506 F.3d 251 (3rd Cir. 2007), 06-2581, United States v. Yamba

Docket Nº:06-2581.
Citation:506 F.3d 251
Party Name:UNITED STATES of America v. Vikram YAMBA, Appellant.
Case Date:October 22, 2007
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit

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506 F.3d 251 (3rd Cir. 2007)



Vikram YAMBA, Appellant.

No. 06-2581.

United States Court of Appeals, Third Circuit.

October 22, 2007

Submitted Under Third Circuit LAR 34.1(a) April 24, 2007.

Appeal from the United States District Court for the Western District of Pennsylvania (D.C. Criminal Action No. 04-cr-00329-1) District Judge, Honorable Thomas M. Hardiman

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Adam B. Cogan, Esquire, Greensburg, PA, for Appellant.

Mary Beth Buchanan, United States Attorney, Rebecca R. Haywood, Assistant

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U.S. Attorney, Robert L. Eberhardt, Esquire, Office of United States Attorney, Pittsburgh, PA, for Appellee.

Before: McKEE and AMBRO, Circuit Judges, ACKERMAN, [*] District Judge.


AMBRO, Circuit Judge.

In this appeal we explore the contours of a corollary to the "plain view" doctrine, known as "plain feel," in the context of a Terry search. After doing so, we conclude that the search at issue here - -during which an officer discovered marijuana in Vikram Yamba's pocket, and this in turn led to the discovery of slips of paper resulting in his conviction for wire fraud - -was legal. We therefore affirm the judgment of the District Court.

I. Factual and Procedural Background

Yamba was indicted by a grand jury on seven counts of wire fraud, in violation of 18 U.S.C. §§ 1343 and 2.1 The evidence against Yamba included several pieces of paper with what appeared to be credit card numbers written on them. These papers were discovered on Yamba's person during a routine inventory search that took place when he was booked at the police station after having been arrested for possession of marijuana. After unsuccessfully moving to suppress the papers as the fruits of an illegal search, Yamba was found guilty on all seven counts after a bench trial. He was sentenced to 18 months in prison and three years of supervised release. On this appeal he challenges only his conviction, arguing that the search that turned up the marijuana was illegal and, thus, that the papers discovered at his booking on marijuana-possession charges should have been suppressed at his trial on the wire fraud charges.2

The facts as found by the District Court regarding the initial search (which revealed the marijuana) are set out in detail in the District Court's thorough opinion. See United States v. Yamba, 407 F.Supp.2d 703, 705-06 (W.D. Pa. 2006). The Court's findings are not clearly erroneous, United States v. Perez, 280 F.3d 318, 336 (3d Cir. 2002), and we summarize them here.

While on duty, Officer Matthew Livingstone saw a U-Haul truck parked at a gas station in a manner that blocked one of the entrances from the street, as well as some parking spaces. Livingstone approached the truck. As he got closer, he saw that the driver, Charles Coleman, was holding an open pocket knife. Livingstone also saw two passengers in the truck, Yamba and Jimaah Kpakpo, making "quick and furtive movements" below the dashboard.

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When Officer Livingstone asked Coleman what he was doing at the gas station, Coleman responded that he, Yamba, and Kpakpo were delivering furniture to friends. Coleman, however, could not provide the names of these friends or the address to which he was delivering the furniture. Livingstone then asked to see Coleman's driver's license and the rental truck agreement. He also asked if there was anything in the truck besides furniture. Coleman responded that there was not and told Livingstone that he could search the truck if he wanted. Before Livingstone did so, though, he radioed his dispatcher to check on Coleman's credentials, and the dispatcher reported that there was an outstanding warrant for his arrest. Livingstone then handcuffed Coleman and sat him in the police car.

After that, Livingstone asked Yamba and Kpakpo to step out of the truck in order to conduct a patdown search of both of them. When he was frisking Yamba, Livingstone felt a plastic bag in Yamba's right jacket pocket. Livingstone testified, credibly according to the District Court, as follows:

As I was conducting the pat-down, along the right side, right coat pocket, I could feel a plastic bag. I noted through training and experience [that] narcotics are stored and transported in plastic baggies. After a brief second of just feeling it, I could tell that there was a soft spongy-like substance that is consistent with marijuana inside. I then recovered the bag from his pocket and found it contained suspected marijuana.

Livingstone then handcuffed Yamba and put him in the police car with Coleman. The patdown search of Kpakpo was uneventful.

At that point Officer Livingstone searched the rear of the U-Haul and found that it contained new furniture, wrapped in plastic. Upon questioning, Kpakpo said that he owned the furniture, that he had purchased it with a credit card, and that he was selling it. Soon after this, the dispatcher informed

Livingstone that she had mistakenly reported that there was an outstanding warrant for Coleman's arrest, but that his license was suspended. Livingstone wrote Coleman a ticket for driving with a suspended license and then released him and Kpakpo. Because there was now no driver for the U-Haul, Livingstone had it impounded. He arrested Yamba for possession of marijuana.

At the police station during Yamba's booking, an inventory search of his person revealed "several slips of paper with the words 'credit card' and lines of numbers alternating down the page." When Livingstone asked Yamba about it, he reported that he had received the papers from a friend.

Livingstone then read Yamba his Miranda warnings and questioned him. Based on that questioning, Livingstone obtained a search warrant for the U-Haul. It was later determined that the furniture in the U-Haul was purchased from a Kaufmann's department store with one of the credit card numbers found on the papers discovered during the inventory search. This led to Yamba's conviction, which forms the basis of this appeal.

We review de novo the District Court's ruling that the initial pat-down search revealing the marijuana was legal and, thus, that the papers discovered at booking were admissible at the trial on the wire fraud counts. Perez, 280 F.3d at 336.

II. Discussion

Yamba's argument proceeds in two parts. First, he contends that though Officer Livingstone ostensibly seized him pursuant to Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), the seizure in fact was illegal, as that case does not permit

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an officer to do so under these circumstances. Second, he argues that, even if he was properly seized, the subsequent search of his person was outside the scope allowed under Terry. We address each contention in turn.

A. The Terry Stop

In Terry, the Supreme Court held that a warrantless seizure based on less than probable cause could be constitutionally permissible. Specifically, the Court said that

where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous, where in the course of investigating this behavior he identifies himself as a policeman and makes reasonable inquiries, and where nothing in the initial stages of the encounter serves to dispel his reasonable fear for his own or others' safety, he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him.

Id. at 30, 88 S.Ct. 1868. In outlining the contours of a permissible "Terry stop," the Court noted that "[t]he officer need...

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