Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-22-2007

USA v. Yamba
Precedential or Non-Precedential: Precedential

Docket No. 06-2581




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                                          PRECEDENTIAL

          UNITED STATES COURT OF APPEALS
               FOR THE THIRD CIRCUIT


                        No. 06-2581


              UNITED STATES OF AMERICA

                             v.

                    VIKRAM YAMBA,

                                        Appellant


         Appeal from the United States District Court
            for the Western District of Pennsylvania
          (D.C. Criminal Action No. 04-cr-00329-1)
        District Judge: Honorable Thomas M. Hardiman


         Submitted Under Third Circuit LAR 34.1(a)
                      April 24, 2007

        Before: McKEE and AMBRO, Circuit Judges,
                ACKERMAN,* District Judge.


    *
      Honorable Harold A. Ackerman, Senior United States
District Judge for the District of New Jersey, sitting by
               (Opinion filed : October 22, 2007)

Adam B. Cogan, Esquire
One Northgate Square
Greensburg, PA 15601

      Counsel for Appellant

Mary Beth Buchanan
   United States Attorney
Rebecca R. Haywood
   Assistant U.S. Attorney
Robert L. Eberhardt, Esquire
Office of United States Attorney
700 Grant Street, Suite 400
Pittsburgh, PA 15219

      Counsel for Appellee




                 OPINION OF THE COURT


AMBRO, Circuit Judge

      In this appeal we explore the contours of a corollary to


designation.

                               2
the “plain view” doctrine, known as “plain feel,” in the context
of a Terry search. After doing so, we conclude that the search
at issue here – during which an officer discovered marijuana in
Vikram Yamba’s pocket, and this in turn led to the discovery of
slips of paper resulting in his conviction for wire fraud – was
legal. We therefore affirm the judgment of the District Court.

           I. Factual and Procedural Background

       Yamba was indicted by a grand jury on seven counts of
wire fraud, in violation of 18 U.S.C. §§ 1343 and 2.1 The
evidence against Yamba included several pieces of paper with
what appeared to be credit card numbers written on them. These
papers were discovered on Yamba’s person during a routine


  1
   The indictment lists seven wire communications forming the
basis of the seven separate counts against Yamba, “all in
violation of Title 18, United States Code, Sections 1343 and 2.”
The District Court interpreted this to mean that Yamba was
indicted under 18 U.S.C. §§ 1342 and 1343. Though we
recognize that the District Court’s reading is plausible, we
believe instead that the reference to “and 2” seeks to incorporate
accomplice liability into the indictment under 18 U.S.C. § 2.
Given these differing, but reasonable, readings—and the fact
that the first requirement of a valid indictment is that it “fairly
informs a defendant of the charge against which he must
defend,” Hamling v. United States, 

, 117
(1974)—the Government may wish to consider a manner of
citation to the U.S. Code that causes less confusion.

                                3
inventory search that took place when he was booked at the
police station after having been arrested for possession of
marijuana. After unsuccessfully moving to suppress the papers
as the fruits of an illegal search, Yamba was found guilty on all
seven counts after a bench trial. He was sentenced to 18 months
in prison and three years of supervised release. On this appeal
he challenges only his conviction, arguing that the search that
turned up the marijuana was illegal and, thus, that the papers
discovered at his booking on marijuana-possession charges
should have been suppressed at his trial on the wire fraud
charges.2

         The facts as found by the District Court regarding the
initial search (which revealed the marijuana) are set out in detail
in the District Court’s thorough opinion. See United States v.
Yamba, 

, 705–06 (W.D. Pa. 2006). The
Court’s findings are not clearly erroneous, United States v.
Perez, 

, 336 (3d Cir. 2002), and we summarize
them here.

        While on duty, Officer Matthew Livingstone saw a U-
Haul truck parked at a gas station in a manner that blocked one
of the entrances from the street, as well as some parking spaces.
Livingstone approached the truck. As he got closer, he saw that
the driver, Charles Coleman, was holding an open pocket knife.


  2
   The District Court had jurisdiction under 18 U.S.C. § 3231;
we have jurisdiction under 28 U.S.C. § 1291.

                                4
Livingstone also saw two passengers in the truck, Yamba and
Jimaah Kpakpo, making “quick and furtive movements” below
the dashboard.

