United States v. Foster

• Decision Date: 30 May 2018
• Docket Number: No. 16-3650, No. 16-4225,16-3650
• Citation: 891 F.3d 93
• Parties: UNITED STATES of America v. Cory D. FOSTER, Appellant United States of America v. Lawrence Payton, Appellant
• Court: U.S. Court of Appeals — Third Circuit

891 F.3d 93

UNITED STATES of America

v.Cory D. FOSTER, Appellant

United States of America

v.Lawrence Payton, Appellant

No. 16-3650

No. 16-4225

United States Court of Appeals, Third Circuit.

ARGUED March 13, 2018

Filed: May 30, 2018

Douglas L. Dolfman, 1617 John F. Kennedy Blvd.—Ste. 1660, Philadelphia, PA 19103, Lisa B. Freeland, Renee D. Pietropaolo [ARGUED], Office of Federal Public Defender, 1001 Liberty Avenue, 1500 Liberty Center, Pittsburgh, PA 15222, Counsel for Appellant Cory D. Foster

Edson A. Bostic, Tieffa N. Harper, Eleni Kousoulis [ARGUED], Office of Federal Public Defender, 800 King Street—Ste. 200, Wilmington, DE 19801, Counsel for Appellant Lawrence Payton

David C. Weiss, Robert F. Kravetz, Edmond Falgowski, Elizabeth L. Van Pelt [ARGUED], Office of the United States Attorney, 1007 N. Orange Street—Ste. 700, P.O. Box 2046, Wilmington, DE 19899, Counsel for Appellee

Before: JORDAN, SHWARTZ, and KRAUSE, Circuit Judges

OPINION OF THE COURT

JORDAN, Circuit Judge.

In this consolidated appeal, Cory Foster and Lawrence Payton raise a number of issues arising out of their prosecution for being felons in possession of firearms. For the following reasons, we will affirm the convictions and sentences.

I. Background

A. Facts Relevant to Both Foster and Payton¹

The events leading to prosecution began on February 5, 2015, when Joseph Turchen, an employee of a barbershop in the Branmar Plaza shopping center in Wilmington, Delaware, observed what he perceived as troubling behavior by occupants of a silver Honda Accord in the shopping center parking lot. Turchen watched the Accord’s two occupants for approximately twenty minutes. He testified that the man in the passenger seat had a full beard and wore a hoodie, skull cap, and dark glasses and that the man in the driver’s seat was wearing a hoodie and a red or pink scarf over his face the whole twenty minutes he was sitting in the car. Turchen found the occupants’ behavior suspicious because they were repeatedly looking around the strip of stores in Branmar Plaza, including the barbershop, a bank, and a jewelry store, and because he thought one of the occupant’s movements indicated "he was pumping himself up to do something." (App. at 547.) Turchen also testified that the car’s occupants were "dressed like they was going to go do something." (App. at 543.) He could not identify the car’s occupants; he could only tell that they were two black males, one with lighter skin. His suspicions resulted in another barbershop employee calling 911 to report the suspicious behavior.

When Delaware State Troopers arrived, Turchen saw the Accord’s occupants look towards the police cars, which were at the opposite side of the parking lot. The Accord then promptly left the lot. Before the car pulled away, the barbershop’s owner, Joseph Strano, got into his truck, followed the Accord, and took a picture of it and its license plate. He provided that picture to Trooper Natalie George, one of the troopers who had responded to the 911 call.

Trooper George ran the Accord’s license plate number through a police database and discovered that the car had been reported stolen in an armed robbery. She then sent an e-mail to other troopers alerting them of that fact and attaching the picture of the Accord, which revealed a distinct bumper sticker on the rear of the car.²

Trooper William Yeldell was one of the police officers who received George’s e-mail. He patrolled the area around Branmar Plaza on a daily basis and the e-mail prompted him to pay particular attention to Branmar Plaza the following morning, February 6, to see if the Accord would return. It did, and he got a clear look at its occupants, but only when he passed right in front of it, dressed in full uniform in an unmarked police car. At that point, he made direct eye contact with those individuals. He saw that the one in the passenger seat was wearing glasses, a red or pink scarf, and a white button-up shirt, and that the one in the driver’s seat was a black male with facial hair and a black jacket over a purple shirt. At trial, Yeldell identified the man in the passenger seat as Foster and the man in the driver’s seat as Payton.

After passing in front of the Accord, Yeldell communicated with other state troopers over the radio that he would need assistance making a vehicle stop. He left the parking lot to meet with the troopers responding to his radio call and to put himself in a better position to make a safe stop. In doing so, he lost sight of the Accord for less than a minute. When the troopers returned to the parking lot, Yeldell noticed one of the men he had seen was now standing outside of the Accord. The second man was no longer in or near the car.

