2012 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

9-12-2012

USA v. Alexander Navedo

Precedential or Non-Precedential: Precedential

Docket No. 11-3413

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1

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 11-3413

_____________

UNITED STATES OF AMERICA

v.

ALEXANDER NAVEDO,

 Appellant

_____________

On Appeal from the United States District Court

for the District of New Jersey

(D.C. No. 10-cr-00359-002)

District Judge: Hon. Garrett E. Brown, Jr.

_____________

Argued on April 11, 2012

Before: McKEE, Chief Judge, HARDIMAN, Circuit Judge, 

and JONES, II, District Judge*

(Opinion Filed: September 12, 2012)

Darren M. Gelber, Esq. (argued)

Wilentz, Goldman & Spitzer, P.A.

90 Woodbridge Center Drive

P.O. Box 10

Woodbridge, NJ 07095

Attorney for Appellant

Paul J. Fishman

 

* Hon. C. Darnell Jones, II, District Judge of the United States 

District Court for the Eastern District of Pennsylvania, sitting 

by designation.
2

United States Attorney

John F. Romano, Esq. (argued)

Assistant U.S. Attorney

970 Broad Street, Suite 700

Newark, NJ 07102

Attorneys for Appellee

_____________

OPINION OF THE COURT

_____________

McKEE, Chief Judge:

Alexander Navedo appeals the denial of a motion to 

suppress weapons that police discovered in his home after a 

warrantless arrest. He argues that he was detained without 

reasonable suspicion or probable cause to arrest and that the 

weapons that were subsequently recovered from his 

apartment should therefore have been suppressed. We agree. 

I. BACKGROUND

On March 3, 2010, Henry Suarez and Saul DeLaCruz, 

two Newark Police Department detectives, set up surveillance 

in front of 315 Park Avenue in Newark, New Jersey. They 

were in plain clothes and driving an unmarked car. Although 

they were in front of 315 Park Avenue, they were actually 

investigating a shooting that had occurred at 323 Park Avenue 

two months earlier in January. 315 Park Avenue is a multiunit building located in a mixed residential and industrial 

neighborhood. The officers arrived at approximately 7:30 to 

8:00 pm; street lights were on and the streets were well 

illuminated when they arrived. 

The area is not a “high crime area,” and the police did 

not have a description of anyone involved in the January 

shooting.1 Before arriving and setting up their surveillance, 

 

1

In addition to the shooting in January, the government relies

on a February 3, 2010 weapons complaint to police by a 
3

the police had no knowledge or information whatsoever about 

Alexander Navedo. Rather, Officer Suarez testified that they 

set up surveillance in the area and maintained a presence 

because of concerns that there may be some kind of 

retaliation for the January shooting. J.A. at 32. 

At approximately 8:30 pm, the detectives saw a man 

(later identified as Navedo) come out of the entrance to 315 

Park Avenue and stand on the porch, approximately twenty to 

thirty feet from their unmarked parked car. Officer Suarez 

testified that Navedo was not doing anything unusual. Soon 

thereafter, a person later identified as Co-defendant Pozo, 

approached Navedo from the street. Pozo was carrying a 

bookbag, and Navedo walked down to speak with him. 

According to Officer DeLaCruz‟s suppression testimony, the 

conversation seemed cordial and friendly, and nobody 

appeared threatened or threatening. J.A. at 84. After a few 

minutes, Pozo took the bag he was carrying off his shoulder, 

reached inside it, and pulled out an object. The officers then 

observed Pozo holding what looked like a silver gun with a 

black handle. Navedo never touched or possessed the gun. In 

fact, it never left Pozo‟s hands, and neither officer observed 

any conduct that would have suggested that Navedo was 

doing anything illegal.2 According to Detective Suarez‟s 

testimony at the suppression hearing, right before the police 

 

woman claiming that her boyfriend threatened her with a gun, 

to support its contention that reasonable suspicion existed as 

to Navedo. See Appellee Br. at 2, 15; Reply Br. at 1-2. But 

as discussed below, despite these isolated incidents—none of 

which involved Navedo—nothing in the record supports a

finding this neighborhood was a high crime area, and the 

District Court made no such finding.

2 Detective Suarez testified that “[w]e didn‟t know what was

going on at that time, all we saw was just the weapon and 

two individuals walking up to the single person on the porch. 

So, that‟s why we decided to get out of the vehicle.” J.A. at 

50. He further explained: “we wasn‟t going to wait until he 

actually pulled the gun out completely. We wanted to have 

the advantage, that‟s why we jumped out of our vehicle to 

make sure they didn‟t go any further than that and tried to 

keep that weapon inside the bag.” Id. at 51. 
4

approached the group, Navedo “was just leaning forward to 

see what was inside the bag.” J.A. at 52.

Upon seeing what they believed was a gun, the officers 

got out of their car and approached Navedo, Pozo, and Pozo‟s 

companion. As they approached a fence surrounding the 

building, the officers identified themselves. The officers 

were able to clearly see that the object Pozo had in his 

bookbag was indeed a gun before Pozo quickly threw it back 

into his bag and ran. Detective Suarez chased Pozo and 

ultimately overtook him and placed him under arrest. 

As Detective Suarez was pursuing Pozo, Navedo ran 

up the stairs to his home with Officer DeLaCruz pursuing 

him into the building and up some stairs. DeLaCruz testified 

that he chased Navedo into the house because he (the 

detective) thought Navedo was involved in an illegal gun 

transaction. J.A. at 88. As he chased Navedo, DeLaCruz 

yelled: “Police. Stop.” J.A. at 69. With DeLaCruz in 

pursuit, Navedo climbed two flights of stairs, reached the 

third floor, and attempted to open the door to his apartment. 

