U.S. v. Nelson

• Decision Date: 26 March 2002
• Docket Number: No. 01-1177.,01-1177.
• Citation: 284 F.3d 472
• Parties: UNITED STATES of America, v. Terrance NELSON aka Terrence Nelson aka Alsheries Nelson aka Rajohn Nelson aka Malik Jones. Terrance Nelson, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

284 F.3d 472

UNITED STATES of America, v. Terrance NELSON aka Terrence Nelson aka Alsheries Nelson aka Rajohn Nelson aka Malik Jones Terrance Nelson, Appellant.

No. 01-1177.

United States Court of Appeals, Third Circuit.

Argued December 4, 2001.

Filed March 26, 2002.

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Eric Tunis [Argued], West Orange, NJ, for Appellant.

George S. Leone, Office of the U.S. Attorney, Newark, NJ, Norman J. Gross [Argued] Office of the U.S. Attorney, Camden, NJ, for Appellee.

Before: ALITO, RENDELL and AMBRO, Circuit Judges.

OPINION OF THE COURT

RENDELL, Circuit Judge.

This appeal raises once again the difficult issue of balancing the much-prized interest of our citizens in being free from search and seizure against the need for law enforcement officers to investigate criminal conduct and protect the public's, and their own, safety. As the Supreme Court has described our task, it is: "to recognize that the Fourth Amendment governs all intrusions by agents of the public upon personal security, and to make the scope of the particular intrusion, in light of all the exigencies of the case, a central element in the analysis of reasonableness." Terry v. Ohio, 392 U.S. 1, 19, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

In the nearly 34 years since its decision in Terry, the Supreme Court has repeatedly opined as to how courts are to strike that balance in different factual settings. Recently, the Supreme Court reiterated that courts are not to evaluate factors in isolation, but are instead to evaluate the totality of the circumstances, and to afford to officers the opportunity to "draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that `might well elude an untrained person.'" United States v. Arvizu, 534 U.S. 266, 122 S.Ct. 744, 750-51, 151 L.Ed.2d 740 (2002).¹

I. Statement of Facts and Procedural History

Lt. Zacche had been with the Jersey City Police Department since 1979, serving as a patrolman, plainclothesman, sergeant and lieutenant. He had served on the Narcotics Squad, the Juvenile and Missing Persons Unit, and had been assigned to the Federal Drug Enforcement Administration office in Newark. As lieutenant, Zacche was in the Field Leadership and Training Unit, where he was responsible for training officers who had recently been promoted to supervisors as to "how to handle various calls in the street."

On November 5, 1997, Lt. Zacche was the highest ranking field officer on his shift, and, as such, was responsible for the coordination of interagency cooperation if there was a major incident, and for ensuring that police responded to calls in a timely fashion. He received a telephone call on a private line used only by family members of the police officers and confidential informants. The caller asked to speak to Officer Goldrich, a narcotics officer. When advised that Officer Goldrich was not there, the caller — without identifying himself — informed Lt. Zacche that two "jump out boys" from Newark were "running our pockets." Lt. Zacche understood "running pockets" as a distinctive phrase used to describe armed hold-ups of drug dealers that had been taking place in that area. The caller recounted that two black males were involved and were driving in a gray BMW with tags in the rear window. "It's just cruising up and down the drive, sticking us up, man. You better do something." The caller stated that the car was on Martin Luther King Drive in the area of Stegman. Lt. Zacche immediately broadcast the information to all of the officers in the South and West districts of Jersey City. He also went out to pursue the call. A second, later phone call, was made from a pay phone near the intersection of Stegman St. and Ocean Ave. to Jersey City 911, also reporting that two black men in a gray BMW with temporary license plates were "riding around sticking up people." That call was also broadcast.

