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


5-6-2004

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Precedential or Non-Precedential: Non-Precedential

Docket No. 02-3963




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Recommended Citation
"USA v. Cicero" (2004). 2004 Decisions. Paper 720.
http://digitalcommons.law.villanova.edu/thirdcircuit_2004/720


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                                                        NOT PRECEDENTIAL

                   IN THE UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                _______________

                                      No. 02-3963
                                    _______________

                            UNITED STATES OF AMERICA
                                       v.

                                WINFRED CICERO,
                                            Appellant
                       ____________________________________

                     On Appeal From the United States District Court
                         For the Eastern District of Pennsylvania
                                  (D.C. No. 00-cr-00448)
                      District Judge: Honorable Bruce W. Kauffman
                     _______________________________________

                      Submitted Under Third Circuit LAR 34.1(a)
                                    May 4, 2004
             Before: SLOVITER, FUENTES and BECKER, Circuit Judges


                                   (Filed: May 6, 2004)


                               _______________________

                                      OPINION
                               _______________________

BECKER, Circuit Judge.

       This is an appeal by Winfred Cicero from a judgment in a criminal case following

a conditional plea of guilty to firearms and narcotics charges, see Fed. R. Crim. P.

11(a)(2), which reserved Cicero’s right to challenge two rulings of the District Court
denying Cicero’s motions to suppress evidence—guns and narcotics—seized following

two car stops. We will affirm. Because the parties are fully familiar with the background

facts and procedural history we need not set them forth, and limit our discussion to our

ratio decidendi.

       The seizure of a loaded Smith & Wesson .45 caliber pistol following the first stop

(on June 12, 1998) was properly upheld because: (1) the Philadelphia police officers who

arrested Cicero on that occasion had a radio report that he was wanted on an arrest

warrant for assault and “should be considered armed and dangerous”; (2) after his vehicle

lurched forward but was blocked by police vehicles, he made a downward movement; (3)

after the police officers verified that the arrestee was in fact the wanted person, they then

arrested him; (4) a visual sweep of the car’s interior revealed a bulge in the pouch behind

the driver’s seat that appeared to be the outline of a handgun; and (5) a limited search of

the driver’s seat area immediately uncovered the Smith & Wesson handgun. The

applicable law supports the conclusion that the Fourth Amendment is not offended by the

seizure of the pistol in these circumstances. See New York v. Belton, 

(1981)

(approving car searches incident to arrest); Gov’t of the V.I. v. Rasool, 

(3d

Cir. 1981) (same).

       The District Court also properly denied the motion to suppress the loaded .45

caliber pistol and cocaine seized by police on March 24, 1999. Cicero was stopped by

Philadelphia police officers on patrol when he was observed driving in reverse at a



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considerable speed against traffic on a one-way street. One of the officers observed

Cicero putting something on the floor and then observed it (it was in plain view) to be a

handgun. En route to the station house (following arrest) Cicero twisted, fidgeted and

squirmed on the backseat, and a subsequent search of the police vehicle, which had been

cleared of extraneous material before the shift began, revealed thirty-nine blue tinted

ziploc packets and another clear knotted sandwich baggie, all containing cocaine. The

law is clear that an officer may stop a vehicle if he or she has reasonable suspicion of the

commission of a traffic violation, see Delaware v. Prouse, 

, 663 (1979),

even if the stop is actually a pretext and is motivated by other law enforcement interests,

see Whren v. United States, 

(1996). Here the stop was well justified out of

concern for Cicero’s dangerous driving. After Cicero was stopped, the officer saw the

gun in plain view. With respect to the drugs, the officers were plainly entitled to seize the

bag of cocaine that Cicero had discarded in the police vehicle; Cicero had no reasonable

expectation of privacy in the police van.

       The judgment of the District Court will be affirmed.




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