1995 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

5-8-1995

United States v Norman Edwards

Precedential or Non-Precedential:

Docket 93-5718

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Recommended Citation

"United States v Norman Edwards" (1995). 1995 Decisions. Paper 125.

http://digitalcommons.law.villanova.edu/thirdcircuit_1995/125
UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

 

No. 93-5718 

 

UNITED STATES OF AMERICA 

V. 

NORMAN EDWARDS, 

 Appellant 

 

ON APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF NEW JERSEY 

(D.C. Criminal No. 92-00590-3) 

 

Argued November 30, 1994 

Before: HUTCHINSON and NYGAARD, Circuit Judges

and GARTH, Senior Circuit Judge

(Opinion filed May 8, 1995) 

 

KOJI F. FUKUMURA, ESQUIRE (Argued) 

GAVIN P. LENTZ, ESQUIRE 

Bochetto & Lentz 

1500 Market Street 

East Tower, Centre Square, 14th Floor 

Philadelphia, PA 19102 

Attorneys for Appellant 

ELIZABETH S. FERGUSON, ESQUIRE (Argued) 

EDNA B. AXELROD, ESQUIRE 

FAITH S. HOCHBERG, ESQUIRE 

Office of United States Attorney 

970 Broad Street 

Room 502 

Newark, NJ 07102 

Attorneys for Appellee 

 

 OPINION OF THE COURT 
 
NYGAARD, Circuit Judge. 

 Norman Edwards appeals from an order denying his motion 

to suppress evidence used to convict him for his role in credit 

card fraud and theft. Because we find that the evidence was 

obtained lawfully pursuant to Terry v. Ohio, 392 U.S. 1, 88 S. 

Ct. 1868 (1968), we will affirm. 

I. 

 The Fairfield Township Police broadcasted an all-points 

transmission reporting a credit card fraud in progress at the 

Midlantic Bank in Fairfield, New Jersey. While responding to the 

bank, Officer Crapello testified that he received a second radio 

message describing a red Chrysler LeBaron convertible with two 

occupants and New York license plate "ZPT777" as "believed to be 

involved or may be involved" in the suspected bank fraud. 

 Officer Crapello arrived at the bank approximately 

ninety seconds after the first message, and saw a red Chrysler 

LeBaron convertible in the bank parking lot bearing license plate 

ZPT777. As the message had described, the car had two occupants, 

later determined to be defendant Edwards and one Anthony Sears. 

The convertible top was down, and both occupants were visible. 

 Officer Crapello pulled his patrol car in front of the 

LeBaron. Officer Kane, in a second patrol car, boxed the LeBaron 

in from behind to prevent or inhibit an escape attempt. 

 Officer Crapello approached the passenger side of the 

LeBaron on foot, with the thumb snap of his holster released and 

his hand on his service revolver. Officer Kane crouched behind 

his patrol car door. A third patrol car arrived and Officer 
Polizzi and a police dog also approached the suspects' vehicle. 

 When Officers Crapello and Polizzi were approximately 

eight feet from the car, Polizzi instructed the dog to bark. 

Until then, both occupants of the LeBaron appeared to be 

sleeping. In response to the dog's bark, Edwards lifted his 

head, looked around and then nudged Sears, who awoke with a 

start. After instructing Edwards and Sears to put their hands 

on the dashboard, Crapello saw a jacket on Edwards' lap. He 

reached in and removed the jacket. When he patted the outside of 

the jacket to check the pockets for weapons, Crapello detected "a 

large, hard, bulky object" in its inner pocket. He removed a 

manila envelope, folded once in half but not sealed, from the 

jacket. Feeling the "hard, bulky" object in the envelope, 

Officer Crapello unfolded it and looked inside for a weapon. 

Instead of a weapon, he found several credit cards and New Jersey 

drivers' licenses, which he determined from visual inspection to 

be fraudulent. 

