Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-8-2004

USA v. Owens
Precedential or Non-Precedential: Non-Precedential

Docket No. 03-2637




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"USA v. Owens" (2004). 2004 Decisions. Paper 607.
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                                                                NOT PRECEDENTIAL


                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                      No. 03-2637




                           UNITED STATES OF AMERICA

                                            v.

                                 WALTER J. OWENS

                                     Walter Owens,

                                                          Appellant


                    On Appeal from the United States District Court
                               for the District of New Jersey
                   District Judge: The Honorable Garrett E. Brown, Jr.
                                (D.C. No. 02-cr-00704-01)


                    Submitted pursuant to Third Circuit LAR 34.1(a)
                                  on January 9, 2004

                      Before: BARRY and SMITH, Circuit Judges,
                              and POLLAK, District Judge*

                                  (Filed: June 8, 2004)




  *
   The Honorable Louis H. Pollak, Senior District Judge for the Eastern District of
Pennsylvania, sitting by designation.
                                ____________________

                               OPINION OF THE COURT
                                ____________________

SMITH, Circuit Judge.

       On February 14, 2002 at 12:00 pm a radio dispatch was sent to local officers in

Trenton, New Jersey that, according to an anonymous tip, a man with a gun was in a grey

Honda Accord on Union Street, near Parker School. The officers were subsequently

informed that the license plate of the grey Honda Accord was MOY37I. Because it was

school lunch recess time, the dispatch was given the highest priority, Code 3. Officers

DeHart and Breece responded in their white unmarked car immediately, turning on the

vehicle’s emergency lights and sirens.

       Two or three minutes later, Officers DeHart and Breece came to an intersection in

close proximity to the one identified by the anonymous tip and soon spotted a grey Honda

with license number MDY37T driving in front of them.1 Officer Breece noticed two

black males inside the vehicle. The Honda accelerated and Officer Breece saw the

passenger turn around, view the police vehicle, and begin excitedly gesturing to the

driver. The driver then abruptly stopped the vehicle. The passenger, Walter Owens,

immediately fled from the vehicle, leaving the passenger door ajar.

       Officer Breece, dressed in black clothing with the words “Trenton Police” printed

on them in bright yellow, exited the police vehicle, drew his weapon, shouted “Police,”


  1
    The license plate number of the grey Honda Accord which police officers actually
stopped was MDY37T, as opposed to MOY37I.
and ordered Owens to stop. Owens glanced backwards and continued to flee. Officer

Breece testified that Owens was slightly bent over, holding something around his waist

with his left arm. Officer Breece pursued Owens along an abandoned house, around the

back, into a vacant lot, and up an alley. Despite Officer Breece’s repeated directives to

stop, Owens continued to flee. Upon entering the alley, Owens confronted an eight foot

high fence with barbs atop it. Owens jumped up and threw a shiny metal object over the

fence, later identified as an Intertech 9 millimeter semi-automatic handgun. Owens then

turned around and stated: “I quit . . . I give up.” Owens was ordered to the ground and

handcuffed.

       After he was arrested, Owens was transported to the Trenton Police headquarters

for processing. He was given his Miranda warnings by Bureau of Alcohol Tobacco and

Firearms Special Agent Paul Greenfield, which Owens waived. During his interview

with Special Agent Greenfield, Owens admitted that he had possessed the Intertech 9

millimeter handgun.

       Owens moved to suppress the handgun, contending it was unlawfully seized. The

District Court denied the motion. Owens was tried and found guilty on one count of a

felon in possession of a weapon in violation of 18 U.S.C. §§ 922(g)(1), (2).

                                             II.

       We review the District Court’s denial of a motion to suppress for clear error as to

the underlying factual findings and exercise plenary review of the District Court’s

application of the law to those facts. United States v. Perez, 

, 336 (3d Cir.
2002). The material facts presented here are identical to those considered by the Supreme

Court in California v. Hodari D., 

, 622-24 (1991). In Hodari, the defendant

fled from the police, threw a rock of cocaine away, and was tackled by the pursuing

officer a moment later. 

The Supreme Court ruled that the cocaine Hodari

threw was not gained as a result of a seizure within the meaning of the Fourth

Amendment, because Hodari was not seized until he was actually tackled by the officer.

Similarly here, recovery of the gun was not the fruit of an unlawful seizure, as

it was discarded by Owens before he was seized. United States v. Coggins, 

,

653-54 (3d Cir. 1993) (“Under Hodari, while . . . a seizure requires a show of authority

objectively sufficient to convince the reasonable person he is not free to leave, it also

requires that the suspect actually submit to the show of authority.”). The District Court’s

denial of Owens’ suppression motion is therefore affirmed.2

                                             III.

       Owens also claims that the Government presented insufficient evidence to convict

him. He argues that the testimony of Officer Breece and Special Agent Greenfield was so




  2
    We note that the result would be the same were we to examine this case under a
Fourth Amendment analysis as laid out by Illinois v. Wardlow, 

(2000).
Given the totality of the circumstances, the police had ample reason to suspect criminal
activity was afoot. They received a tip, placing an individual with a machine gun in close
proximity to a school. Upon arriving at the given location, the officers observed a vehicle
matching the given description. Officer Breece observed the passenger, Owens, gesturing
excitedly, the vehicle stopping abruptly, and Owens rapidly exiting the vehicle. While
flight alone is insufficient, the totality of the circumstances provided the officer with
reasonable suspicion for a Terry stop. Terry v. Ohio, 

(1968).
incredible as to render any belief by the jury of their testimony unreasonable.3 Our review

“of the sufficiency of the evidence after a conviction is ‘highly deferential.’” United

States v. Hart, 

, 371 (3d Cir. 2001). When examining the evidence,

however, it is not “for us to weigh the evidence or to determine the credibility of the

witnesses.” United States v. Voigt, 

, 1080 (3d Cir. 1996) (quoting United

States v. Schoolcraft, 

, 69 (3d Cir. 1989)). Instead, we must review the

evidence in the light most favorable to the government. United States v. Thomas, 

, 405 (3d Cir. 1997); 

. We will sustain the verdict if

“any rational trier of fact could have found the essential elements of the crime beyond a

reasonable doubt.” 

(quoting Jackson v. Virginia, 

, 319

(1979)).

       Each of Owens’ arguments would require this Court to discredit the veracity of

Breece and Greenfield simply because we could find them less credible than Owens’

explanation. As explained above, however, that is not the function of appellate review.

. Instead, we must examine the evidence in the light most

favorable to the Government, here believing Breece and Greenfield’s testimony as true.

; United States v. Scanzello, 

, 21 (3d Cir. 1987)(“all

reasonable inferences must be drawn and all credibility issues resolved in the



  3
    Owens’ opening argument in his brief claims that the testimony of Special Agent
Gaines, a ballistics specialist for the Bureau of Alcohol, Tobacco, and Firearms was also
incredible. However, he does not identify any specific aspect of Agent Gaines’ testimony
that is lacking.
government's favor.”).

       We find that there is sufficient evidence, based on the testimony given at trial by,

among others, Officers Breece and DeHart and Special Agent Greenfield, to determine

that a rational trier of fact could have found guilt beyond a reasonable doubt. United

States v. Jenks, 

, 817 (3d Cir. 1996). We therefore affirm the District Court’s

denial of Owens’ motion for acquittal.

       For the foregoing reasons, we will affirm the judgment of the District Court.