United States v. Rivera, 080411 FED3, 10-2040

Docket Nº:10-2040
Opinion Judge:FUENTES, Circuit Judge.
Party Name:UNITED STATES OF AMERICA v. RICHARD RIVERA, a/k/a "Richard Toro, " a/k/a "Magoo, " Appellant
Judge Panel:BEFORE: FUENTES, FISHER, and NYGAARD, Circuit Judges
Case Date:August 04, 2011
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit
 
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UNITED STATES OF AMERICA

v.

RICHARD RIVERA, a/k/a "Richard Toro, " a/k/a "Magoo, " Appellant

No. 10-2040

United States Court of Appeals, Third Circuit

August 4, 2011

NOT PRECEDENTIAL

Submitted Under Third Circuit L.A.R. 34.1(a), May 24, 2011

On Appeal from the United States District Court For the Eastern District of Pennsylvania (Crim. No. 09-cr-00003-002) District Judge: Honorable Mary A. McLaughlin

BEFORE: FUENTES, FISHER, and NYGAARD, Circuit Judges

OPINION

FUENTES, Circuit Judge.

Richard Rivera appeals the District Court's denial of his motion to suppress on the ground that the evidence was the product of an unlawful seizure. For the reasons set forth below, we will affirm the decision of the District Court.

I.

Because we write for the parties, we discuss the facts only to the extent necessary for the resolution of the issues raised on appeal. As part of an investigation of various drug trafficking organizations in Philadelphia, the Federal Bureau of Investigation ("FBI") arranged for a confidential informant ("CI") to conduct several recorded phone calls with targeted individuals. On March 27, 2008, the CI called the Appellant, Richard Rivera ("Rivera"), to set up a drug transaction. During that call, Rivera agreed to drive with the CI to an apartment complex located at 714 West Lehigh Avenue, where Rivera would obtain cocaine for the CI.

Upon listening to the recorded phone conversations between the CI and Rivera, the FBI strategically placed agents and Philadelphia police officers around the outside of the apartment complex. After arriving at the apartment complex with the CI, Rivera got out of the car and walked inside the building. Once inside, Rivera called the CI to tell him that he had "a dirt and a six deuce, " street terms for 125 grams and 62 grams of cocaine, respectively. The CI telephoned an FBI agent from his vehicle and told him that Rivera had obtained cocaine, at which point the law enforcement officers decided to apprehend Rivera.

Approximately fifteen to twenty minutes later, Rivera exited the building and began walking southbound on Franklin Street, directly towards Police Sergeant Friel ("Friel"), who was seated in his vehicle. Friel left the car, verbally identified himself as a police officer (he was also wearing a black vest with the word "POLICE" printed on the front), and told Rivera to stop. Rivera immediately began to run in the opposite direction, pursued by Friel and another officer. During the chase both officers witnessed Rivera discard a clear bag containing white powder. Once Rivera was apprehended, the officers returned to retrieve the clear bag, which contained 62.54 grams of cocaine. The police also recovered $1871 from Rivera's pocket.

Rivera was charged with possession with intent to distribute and conspiracy to distribute less than 500 grams of cocaine under 21 U.S.C. § 841(a)(1) and § 846. Rivera moved to suppress the bag of cocaine retrieved by the officers on the theory of "forced abandonment, " referring to property that is abandoned as a direct result of an unlawful seizure.1 He argued that the officers who made the arrest lacked probable cause to pursue him, because they had not observed him participate in any illegal activity and relied solely on information provided by a CI whose reliability had not been established. The District Court found that the officers had probable cause to arrest Rivera, and thus denied the motion to suppress. In the alternative, the District Court...

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