As Navedo was opening the front door to his apartment, he 

was tackled by DeLaCruz. Officer DeLaCruz testified that 

“the physical contact was as [Navedo] was opening his front 

door—or his door to his apartment . . . .” J.A. at 92. The 

following exchange occurred during the suppression hearing: 

Q. And as you chased him up to the third floor, the 

door that he turned towards, when he got there, was it 

opened or closed?

A. From my vantage point, I saw him turn it open. 

Q. Okay. And so when you—when you tackled him, 

was that door opened or closed?

A. It was opened. 

J.A. at 69-70. 

After DeLaCruz tackled Navedo, both men fell to the 

ground and landed inside the apartment. Officer DeLaCruz 

testified that he handcuffed Navedo, and then observed a 

shotgun, two long rifles on the bed, one on the floor, and a 

stock of ammunition on the floor. He explained: 
5

After I detained the defendant, after I detained 

him, during the small little encounter, that‟s 

when I observed like a shotgun on the bed, 

two—two long rifles on the bed, one on the 

floor, and just an enormous amount of 

ammunition on the floor. At that point in time, 

we both stood up, I was able to detain him 

quickly.

J.A. 70.3

After hearing the testimony of the two detectives, 

Navedo, and a defense witness, the court denied Navedo‟s 

suppression motion. The court ruled that the officers had 

reasonable suspicion to stop Navedo and to question him 

because Navedo was looking at a weapon in Pozo‟s bag. The 

District Court reasoned that Navedo‟s flight elevated the 

reasonable suspicion that justified the initial approach to 

“probable cause for arrest and justified entry” into the 

apartment under the theory of hot pursuit. J.A. at 142. The 

court ruled that the physical evidence obtained inside 

Navedo‟s apartment was admissible because there was 

probable cause to arrest Navedo, based upon his flight. The 

court explained: “The individuals ran, creating probable cause 

for arrest and justified entry, hot pursuit into the apartment. 

There certainly was a reasonable suspicion of criminal 

activity, combined with flight looking at the totality of the 

circumstances.” Id. The Court then summarized: “I do find 

probable cause here based upon the reasonable suspicion, 

together with the flight.” Id. at 144.

Navedo was charged with illegally possessing the 

weapons that were recovered from inside his apartment, and 

those weapons were admitted against him to support the sole 

count upon which he was tried and convicted. Navedo now 

appeals the resulting conviction.4

 

3

It appears that the District Court found that the third person 

escaped. See J.A. at 140.

4

The District Court had jurisdiction under 18 U.S.C. § 3231. 

Our review is proper pursuant to 28 U.S.C. § 1291. 

We review a district court‟s order denying a motion to 

suppress under a mixed standard of review, exercising 
6

II. DISCUSSION

As we noted at the outset, Navedo‟s sole contention on 

appeal is that the District Court erred in denying his 

suppression motion. He claims that the police did not have 

probable cause to arrest and therefore the evidence that was 

seized upon their warrantless entry into his apartment should 

have been suppressed. 

A. GOVERNING PRINCIPLES.

The Fourth Amendment to the United States 

Constitution provides:

The right of the people to be secure in their persons, 

houses, papers, and effects, against unreasonable 

searches and seizures, shall not be violated, and no 

Warrants shall issue, but upon probable cause, 

supported by Oath or affirmation, and particularly 

describing the place to be searched, and the persons or 

things to be seized.

U.S. Const. amend. IV. 

The Fourth Amendment thus requires a warrant based 

upon probable cause before police can arrest someone 

(subject to certain exceptions). “While probable cause to 

arrest requires more than mere suspicion, the law recognizes 

that probable cause determinations have to be made „on the 

spot‟ under pressure and do „not require the fine resolution of 

conflicting evidence [required at a trial].‟” Paff v. 

Kaltenbach, 204 F.3d 425, 436 (3d Cir. 2000) (quoting

Gerstein v. Pugh, 420 U.S. 103, 121 (1975)). 

However, the realities of law enforcement allow police 

officers to briefly detain an individual based upon “articulable 

suspicion” and then to perform a limited protective 

“patdown” for weapons during that detention “where a police 

 

plenary review over legal determinations and reviewing 

findings of fact for clear error. United States v. Lewis, 672 

F.3d 232, 236-37 (3d Cir. 2012).
7

officer observes unusual conduct which leads him reasonably 

to conclude in light of his experience that criminal activity 

may be afoot .” Terry v. Ohio, 392 U.S. 1, 30 (1968). 

Although the limited protective search or patdown is allowed 

if the officer has “reasonable grounds” to believe that a 

person is “armed and dangerous,” the Fourth Amendment 

limits the scope of that search. Id. It must be a “carefully 

limited search of the outer clothing of such persons in an 

attempt to discover weapons which might be used to assault 

him [or her].” Id. 

The brief investigative detention is permissible if “the 

police officer [can] point to specific and articulable facts 

which, taken together with rational inferences from those 

facts, reasonably warrant [the] intrusion.” Id.

