308 F.3d 251 (3rd Cir. 2002), 01-3106, U.S. v. Myers

Docket Nº:01-3106.
Citation:308 F.3d 251
Party Name:UNITED STATES of America, Appellee v. Clifton MYERS; a/k/a Samuel Jenkins, Clifton Myers, Appellant
Case Date:October 11, 2002
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit

Page 251

308 F.3d 251 (3rd Cir. 2002)

UNITED STATES of America, Appellee


Clifton MYERS; a/k/a Samuel Jenkins, Clifton Myers, Appellant

No. 01-3106.

United States Court of Appeals, Third Circuit

October 11, 2002

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[Copyrighted Material Omitted]

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Jonathan D. Libby (Argued), Elaine De-Masse, Defender Association of Philadelphia, Philadelphia, for Appellant.

Lesley S. Bonney (Argued), Office of the United States Attorney, Philadelphia, for Appellee.

Before McKEE, BARRY and ALARCON,[*] Circuit Judges.


McKEE, Circuit Judge.

We are asked to review the district court's denial of a motion to suppress physical evidence that the defendant filed before entering a conditional guilty plea under Fed.R.Crim.P. 11(a)(2).1 The district court sentenced Clifton Myers to 15 years imprisonment after he pled guilty to possession of a firearm by a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e). On appeal, Myers contends that the district court erred in denying his motion to suppress. We agree.2

I. Background

On July 19, 2000, Philadelphia Police Officer Leonard Azzarano responded to a 911 radio call reporting a disturbance in an apartment involving a person with a gun. It was later discovered that the 911 call was placed by 12 year old Diane McKnight, who resided at the reported residence with her mother.3 Upon arriving at the reported location, Officer Azzarano saw a young adolescent girl standing approximately two feet outside of the apartment door. The girl was later identified as Diane McKnight, the same girl who had placed the 911 call. McKnight told the officer that her mother and her mother's boyfriend were inside the apartment fighting. The girl also said that her mother's boyfriend had a gun.

After announcing that he was a police officer, Azzarano entered the first floor kitchen area but did not see anyone there. However, he heard raised voices and a lot of movement upstairs. Azzarano drew his gun, and again announced that he was a police officer. He then proceeded to the second floor where he encountered Lydia Bennett at the top of the stairs. The officer asked Bennett where the other person was, but Bennett told him that no one else was upstairs. Her voice was shaky and she appeared upset.

Azzarano then noticed a man standing behind a door, and the officer ordered him to come out at gun point. The man, later identified as the defendant, Clifton Myers, complied with the order. As Myers came from behind the door, he was carrying a black school bag. The officer ordered Myers onto the floor. As Myers got on the floor, he threw the black school bag down, and it landed about three feet from him. Officer Azzarano handcuffed Myers' hands behind his back as he was lying face down on the floor and proceeded to pat him down. The officer did not find anything during the pat-down.

Azzarano then asked Myers his name, and Myers responded that it was "Samuel

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Jenkins." Two other officers then arrived on the scene, and they kept watch over Myers while Azzarano took Bennett downstairs to question her.4 During the brief questioning, Bennett told Azzarano that her boyfriend's name was "Clifton." As this name varied from the name Myers had first given, Azzarano returned to the second floor to again ask Myers his name. As he approached Myers, Azzarano noticed that Myers kept looking at the black bag he had set down when he was arrested. Myers also appeared to be getting increasingly nervous and Azzarano noticed that Myers' voice was shaking and halting.

Azzarano opened the bag and discovered a gun inside. Myers was thereafter charged in state court with a violation of Pennsylvania's Uniform Firearms Act. His prosecution was subsequently transferred to federal authorities who indicted him for violating 18 U.S.C. §§ 922(g)(1) and 924(e), which makes it illegal for a convicted felon to possess a firearm. Prior to the scheduled trial date, the district court conducted the aforementioned suppression hearing on Myers' motion to suppress the gun. McKnight and Officer Azzarano testified at that hearing on behalf of the government.

