U.S. v. Hines

• Decision Date: 14 December 2010
• Docket Number: No. 09-4616,09-4616
• Citation: 628 F.3d 101
• Parties: UNITED STATES of America v. Jerome HINES, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

628 F.3d 101

UNITED STATES of America

v.Jerome HINES, Appellant.

No. 09-4616.

United States Court of Appeals,Third Circuit.

Argued Oct. 7, 2010.

Opinion Filed: Dec. 14, 2010.

Richard Coughlin, Federal Public Defender, District of New Jersey, Louise Arkel (Argued), Lisa M. Mack, Newark, NJ, for Appellant.

Paul J. Fishman, United States Attorney, District of New Jersey, George S. Leone, Steven G. Sanders (Argued), Assistant United States Attorneys, Newark, NJ, for Appellee.

Before: FUENTES, JORDAN and ALDISERT, Circuit Judges.

OPINION OF THE COURT

ALDISERT, Circuit Judge.

Jerome Hines appeals from a jury conviction for the offense of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1), as well as from the sentence imposed by the District Court for the District of New Jersey. He presents two issues for our consideration. First, he challenges as an abuse of discretion the District Court's denial of his pretrial request for an evidentiary hearing to determine the events leading up to his arrest. Second, he contends that the District Court misapplied the United States Sentencing Guidelines ("Guidelines" or "U.S.S.G.") when it counted in his criminal history score four prior convictions under New Jersey Statute § 2C:33-2.1(b). Because Hines did not make the case for an evidentiary hearing, and because the District Court correctly applied the Guidelines, we will affirm its rulings in both respects.

I.

In October of 2007, Police Officers Angel Romero and Jay Small were patrolling Newark, New Jersey, in a police car. According to Romero's later police report,the two were near the corner of Orange and Nesbitt Streets when one or both of the officers saw Hines—who was about 60 feet away—place a handgun into his left jacket pocket. They then saw Hines walk along Orange Street and enter a liquor store. Because Small was busy with two people he had detained on an unrelated matter, Romero used his cellular telephone to call Officer William Johnson, who came to the corner of Orange and Nesbitt Streets. When Johnson arrived, he and Romero entered the liquor store, approached Hines, and patted his left jacket pocket. When Romero felt what he believed was a weapon, the two officers threw Hines to the floor, placed him in handcuffs, and removed from his pocket a loaded semi-automatic handgun.

In February of 2008, a federal grand jury returned a one-count indictment charging Hines with possession of a firearm as a convicted felon. Before trial, Hines filed a document captioned "Motion to Suppress of Jerome Hines," which alleged that the police reports of his arrest were ambiguous and inconsistent, but which did not actually request suppression of any item of evidence. Rather, the body of the document requested an evidentiary hearing and explained that if a hearing were held, and if sufficient facts were to emerge at the hearing, Hines would move to suppress the handgun "[a]t that point." (App.24.) Page two of the motion also included a footnote stating that the contents of the police reports from Hines's arrest were "assumed to be true for the purposes of this motion"—i.e., the "Motion to Suppress of Jerome Hines." (App.15.) The government opposed the motion, arguing that because Hines's footnote made the reports' factual contents undisputed, and because those contents established probable cause to arrest Hines, there was no basis for an evidentiary hearing regarding suppression. Hines filed a reply letter to which he attached a short affidavit, the contents of which tended to refute the police reports. The District Court denied Hines's request for a hearing and admitted the handgun into evidence. In April of 2009, a jury found Hines guilty.

At sentencing, the District Court calculated Hines's Guidelines range to be 92 to 115 months' imprisonment, based upon a final offense level of 24 and a criminal history category of V. It based this calculation in part on four of Hines's five prior convictions for violating New Jersey Statute § 2C:33-2.1(b), which makes it a misdemeanor to loiter in a public place with intent to obtain or distribute a controlled substance. The Court imposed a sentence of 92 months. Hines's timely appeal challenges the District Court's denial of an evidentiary hearing and the District Court's decision to include his prior convictions in calculating his criminal history score.

II.

The District Court had jurisdiction under 18 U.S.C. § 3231, because Hines was charged with offenses against the United States. We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a)(2).

III.