       When Officer Livingstone asked Coleman what he was
doing at the gas station, Coleman responded that he, Yamba, and
Kpakpo were delivering furniture to friends. Coleman,
however, could not provide the names of these friends or the
address to which he was delivering the furniture. Livingstone
then asked to see Coleman’s driver’s license and the rental truck
agreement. He also asked if there was anything in the truck
besides furniture. Coleman responded that there was not and
told Livingstone that he could search the truck if he wanted.
Before Livingstone did so, though, he radioed his dispatcher to
check on Coleman’s credentials, and the dispatcher reported that
there was an outstanding warrant for his arrest. Livingstone
then handcuffed Coleman and sat him in the police car.

        After that, Livingstone asked Yamba and Kpakpo to step
out of the truck in order to conduct a patdown search of both of
them. When he was frisking Yamba, Livingstone felt a plastic
bag in Yamba’s right jacket pocket.        Livingstone testified,
credibly according to the District Court, as follows:

       As I was conducting the pat-down, along the right
       side, right coat pocket, I could feel a plastic bag.
       I noted through training and experience [that]
       narcotics are stored and transported in plastic

                                5
       baggies. After a brief second of just feeling it, I
       could tell that there was a soft spongy-like
       substance that is consistent with marijuana inside.
       I then recovered the bag from his pocket and
       found it contained suspected marijuana.

Livingstone then handcuffed Yamba and put him in the police
car with Coleman. The patdown search of Kpakpo was
uneventful.

        At that point Officer Livingstone searched the rear of the
U-Haul and found that it contained new furniture, wrapped in
plastic. Upon questioning, Kpakpo said that he owned the
furniture, that he had purchased it with a credit card, and that he
was selling it. Soon after this, the dispatcher informed
Livingstone that she had mistakenly reported that there was an
outstanding warrant for Coleman’s arrest, but that his license
was suspended. Livingstone wrote Coleman a ticket for driving
with a suspended license and then released him and Kpakpo.
Because there was now no driver for the U-Haul, Livingstone
had it impounded. He arrested Yamba for possession of
marijuana.

       At the police station during Yamba’s booking, an
inventory search of his person revealed “several slips of paper
with the words ‘credit card’ and lines of numbers alternating
down the page.” When Livingstone asked Yamba about it, he
reported that he had received the papers from a friend.

                                6
Livingstone then read Yamba his Miranda warnings and
questioned him. Based on that questioning, Livingstone
obtained a search warrant for the U-Haul. It was later
determined that the furniture in the U-Haul was purchased from
a Kaufmann’s department store with one of the credit card
numbers found on the papers discovered during the inventory
search. This led to Yamba’s conviction, which forms the basis
of this appeal.

        We review de novo the District Court’s ruling that the
initial pat-down search revealing the marijuana was legal and,
thus, that the papers discovered at booking were admissible at
the trial on the wire fraud counts. 

.

                         II. Discussion

       Yamba’s argument proceeds in two parts. First, he
contends that though Officer Livingstone ostensibly seized him
pursuant to Terry v. Ohio, 

(1968), the seizure in fact
was illegal, as that case does not permit an officer to do so under
these circumstances. Second, he argues that, even if he was
properly seized, the subsequent search of his person was outside
the scope allowed under Terry. We address each contention in
turn.

       A.     The Terry Stop

       In Terry, the Supreme Court held that a warrantless

                                7
seizure based on less than probable cause could be
constitutionally permissible. Specifically, the Court said that

       where a police officer observes unusual conduct
       which leads him reasonably to conclude in light of
       his experience that criminal activity may be afoot
       and that the persons with whom he is dealing may
       be armed and presently dangerous, where in the
       course of investigating this behavior he identifies
       himself as a policeman and makes reasonable
       inquiries, and where nothing in the initial stages
       of the encounter serves to dispel his reasonable
       fear for his own or others’ safety, he is entitled for
       the protection of himself and others in the area to
       conduct a carefully limited search of the outer
       clothing of such persons in an attempt to discover
       weapons which might be used to assault him.

