2011 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

1-6-2011

USA v. Jerry Whitfield

Precedential or Non-Precedential: Precedential

Docket No. 09-3031

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Recommended Citation

"USA v. Jerry Whitfield" (2011). 2011 Decisions. Paper 1890.

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 PRECEDENTIAL

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

____________ 

No. 09-3031 

____________ 

UNITED STATES OF AMERICA 

v. 

JERRY WHITFIELD, 

 Appellant 

____________ 

APPEAL FROM THE UNITED STATES DISTRICT 

COURT 

FOR THE DISTRICT OF NEW JERSEY 

(D.C. Crim. No. 08-cr-00685-001) 

District Judge: Honorable Noel L. Hillman 

____________ 

Submitted Under Third Circuit LAR 34.1(a) 

November 16, 2010 

____________ 

Before: BARRY, CHAGARES and VANASKIE, Circuit 

Judges

(Opinion Filed: December 6, 2010) 

____________ 

Norman Gross, Esq. 

Office of United States Attorney 

Camden Federal Building & Courthouse 

401 Market Street 

P.O. Box 2098, 4th Floor 

Camden, NJ 08101-0000 

 -andGeorge S. Leone, Esq. 

Office of United States Attorney 

970 Broad Street 
Room 700 

Newark, NJ 07102-0000 

Counsel for Appellee

Maggie F. Moy, Esq. 

Office of Federal Public Defender 

800-840 Cooper Street 

Suite 350 

Camden, NJ 08102-0000 

Counsel for Appellant 

____________ 

OPINION OF THE COURT 

____________ 

BARRY, Circuit Judge

 Jerry Whitfield entered a conditional guilty plea to one 

count of felon in possession of a firearm, in violation of 18 

U.S.C. § 922(g)(1). Under the terms of the plea, he reserved 

his right to appeal the District Court’s denial of his motion to 

suppress. That appeal is now before us. We will affirm. 

I. BACKGROUND 

Whitfield filed a motion to suppress a gun and other 

evidence that emanated from his arrest on April 30, 2008. The 

evidentiary hearing on that motion spanned two days, and 

included testimony from three police officers, Whitfield’s 

girlfriend, Raheem Langston (a friend of Whitfield’s who was 

with him on April 30, 2008 and whom police also detained), 

and Whitfield’s investigator. The District Court found the 

police officers’ testimony to be credible and did not credit 

Langston’s testimony.1

 Importantly, the Court made factual 

 

2 

1

 The testimony of Whitfield’s girlfriend and 

investigator are not central to the issue he raises on appeal. 
3 

findings that Whitfield does not challenge before us. 

 Given that we write only for the parties, a brief 

summary of the facts will suffice. Around 9:30 p.m. on April 

30, 2008, four Camden, New Jersey, police officers in three 

marked police cars were patrolling a residential street in an 

area of Camden known for violence and drug activity, 

particularly crack sales. The cars were traveling in a 

“caravan,” so that all three cars were in a line moving down 

the street, with Officers Figueroa and Torres in the first car, 

Officer Redd in the second, and Sergeant Rivera in the third. 

The officers were on “supplemental patrol,” which Redd 

described as “proactive work . . . in target areas, like hot spots 

in the city, as far as drug corners [and] gun calls,” and were 

not responding to any particular complaint nor did they have 

any information about Whitfield at that time. (R. at 46.) 

The caravan was approaching a corner that the officers 

knew was a “drug set,” or an area known for drug sales. (Id. 

at 48.) Figueroa and Torres radioed that two people were 

standing on the right having a conversation. They did this to 

“give a view of what [the other officers were] coming up on 

so that they, [were] alert to what is going on in the block.” 

(Id. at 124.) From the second car, Redd saw two men, later 

identified as Whitfield and Langston, surreptitiously 

exchange something and quickly walk away. Redd did not 

tell the other officers that he saw this hand-to-hand exchange, 

but radioed, “check these two guys out on the corner.” (Id. at 

73.) The officers all stopped their cars, and Redd got out and 

went to the sidewalk. Rivera heard someone say over the 

radio that one of the men was coming toward him, and he got 

out of his car, too. 

At some point, either right after the hand-to-hand 

exchange or as Whitfield walked toward Redd and Rivera, the 

officers saw him “put his hand in his pocket real quick” and 

believed that he was holding something. (Id. at 51.) Both 

officers repeatedly ordered him to take his hand out of his 

pocket, and drew their weapons. He did not comply with their 

orders, and continued to walk toward Redd. Redd thought 

Whitfield was “looking around like looking to escape.” (Id. at 
4 

52.) 

