United States v. Torres

• Decision Date: 05 June 2020
• Docket Number: No. 19-2940,19-2940
• Citation: 961 F.3d 618
• Parties: UNITED STATES of America v. Michael E. TORRES, Appellant
• Court: U.S. Court of Appeals — Third Circuit

961 F.3d 618

UNITED STATES of America

v.Michael E. TORRES, Appellant

No. 19-2940

United States Court of Appeals, Third Circuit.

Submitted Under Third Circuit L.A.R. 34.1a: April 23, 2020

Filed: June 5, 2020

Heidi R. Freese, Federal Public Defender, Frederick W. Ulrich, Office of the Federal Public Defender, 100 Chestnut Street, Suite 306, Harrisburg, PA 17101, Counsel for Appellant Michael Torres

David J. Freed, United States Attorney, Carlo D. Marchioli, Office of the United States Attorney, 228 Walnut Street, P.O. Box 11754, 220 Federal Building and Courthouse, Harrisburg, PA 17108, Counsel for Appellee United States of America

Before: PORTER, RENDELL and FISHER Circuit Judges

OPINION OF THE COURT

PORTER, Circuit Judge.

After a bench trial, the District Court found Michael Torres guilty of possessing a firearm as a convicted felon, in violation of 18 U.S.C. § 922(g)(1). The District Court imposed a fifteen-year mandatory-minimum sentence under 18 U.S.C. § 924(e) of the Armed Career Criminal Act ("ACCA") because it determined that Torres had three qualifying felony convictions.

Torres raises two arguments on appeal. First, he contends that the District Court erred by denying his motion to suppress the firearm. Second, Torres argues that his prior federal drug conspiracy conviction does not qualify as an ACCA predicate offense because it encompasses his other two substantive ACCA predicates. We will affirm. The firearm was discovered during a valid investigative stop. And we will join our sister circuits in holding that a drug conspiracy conviction counts as an ACCA predicate offense, so long as it was distinct in time from the underlying substantive offenses.

I

Officer Steven Pickel of the City of York Police Department patrols York's west end. The west end is a high-crime area known for violent crime, such as homicides, shootings, drug incidents, and aggravated assaults. York police "regularly" investigate reports of "shots fired" in the west end, "especially in the evening." App. 48.

Around 6:00 p.m. on October 31, 2017, Officer Pickel drove his patrol car along the border between the west end and York College's campus. A man in a parked vehicle flagged the officer down. The man pointed to the only pedestrian on a bridge. The man said that the pedestrian was "wearing a black jacket with his hood up, blue jeans, and black sneakers" and that he pulled out a gun and fired it twice into an old factory building across the street. App. 48. The man was "adamant" about this description.¹ Id. The pedestrian was later identified as Torres.

Instead of asking for the man's name or recording his license plate number, Officer Pickel immediately radioed for backup and followed Torres in his patrol car. Officer Pickel feared that Torres posed a potential danger to others. And he knew from his training and experience that any delay would make it very difficult to locate Torres.

As other officers arrived, Officer Pickel activated his emergency lights and exited his patrol car. Based on the information that Torres had discharged a firearm, Officer Pickel drew his service pistol and ordered Torres to "get to the ground." App. 71. Torres complied, and two other officers, including Officer Jonathan Hatterer, approached Torres. Officer Hatterer knelt and asked Torres if he had a firearm. According to Officer Hatterer, Torres said that he did and then indicated that it was in his right pocket. Officer Hatterer handcuffed Torres while another officer retrieved the firearm.

A grand jury indicted Torres and charged him with violating 18 U.S.C. § 922(g)(1) by possessing a firearm as a convicted felon. Torres pleaded not guilty and moved to suppress the firearm. The District Court denied the motion. It determined that the officers found the gun in Torres's possession during an investigatory stop under Terry v. Ohio , 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), rather than during an arrest. It further concluded that the stop was constitutional because Officer Pickel had reasonable suspicion to conduct the stop.

The District Court then held a bench trial and found Torres guilty. The Presentence Investigation Report ("PSR") advised that Torres qualified for enhanced sentencing under 18 U.S.C. § 924(e) of the ACCA because he had at least three prior convictions for serious drug offenses. The PSR identified two state drug possession convictions, one federal drug distribution conspiracy conviction, and a felony conviction for attempted homicide. Torres objected to the enhancement, arguing that, because the state drug possession offenses were part of the federal drug distribution conspiracy, the drug conspiracy conviction should not be counted as a separate predicate offense. The District Court denied Torres's objection, applied the enhancement, and sentenced Torres to the mandatory-minimum sentence: 180 months’ imprisonment. Torres timely appealed.

