694 F.3d 463 (3rd Cir. 2012), 11-3413, United States v. Navedo

Docket Nº:11-3413.
Citation:694 F.3d 463
Opinion Judge:McKEE, Chief Judge:
Party Name:UNITED STATES of America v. Alexander NAVEDO, Appellant.
Attorney:Darren M. Gelber, Esq. (argued), Wilentz, Goldman & Spitzer, P.A., Woodbridge, NJ, for Appellant. Paul J. Fishman, United States Attorney, John F. Romano, Esq. (argued), Assistant U.S. Attorney, Newark, NJ, for Appellee.
Judge Panel:Before: McKEE, Chief Judge, HARDIMAN, Circuit Judge, and JONES, II, Judge.[*] HARDIMAN, Circuit Judge, dissenting.
Case Date:September 12, 2012
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit

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694 F.3d 463 (3rd Cir. 2012)



Alexander NAVEDO, Appellant.

No. 11-3413.

United States Court of Appeals, Third Circuit.

September 12, 2012

Argued on April 11, 2012.

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Darren M. Gelber, Esq. (argued), Wilentz, Goldman & Spitzer, P.A., Woodbridge, NJ, for Appellant.

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Paul J. Fishman, United States Attorney, John F. Romano, Esq. (argued), Assistant U.S. Attorney, Newark, NJ, for Appellee.

Before: McKEE, Chief Judge, HARDIMAN, Circuit Judge, and JONES, II, Judge.[*]


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.


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, 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

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Navedo was doing anything illegal.2 According to Detective Suarez's testimony at the suppression hearing, right before the police 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:

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

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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


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.


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, 95 S.Ct. 854, 43 L.Ed.2d 54 (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 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, 88 S.Ct. 1868, 20 L.Ed.2d 889 (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

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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, 101 S.Ct. 690, 66 L.Ed.2d 621 (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...

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