United States v. Castro, 100318 FED3, 17-1901

Docket Nº:17-1901
Opinion Judge:VANASKIE, CIRCUIT JUDGE.
Party Name:UNITED STATES OF AMERICA v. AMIN DE CASTRO, Appellant
Attorney:Jacob Schuman, Esq. [ARGUED] Robert Epstein, Esq., Maranna J. Meehan, Esq. Federal Community Defender Office for the Eastern District of Pennsylvania Counsel for Appellant. Robert A. Zauzmer, Esq. [ARGUED] Bernadette A. McKeon, Esq., Virgil B. Walker, Esq. Counsel for Appellee.
Judge Panel:Before: CHAGARES, VANASKIE, and FISHER, Circuit Judges.
Case Date:October 03, 2018
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit
 
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UNITED STATES OF AMERICA

v.

AMIN DE CASTRO, Appellant

No. 17-1901

United States Court of Appeals, Third Circuit

October 3, 2018

Argued April 9, 2018

On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. Crim. No. 2-15-cr-00114-001) District Judge: Honorable Juan R. Sanchez

Jacob Schuman, Esq. [ARGUED] Robert Epstein, Esq., Maranna J. Meehan, Esq. Federal Community Defender Office for the Eastern District of Pennsylvania Counsel for Appellant.

Robert A. Zauzmer, Esq. [ARGUED] Bernadette A. McKeon, Esq., Virgil B. Walker, Esq. Counsel for Appellee.

Before: CHAGARES, VANASKIE, and FISHER, Circuit Judges.

OPINION

VANASKIE, CIRCUIT JUDGE.

Appellant Amin De Castro challenges the District Court's denial of his motion to suppress evidence and statements obtained by a police officer during a street encounter, arguing that he was unreasonably seized when the officer asked him to remove his hands from his pockets. Discerning no error in the District Court's finding that the officer's request was not a seizure, we will affirm the judgment of conviction entered on April 12, 2017.

I.

During the early evening hours of September 22, 2014, an anonymous source called 911 to report a Hispanic male pointing a gun at juveniles outside a vacant flower shop on the 1800 block of North 31st Street in Philadelphia, Pennsylvania. The suspect was reportedly wearing a gray shirt, gray pants, and a bucket hat. Philadelphia Police Officer John Mulqueeney, who had been assigned to that area for approximately thirteen years and knew about the drug and firearm activity prevalent there, was dispatched minutes after the call was placed. He stopped his cruiser approximately fifteen to twenty feet from De Castro and his neighbor, who were speaking outside of the vacant flower shop. De Castro was wearing a light gray bucket hat, a gray striped shirt, and gray camouflage pants.

As Officer Mulqueeney exited his car and approached the men, De Castro turned toward Officer Mulqueeney. "At a distance of approximately [five to ten] feet, Officer Mulqueeney used a polite, conversational, and non-threatening tone to ask De Castro if he would remove his hands from his pockets." (App. at 11.) De Castro complied, revealing a green pistol grip protruding from his pants pocket. Officer Mulqueeney asked De Castro to raise his hands higher, and removed a loaded firearm from De Castro's pocket. When asked if he had identification or a permit to carry the firearm, De Castro replied that he had neither, but that he had a passport from the Dominican Republic. Officer Mulqueeney handcuffed De Castro and frisked him, finding in De Castro's pocket a loaded magazine containing ammunition that matched the firearm. Additional officers arrived on-scene as Officer Mulqueeney placed De Castro under arrest.

Following a trial, De Castro was convicted of being an alien in possession of a firearm, in violation of 18 U.S.C. § 922(g)(5)(A). The District Court, however, granted him a new trial "due to [his] trial counsel's constitutionally deficient representation." (App. at 11.) Pending his new trial, De Castro filed a motion to suppress all statements and physical evidence obtained by Officer Mulqueeney during the September 22, 2014, encounter, contending that the stop was unconstitutional.

After conducting an evidentiary hearing, the District Court determined that Officer Mulqueeney's request for De Castro to remove his hands from his pockets did not constitute a seizure under the Fourth Amendment. The District Court opined that Officer Mulqueeney, who responded to the scene alone, "neither ordered nor repeatedly asked De Castro to comply. Instead, he used a polite, conversational, and non-threatening tone to communicate his single request from a distance of at least five feet, with his weapon holstered and without any physical touching." (App. at 13.) The Court thus concluded that De Castro was not seized at that moment because "a reasonable person would have felt free to decline Officer Mulqueeney's lone request." (Id.) Moreover, even assuming, arguendo, that the request was a seizure, the District Court nonetheless found that it was supported by reasonable suspicion.1 As such, the District Court denied De Castro's suppression motion, and De Castro subsequently pled guilty to the offense. He was sentenced to time served plus a two-year term of supervised release, and was then deported to the Dominican Republic. He timely appealed.

II.

The District Court had jurisdiction under 18 U.S.C. § 3231, and we have jurisdiction under 28 U.S.C. § 1291. Since the District Court's factual findings are not in dispute, our review is plenary. United States v. Givan, 320 F.3d 452, 458 (3d Cir. 2003) (citations omitted).

III.

The Fourth Amendment protects against "unreasonable searches and seizures." U.S. Const. amend. IV. We have observed, however, that "not every interaction between a police officer and a citizen is protected by the Fourth Amendment." United States v. Smith, 575 F.3d...

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