In evaluating whether reasonable suspicion existed, a 

court “must consider the totality of the circumstances, 

including the police officer‟s knowledge, experience, and 

common sense judgments about human behavior.” United 

States v. Robertson, 305 F.3d 164, 167 (3d Cir. 2002).5

The reasonable suspicion required under Terry is 

specific to the person who is detained. The circumstances 

“must raise a suspicion that the particular individual being 

stopped is engaged in wrongdoing.” United States v. Cortez, 

449 U.S. 411, 418 (1981). The Supreme Court has never 

viewed Terry as a general license to detain everyone within 

arm‟s reach of the individual whose conduct gives rise to 

reasonable suspicion. Rather, the Court has stressed that 

“[t]his demand for specificity in the information upon which 

police action is predicated is the central teaching of this 

Court’s Fourth Amendment jurisprudence.” Id. (alteration in 

original) (quoting Terry, 392 U.S. at 21 n.18) (internal 

quotation marks omitted).

We do not suggest that the officers had to sit idly by 

without approaching and investigating merely because they 

could not be certain about what was transpiring. However, 

 

5 We need not reach Appellant‟s argument that the District 

Court improperly accepted the testimony of the testifying 

officers over witnesses more sympathetic to Navedo. 
8

given the limitations on investigative detentions under Terry, 

and the Court‟s clear pronouncement in Cortez, they could 

not detain Navedo merely because their reasonable suspicions 

justified a brief investigative detention of Pozo. 

The detectives conceded during the suppression 

hearing that they had no information about Navedo. In 

addition, the detectives conceded that when they left their 

unmarked car to investigate, Navedo had until then merely 

looked at the gun that Pozo was showing him and engaged in 

brief conversation with Pozo and his companion. J.A. at 41-

47. That would not justify a reasonable suspicion as to 

Navedo without more than appears on this record.

We are mindful that “reasonable suspicion of criminal 

activity may be formed by observing exclusively legal 

activity.” United States v. Ubiles, 224 F.3d 213, 217 (3d Cir.

2000). However, that does not negate the limitations endemic 

in Terry as the Court emphasized in Cortez. 

Here, police did not have any information from any 

source that would have supported a reasonable suspicion that 

Navedo was involved in firearms trafficking or that he 

intended to purchase a gun from Pozo. As we have just 

noted, the officers knew of nothing that would have suggested 

Navedo was connected to any prior criminal activity.6 His 

residence at 315 Park Avenue was not even the focus of 

police surveillance. That surveillance was aimed at the 

building at 323 Park Avenue. A shooting had been reported 

 

6

For reasons known only to the Government, the Assistant 

United States Attorney who drafted the Appellees‟s brief in 

this case saw fit to inform this Court that: “[p]rior to this 

incident, Navedo had amassed a significant criminal record, 

including convictions for endangering the welfare of a child, 

grand theft auto, and possession of controlled dangerous 

substances.” Appellee Br. at 3. However, the Government 

does not suggest that either of the detectives involved in this 

case had any prior knowledge of any of the individuals 

involved in this case including Navedo, and the record here is 

clearly to the contrary. We therefore are at a loss to 

understand why the Government would think it relevant or 

proper to include such a gratuitous statement in its brief. 
9

at that address, and the shooting was not even that recent. 

The stop here appears to be based on nothing more than an 

attempt to transfer the reasonable suspicion the police had as 

to Pozo onto Navedo.7 Yet, as the Supreme Court explained 

in Ybarra v. Illinois, 444 U.S. 85, 91 (1979), “a person‟s mere 

propinquity to others independently suspected of criminal 

activity does not, without more, give rise to probable cause to 

search that person .” There, the Court stated: 

“Notwithstanding the absence of probable cause to search 

Ybarra, the State argues that the action of the police in 

searching him and seizing what was found in his pocket was 

nonetheless constitutionally permissible. . . . We are unable to 

take even the first step required by this argument.” Id. at 92. 

Although the Court in Ybarra was discussing probable cause 

to arrest rather than the reasonable suspicion for a stop under 

Terry, the Court‟s pronouncement is equally applicable to this 

situation. See Brown v. Texas, 443 U.S. 47, 49-52 (1979).

Here, the District Court concluded that Navedo‟s flight 

gave rise to the police probable cause to arrest. Accordingly, 

we must determine whether flight under the circumstances 

here, gave Detective DeLaCruz probable cause to arrest 

Navedo.8 

B. NAVEDO’S FLIGHT.

 

7 Navedo concedes the police officers may have had at least 

reasonable suspicion to conduct a Terry stop of Pozo based 

on his possession of a weapon. See Reply Br. at 5-6 (“While 

Pozo‟s possession of the gun clearly called for reasonable 

suspicion, if not probable cause, to detain Pozo, these factors 

simply do not give rise to a reasonable suspicion that Navedo 

was doing anything other than standing next to Pozo.”). 

8 Detective DeLaCruz‟s testimony regarding the arrest was 

not very precise. However, it appears from his testimony that 

he “detained” Navedo before he saw the guns which would 

have been in plain view after Navedo opened his door while 

fleeing into his apartment from the detective. J.A. at 69-70. 

However, since we conclude that there was no probable cause 

to arrest Navedo in the first place, we need not attempt to 

determine whether DeLaCruz saw the weapons before or after 

he arrested him. 
10

In Illinois v. Wardlow, 528 U.S. 119 (2000), the 

Supreme Court discussed when “unprovoked flight” could 

lead to a warrantless arrest. There, officers patrolling an area 

known for heavy narcotics trafficking observed Wardlow

holding an opaque bag as he stood next to a building. Id. at 

121-22. Wardlow fled after seeing the police officers, but 

two of the officers caught up with him, and briefly detained 

him. Id. at 122. Upon stopping him, they conducted a 

patdown search for their own protection because, in their 

experience, “it was common for there to be weapons in the 

near vicinity of narcotics transactions.” Id. While conducting 

the patdown an officer “squeezed the bag [Wardlow] was 

carrying and felt a heavy, hard object similar to the shape of a 

gun.” Id. Inside that bag, the officers discovered a .38-

caliber handgun with five live rounds of ammunition and they 

arrested Wardlow. Id.