Rivera was between Whitfield and Redd, and when 

Whitfield got close to Rivera, Rivera holstered his gun, 

“grabbed” Whitfield, and “dragged” him toward a police car. 

(Id. at 116-17.) When Whitfield said that he had a gun, Redd 

“rushed up” and pulled Whitfield’s hand out of his pocket. 

(Id. at 53.) The gun was recovered, and Whitfield was 

arrested. 

II. JURISDICTION AND STANDARD OF REVIEW

We have jurisdiction pursuant to 28 U.S.C. § 1291. 

Our review of the District Court’s determination that there 

was reasonable suspicion to seize Whitfield and, thus, that the 

motion to suppress should be denied, is plenary. Ornelas v. 

United States, 517 U.S. 690, 699 (1996) (“as a general matter 

determinations of reasonable suspicion and probable cause 

should be reviewed de novo on appeal,” but factual findings 

should be reviewed for clear error). 

III. ANALYSIS

A. Legal Framework

When a police officer has “a reasonable, articulable 

suspicion that criminal activity is afoot,” he or she may 

conduct a “brief, investigatory stop.” Illinois v. Wardlow, 528 

U.S. 119, 123 (2000) (discussing Terry v. Ohio, 392 U.S. 1 

(1968)). “Reasonable suspicion” requires less than probable 

cause, but there must be “at least a minimal level of objective 

justification for making the stop.” Id. In determining whether 

there was reasonable suspicion, we consider the totality of the 

circumstances, i.e., “the whole picture.” United States v. 

Cortez, 449 U.S. 411, 417 (1981). Among the “pertinent 

factor[s]” that an officer may consider are whether the area is 

a high-crime area, a suspect’s “nervous, evasive behavior,” 

and flight from police officers. Wardlow, 528 U.S. at 124. It 

is not necessary that the suspect actually have done or is 

doing anything illegal; reasonable suspicion may be “based 

on acts capable of innocent explanation.” United States v. 
5 

 

Valentine, 232 F.3d 350, 356 (3d Cir. 2000). The 

circumstances, however, “must raise a suspicion that the 

particular individual being stopped is engaged in 

wrongdoing.” United States v. Cortez, 449 U.S. 411, 418 

(1981). Reasonable suspicion “must be based on 

commonsense judgments and inferences about human 

behavior.” Wardlow, 528 U.S. at 125. 

In determining whether there was reasonable suspicion 

to seize Whitfield, we may consider everything that occurred 

until the moment he was seized, which it is not disputed was 

when he was grabbed by Rivera. One factor that may be 

considered is his failure to have complied with the officers’ 

orders.2 Valentine, 232 F.3d at 359. A failure to follow orders 

does not alone, however, give rise to reasonable suspicion. 

Florida v. Bostick, 501 U.S. 429, 437 (1991). 

B. The District Court’s Decision

 The District Court denied Whitfield’s motion to 

suppress in an oral opinion on February 27, 2009, and 

supplemented that ruling on March 19, 2009, stating that the 

issue was “a close call” and that “any change in the facts here 

could very well have changed the result.” (R. at 10.) The 

Court concluded that Whitfield was seized when Rivera 

grabbed him “after the failed attempt to get him to stop,” and 

that it had reviewed “all of the collective knowledge of the 

officers up to the point of the seizure.” (Id. at 11.) 

 The District Court credited Redd’s testimony that he 

believed that the closed fist hand-to-hand exchange he saw 

between Whitfield and Langston in the “drug set” was 

suspicious. The Court stated that “guns and drugs go 

2

 Whitfield argues that we should not consider his 

failure to follow orders because the orders were invalid. This 

argument fails for two reasons: (1) Redd had reasonable 

suspicion before he ordered Whitfield to do anything, and (2) 

Fourth Amendment issues potentially arise not when the 

police issue an order but rather when a person is seized by 

submitting to an order or the police exert physical force. 
6 

 

together.” (Id. at 12.) Moreover, the Court found that 

Langston and Whitfield moved away from each other and the 

corner “in what appear[ed] to be a reaction to the presence of 

the police” and specifically noted Redd’s testimony regarding 

Whitfield “looking around” and his “furtive gestures, typical 

of an individual now confronted with police officers, looking 

for a way out.” (Id. at 12-13.) Nonetheless, said the Court, 

Whitfield’s conduct up to that point was “consistent with 

innocent behavior,” and “[p]eople should be able to greet one 

another [by shaking hands or “fist bump[s]”] and part 

company without being stopped by the, seized by the police.” 