B. Foster–Specific Facts³

Yeldell knew, with what he described as 100% certainty, that the man outside of the car was the same one he had observed in the Accord’s passenger seat. He testified that he recognized the white button-up shirt and the "light red or pink colored scarf." (App. at 621.) That individual turned out to be Foster.

After noticing that Foster was holding an object in his hand, Yeldell pulled out his gun and ordered him to the ground. Foster ran instead. He passed another trooper, who shot him with a Taser. As he fell to the ground, "a hand gun went flying through the air." (App. at 623.) The troopers attempted to subdue Foster, and, after a struggle, he was tased a second time. The officers then placed him in handcuffs and recovered a loaded .380 caliber black Smith & Wesson semi-automatic pistol.

Payton–Specific Facts⁴

While Yeldell and other officers were detaining Foster, Trooper Daniel McColgan responded to a radio call regarding the Accord’s missing second occupant. He began a search of the mixed commercial and residential area around Branmar Plaza to locate the suspect, reported only as a black male. McColgan had also received and read George’s e-mail from the previous day, which noted that two potentially "armed and dangerous" black men were observed in a stolen Honda Accord at Branmar Plaza. (App. at 301.)

At around 10 o’clock in the morning, and within approximately six minutes of receiving the alert about the missing suspect, McColgan saw a black man, later identified as Payton, walking along a road from the direction of Branmar Plaza and about two-tenths of a mile from the shopping center. He observed Payton holding a soda and wearing a white skull cap, a dark jacket, and jeans. Payton was walking "calmly down the street[.]" (App. at 235.) McColgan, who was in an unmarked SUV but dressed in full uniform, drove by him and they "basically both nodded at each other." (App. at 208.) The trooper did not stop because he wanted to "see what kind of reaction" he would get from Payton by driving by and did not want to approach a potentially armed suspect alone. (App. at 209.) He continued to monitor Payton for a little over four minutes. As he did so, he radioed to ask if "anybody [had] a better description ... to work with" because, at that time, he knew simply that he was looking for a black male who had fled on foot. (App. at 210–11.) Payton was the only pedestrian he had seen in the search area matching the generic description relayed over the radio.

McColgan testified that Payton was "just lackadaisical walking down the street" and that it didn’t "seem like he[ ] [was] going any place in particular." (App. at 214.) He did not observe Payton approach any stores or any other people. Payton continued to walk beside the road at the same calm pace. As McColgan watched Payton and maintained radio contact with other officers who had arrived to assist him, he told his fellow officers to continue searching the area "in case this person was not the person we believe was involved in this." (App. at 221.) None of the officers, however, reported seeing any pedestrians matching the general description of the suspect.

Eventually, McColgan and his colleagues decided to stop Payton. When they were in position to do so, McColgan used his loudspeaker to tell Payton to put his hands on his head. Payton promptly complied. The officers handcuffed Payton, patted him down, and placed him in the back of McColgan’s SUV. Payton did not have any weapons with him. McColgan questioned him and learned that Payton did not have identification, that he reported coming from the "market up the street," and that he was from Philadelphia. (App. at 227–28.) What little identifying information Payton chose to provide turned out to be false.

McColgan had fourteen years of experience patrolling the area around Branmar Plaza. He acknowledged that he was not familiar with all of the people who lived in that area and that it was possible that Payton could have been a resident of one of the developments nearby. McColgan explained, however, that it was rare for pedestrians to be walking on the side of the road where he saw Payton. It was a 40 mile-per-hour road with no sidewalks at the location where Payton was stopped. McColgan said that, in his experience, only two pedestrians walked with any frequency along that stretch—both white special needs adults. He further testified that Payton was "new to the area" and seemed to have "no rhyme or reason [for] where he was going[.]" (App. at 225.) At the time McColgan stopped Payton, he did not have a specific physical description of the missing suspect or of the clothes the suspect was wearing.

After placing Payton in the back of his SUV, McColgan drove him back to Branmar Plaza for identification.

C. Search of the Accord⁵

Following Foster’s and Payton’s apprehension, the stolen Accord was transported to the state police’s "Evidence Detection Unit." (App. at 630.) A search of the car revealed a loaded Hi–Point .9mm rifle, with a scope, inside a carrying case on the back seat, along with multiple rolls of duct tape, a pair of gloves, and a large drawstring bag. Trial testimony later established that the Accord was stolen in December 2014 and that it did not contain the...