The trial court denied Wardlow‟s suppression motion 

and he appealed the resulting conviction for illegal possession 

of the firearm, arguing that it had been seized improperly.

The Illinois Supreme Court affirmed the reversal of the 

trial court‟s denial of Wardlow‟s suppression motion. The 

Illinois Supreme Court agreed with the intermediate appellate 

court‟s ruling “concluding that the gun should have been 

suppressed because the [police] did not have reasonable 

suspicion sufficient to justify an investigative stop pursuant to 

Terry.” Id. The court relied on Florida v Royer, 460 U.S. 

491 (1983), in explaining that “sudden flight in [a high crime 

area] does not create a reasonable suspicion justifying a Terry 

stop.” Wardlow, 528 U.S. at 122. Since the United States 

Supreme Court in Royer had held that an individual may 

ignore police questioning and simply go on his/her way, the 

Illinois Supreme Court concluded that “flight may simply be 

an exercise of [that right] and, thus, could not constitute 

reasonable suspicion justifying a Terry stop.” Wardlow, 528 

U.S. at 122-23. The Illinois high court had refused to hold 

that the fact of being in a high crime area supported a finding 

of reasonable suspicion, sufficient to support an investigative 

stop even though such flight “standing alone” would not 

justify the stop. Id. at 123.
11

The United States Supreme Court disagreed. That 

Court reasoned that: “unprovoked flight is simply not a mere 

refusal to cooperate. Flight, by its very nature, is not „going 

about one‟s business‟; in fact, it is just the opposite.” Id. at 

125. The Supreme Court held that, under the circumstances 

there, Wardlow‟s flight was sufficient to allow the police to 

detain him and investigate further. Id. (“Officer Nolan was 

justified in suspecting that Wardlow was involved in criminal 

activity, and, therefore, in investigating further.”). However, 

it was the information that the police obtained during the brief 

investigative stop that allowed the brief Terry detention to 

blossom into probable cause for arrest. Even under the far 

more suspicious circumstances there, Wardlow‟s flight did 

not justify an arrest. Rather, the Court explained: “Allowing 

officers confronted with such flight to stop the fugitive and 

investigate further is quite consistent with the individual‟s 

right to go about his business or to stay put and remain silent 

in the face of police questioning.” Id.

In his opinion concurring in part and dissenting in part, 

Justice Stevens explained that in reaching its holding, the 

majority had rejected both the bright line per se rule 

advocated by the Government, and the opposing per se rule 

that the defendant advocated. 528 U.S. at 126-27 (Stevens, J., 

concurring in part and dissenting in part). The Government 

had argued that the Court should allow a Terry stop whenever 

“anyone . . . flees at the mere sight of a police officer,” and 

the defendant had asked the Court to hold that “the fact that a 

person flees upon seeing . . . police can never, by itself, . . . 

justify a temporary investigative stop.” Id. at 126. Justice 

Stevens explained: “[t]he Court today wisely endorses neither 

per se rule. Instead, [it concludes reasonable suspicion] . . . 

must be determined by looking to „the totality of the 

circumstances—the whole picture.” Id. at 126-27.

Justice Stevens further explained that the appropriate 

Terry inquiry when one flees from police must address “the 

degree of suspicion that attaches to a person‟s flight—or, 

more precisely, what commonsense conclusions can be drawn 

[from it].” Id. at 128 (internal quotation marks omitted). He 

detailed several possible motivations for flight—some of 

which were innocent and innocuous and some of which were 

not. Id. at 128-30. 
12

He then quoted century-old precedent to explain why 

flight could not always be equated with guilt: 

[I]t is a matter of common knowledge that men

who are entirely innocent do sometimes fly 

from the scene of a crime through fear of being 

apprehended as the guilty parties, or from an 

unwillingness to appear as witnesses. Nor is it 

true as an accepted axiom of criminal law that 

“the wicked flee when no man pursueth, but the 

righteous are as bold as a lion.”

528 U.S. at 131 (quoting Alberty v. United States, 162 U.S. 

499, 511 (1896)) (internal quotation marks omitted). He 

stressed that this was particularly true in view of the modern 

tensions between police and certain demographic groups. 

“Among some citizens, particularly minorities and those 

residing in high crime areas, there is also the possibility that 

the fleeing person is entirely innocent, but, . . . believes that 

contact with the police can itself be dangerous, apart from any 

criminal activity associated with the officer‟s sudden 

presence.” Id. at 132.9

It is therefore clear from the discussion by both Justice 

Stevens and the majority that Wardlow cannot be used to 

justify stopping everyone who flees from police. A careful 

reading of the majority‟s opinion makes this abundantly clear. 

The majority stressed the underlying circumstances of the 

investigative detention at issue in upholding the investigative 

stop of Wardlow. The Court explained: 

[Officers] Nolan and Harvey were 

among eight officers in a four-car caravan that 

was converging on an area known for heavy 

narcotics trafficking, and the officers 

anticipated encountering a large number of 

people in the area, including drug customers 

 

9

In a lengthy footnote, Justice Stevens cited several articles 

and studies that document the extent to which Black and 

Latino residents of certain communities are distrustful of 

police and the problems that arise from the distrust. See id. at 

132 n.7.
13

and individuals serving as lookouts. It was in 

this context that Officer Nolan decided to 

investigate Wardlow after observing him flee. 