In outlining the contours of a permissible “Terry
stop,” the Court noted that “[t]he officer need not be absolutely
certain that the individual is armed; the issue is whether a
reasonably prudent man in the circumstances would be
warranted in the belief that his safety or that of others was in
danger.” 

“The police officer must be able to point to
specific and articulable facts which, taken together with rational
inferences from those facts, reasonably warrant the intrusion.”

Consistent with these statements, we have ruled that
when “determining whether a stop is justified, the court must

                                 8
view the circumstances surrounding the stop in their entirety,
giving due weight to the experience of the officers.” United
States v. Rickus, 

, 365 (3d Cir. 1984).

        In this case, the entirety of the circumstances, as
described by Officer Livingstone’s testimony (found by the
District Court to be credible), justified the Terry stop of Yamba.
First, the U-Haul in which Yamba sat was parked in an odd and
obstructive manner. Second, as Livingstone approached the U-
Haul he observed the driver, Coleman, holding an open pocket
knife. Third, he also noticed “quick and furtive movements” by
the passengers, Yamba and Kpakpo. And fourth, upon having
his dispatcher run a check on Coleman’s license, Livingstone
was informed that Coleman had an outstanding arrest warrant.
This report later proved to be in error, but Livingstone was not
unreasonable in relying on it. See United States v. Mosely, 

, 260 n.16 (3d Cir. 2006).

       Given these facts, Livingstone was “justified in believing
that the individual whose suspicious behavior he [wa]s
investigating at close range [Yamba] [wa]s armed and presently
dangerous to the officer or to others.” 

. As
Livingstone testified,

              The pat-down was for officer safety. I
       already had one knife. I knew there was a
       weapon in the car, and a lot of times we as police
       officers like to add plus one. Where there’s one

                                9
      weapon, there’s likely another weapon.

             There were three of them at one point
      [Coleman, Yamba, and Kpakpo], and there was
      myself and my partner[, who arrived at the scene
      shortly before Yamba’s pat-down]. So we’re
      outnumbered. It was for officer safety.

             ....

             . . . . We already had one wanted person.

             ....

            . . . . The fast movements of the hands
      going from the dash and then being concealed
      underneath them and what appeared to be in the
      pockets was also an issue.

             ...

             The fact that Mr. Coleman could not
      provide any answers to simple questions that I had
      asked him also raised my suspicion of some
      possible criminal activity.

This testimony—again, found by the District Court to be
credible—reveals the “specific and articulable facts which,

                             10
taken together, with rational inferences from those facts,
reasonably warrant[ed]” subjecting Yamba to a pat-down search.

The stop, therefore, was justified under Terry.

       B.     Seizing the Contraband under the “Plain Feel”
              Doctrine

        That Officer Livingstone was entitled to stop Yamba
under Terry still leaves the question of whether the pat-down
search was properly conducted. For if it was not, there would be
a ripple effect on the criminal case against him, ending in the
exclusion of the papers with allegedly stolen credit card
numbers as “fruit[s] of the poisonous tree.” Wong Sun v. United
States, 

, 487–88 (1963); see Sibron v. New York,

, 65–66 (1968); United States v. Brown, 

, 244 (3d Cir. 2006). Those papers, of course, were found in
a routine (and legal) inventory search upon Yamba’s booking at
the police station, Illinois v. Lafayette, 

(1983),
which took place after his arrest—an arrest made possible only
by the discovery of marijuana during the Terry search.3

        In Terry, the Supreme Court said that “[t]he scope of the
search must be strictly tied to and justified by the circumstances
which rendered its initiation 

. It
later expounded on that statement when speaking about Terry


  3
   Yamba does not contest the inventory search, only the Terry
search.

                               11
searches specifically:

       The purpose of this limited search is not to
       discover evidence of crime, but to allow the
       officer to pursue his investigation without fear of
       violence . . . . So long as the officer is entitled to
       make a forcible stop, and has reason to believe
       that the suspect is armed and dangerous, he may
       conduct a weapons search limited in scope to this
       protective purpose.