 Edwards was arrested and indicted for possession and 

use of counterfeit credit cards. 18 U.S.C. § 1029(a). After an 

evidentiary hearing on Edwards' motion to suppress the evidence 

found in the manila envelope, the district court denied the 

motion. United States v. Edwards, No. 92-590, slip op. at 9 

(D.N.J. June 8, 1993). Apparently finding that the officers' 

actions did not constitute an arrest, id. at 6-8, the district 
court did not decide whether the officers had probable cause to 

arrest before they opened the manila envelope. 

II. 

A. Terry Analysis 

 The district court held that Officer Crapello's actions 

in opening the envelope without a warrant were justified under 

Terry, supra. A Terry stop is permissible when the police have a 

reasonable suspicion based on articulable facts that a crime has 

been committed. Id. at 21, 88 S. Ct. at 1880-81. Edwards does 

not argue that the police lacked reasonable suspicion to conduct 

an investigatory Terry stop. Instead, he argues that both the 

subsequent Terry protective pat down and the ultimate search of 

the envelope were unlawful. 

1. Reasonableness of the Frisk 

 First, Edwards argues that the police had no reason to 

believe he was armed and dangerous, and thus could not lawfully 

conduct a Terry protective pat down. In Terry, the Supreme Court 

held that a police officer, during the course of a Terry stop, 

may conduct a "reasonable search for weapons for the protection 

of the police officer, where he has reason to believe that he is 

dealing with an armed and dangerous individual...." Id. at 27, 

88 S. Ct. at 1883. The test 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." Id. (citations 

omitted). Finally, in determining whether the officer acted 
reasonably under the circumstances, "due weight must be given, 

not to his inchoate and unparticularized suspicion or 'hunch,' 

but to the specific reasonable inferences which he is entitled to 

draw from the facts in light of his experience." Id. (citations 

omitted). 

 We will accept the district court's factual findings 

regarding the circumstances of the stop unless they are clearly 

erroneous, and exercise plenary review over whether these facts 

so found, create a reasonable inference that the suspect is 

dangerous and the protective frisk was reasonably calculated to 

discover a weapon. See United States v. Coggins, 986 F.2d 651, 

654 (3d Cir. 1991). 

 We find no error in the district court's conclusion 

that Officer Crapello had reason to believe that he could be 

facing armed and dangerous felons. That this fraud occurred at a 

bank in broad daylight could lead one to believe that the 

perpetrators might have armed themselves to facilitate their 

escape if confronted. Although the radio bulletin did not 

describe this response as a bank robbery, it is reasonable to 

conclude that the suspects might use force and be armed. 

 2. The Envelope Search 

 Edwards also argues that, even if the pat down was 

reasonable, it was not reasonable to open the envelope. "The 

sole justification of the search in [a Terry stop] is the 

protection of the police officer and others nearby, and it must 
therefore be confined to an intrusion, reasonably designed to 

discover guns, knives, clubs, or other hidden instruments for the 

assault of the police officer." Terry, 392 U.S. at 29, 88 S. Ct. 

at 1884. 

 We agree with the district court that Officer Crapello 

was justified in opening the envelope. He was justifiably 

concerned that a small-caliber handgun might be concealed in the 

envelope. Upon careful examination of the evidence in the 

record, we conclude that the district court was well within its 

discretion when it decided that Officer Crapello could reasonably 

have believed that a weapon might be concealed in the envelope. 

The four-by-six inch envelope was packed full of nineteen hard 

plastic cards -- whether credit cards or drivers' licenses -- 

which the record demonstrates created the feel of a hard, bulky 

object. Moreover, the government presented the district court 

with tangible evidence that a small-caliber handgun, in its 

holster, fits inside the envelope and has roughly the same feel 

inside the envelope as did the credit cards it contained. In the 

hasty examination necessitated by a protective search, Officer 

Crapello could reasonably have confused the square, bulky mass of 

credit cards and drivers' licenses for a small handgun sheathed 

in a square, leather holster that masked its outlines. 

B. Did the Police Conduct Amount to an Arrest? 

 Edwards argues that the police conduct in this case, 

especially by boxing in the suspects' vehicle and by the overall 
display of force, transformed what began as a Terry stop into a 

de facto arrest. Further, Edwards argues that the police lacked 

probable cause to make an arrest and hence could not lawfully 

seize the items in the manila envelope pursuant to a search 

incident to arrest. Because we find that the police conduct in 

this case did not constitute an arrest, it is unnecessary for us 

to consider whether there was probable cause. 