Id. at 124 (majority opinion) (emphasis added) (citation 

omitted). It must be remembered that the context the Court

was explaining justified a brief investigative stop under Terry. 

The Court did not suggest that flight under those 

circumstances would have been sufficient to arrest Wardlow 

without more; and it is clear from the Court‟s discussion that 

it would not have been adequate for the probable cause 

required for an arrest. 

As we noted earlier, when police saw Wardlow, he 

was holding an opaque bag. Since police had every reason to 

believe that the people assembled on the sidewalk included 

drug dealers and their customers, Wardlow‟s flight “in this 

context,” would certainly give rise to a reasonable suspicion 

that he was fleeing because of what was in the bag. 

Accordingly, police could legally investigate and they could 

take reasonable and limited precautions to ensure their safety 

during the brief stop required for that investigation. There, 

police could not be reasonably sure of their safety during the 

stop without taking steps to determine if Wardlow had a 

weapon in the bag he was carrying. Once they felt what 

appeared to be a weapon, the circumstances of its discovery 

gave them probable cause to believe that Wardlow was 

engaged in illegal activity and he was arrested. 

None of these circumstances are present here. This was 

not the proverbial “high crime area,” and police had no reason 

to suspect that Navedo was demonstrating anything other than 

curiosity at the sight of a gun in Pozo‟s backpack. See, e.g.,

United States v. Goodrich, 450 F.3d 552, 561 (3d Cir. 2006) 

(Terry stop in an area with a reputation for theft of anhydrous 

ammonia after ten to fifteen previous reported thefts of the 

chemical). The evidence of a prior shooting in January and a 

report of a domestic disturbance involving a gun in February, 

without more, did not provide sufficient evidence to conclude 

that the area surrounding 315 Park Avenue was a high crime 

area, and as we noted earlier, the District Court made no 

finding that this was a high crime area. This is also not the 

case in which police officers patrolled an area known for 
14

heavy narcotics trafficking where police expected to 

encounter drug dealers, their customers, or “lookouts” as in 

Wardlow. 

We do not mean to suggest that the outcome would be 

different here if this had happened in a “high crime area,” nor 

do we suggest that police should ignore the overall character 

of a neighborhood when assessing the significance of 

“unprovoked flight.” We just note that the discussion in 

Wardlow does not suggest that someone‟s unprovoked flight 

will necessarily justify a Terry stop merely because that 

person happens to reside in a high crime area. In fact, as 

Justice Stevens explains at some length, persons residing in 

such areas may be particularly apprehensive of police for 

reasons totally unrelated to their own involvement in a crime. 

Rather, such flight and the setting in which it occurs, is 

merely one of many factors police may reasonably consider 

before making an investigative stop under Terry. The flight 

must, however, still be assessed in context with all of the 

circumstances surrounding it. See Wardlow, 528 U.S. at 124.

But, even absent a finding of a high crime area or other 

relevant characteristics, the Government interprets Wardlow

to hold that flight in and of itself is sufficient to establish 

probable cause. In doing so, the Government relies in part on 

United States v. Laville, 480 F.3d 187 (3d Cir. 2007). See 

Appellee Br. at 18. The argument misinterprets Wardlow. As 

we have previously stated, “the Supreme Court has never held 

that unprovoked flight alone is enough to justify a stop.” 

United States v. Bonner, 363 F.3d 213, 217 (3d Cir. 2004) 

(discussing flight in the context of a vehicle stop). 

“While „reasonable suspicion‟ is a less demanding 

standard than probable cause and requires a showing 

considerably less than preponderance of the evidence, the 

Fourth Amendment requires at least a minimal level of 

objective justification for making the [initial] stop.” 

Wardlow, 528 U.S at 123. We have explained that “flight 

upon noticing police, plus some other indicia of wrongdoing, 

can constitute reasonable suspicion.” Bonner, 363 F.3d at 

217 (emphasis added). Despite the government‟s reliance on 

Laville, we have not held that mere unprovoked flight from 
15

approaching police would support probable cause to arrest, 

nor could we, given the Supreme Court‟s pronouncements. 

In Laville, we did state that: “It is well established that 

where police officers reasonably suspect that an individual 

may be engaged in criminal activity, and the individual 

deliberately takes flight when the officers attempt to stop and 

question him, the officers generally no longer have mere 

reasonable suspicion, but probable cause to arrest.” 480 F.3d 

at 195 (emphasis added) (internal quotation marks omitted). 

There are two problems with the Government‟s reading of 

Laville. First, it does not apply here with the force the 

Government believes because, as we have explained, the 

reasonable suspicion supporting the stop focused on Pozo, not 

on Navedo. Second, the Government‟s position ignores our 

cautionary note that flight will “generally” support probable 

cause. Whether that higher threshold is reached must, of 

course, turn on an examination of the totality of the 

circumstances surrounding the flight, as well as the nature of 

the conduct that gave rise to the underlying reasonable 

suspicion for the investigative stop. 

In Laville, Virgin Islands police received a telephone 

call informing them that a boat carrying thirty-two 

undocumented aliens had run aground on a reef and that 

several of the aliens were coming ashore. Id. at 189. Laville 

was subsequently arrested and convicted of conspiring to 

bring illegal aliens into the United States for financial gain. 