II²

Torres argues that the officers violated the Fourth Amendment when they seized him, so the firearm should have been suppressed. He maintains that the seizure amounted to an arrest that lacked probable cause. Alternatively, he contends that even if the seizure were an investigatory stop, Officer Pickel lacked reasonable suspicion to detain him. We disagree. Officer Pickel conducted a valid investigatory stop to ensure officer safety and the safety of the community. And the stop was supported by reasonable suspicion because Officer Pickel received a reliable tip.

A

"Generally, for a seizure [of a person] to be reasonable under the Fourth Amendment, it must be effectuated with a warrant based on probable cause." United States v. Robertson , 305 F.3d 164, 167 (3d Cir. 2002) (citing Katz v. United States , 389 U.S. 347, 356–57, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) ). But a police officer may arrest a person in a public place without a warrant if the officer possesses probable cause to believe the person committed a felony. United States v. McGlory , 968 F.2d 309, 342 (3d Cir. 1992) (citing United States v. Watson , 423 U.S. 411, 421, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976) ). Or, "an officer may ... conduct a brief, investigatory stop when the officer has a reasonable, articulable suspicion that criminal activity is afoot." Illinois v. Wardlow , 528 U.S. 119, 123, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000) (citing Terry , 392 U.S. at 30, 88 S.Ct. 1868 ).

The Supreme Court has not established a bright-line rule to distinguish a warrantless arrest from an investigatory stop. But the "reasonableness of the intrusion is the touchstone" of our analysis. Baker v. Monroe Township , 50 F.3d 1186, 1192 (3d Cir. 1995) (citing United States v. Sharpe , 470 U.S. 675, 682–83, 105 S.Ct. 1568, 84 L.Ed.2d 605 (1985) ). The Supreme Court "ha[s] emphasized the need to consider the law enforcement purposes to be served by the stop as well as the time reasonably needed to effectuate those purposes." Sharpe , 470 U.S. at 685, 105 S.Ct. 1568 (citations omitted). By these standards, Torres was subjected to an investigatory stop.

To begin, "[t]here is no per se rule that pointing guns at people, or handcuffing them, constitutes an arrest." Baker , 50 F.3d at 1193 (collecting cases); see also United States v. Edwards , 53 F.3d 616, 619 (3d Cir. 1995) (surrounding a suspect "with weapons ready, and even drawn, does not constitute an arrest per se"). Terry recognized that when officers are investigating a suspect who the officers reasonably believe "is armed and presently dangerous to the officer[s] or to others, it would ... be clearly unreasonable to deny the officer[s] the power to take necessary measures to determine whether the person is in fact carrying a weapon and to neutralize the threat of physical harm." 392 U.S. at 24, 88 S.Ct. 1868.

Torres's case resembles the factual scenario we encountered in United States v. Johnson , 592 F.3d 442 (3d Cir. 2010). In Johnson , a witness called a 911 dispatcher to report that she saw two men struggling before hearing a gunshot. Id. at 445. After the gunshot, the witness watched a white taxicab depart the scene. Id. A short time later, police spotted a white taxicab in the vicinity and stopped it. Id. Officers surrounded the taxicab with guns drawn. Id. at 445–46. They ordered the occupants out of the car and handcuffed the defendant and the taxi driver so that they could "safely clear the vehicle and gather information about the [reported] shooting." Id. at 446. Officers then discovered a handgun in plain view in the backseat of the car. Id. Under these facts, we held that the officers conducted an investigatory stop, not an arrest. Id. at 448.

So, too, here. Officer Pickel received a tip that Torres, just moments before, had discharged a firearm in a high-crime area. A brief encounter with police ensued. Only thirty-five seconds elapsed between the time when Officer Pickel ordered Torres to stop and when police secured Torres's firearm.³ Thus, the seizure was an investigatory stop—not an arrest.

B

Because Torres was subjected to an investigatory stop, we next ask whether the stop was supported by reasonable suspicion. Wardlow , 528 U.S. at 123, 120 S.Ct. 673. It was.

Reasonable suspicion exists if an officer can "articulate more than an inchoate and unparticularized suspicion or hunch of criminal activity." Id. at 124, 120 S.Ct. 673 (quotation marks and citation omitted). "Reasonable suspicion requires only a particularized and objective basis for suspecting criminal activity" based on "the totality of the circumstances." United States v. Green , 897 F.3d 173, 183 (3d Cir. 2018) (citations, quotation marks, and alteration omitted). "We afford significant deference to a law enforcement officer's determination of reasonable suspicion." United States v. Foster , 891 F.3d 93, 104 (3d Cir. 2018).

Because Officer Pickel acted on an informant's tip, we must decide whether the tip was reliable. United States v. Torres , 534 F.3d 207, 210–11 (3d Cir. 2008). In doing so, we consider whether: (1) the...