for identification, and
request consent to search luggage—provided they do not
induce cooperation by coercive means‖—without effecting a
seizure. Drayton, 536 U.S. at 201. Confronted with a so-
called ―consensual encounter,‖ an individual may ―‗decline to
listen to the questions at all and . . . go on his way.‘‖ United
States v. Bonner, 363 F.3d 213, 217–18 (3d Cir. 2004)
(quoting Royer, 460 U.S. at 498). Reasonable suspicion is
required only when officers conduct an investigatory stop

3
 B

After concluding that no reasonable suspicion existed
as to Navedo, the majority devotes a substantial portion of its
opinion to explaining that Navedo‘s flight could not, by itself,
establish probable cause to arrest him. (See Maj. Typescript
at 16–20.) This is undoubtedly correct. See Illinois v.
Wardlow, 528 U.S. 119, 124–26 (2000) (indicating that flight
alone is insufficient to satisfy the lesser standard of
reasonable suspicion); accord United States v. Bonner, 363
F.3d 213, 217 (3d Cir. 2004) (―[T]he Supreme Court has
never held that unprovoked flight alone is enough to justify a
stop.‖). But because the Officers did have reasonable
suspicion before Navedo fled, this case turns on whether
Navedo‘s flight in addition to the facts known to the Officers
when they approached the porch rose to the level of probable

pursuant to Terry, 392 U.S. 1. See, e.g., Cortez, 449 U.S. at
417–18.

Here, the Officers initiated a consensual encounter,
and Navedo did not merely decline to participate. See, e.g.,
Royer, 460 U.S. at 497–98. Nor did Navedo submit to
subsequent displays of the Officers‘ authority and stop to be
questioned pursuant to Terry. Accordingly, under California
v. Hodari D., 499 U.S. 621, 626 (1991), no seizure occurred
until he was tackled in the doorway to his room. Thus, the
Officers‘ reasonable suspicion is relevant only insofar as it
informs our probable-cause analysis; reasonable suspicion
was neither necessary to the Officers‘ pre-flight actions nor
sufficient to render Navedo‘s ultimate seizure and arrest
constitutional.

4
cause. See United States v. Laville, 480 F.3d 187, 195 (3d
Cir. 2007); cf. Wardlow, 528 U.S. at 124 (holding that flight
combined with other suspicious circumstances can create
reasonable suspicion). I believe our decision in Laville
governs our analysis of whether the Officers had probable
cause to arrest Navedo.

In Laville, an eyewitness on a wharf in the Virgin
Islands had reported to police that a boat had run aground and
illegal aliens were coming ashore. 480 F.3d at 189. When
police responded to the scene, the witness was able to point
out four of the recently arrived individuals sitting on a nearby
boardwalk. Id. Those individuals informed police that they
were Cuban and that other aliens who had arrived on the
beach with them were still in the area. Id. The eyewitness
offered to identify several of the aliens he claimed were
around a corner from the boardwalk. Id. When police
approached three men the eyewitness had identified, the men
―stood up and started walking away really fast.‖ Id. at 190.
Soon after, the men began running. Id. When Laville, one of
the fleeing suspects, yielded to an officer yelling at him to
stop, he was arrested. Id. In reviewing the constitutionality
of Laville‘s arrest, we concluded that ―by the time [the
officer] approached Laville and his companions on the
boardwalk, he had, at the very least, reasonable suspicion to
believe that criminal activity was afoot.‖ Id. at 195. It
followed that ―when Laville fled at the sight of the
approaching officers, [they] no longer merely had reasonable
suspicion . . . ; [they] now had probable cause to make an
arrest.‖ Id. We explained that ―‗where police officers
reasonably suspect that an individual may be engaged in
criminal activity, and the individual deliberately takes flight
when the officers attempt to stop and question him, the

5
officers generally no longer have mere reasonable suspicion,
but probable cause to arrest.‘‖2 Id. (emphasis added) (quoting
United States v. Sharpe, 470 U.S. 675, 705 (1985) (Brennan,
J., dissenting).

I agree with the majority that whether reasonable
suspicion escalates to probable cause when a suspect flees
police is context-dependent and must be determined on a
case-by-case basis. In the Supreme Court‘s words,
―deliberately furtive actions and flight at the approach of
strangers or law officers are strong indicia of mens rea, and
when coupled with specific knowledge on the part of the
officer relating the suspect to the evidence of crime, they are
proper factors to be considered in the decision to make an
arrest.‖ Sibron v. New York, 392 U.S. 40, 66–67 (1968)
(emphasis added); accord United States v. Cruz, 910 F.2d
1072, 1077 (3d Cir. 1990). ―Headlong flight—wherever it
occurs—is the consummate act of evasion: It is not
necessarily indicative of wrongdoing, but it is certainly
suggestive of such.‖ Wardlow, 528 U.S. at 124.