Prior to trial, Laville moved to suppress certain evidence 

arguing that he was arrested without probable cause, and we 

affirmed the District Court‟s denial of that suppression 

motion. In rejecting Laville‟s argument that his stop and 

arrest violated the Fourth Amendment, we explained that 

when police Officer Santos arrived at the wharf in question, 

he confirmed that a boat had run aground and was stranded 

with people still onboard. Id. at 194. A witness had pointed 

out four individuals who identified themselves as Cubans 

who had been on the stranded boat and they told the officer 

that others were still onboard. Id. The officer confirmed that 

persons suspected of being on the boat were “around the 

corner,” and the witness offered to “point them out.” Id. at 

194 (internal quotation marks omitted). The officers then 

walked around the corner and saw Laville and his 
16

companions, who fled as the officers approached. Id. at 194-

95. “Taking these facts together with all reasonable 

inferences, . . . Santos . . . had, at the very least, reasonable 

suspicion to believe that criminal activity was afoot.” Id. at 

195 (citation omitted). We stated that that reasonable 

suspicion would have justified a brief detention to investigate 

under Terry even absent any additional information. Id. 

However, Laville‟s subsequent attempt to leave when Santos 

approached under these circumstances “elevated Santos‟s 

reasonable suspicion to the level of probable cause for an 

arrest.”Id. 

Contrary to the Government‟s reliance on Laville, the 

facts there demonstrate the type of information police need 

before flight can, by itself, elevate reasonable suspicion to 

probable cause. We explained that although “[t]he arresting 

officer need not have contemplated the specific offense for 

which the defendant ultimately will be charged,” the officer 

must have “reasonably trustworthy information or 

circumstances within an arresting officer‟s knowledge . . . to 

warrant a person of reasonable caution to conclude that an 

offense has been or is being committed by the person being 

arrested.” Id. at 194 (emphasis added). The officers in 

Laville had tips from a citizen informant as to the specific 

identity of a person suspected of entering the country illegally 

and the knowledge that a boat had run aground moments 

before the arrests. Moreover, the arrest in Laville occurred in 

the Virgin Islands and was therefore tantamount to a border 

search that requires far less justification than an arrest that 

does not implicate the nation‟s interest in the security of its 

borders. See United States v. Hyde, 37 F.3d 116, 122 (3d Cir. 

1994) (“[W]e perceive the interest of the United States in 

warrantless searches without probable cause at this „internal‟ 

border to be little different from its interest in such searches at 

its international borders.”) (explaining that the geographical 

location of the Virgin Islands meant that police were afforded 

greater leeway in conducting warrantless searches).10 The 

facts here are a far cry from the circumstances that justified 

the stop and arrest in Laville. 

 

10

 In Hyde, we upheld the constitutionality of suspicionless

customs checkpoints at the airports in the Virgin Islands. 

Hyde, 37 F.3d at 117, 123. 
17

Our holding today reiterates that unprovoked flight, 

without more, can not elevate reasonable suspicion to detain 

and investigate into the probable cause required for an arrest. 

Rather, a person whom police approach is free to avoid a 

potential encounter with police by leaving the scene, and the 

rate of acceleration of the person‟s gate as s/he leaves away is 

far too ephemeral a gauge to support a finding of probable 

cause, absent some other indicia of involvement in criminal 

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

Royer, 460 U.S. at 497-98 (“The person approached, 

however, need not answer any question put to him; indeed, he 

may decline to listen to the questions at all and may go on his 

way. He may not be detained even momentarily without 

reasonable, objective grounds for doing so; and his refusal to 

listen or answer does not, without more, furnish those 

grounds.” (citations omitted)). Unprovoked flight can only 

elevate reasonable suspicion to probable cause if police have 

“reasonably trustworthy information or circumstances” to 

believe that an individual is engaged in criminal activity, as 

was the case in Laville. 480 F.3d at 194.

As discussed at length above, none of those 

circumstances are present here. The police had no reason to 

suspect that Navedo was himself involved in criminal 

activity, and even if they had appropriately formed such a 

suspicion, they would only have been entitled to detain and 

investigate, not arrest. We conclude, therefore, that the police 

lacked probable cause to arrest Navedo under the 

circumstances here and that the District Court erred in 

denying his motion to suppress the physical evidence that was 

seized following that arrest.

III. CONCLUSION

For the reasons set forth above, we will remand this 

case to the District Court with instructions that it vacate the 

order denying Navedo‟s motion to suppress.11

 

11 Since we conclude that the arrest was not supported by 

probable cause, we need not reach Navedo‟s argument that 

the police violated the Fourth Amendment when they entered 

his apartment building during the chase that preceded his 

arrest. 
1

USA v. Navedo, No. 11-3413

HARDIMAN, Circuit Judge, dissenting.

The majority reverses the District Court‘s decision to 

deny Alexander Navedo‘s motion to suppress evidence after 

finding that Newark police officers Saul De La Cruz and 

Henry Suarez (the Officers) did not possess reasonable 

suspicion to believe Navedo was about to engage in criminal 

activity. My disagreement with that finding necessitates this 

respectful dissent.

I

A

Reasonable suspicion requires ―a particularized and 

objective basis for suspecting the person stopped of criminal 

activity.‖ United States v. Cortez, 449 U.S. 411, 417–18 

(1981). While officers may not rely on an ―inchoate . . . 

suspicion or hunch,‖ Terry v. Ohio, 392 U.S. 1, 27 (1968), it 

is well-established that they may ―draw on their own 

experience and specialized training to make inferences from 

and deductions about the cumulative information available to 

them that  ̳might well elude an untrained person,‘‖ United 

States v. Arvizu, 534 U.S. 266, 274 (2002) (quoting Cortez, 

449 U.S. at 417–18). Accordingly, reasonable suspicion does 

not require evidence of a crime and need not be based on 

purely nefarious conduct. ―[E]ven factors independently 

 ̳susceptible to innocent explanation‘ can collectively amount 

to reasonable suspicion.‖ United States v. Brown, 448 F.3d 

239, 252 (3d Cir. 2006) (quoting Arvizu, 534 U.S. at 273).

