United States v. Lowe

• Decision Date: 02 July 2015
• Docket Number: No. 14–1108.,14–1108.
• Parties: UNITED STATES of America v. Shawn LOWE, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

791 F.3d 424

UNITED STATES of America

v.Shawn LOWE, Appellant.

No. 14–1108.

United States Court of Appeals, Third Circuit.

Argued Oct. 28, 2014.

Filed July 02, 2015.

Leigh M. Skipper, Esq., Chief Federal Defender, Brett G. Sweitzer, Esq., Assistant Federal Defender, Chief of Appeals, Robert Epstein, Esq., [Argued], Assistant Federal Defender, Philadelphia, PA, for Appellant.

Zane David Memeger, Esq., United States Attorney, Robert A. Zauzmer, Esq., [Argued], Assistant United States Attorney, Bernadette McKeon, Esq., Assistant United States Attorney, Philadelphia, PA, for Appellee.

BEFORE: McKEE, Chief Judge, GREENAWAY, JR. and KRAUSE, Circuit Judges.

OPINION

McKEE, Chief Judge.

Shawn Lowe appeals the conviction for illegally possessing a firearm as a convicted felon, in violation of 18 U.S.C. § 922(g)(1), that resulted from his conditional guilty plea. The only issue raised is whether the District Court erred in denying his suppression motion. The matter comes before us after a different panel of this Court remanded Lowe's challenge to the suppression ruling back to the District Court for fact-finding and resolution of the conflicting suppression hearing testimony. See United States v. Lowe, 525 Fed.Appx. 167 (3d Cir.2013) (Lowe I ). On remand, neither party supplemented the record with additional evidence. The District Court merely entered findings of fact and conclusions of law and again denied Lowe's motion to suppress. This appeal followed.¹

Lowe's sole argument is that, because the police did not have reasonable suspicion to conduct a Terry stop when they seized him, the evidence discovered as a result of the stop and corresponding frisk was obtained in violation of the Fourth Amendment and should have been suppressed. We agree. We now hold that the District Court erred in identifying the moment of seizure, and that the officers did not have reasonable suspicion when they actually seized Lowe. Accordingly, we will reverse the District Court's denial of Lowe's suppression motion.

I.

“We review the District Court's denial of a motion to suppress for clear error as to the underlying factual findings and we exercise plenary review over questions of law.” United States v. Brown, 448 F.3d 239, 245 (3d Cir.2006). Our review of the District Court's determination of the moment of seizure under the Fourth Amendment, as well as whether a seizure is supported by reasonable suspicion, is de novo. See Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996) ; Johnson v. Campbell, 332 F.3d 199, 206 (3d Cir.2003). A district court's factual “finding is clearly erroneous when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. Accordingly, ‘[i]f the district court's account of the evidence is plausible in light of the record viewed in its entirety,’ we will not reverse it even if, as the trier of fact, we would have weighed the evidence differently.” United States v. Price, 558 F.3d 270, 276–77 (3d Cir.2009) (internal citations omitted) (alteration in original).

II.

In Lowe I, we were presented with conflicting versions of the facts necessary to determine the moment of seizure. Accordingly, as noted above, we remanded “to enable the District Court to make specific written findings of fact and conclusions of law.” 525 Fed.Appx. at 168. In his concurring opinion, Judge Ambro highlighted the gaps in the fact-finding that the District Court needed to address on remand. He explained that if Lowe “may have stepped backward initially on the order to stop walking, this did not undermine his submitting to that order.” Id. at 170 (Ambro, J., concurring) (citing United States v. Johnson, 620 F.3d 685, 692 (6th Cir.2010) ).

In Judge Ambro's view, “to any extent Lowe merely ‘looked like he was getting ready to run’ per officer testimony” but did not actually run, he still would have submitted, and if Lowe “effectively halted at the officers' behest,” he “was seized at the outset of the encounter.” Id. Thus, in Lowe I the panel concluded “vacate[d] and remand[ed] the matter to enable the District Court to make specific written findings of fact.” Id. at 168. On remand, the District Court issued conclusions of law and factual findings that described the encounter more fully.

A.