Adams v. Williams, 

, 146 (1972) (footnote omitted)
(emphasis added). The proper scope of a search becomes
critical when police discover something suspicious they were
not expecting or intending to find. And in such a case the “plain
view” doctrine often governs whether their discovery can be
admitted against a defendant. See, e.g., Arizona v. Hicks, 

(1987).

        As the Supreme Court has said, precedent has “come to
reflect the rule that if, while lawfully engaged in an activity in
a particular place, police officers perceive a suspicious object,
they may seize it immediately.” Texas v. Brown, 

,
739 (1983) (plurality opinion) (citing Frazier v. Cupp, 

(1969); Harris v. United States, 

(1968);
United States v. Lefkowitz, 

(1932); Marron v.
United States, 

(1927)). The “plain view” doctrine,
therefore, is best understood “not as an independent exception

                                12
to the warrant clause, but simply as an extension of whatever the
prior justification for an officer’s access to an object may be.”

–39 (internal quotation marks omitted).
So understood, courts have logically extended this concept to
permit the admission of evidence discovered with other sensory
faculties. See, e.g., United States v. Angelos, 

, 747
(10th Cir. 2006) (“plain smell”) (citing United States v. Haley,

, 203 (4th Cir. 1982); United States v. Clayton, 

, 845 (8th Cir. 2000); United States v. Rhiger, 

, 1290 (10th Cir. 2003)); United States v. Baranek, 

, 1070–72 (6th Cir. 1990) (“plain hearing”). In this
case, we deal with another application of the “plain view”
doctrine: “plain feel.”

       Unlike “plain hearing” and “plain smell,” which the
Supreme Court has not decided, it has put its imprimatur on
“plain feel.” 4 In Minnesota v. Dickerson, the Court took up the
issue of “whether police officers may seize nonthreatening
contraband detected during a protective patdown search of the
sort permitted by Terry,” and decided that “the answer clearly is
that they may, so long as the officers’ search stays within the
bounds marked by Terry.” 

, 373 (1993). Since
Dickerson, our Court has not had the opportunity to examine


  4
    This is not to express our disapproval of the “plain hearing”
and “plain smell” applications of the “plain view” doctrine,
neither of which our Court has examined in a precedential
opinion.

                               13
and apply its teachings in a precedential opinion.

         In Dickerson, police officers were patrolling a
neighborhood and saw the defendant leaving what was known
to them as a “crack house.” When he saw the officers in their
patrol car, the defendant “abruptly halted and began walking in
the opposite direction.” 

He then walked into an
alley. This activity aroused the suspicion of the officers, and
they decided to investigate further. After ordering the defendant
to stop, one of the officers conducted a Terry search of the
defendant. According to the Court, “[t]he search revealed no
weapons, but the officer did take an interest in a small lump in
[the defendant’s] nylon jacket.” 

The officer testified
later at an evidentiary hearing that, “[a]s I pat-searched the front
of his body, I felt a lump, a small lump, in the front pocket. I
examined it with my fingers and it slid and it felt to be a lump of
crack cocaine in cellophane.” 

point the officer
“reached into [the defendant’s] pocket and retrieved a small
plastic bag containing one fifth of one gram of crack cocaine.”

court admitted the contraband by “analogizing to
the ‘plain-view’ doctrine.” 

Court of
Appeals, though finding a valid Terry stop, reversed the
evidentiary ruling, concluding that “the officers had overstepped
the bounds allowed by Terry in seizing the cocaine.” 

Both the Minnesota Supreme Court and the U.S. Supreme Court
affirmed.

       Before addressing the “plain feel” concept, the Supreme

                                14
Court first described the “plain view” doctrine from which it
derived:

       [I]f police are lawfully in a position from which
       they view an object, if its incriminating character
       is immediately apparent, and if the officers have
       a lawful right of access to the object, they may
       seize it without a warrant. If, however, the police
       lack probable cause to believe that an object in
       plain view is contraband without conducting some
       further search of the object—i.e., if its
       incriminating character is not immediately
       apparent—the plain-view doctrine cannot justify
       its seizure.

(citations, brackets, and internal quotation marks
omitted). Applying this rule, the Court focused on the trial
court’s findings regarding what the officer believed about the
lump in the defendant’s pocket. Specifically, it noted that the
officer “made no claim that he suspected this object to be a
weapon.” 