We review for abuse of discretion a district court's denial of an evidentiary hearing on a motion to suppress. See, e.g., In re Terrorist Bombings of U.S. Embassies in East Africa, 552 F.3d 157, 165 (2d Cir.2008) ( "The denial of a defendant's request for a suppression hearing is reviewed for abuse of discretion."); United States v. Howell, 231 F.3d 615, 620 (9th Cir.2000) ("We review for an abuse of discretion a court's decision whether to conduct an evidentiary hearing on a motion to suppress.");United States v. Glass, 128 F.3d 1398, 1408-09 (10th Cir.1997) ("We review a trial court's denial of an evidentiary hearing on a motion to suppress for abuse of discretion."); cf. United States v. Brink, 39 F.3d 419, 425 (3d Cir.1994) (requiring a hearing where a defendant stated a colorable claim that evidence should be suppressed).

We review de novo a district court's interpretation of the Guidelines, United States v. Mateo, 560 F.3d 152, 154 (3d Cir.2009), and we review for clear error the factual findings that underpin a district court's application of the Guidelines, United States v. McQuilkin, 97 F.3d 723, 727 (3d Cir.1996). The meaning of "loitering," as used in the Guidelines, is a question of law subject to plenary review. See id.; see also United States v. Lock, 466 F.3d 594, 597-98 (7th Cir.2006).

IV.

Hines contends first that the District Court should have held an evidentiary hearing before ruling on his document titled "Motion to Suppress of Jerome Hines." We begin by pausing to clarify what a defendant must show before a motion to suppress evidence requires an evidentiary hearing. Such rulings are ordinarily committed to a district court's sound discretion, which we reverse only in rare circumstances. Because we conclude that Hines did not make the requisite showing, we will affirm the District Court.

Rule 12(b)(3)(C) of the Federal Rules of Criminal Procedure permits defendants to file "motions to suppress evidence" before trial, but evidentiary hearings on such motions are not granted as a matter of course. See Rule 12(c) (the court "may" schedule a motion hearing). To require a hearing, a suppression motion must raise "issues of fact material to the resolution of the defendant's constitutional claim." United States v. Voigt, 89 F.3d 1050, 1067 (3d Cir.1996). A motion to suppress requires an evidentiary hearing only if the motion is sufficiently specific, non-conjectural, and detailed to enable the court to conclude that (1) the defendant has presented a colorable constitutional claim, and (2) there are disputed issues of material fact that will affect the outcome of the motion to suppress. See id. at 1067 (stating a claim is "colorable" if it consists "of more than mere bald-faced allegations of misconduct"); Brink, 39 F.3d at 424 (requiring an evidentiary hearing when a defendant states a colorable claim that the government obtained evidence by violating his constitutional rights). At bottom, the purpose of an evidentiary hearing in the context of a suppression motion is to assist the court in ruling upon a defendant's specific allegations of unconstitutional conduct—its purpose is not to assist the moving party in making discoveries that, once learned, might justify the motion after the fact. To require an evidentiary hearing, a defendant's suppression motion therefore must set forth and identify for the court specific and concrete "issues of fact material to the resolution of the defendant's constitutional claim." Voigt, 89 F.3d at 1067.

In this case, Hines's motion did not state a claim, raise a material fact, or dispute the government's version of events. Given these failures, the District Court acted within its discretion in denying an evidentiary hearing.

A.

First, Hines's motion did not raise a constitutional claim. To raise a constitutional claim in a motion to suppress evidence, a defendant must state that a violation occurred and allege facts that, if true, would support a finding that the evidence in question was obtained in violation of thedefendant's constitutional rights. Brink, 39 F.3d at 424 (remanding for a hearing because Brink alleged facts that, if true, "could violate a defendant's rights under the Sixth Amendment"). To satisfy this standard, a defendant's motion must identify a constitutional violation at the outset and connect it to the evidence in question; bare assertions that an as-yet unidentified violation may have occurred, without more, will not suffice. See United States v. Coleman, 149 F.3d 674, 677 (7th Cir.1998).

Hines's motion did not make the required showing. Although captioned a "Motion to Suppress of Jerome Hines," it did not request suppression of anything at all. Rather, it requested an evidentiary hearing for the sole purpose of determining the events leading to Hines's arrest. Hines apparently hoped that during the hearing he might make discoveries that would later permit him to contend that the arresting officers violated his constitutional rights:

... Jerome Hines respectfully requests that a hearing beheld [sic].... It is only with a hearing that the events surrounding his arrest can be clarified.... At that point, Mr. Hines will request that the weapon allegedly seized be suppressed and that the indictment then be dismissed.

(App. 23-24 ("Motion to Suppress of Jerome Hines").)

Nowhere did Hines's motion allege a violation of the Fourth Amendment; he merely...