At the conclusion of the hearing, the district court issued an oral ruling from the bench denying Myers' suppression motion. The court expressed concern that Myers had been charged with unlawful possession of a firearm even though the weapon was not discovered until after his arrest. However, the court reasoned that Officer Azzarano had probable cause to arrest Myers either for simple assault pursuant to 18 Pa.C.S.A. § 2701, domestic violence 5 pursuant to 18 Pa.C.S.A. § 2711, or a violation of the Uniform Firearms Act pursuant to 18 Pa.C.S.A. § 6106 ("VUFA"). The court concluded that even though Myers ultimately was only charged in federal court with possession of a firearm by a convicted felon in violation of 18 U.S.C. §§ 922(g)(1) and 924(e), this did not negate the probable cause to arrest him on other charges. The court found that the arrest was therefore valid and that the gun was properly seized pursuant to a search incident to that arrest. The court concluded:

I find, basically, that the backpack was within the defendant's immediate control and, therefore, I conclude that this was a search incident to the arrest and as I believe the defendant agreed at the time of oral argument, although perhaps he has said something to the contrary in papers since that time.

App. at 171a.6 We disagree.

Although we conclude that Officer Azzarano's initial entry into the residence was justified, we hold that there was no probable cause to arrest Myers. Moreover, even assuming arguendo that Officer

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Azzarano had probable cause to arrest Myers, the suppression motion still should have been granted because the government has not satisfied its burden of establishing that the ensuing search was incident to a lawful arrest.

II. Discussion

A. Officer Azzarano did not have Probable Cause to Arrest Myers

Probable cause exists whenever reasonably trustworthy information or circumstances within a police officer's knowledge are sufficient to warrant a person of reasonable caution to conclude that an offense has been committed by the person being arrested. See Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964). The validity of an arrest is determined by the law of the state where the arrest occurred. See Ker v. California, 374 U.S. 23, 37, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963) (plurality opinion).

In reviewing a suppression order, we review the district court's findings of fact for clear error. See United States v. Roberson, 90 F.3d 75, 77 (3d Cir. 1996), citing Ornelas v. United States, 517 U.S. 690, 699-700, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996). We have previously found that:

[t]he determination that probable cause exists for a warrant less arrest is fundamentally a factual analysis that must be performed by the officers at the scene. It is the function of the court to determine whether the objective facts available to the officers at the time of arrest were sufficient to justify a reasonable belief that an offense was being committed.

United States v. Glasser, 750 F.2d 1197, 1206 (3d Cir. 1984), citing Beck, 379 U.S. at 96, 85 S.Ct. 223. Our review of the district court's legal conclusion that probable cause existed is de novo. See Ornelas, 517 U.S. at 699, 116 S.Ct. 1657.

We construe the record in the light most favorable to the government. See United States v. Riddick, 156 F.3d 505, 509 (3d Cir. 1998). However, in doing so we do not supply the testimony that the government failed to elicit during the suppression hearing. Similarly, we must refrain from drawing inferences that are either not supported by the record, or contrary to it, in an effort to uphold an arrest. See United States v. Kithcart, 134 F.3d 529, 536 (3d Cir. 1997) ("Kithcart I"), and United States v. Kithcart, 218 F.3d 213 (3d Cir. 2000) ("Kithcart II).

In reviewing on-the-scene judgments of police officers we must, of course, remember that police officers may well "draw inferences and make deductions . . . that might well elude an untrained person." United States v. Cortez, 449 U.S. 411, 418, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981). Nevertheless, an officer's inferences and deductions can only justify a warrant less arrest if the government satisfies its burden of establishing the probable cause necessary to support the arrest. Notwithstanding the deference afforded the on-the-scene conclusion of police officers, probable cause must ultimately be decided by the courts, not the police. Glasser, supra.

As noted earlier, the district court found probable cause to arrest Myers for either simple assault, domestic abuse, or a VUFA, and therefore denied the suppression motion. We conclude, however, that the police did not have probable cause to arrest for any of those offenses.7

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1. Simple Assault

The district court concluded that Myers committed an "ongoing" simple assault in the presence of Officer Azzarano. See App. at 169a. The Dissent agrees. See Dissent at 284. However, the facts simply do not support a finding that Officer Azzarano witnessed a simple assault, or that a simple assault was "ongoing" in his presence.

The relevant portions of Pennsylvania's simple assault statute are as follows:

(a) . . . A person is guilty of assault if he:

(1) attempts to cause or intentionally, knowingly or recklessly causes bodily injury to another;

(3) attempts by physical menace to put another in fear of imminent serious bodily injury. . . .

18 Pa.C.S.A. § 2701(a) (2002). Under Pennsylvania law, simple assault is a misdemeanor. As noted above, Pennsylvania law governs the validity of Myers' arrest. See Ker, 374 U.S. at 37, 83 S.Ct. 1623. The Pennsylvania legislature has specifically limited the authority of police officers to make warrant less arrests for misdemeanor offenses. An officer may conduct a warrant less...

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