(internal quotation marks omitted). “[T]he
officer’s own testimony,” the Court went on to say, “belies any
notion that he ‘immediately’ recognized the lump as crack
cocaine. Rather, . . . the officer determined that the lump was
contraband only after squeezing, sliding, and otherwise
manipulating the contents of the defendant’s pocket—a pocket
which the officer already knew contained no weapon.” 

Dickerson, many courts have focused on exactly
how “immediately” an officer must know that something felt
during a Terry search is contraband or precisely how much a
clothed object can be manipulated before a search becomes
illegal. See, e.g., United States v. Williams, No. CRIM. RDB-
05-0240, 

, at *6 (D. Md. Aug. 9, 2005);
United Stated v. Ramirez, No. 02 CR 1228(GEL), 

, at *7 (S.D.N.Y. Feb. 5, 2003) (“No doubt a
metaphysician could draw distinctions between ‘immediately’
knowing something, knowing it after a ‘second or two,’ being
90% certain of something after running one’s fingers across it,
and knowing for certain after squeezing it.”). And in the course
of admitting in evidence certain contraband that was discovered
in a Terry search, courts have credited testimony by some police
officers that suggests remarkable sensory powers. See, e.g.,
United States v. Ashley, 

, 681 (D.C. Cir. 1994)
(admitting in evidence contraband known “immediately” to be
crack, despite the fact that it was found “inside two pair of
pants, a pair of briefs, a paper bag, a paper napkin, and a plastic
bag”). Even the officer in this case testified—credibly,
according to the District Court—that after feeling through a
“middle medium weight jacket” for what “[p]robably wasn’t
even a half second,” he nevertheless “could tell right away” that
the lump in Yamba’s pocket was marijuana.

       We reject a narrow focus on how quickly and certainly
the nature of an object felt during a Terry search is known and
on how much manipulation of a person’s clothing is acceptable.

                                16
In Terry, the Supreme Court authorized police officers to
perform a routine pat-down search for weapons. Such searches
necessarily involve a certain amount of “squeezing, sliding and
otherwise manipulating” of a suspect’s outer 

, in an attempt to discern whether weapons are hidden
underneath. Thus, the problem with the officer’s actions in
Dickerson must be more than simply their occurrence. And a
close reading of the case reveals what that “more” entails.

       The Court in Dickerson clearly identified the object of a
proper Terry search: weapons. 

(stating that a Terry
search “must be strictly limited to that which is necessary for the
discovery of weapons which might be used to harm the officer
or others nearby.” (internal quotation marks omitted)). The
same sentence in Dickerson that identified “squeezing, sliding
and otherwise manipulating the contents of the defendant’s
pocket” as a problem also noted that the officer committed the
offending conduct when he “already knew [the pocket]
contained no weapon.” 

. The Court repeated the
refrain in the next paragraph:

       Here, the officer’s continued exploration of [the
       defendant’s] pocket after having concluded that
       it contained no weapon was unrelated to the sole
       justification of the search under Terry: the
       protection of the police officer and others nearby.
       It therefore amounted to the sort of evidentiary
       search that Terry expressly refused to authorize

                                17
       and that we have condemned in subsequent cases.

brackets, ellipsis, internal quotation marks,
and citations omitted).

       The proper question under Dickerson, therefore, is not
the immediacy and certainty with which an officer knows an
object to be contraband or the amount of manipulation required
to acquire that knowledge, but rather what the officer believes
the object is by the time he concludes that it is not a weapon.
That is, a Terry search cannot purposely be used to discover
contraband, but it is permissible that contraband be confiscated
if spontaneously discovered during a properly executed Terry
search. Moreover, when determining whether the scope of a
particular Terry search was proper, the areas of focus should be
whether the officer had probable cause to believe an object was
contraband before he knew it not to be a weapon and whether he
acquired that knowledge in a manner consistent with a routine
frisk. United States v. Jones, 

, 706 (D. Md.
2004) (citing 

; 

).