On September 19, 2010, at approximately 4:00 a.m., Philadelphia police officers McGinnis and Campbell received a radio call reporting “flash information of a black male wearing a gray hoodie with a gun in his waistband talking to a female that was at ... 914 North Markoe Street outside.” United States v. Lowe, Crim. No. 11–111, 2014 WL 99452, at *1 (E.D.Pa. Jan. 8, 2014). The tip was anonymous. The 900 block of North Markoe Street is located in “a violent, high crime area known for drug crimes.” Id. Approximately 90 minutes before receiving the radio call, Officers Campbell and McGinnis had received a call regarding an alleged gun shot at the 900 block of 49th Street, which is “around the corner” from 914 North Markoe Street. Id. The officers testified that they knew that a shot had been fired at a house, but that no one had been shot and no suspect had been apprehended. 914 North Markoe Street was the home address of Tamika Witherspoon, who is Lowe's close friend.

Officers McGinnis and Campbell were near 914 North Markoe Street when they received the radio call, and they immediately drove to the address. They arrived within two minutes of receiving the call. The officers initially turned their police sirens and lights on, but they turned them off when they were about a block and a half away from the address. The officers parked their police car roughly 50 to 60 feet away from the house. Within seconds, two additional police cars pulled in behind their car. Officer Pezzeca was in one of the additional police cars. Officers McGinnis and Campbell, followed shortly thereafter by Officer Pezzeca and another officer, got out of their cars and quickly moved towards Lowe. As the officers approached the house, they saw Lowe speaking with Witherspoon in front of 914 North Markoe Street. Lowe was wearing a gray hoodie; his hands were in the hoodie pockets and were not visible to the officers. However, the officers did not see a gun or anything indicating that Lowe had a gun, nor did they see or hear any argument or disturbance when they pulled up to the residence. There was a construction fence on the sidewalk preventing access to the north of Witherspoon's house.

The District Court recounted the “varying versions” provided by the officers of what happened next. Id. at *2. Officer McGinnis testified that, as he and Officer Campbell approached Lowe, he asked Lowe to remove his hands from his pockets “five to ten times,” and Lowe instead “froze” and looked both ways over his shoulders. Id. According to Officer McGinnis, only after he gave five to ten commands and drew his gun did Lowe take his hands out of his pockets and start to move towards the wall, at which point the officers pushed Lowe against the wall. In contrast, Officer Campbell testified that Lowe did put up his hands in response to the command to stop and do so, and he testified that Lowe voluntarily placed his hands on the wall. Officer Pezzeca testified that as Officers Campbell and McGinnis approached Lowe and told him “several” times to put his hands up, Lowe backed away from the officers and kept his hands in his pockets until Officers Campbell and McGinnis grabbed Lowe and placed him against the wall. Id. All of the officers agreed that the frisk took place by the wall and that, following a brief struggle that ensued when Lowe reached for his waistband during the frisk, a firearm was recovered.

This sequence of events unfolded quickly: Officer McGinnis estimated that less than a minute elapsed between the first command and when Lowe moved to the wall, and Officer Campbell indicated that the whole incident, from his arrival on the scene to the struggle with Lowe and the recovery of the firearm, took less than two minutes.

In its “Findings of Fact,” the District Court described these events as follows:

[W]hen the officers first arrived on the scene, Mr. Lowe was standing in front of 914 North Markoe. As the officers steadily moved toward Mr. Lowe, he took several steps backing away from them. He was prevented from moving back more than a few steps by the construction fence next to 914 North Markoe Street. [ ] The Court also finds that Officers McGinnis and Campbell gave Mr. Lowe multiple commands to raise his hands or take his hands out of his pockets while in close proximity to Mr. Lowe. Mr. Lowe did not initially comply.

Lowe, 2014 WL 99452, at *3. In reaching this conclusion, the District Court explained that it “afford[ed] more weight to the congruent testimony of Officers McGinnis and Pezzeca, whose accounts provide a consistent story, and slightly less weight to Officer Campbell's recollection regarding Mr. Lowe's compliance with the order to raise his hands.” Id.

The District Court did not resolve some significant conflicts in the police officers' testimony. This includes conflicting testimony regarding whether Lowe put his hands on the wall voluntarily, or whether his hands were placed there by the officers. The District Court also failed to resolve the discrepancies in the police officers' testimony about the number of times they ordered Lowe to show his hands and their distance from him when they issued those orders. Though the District Court's lack of precision fuels some of the appellate arguments, the Findings of Fact that the court did make are sufficient to allow us to determine the legality of Lowe's seizure.

B.

The District Court reached the following conclusion of law regarding when the interaction became a stop for Fourth Amendment purposes:

The encounter between the officers and Mr. Lowe did not become a Terry stop at the officers' first command that Lowe remove his

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