(Id. at 13.) 

But then, the District Court continued, Whitfield put 

his hand in his pocket “with the furtive gesture” and in an 

“apparent effort to protect something,” and emphasized 

Whitfield’s refusal to stop or take his hand out of his pocket. 

(Id.) The Court concluded that the officers had reasonable 

suspicion due to “the presence in the evening hours after 9:00 

o’clock [sic] in a high crime area where there’s been drug 

transactions, arrests for drug transactions, shootings, what 

appears to be a hand-to-hand exchange, followed by a 

movement away from one another, and from the officers, the 

furtive gestures looking for a way out, insertion of the hand in 

the pocket in an effort to conceal something or secure 

something, refusal to stop, [and] refusal to show hands.” (Id. 

at 14.) 

C. The Officers had Reasonable Suspicion3

 Whitfield contends that because Rivera grabbed him 

first we may look only to the facts that Rivera himself knew 

in determining whether there was reasonable suspicion to 

seize Whitfield. (See, e.g., Appellant’s Br. at 14 (“At the time 

Sergeant Rivera physically grabbed Whitfield, the facts 

3 Whitfield argues that the District Court 

“substitute[ed] a general suspicion standard for the requisite 

particularized suspicion standard.” (Appellant’s Br. at 10.) 

Given the Court’s discussion of the particular events on April 

30, 2008, we reject that argument without further discussion.
7 

 

known to him did not establish reasonable, articulable 

suspicion that Whitfield was involved in criminal activity.”).) 

He argues that what is commonly known as the “collective 

knowledge doctrine” – under which the knowledge of one law 

enforcement officer is imputed to the officer who actually 

conducted the seizure, search, or arrest – should not apply to 

the seizure at issue here.4

 

 We have not yet applied the collective knowledge 

doctrine to a Terry seizure in a precedential opinion, but we 

have applied it in other Fourth Amendment contexts. In 

United States v. Belle, 593 F.2d 487, 497 n.15 (3d Cir. 1979), 

for example, we flatly stated that “[t]he collective knowledge 

of the investigating officers is measured in determining 

probable cause” for an arrest. In United States v. Menon, 24 

F.3d 550, 562 (3d Cir. 1994), we held that agents properly 

seized documents under the plain view doctrine and that “the 

immediate apparency of criminality should be measured, at a 

minimum, by the collective knowledge of the officers on the 

scene.” 

Other courts of appeals have applied the collective 

knowledge doctrine to Terry seizures as well as in other 

Fourth Amendment contexts. See, e.g., United States v. Cook, 

277 F.3d 82, 86 (1st Cir. 2002) (“Here, common sense 

suggests that, where law enforcement officers are jointly 

involved in executing an investigative stop, the knowledge of 

each officer should be imputed to others jointly involved in 

executing the stop.”); United States v. Ledford, 218 F.3d 684, 

689 (7th Cir. 2000) (holding that in the probable cause 

analysis it did not matter which of several officers actually 

opened a car trunk and that “[b]ecause the search was a joint 

endeavor, the court may properly consider” what other 

officers knew). Whitfield fails to cite – and we have not 

found – any court of appeals that has held to the contrary. 

4

 Whitfield cites only United States v. Ramirez, 473 

F.3d 1026 (9th Cir. 2007), to support his argument and only 

that part of the opinion that discussed application of the 

doctrine in a scenario inapposite here. 
8 

It would make little sense to decline to apply the 

collective knowledge doctrine in a fast-paced, dynamic 

situation such as we have before us, in which the officers 

worked together as a unified and tight-knit team; indeed, it 

would be impractical to expect an officer in such a situation 

to communicate to the other officers every fact that could be 

pertinent in a subsequent reasonable suspicion analysis. 

Applying the collective knowledge doctrine here, there is 

little question that there was reasonable suspicion to seize 

Whitfield. 

IV. CONCLUSION

Because the District Court correctly concluded that 

there was reasonable suspicion to seize Whitfield, the 

judgment of the Court will be affirmed.