I also agree that suspects may at times run from police
for innocent reasons. For example, where the investigating
officer ―insufficiently or unclearly identifies his office or his
mission,‖ ―the [suspect‘s] flight . . . must be regarded as
ambiguous conduct.‖ Wong Sun v. United States, 371 U.S.
2
Other circuits have likewise concluded that
reasonable suspicion may escalate to probable cause upon the
suspect‘s flight from police. See Weaver v. Shadoan, 340
F.3d 398 (6th Cir. 2003); United States v. Dotson, 49 F.3d
227 (6th Cir. 1995); United States v. Morgan, 936 F.2d 1561
(10th Cir. 1991); United States v. Martinez-Gonzalez, 686
F.2d 93 (2d Cir. 1982).

6
471, 482 (1963). But that is not what occurred in this case.
Here, although the Officers were dressed in plain clothes,
they displayed their badges and verbally identified themselves
as Newark police officers. Accordingly, the Officers could
reasonably interpret Navedo‘s immediate flight as evidence of
a guilty conscience.

As in Laville, the Officers here had information
suggesting the possibility of a crime in progress before they
approached the suspects. The conduct underlying their
suspicions was not itself per se illegal, but their professional
experience suggested that criminal activity was afoot. The
Officers saw Navedo waiting on his front porch, where he
appeared to be expecting someone. They deemed this
behavior consistent with narcotics sales protocols based on
their law enforcement expertise. They observed Pozo‘s
arrival with a backpack, the ensuing conversation, Pozo‘s
display of what appeared to be a gun, and Navedo‘s
expression of interest in the gun. Instead of receiving
information from an eyewitness as did the police in Laville,
here the Officers personally observed facts that led them to
possess reasonable suspicion that criminal activity was afoot.
The majority attempts to distinguish Laville by analogizing
the arrest there to ―a border search that requires far less
justification.‖ (Maj. Typescript at 19.) But the word
―border‖ does not even appear in our opinion in Laville.
There we applied the usual probable-cause standard and
concluded that it had been satisfied. 480 F.3d at 194–95.
Probable cause has likewise been established in this case.

After concluding that the Officers‘ reasonable
suspicion became probable cause when Navedo fled, the
question becomes whether the Officers were authorized to
pursue Navedo into 315 Park Avenue. I would hold that the

7
Officers‘ ―hot pursuit‖ of Navedo into his apartment building
constituted a valid exigent circumstance that permitted them
to disregard the warrant requirement.3 See, e.g., Kentucky v.
King, 131 S. Ct. 1849, 1856 (2011); United States v. Santana,
427 U.S. 38, 42–43 (1976) (holding that where probable
cause to arrest exists, ―a suspect may not defeat an arrest
which has been set in motion in a public place, and is
therefore proper . . . , by the expedient of escaping to a private
place‖). ―Hot pursuit‖ need not involve ―an extended hue and
cry ‗in and about (the) public streets.‘‖ Santana, 427 U.S. at
42–43. ―The fact that [a] pursuit . . . end[s] almost as soon as
it beg[ins]‖ because a suspect flees into and is apprehended
just inside his own home does not ―render it any the less a
‗hot pursuit‘ sufficient to justify the warrantless entry.‖ Id. at

3
Due to the nature of Navedo‘s apartment building,
whether he possessed a reasonable expectation of privacy—a
necessary predicate to his invocation of the exclusionary
rule—might have presented a close question in this case. See
United States v. Correa, 653 F.3d 187, 188–90 (3d Cir. 2011)
(―[A] resident of [a] . . . multi-unit apartment building lacks
an objectively reasonable expectation of privacy in the
building‘s common areas‖ even where there is a ―locked
exterior door.‖). But the Government waived this standing
argument by failing to raise it in the District Court. E.g.,
United States v. Dupree, 617 F.3d 724, 728 (3d Cir. 2010) (It
is ―well-established . . . that arguments not raised in the
district courts are waived on appeal . . . [and] [t]his general
principle applies fully to criminal cases involving motions to
suppress.‖); United States v. Stearn, 597 F.3d 540, 552 n.11
(3d Cir. 2010) (Standing is ―subject to the ordinary rule that
an argument not raised in the district court is waived on
appeal.‖).

8
43. It matters not that Navedo had only to take a few steps
before he was inside his building or that he was tackled and
arrested just moments into the chase. Officers suspected him
of an illegal gun transaction and knew of at least one gun on
the scene, which justified immediate action. See Welsh v.
Wisconsin, 466 U.S. 740, 751 (1984); United States v. Ball,
90 F.3d 260, 263 (8th Cir. 1996).

The two requisites for a warrantless arrest in the
home—probable cause and exigent circumstances—were
established by the Government in this case. See Welsh, 466
U.S. at 749–50; Payton v. New York, 445 U.S. 573, 586–90
(1980); Couden v. Duffy, 446 F.3d 483, 496 (3d Cir. 2006).
And because the firearms evidence Navedo sought to
suppress was in plain view from the Officers‘ lawful vantage
point the instant they tackled Navedo, it was admissible.

II

For the foregoing reasons, I would uphold the District
Court‘s denial of Navedo‘s suppression motion and affirm the
judgment of conviction.

9