       Assuming that an officer is authorized to conduct a Terry
search at all, he is authorized to assure himself that a suspect has
no weapons. He is allowed to slide or manipulate an object in
a suspect’s pocket, consistent with a routine frisk, until the
officer is able reasonably to eliminate the possibility that the
object is a weapon. If, before that point, the officer develops

                                18
probable cause to believe, given his training and experience, that
an object is contraband, he may lawfully perform a more
intrusive search. If, indeed, he discovers contraband, the officer
may seize it, and it will be admissible against the suspect. If,
however, the officer “goes beyond what is necessary to
determine if the suspect is armed, it is no longer valid under
Terry and its fruits will be suppressed.” 

.

        In making this ruling, we join at least two of our sister
courts of appeals that have framed the issue in this way. See
United States v. Mattarolo, 

, 1158 (9th Cir. 2000)
(“Had the officer continued to manipulate the object beyond
what was necessary to ascertain that it posed no threat, he would
have run afoul of the Supreme Court’s holding in Minnesota v.
Dickerson.”); United States v. Rogers, 

, 79 (2d Cir.
1997) (“Sergeant Mason was conducting a lawful protective
patdown search (a point that Rogers concedes) when he felt the
heavy object in Rogers’ coat pocket. He manipulated the object
for ‘a few seconds’ to determine what it was, and felt ‘a hard
object and then a softer object.’ At that point, Mason was not
yet able to exclude the possibility that there was a weapon in the
pocket, so that the search was still within the bounds of Terry,
and Mason had become ‘fairly certain’ the pocket contained
drugs. That belief, combined with Rogers’ evasive and
suspicious conduct, gave the officers probable cause to search
Rogers’ pocket for contraband. The police were therefore
permitted to remove and open the rolled-up paper bag.”).

                               19
       In our case, Officer Livingstone “felt around” or
otherwise “manipulated” the contents of Yamba’s pocket in the
process of checking for weapons when he came across what in
his experience could be contraband. It is not key whether
Livingstone was certain that the object in Yamba’s pocket was
contraband by the time he knew it not to be a weapon; what is
key is whether Livingstone had probable cause to believe that it
was and this occurred at the same moment or before he
determined that Yamba had no gun on his person.

        The record demonstrates that probable cause indeed
existed before Livingstone’s search went beyond the bounds of
Terry. Livingstone testified that, when he felt Yamba’s pocket,
he could feel a plastic bag containing a “soft[,] spongy-like
substance.” Though it is true, as Yamba’s counsel noted in
cross-examination, “grass[5] or oregano” might feel similarly soft
or spongy, people do not normally go around with those
substances in their pockets. Moreover, Officer Livingstone also
felt “small buds and seeds” along with the contents of the plastic
bag. This detail is more consistent with marijuana than lawn
grass or oregano. Based on Livingstone’s experience, he
reasonably suspected that Yamba had marijuana in his pocket.
His belief was reached quickly and upon minimal manipulation
of Yamba’s pocket from the outside, consistent with a routine
frisk allowed by Terry. And though Livingstone admitted to


     5
      The context indicates that this refers to the lawn-type
variety.

                               20
manipulating the object even after forming the belief that it was
not a weapon, he only did so to “mak[e] sure it was what [he]
knew it to be.” In other words, by that point Officer Livingstone
already had probable cause to conduct a more intrusive search
than that authorized by Terry alone.

        While one may reasonably question the veracity of
Officer Livingstone’s testimony, it was credited by the District
Court. Were we the fact-finder, we may not have done the
same; but we cannot say that the Court’s finding was clearly
erroneous. Nevertheless, consistent with the legal standard set
out above, we purposely do not rely on the precision of Officer
Livingstone’s testimony that he reached his conclusion within
“a half second.” However long it took Livingstone to form that
belief, the record indicates that he did so within the bounds of
Terry, as there is nothing to suggest that he conducted anything
beyond a routine frisk until after there was probable cause to
search more intrusively.

                        *   *   *    *   *

       For these reasons, the Terry search that revealed
marijuana in Yamba’s coat pocket was conducted within the
bounds set by the Supreme Court. We therefore affirm the
District Court’s denial of Yamba’s motion to suppress the later-
discovered slips of paper and, consequently, his convictions for
wire fraud.



                                21