My colleagues conclude that the Officers‘ pre-flight 

observations could not reasonably have led them to suspect 

that Navedo was about to engage in criminal activity. They 
2

do so in spite of their concession that the Officers had 

reasonable suspicion as to another party to the encounter, 

Juan Pozo. (See Maj. Typescript at 8, 9–10.) In doing so, the 

majority fails to acknowledge critical portions of the Officers‘ 

testimony and usurps the factfinding province of the District 

Court.

According to the Officers, both of whom were deemed 

credible by the District Court, around 8:30 p.m., they noticed 

Navedo exit 315 Park Avenue and stand at the top of the 

stairs to his porch. Officer Suarez testified that drug 

purchasers often wait for deliveries outside their homes in this 

manner. Moments later, Pozo and another man approached 

Navedo and spoke to him for several minutes; the interaction 

appeared ―cordial‖ and ―friendly.‖ Pozo then opened a

backpack and began to withdraw what ―appeared [to both 

Officers] to be a gun‖ and a holster. (JA 36, 64, 88.) Navedo 

never touched the gun, but he ―lean[ed] forward to see what 

was inside the bag‖ and looked unsurprised to see the gun. 

(JA 51–52, 67, 89.) Conceding that Navedo ―had not 

engaged in any illegal activity, per se‖ at that point, (JA 46–

47), ―the way [Pozo and Navedo] were both speaking to each 

other, the way the weapon was taken out of the backpack 

being shown, . . . [and] the interest [Navedo] showed towards 

the weapon‖ led Officer De La Cruz to believe that ―a gun 

transaction was going to transpire,‖ (JA 88–89). The District 

Court explicitly credited De La Cruz‘s testimony that he saw 

Navedo ―being shown the gun in what appeared to be a gun 

transaction.‖ (JA 140–41.)

I find nothing in the record that would permit us to 

overturn the District Court‘s finding that the Officers 

suspected Pozo and Navedo were about to engage in a gun 

transaction. Nor can I conclude that it was unreasonable for 
3

them to infer that such a gun sale was likely criminal under 

New Jersey law. In New Jersey, ―[n]o person shall . . . 

receive, purchase, or otherwise acquire a handgun unless [he] 

. . . is licensed as a dealer . . . or has first secured a permit to 

purchase a handgun.‖ N.J. Stat. Ann. § 2C:58-3(a). 

Crucially, when the legality of a gun transaction, or even 

mere possession, ―depends on . . . a license or permit[,]‖ New 

Jersey law ―presume[s] that [the individual involved] does not

possess such a license or permit . . . until he establishes to the 

contrary.‖ Id. § 2C:39-2(b). Therefore, the Officers‘

suspicion that Pozo‘s and Navedo‘s actions denoted illegal 

enterprise was reasonable.

1

 

1

That reasonable suspicion existed does not mean the 

Officers required such suspicion at the time they approached 

Navedo‘s porch. ―A seizure does not occur every time a 

police officer approaches someone to ask a few questions. 

Such consensual encounters are important tools of law 

enforcement and need not be based on any suspicion of 

wrongdoing.‖ Johnson v. Campbell, 332 F.3d 199, 205 (3d 

Cir. 2003); accord United States v. Drayton, 536 U.S. 194, 

204–05 (2002); Florida v. Royer, 460 U.S. 491, 497 (1983). 

Officers may ―pose questions, ask for identification, and 

request consent to search luggage—provided they do not 

induce cooperation by coercive means‖—without effecting a 

seizure. Drayton, 536 U.S. at 201. Confronted with a socalled ―consensual encounter,‖ an individual may ― ̳decline to 

listen to the questions at all and . . . go on his way.‘‖ United 

States v. Bonner, 363 F.3d 213, 217–18 (3d Cir. 2004) 

(quoting Royer, 460 U.S. at 498). Reasonable suspicion is 

required only when officers conduct an investigatory stop 
4

B

After concluding that no reasonable suspicion existed 

as to Navedo, the majority devotes a substantial portion of its 

opinion to explaining that Navedo‘s flight could not, by itself,

establish probable cause to arrest him. (See Maj. Typescript 

at 16–20.) This is undoubtedly correct. See Illinois v. 

Wardlow, 528 U.S. 119, 124–26 (2000) (indicating that flight 

alone is insufficient to satisfy the lesser standard of 

reasonable suspicion); accord United States v. Bonner, 363 

F.3d 213, 217 (3d Cir. 2004) (―[T]he Supreme Court has 

never held that unprovoked flight alone is enough to justify a 

stop.‖). But because the Officers did have reasonable

suspicion before Navedo fled, this case turns on whether 

Navedo‘s flight in addition to the facts known to the Officers 

when they approached the porch rose to the level of probable 

 

pursuant to Terry, 392 U.S. 1. See, e.g., Cortez, 449 U.S. at 

417–18.