 The Supreme Court has stated that, when police officers 

make an investigative stop, they may take such steps as are 

"reasonably necessary to protect their personal safety and to 

maintain the status quo." United States v. Hensley, 469 U.S. 

221, 235, 105 S. Ct. 675, 684 (1985). "Under the Terry cases, 

the reasonableness of the intrusion is the touchstone, balancing 

the need of law enforcement officials against the burden on the 

affected citizens and considering the relation of the policeman's 

actions to his reason for stopping the suspect." Baker v. Monroe 

Township, No. 94-5069, 1995 WL 125470, at *4 (3d Cir. Mar. 22, 

1995). 

 The vast majority of courts have held that police 

actions in blocking a suspect's vehicle and approaching with 

weapons ready, and even drawn, does not constitute an arrest per 

se. In United States v. White, 648 F.2d 29, 31 (D.C. Cir.), 

cert. denied, 454 U.S. 924, 102 S. Ct. 424 (1981), the court held 

that police officers' actions in blocking the defendant's car 

with their cruisers and approaching with guns drawn did not 
amount to an arrest, but instead constituted a reasonable Terry

stop in response to an anonymous tip concerning drug activity. 

See also United States v. Perea, 986 F.2d 633, 644 (2d Cir. 1993) 

(blocking suspect's car with three unmarked cars and approaching 

with weapons drawn was not an arrest); United States v. Lechuga, 

925 F.2d 1035, 1041 (7th Cir. 1991) ("sandwiching" suspects' car 

with unmarked police cars and one officer approaching with his 

gun drawn was not an arrest); United States v. Jackson, 918 F.2d 

236 (1st Cir. 1990) (blocking suspect's vehicle with two police 

cruisers, approaching with guns drawn, ordering suspects to put 

their hands on dashboard and subsequently frisking them did not 

constitute arrest); United States v. Jones, 759 F.2d 633, 637 

(8th Cir.) (officers' actions in blocking vehicle, approaching 

with guns drawn and ordering suspect out of car was not an 

arrest), cert. denied, 474 U.S. 837, 106 S. Ct. 113 (1985). 

 While Edwards emphasizes the fact that he was not "free 

to leave" the scene, this does not mark the point where a Terry

stop escalates into an arrest, since in neither a stop nor an 

arrest is a suspect free to leave. As stated by the Jones court 

in considering at what point a stop becomes an arrest: 

 The test is not, as argued by [defendant], 

whether a reasonable person would have felt 

free to leave under the circumstances: That 

concern marks the line between a fourth 

amendment seizure of any degree and a 

consensual encounter which does not require

 any minimal objective justification. 
759 F.2d at 637 (citing Immigration & Naturalization Serv. v. 

Delgado, 466 U.S. 210, 215, 104 S. Ct. 1758, 1762 (1984); United 

States v. Mendenhall, 446 U.S. 544, 553-54, 100 S. Ct. 1870, 

1876-77 (1980)). Clearly, a Terry stop is a seizure, Terry, 392 

U.S. at 16, 88 S. Ct. at 1877, and one seized is by definition 

not free to leave. Of course, we distinguish the length of time 

a suspect may be detained before the detention becomes a fullscale arrest, which we consider as a factor in evaluating the 

reasonableness of the detention as a whole in light of the 

circumstances. Baker, supra, 1995 WL 125470, at *4. 

 Applying these considerations to the facts before us, 

we hold that the officers' stop and detention of Edwards did not 

rise to the level of an arrest. The police acted reasonably in 

blocking the suspects' vehicle to conduct a brief investigation. 

 III. 

 We conclude that appellant was not arrested until 

Officer Crapello opened the manila envelope and formally arrested 

both suspects. Moreover, because we find the police were within 

the bounds of Terry in stopping and frisking Edwards, we hold 

that the district court properly denied his motion to suppress 

the credit cards seized by police from the manila envelope in his 

possession. Accordingly, we will affirm.