In United States v. Navedo, No. 11-3413 (3d Cir. Sept. 12, 2012), http://www.ca3.uscourts.gov/opinarch/113413p.pdf, undercover officers were parked on a block in Newark, which was not found to be a high crime area, but in which there were two, recent unrelated incidents involving guns: two months before a shooting occurred, and one month before there was a domestic violence report of a man threatening a woman with a gun.
The officers observed the defendant, whom they did not know, come out of a multi-unit building and stand on the porch. Two men approached, and the defendant walked down from the porch to speak with them. The conversation appeared ordinary and then one of the approaching men took from his backpack and showed to the defendant what appeared to be a gun. The officers approached and the men ran. The defendant ran into the building, up two flights of stairs, and attempted to enter his apartment. Officers tackled him in the doorway to the apartment and there were weapons in plain view.
The Third Circuit reversed the District Court's denial of suppression. (McKee, J.) The Court reaffirmed that reasonable suspicion for a Terry search is specific to the person who is detained. Until the officers approached, the defendant had looked at the gun a third party showed him and also engaged in a brief conversation. Officers had no information that would support a reasonable suspicion the defendant was engaged in arms trafficking and knew of nothing to connect him to prior criminal activity.
From these facts, the officers did not have reasonable suspiciion to detain and investigate. Unprovoked flight, without more, only elevates reasonable suspicion into probable cause to arrest if officers have reasonable suspicion. Judge Hardiman dissented, finding the record supported the District Court's finding that officers had reasonable suspicion to believe the defendant was about to engage in a gun transaction, and so, coupled with the defendant’s flight, which given the circumstances could be interpreted as evidence of a guilty conscience, gave the police probable cause to arrest.
Jason Charles Matey, Esq.