Nelson was a passenger in a gray BMW that was driving on Martin Luther King Drive during the early morning hours. At about 1:00 a.m., the car was pulled over based on the information provided by the two broadcasts.² A gun that was protruding from the waistband of Nelson's pants was visible to the plainclothes officer who approached the passenger's side of the vehicle. It was a 9 mm. Lorcin semiautomatic handgun with an obliterated serial number and a laser gun sight. The officer asked the passenger to step out of the car. When he did, the officer removed the gun, patted him down, handcuffed him, placed him under arrest and read him his rights. It was determined that Nelson was on parole and had previously been convicted of several felonies, including armed robbery. The District Court considered whether a "reasonably prudent man in the circumstances of the officer would be warranted in the belief that his safety or that of others was in jeopardy," recognizing that an officer may draw inferences based on his experience, but may not "base the stop on an inchoate and unparticularized suspicion or hunch." Applying that standard, the District Court found that the totality of the circumstances gave rise to a reasonable suspicion that justified the limited intrusion of a Terry stop. For the reasons stated below, we agree, and we will therefore affirm Nelson's conviction and sentence.³

II. Terry v. Ohio Jurisprudence

In 2000, the United States Supreme Court decided two cases in which the justification for a stop was in dispute: Florida v. J.L., 529 U.S. 266, 120 S.Ct. 1375, 146 L.Ed.2d 254 (2000), and Illinois v. Wardlow, 528 U.S. 119, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000). Although the parties focus their discussion on J.L., the case whose facts are most closely analogous to our own, we find the analysis in both cases valuable in our assessment of what is necessary to justify a stop.

A. Florida v. J.L.

"On October 13, 1995, an anonymous caller reported to the Miami-Dade Police that a young black male standing at a particular bus stop and wearing a plaid shirt was carrying a gun." 529 U.S. at 268, 120 S.Ct. 1375. After an unspecified amount of time, two officers approached the bus stop and noticed three young men, one of whom wore a plaid shirt. None of the young men was behaving suspiciously; no weapons were evident; and none of the young men ran. Id. The police officers frisked all three young men and found a gun on J.L. He was subsequently charged with carrying a concealed firearm without a license and possession of a firearm while under the age of 18. Id. at 269, 120 S.Ct. 1375.

In determining that the police were not justified in their stop of J.L., the Court noted several important factors:

• the telephone call was from an unknown caller and an unknown location.

• the officers had no other basis or observations to justify their actions.

• there was no corroborating evidence to "think the tipster had inside knowledge about the suspect and therefore to credit his assertion...."

Id. at 270, 120 S.Ct. 1375.

In addressing Florida's arguments, the Court refuted assumptions and resolved controversies that had permeated decisions of the courts of appeals and district courts. The first of these was that an accurate description was sufficient to infer reliability. As the Court stated:

An accurate description of a subject's readily observable location and appearance is of course reliable in this limited sense: It will help the police correctly identify the person whom the tipster means to accuse. Such a tip, however, does not show that the tipster has knowledge of concealed criminal activity. The reasonable suspicion here at issue requires that a tip be reliable in its assertion of illegality, not just in its tendency to identify a determinate person.

Id. at 272, 120 S.Ct. 1375.

The Court also rejected the commonly-held perception that allegations of gun possession lessen the reliability that is otherwise required. The Court opined that the very rationale of requiring only reasonable suspicion, rather than probable cause, to warrant a Terry stop was precisely to accommodate the need for police to respond to dangerous situations posed by guns. While the Court acknowledged that some dangers might be great enough, or in some situations the expectation of privacy might be reduced enough, to justify a search without any indicia of reliability (for instance if it was reported that a person was carrying a bomb), the Court emphasized that in all other instances, a stop is justified only if there is sufficient reliability to support a reasonable suspicion. Id. at 273-74, 120 S.Ct. 1375.

B. Illinois v. Wardlow

Two months prior to J.L., the Supreme Court handed down its opinion in Illinois v. Wardlow. There, officers were patrolling an area that had been subject to heavy drug trafficking. They observed a man holding a bag. When the man saw the officers, he fled. The Illinois Supreme Court had held that the combination of flight and a high crime area were insufficient to justify a Terry stop. The United States Supreme Court reversed.

It noted that "nervous, evasive behavior is a pertinent factor in determining reasonable suspicion." 528 U.S. at 124, 120 S.Ct. 673. And it held that in combination the flight and the high crime area justified the stop. But it also stressed that "officers are not required to ignore the relevant characteristics of a location in determining whether the circumstances are sufficiently suspicious to warrant further investigation." Id. And it reiterated that the stop's being in a high crime area was "among the relevant contextual considerations in a Terry analysis." Id.

C. The Predecessors to J.L. and Wardlow

The reasoning of both J.L. and Wardlow drew on principles established in several of the Court's earlier decisions. In United States v. Hensley, for example, the Court established that whether the officers making an investigatory stop were justified in their decision depends on whether the officer...