Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-28-2008

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Precedential or Non-Precedential: Non-Precedential

Docket No. 06-4012




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                                                                 NOT PRECEDENTIAL


                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                  __________

                                       No. 06-4012
                                       __________

                           UNITED STATES OF AMERICA

                                            v.

                                  FREDERICK NEAL,
                                             Appellant
                                     __________

                     On Appeal from the United States District Court
                        For the Western District of Pennsylvania
                                    (05-cr-00182-1)
                      District Judge: Honorable Gustave Diamond
                                      __________

                      Submitted Under Third Circuit L.A.R. 34.1(a)
                                   March 10, 2008
                                    ___________

           Before: FUENTES, CHAGARES, and ALDISERT, Circuit Judges
                         (Opinion Filed: March 28, 2008)


                                      ___________

                                        OPINION
                                       __________

FUENTES, Circuit Judge:

       Frederick Neal appeals from the District Court’s final judgment of conviction and

sentence, entered August 22, 2006, for possession of a firearm as a prior convicted felon.
See 18 U.S.C. § 922(g)(1). The only issue on appeal is whether the District Court

properly denied a motion to suppress the firearm as the fruit of an unlawful seizure. We

will affirm.

                                             I.

       On March 28, 2004, a police officer, in an unmarked car and in plain clothes, was

patrolling a high crime area in the City of Pittsburgh. Upon noticing two men selling

five-gallon industrial size cans of paint out of the trunk of a Dodge Dynasty car, the

undercover officer called for back-up; he deemed their conduct “out of the ordinary”

because they were “running in and out of traffic, flagging cars down” in an area known

for selling stolen items. App. at 25-26. While the officer waited for back-up units, a

station wagon parked behind the Dodge Dynasty. Neal, along with the driver, exited the

station wagon and approached the paint sellers. Shortly thereafter, two back-up police

cars arrived with their overhead lights activated but sirens turned off, and parked behind

the station wagon. Similarly, the undercover police officer parked his car alongside the

station wagon and one of the police cars.

       With his badge displayed around his neck, the undercover police officer

approached Neal and requested identification from all four men. None of the police

officers had their guns drawn. As Neal pulled out his wallet, the officer observed a small

plastic bag, which appeared to contain cocaine, fall from Neal’s left hand. Consequently,

the officer moved to arrest Neal, who spun away, pulled a gun from his waistband area,


                                            -1-
and dropped it through an open window into the Dodge Dynasty. The two men selling

paint later told the undercover officer that they did not have a permit to sell the paint,

which they allegedly found in a trash bin.

       On June 23, 2005, a grand jury charged Neal in a one-count indictment for

possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(e). Neal filed a

motion to suppress the seized firearm, arguing that the undercover officer’s conduct

constituted an investigatory detention unsupported by reasonable suspicion of criminal

activity, in violation of his Fourth Amendment right against unreasonable searches and

seizures.

       Following a suppression hearing, the District Court denied Neal’s motion in an

order dated March 7, 2006. Based on the totality of circumstances, the District Court

found that the initial police conduct, before the cocaine and gun were revealed, was a

mere police-citizen encounter not subject to the Fourth Amendment. In the alternative,

the District Court found that the undercover officer had sufficient reasonable suspicion

that criminal activity was afoot to justify an investigatory stop under Terry v. Ohio, 

(1968).

       On March 22, 2006, Neal entered into a plea agreement, in which he preserved the

current issue on appeal. On August 22, 2006, Neal was sentenced to 210-months’

imprisonment, to be followed by a term of supervised release of five years. He filed a

timely notice of appeal on September 6, 2006.


                                             -2-
                                             II.

       We have jurisdiction under 28 U.S.C. § 1291, which provides appellate

jurisdiction from final decisions of U.S. district courts. The District Court had subject

matter jurisdiction pursuant to 18 U.S.C. § 3231, which confers jurisdiction over offenses

against federal law. In reviewing a district court’s denial of a motion to suppress

evidence, we exercise plenary review over questions of law and accept a district court’s

findings of fact unless clearly erroneous. See United States v. Givan, 

, 458

(3d Cir. 2003).

                                            III.

                                             A.

       It is well established that “a seizure does not occur simply because a police officer

approaches an individual and asks a few questions.” Florida v. Bostick, 

,

434 (1991). This rule is premised on the rationale that “[s]o long as a reasonable person

would feel free to disregard the police and go about his business, the encounter is

consensual and no reasonable suspicion is required.” 

and quotation

omitted). On the other hand, the Fourth Amendment’s protection is triggered during an

investigatory seizure—“when the officer, by means of physical force or show of

authority, has in some way restrained the liberty of a citizen.” 

n.16.

Whether an investigatory seizure occurred requires assessing all of the circumstances

surrounding an encounter to determine if “a reasonable person would believe that he or



                                             -3-
she is not ‘free to leave.’” 

. Investigatory seizures, while

implicating the Fourth Amendment, can be justified if officers have “a reasonable,

articulable suspicion that criminal activity may be afoot.” Illinois v. Wardlow, 

, 123 (2000) (citing 

). Reasonable suspicion “is a less

demanding standard than probable cause and requires a showing considerably less than

preponderance of the evidence.” 

argues that the District Court erred in holding that the interaction was not an

investigatory stop. He argues that the sudden and simultaneous arrival of three police

vehicles, two of which had overhead lights activated, and which impeded the station

wagon and Neal from exiting, “combined to create an atmosphere of coercion and

compulsion.” Appellant’s Br. at 18. Thus, Neal claims, “the show of authority of police

at that moment was clear and manifest” such that “[n]o reasonable person would have felt

‘at liberty to ignore the police presence and go about his business.’” Appellant’s Br. at 20

(quoting Michigan v. Chesternut, 

, 574 (1988)).

       While the issue of whether the facts in this case add up to an investigatory stop is

close, we need not decide it because the District Court found that even if there was an

investigatory stop, the police had reasonable suspicion of criminal activity, a finding with

which we agree. In this case, the undercover police officer personally witnessed two

men, not dressed as ordinary salesmen, running in and out of an intersection selling large



                                             -4-
cans of paint from the trunk of a car. The intersection was in a high crime area, recently

host to several burglaries. Prior to the arrival of backup police officers, Neal arrived and

went to the trunk of the paint sellers’ vehicle and began speaking with the paint sellers.

Accordingly, the police officer relied on his eleven years of police experience to suspect

that the paint was stolen or the men were vending without a permit. Under these

circumstances, the police officer had at least “the ‘minimal level of objective

justification’ necessary for a Terry stop.” United States v. Valentine, 

, 353

(3d Cir. 2000) (quoting United States v. Sokolow, 

, 7 (1989)). Therefore, the

District Court did not err in denying the motion to suppress the seized firearm.

                                             IV.

       For the foregoing reasons, we will affirm the District Court’s final judgment of

conviction and sentence.




                                             -5-