Here, the Officers initiated a consensual encounter, 

and Navedo did not merely decline to participate. See, e.g.,

Royer, 460 U.S. at 497–98. Nor did Navedo submit to 

subsequent displays of the Officers‘ authority and stop to be 

questioned pursuant to Terry. Accordingly, under California 

v. Hodari D., 499 U.S. 621, 626 (1991), no seizure occurred 

until he was tackled in the doorway to his room. Thus, the 

Officers‘ reasonable suspicion is relevant only insofar as it 

informs our probable-cause analysis; reasonable suspicion 

was neither necessary to the Officers‘ pre-flight actions nor 

sufficient to render Navedo‘s ultimate seizure and arrest 

constitutional.
5

cause. See United States v. Laville, 480 F.3d 187, 195 (3d 

Cir. 2007); cf. Wardlow, 528 U.S. at 124 (holding that flight 

combined with other suspicious circumstances can create 

reasonable suspicion). I believe our decision in Laville

governs our analysis of whether the Officers had probable 

cause to arrest Navedo.

In Laville, an eyewitness on a wharf in the Virgin 

Islands had reported to police that a boat had run aground and 

illegal aliens were coming ashore. 480 F.3d at 189. When

police responded to the scene, the witness was able to point 

out four of the recently arrived individuals sitting on a nearby 

boardwalk. Id. Those individuals informed police that they 

were Cuban and that other aliens who had arrived on the 

beach with them were still in the area. Id. The eyewitness 

offered to identify several of the aliens he claimed were 

around a corner from the boardwalk. Id. When police 

approached three men the eyewitness had identified, the men 

―stood up and started walking away really fast.‖ Id. at 190. 

Soon after, the men began running. Id. When Laville, one of 

the fleeing suspects, yielded to an officer yelling at him to 

stop, he was arrested. Id. In reviewing the constitutionality 

of Laville‘s arrest, we concluded that ―by the time [the 

officer] approached Laville and his companions on the 

boardwalk, he had, at the very least, reasonable suspicion to 

believe that criminal activity was afoot.‖ Id. at 195. It 

followed that ―when Laville fled at the sight of the 

approaching officers, [they] no longer merely had reasonable 

suspicion . . . ; [they] now had probable cause to make an 

arrest.‖ Id. We explained that ― ̳where police officers 

reasonably suspect that an individual may be engaged in 

criminal activity, and the individual deliberately takes flight 

when the officers attempt to stop and question him, the 
6

officers generally no longer have mere reasonable suspicion, 

but probable cause to arrest.‘‖

2

 Id. (emphasis added) (quoting 

United States v. Sharpe, 470 U.S. 675, 705 (1985) (Brennan, 

J., dissenting).

I agree with the majority that whether reasonable 

suspicion escalates to probable cause when a suspect flees 

police is context-dependent and must be determined on a 

case-by-case basis. In the Supreme Court‘s words, 

―deliberately furtive actions and flight at the approach of 

strangers or law officers are strong indicia of mens rea, and 

when coupled with specific knowledge on the part of the 

officer relating the suspect to the evidence of crime, they are 

proper factors to be considered in the decision to make an 

arrest.‖ Sibron v. New York, 392 U.S. 40, 66–67 (1968) 

(emphasis added); accord United States v. Cruz, 910 F.2d 

1072, 1077 (3d Cir. 1990). ―Headlong flight—wherever it 

occurs—is the consummate act of evasion: It is not 

necessarily indicative of wrongdoing, but it is certainly 

suggestive of such.‖ Wardlow, 528 U.S. at 124.

I also agree that suspects may at times run from police 

for innocent reasons. For example, where the investigating 

officer ―insufficiently or unclearly identifies his office or his 

mission,‖ ―the [suspect‘s] flight . . . must be regarded as 

ambiguous conduct.‖ Wong Sun v. United States, 371 U.S. 

 

2 Other circuits have likewise concluded that 

reasonable suspicion may escalate to probable cause upon the 

suspect‘s flight from police. See Weaver v. Shadoan, 340 

F.3d 398 (6th Cir. 2003); United States v. Dotson, 49 F.3d 

227 (6th Cir. 1995); United States v. Morgan, 936 F.2d 1561 

(10th Cir. 1991); United States v. Martinez-Gonzalez, 686 

F.2d 93 (2d Cir. 1982).
7

471, 482 (1963). But that is not what occurred in this case. 

Here, although the Officers were dressed in plain clothes, 

they displayed their badges and verbally identified themselves 

as Newark police officers. Accordingly, the Officers could

reasonably interpret Navedo‘s immediate flight as evidence of 

a guilty conscience.

As in Laville, the Officers here had information 

suggesting the possibility of a crime in progress before they 

approached the suspects. The conduct underlying their 

suspicions was not itself per se illegal, but their professional 

experience suggested that criminal activity was afoot. The 

Officers saw Navedo waiting on his front porch, where he 

appeared to be expecting someone. They deemed this 

behavior consistent with narcotics sales protocols based on 

their law enforcement expertise. They observed Pozo‘s 

arrival with a backpack, the ensuing conversation, Pozo‘s 

display of what appeared to be a gun, and Navedo‘s 

expression of interest in the gun. Instead of receiving 

information from an eyewitness as did the police in Laville,

here the Officers personally observed facts that led them to 

possess reasonable suspicion that criminal activity was afoot. 

The majority attempts to distinguish Laville by analogizing 

the arrest there to ―a border search that requires far less 

justification.‖ (Maj. Typescript at 19.) But the word 

―border‖ does not even appear in our opinion in Laville. 

There we applied the usual probable-cause standard and 

concluded that it had been satisfied. 480 F.3d at 194–95. 

Probable cause has likewise been established in this case.

After concluding that the Officers‘ reasonable 

suspicion became probable cause when Navedo fled, the 

question becomes whether the Officers were authorized to 

pursue Navedo into 315 Park Avenue. I would hold that the 
8

Officers‘ ―hot pursuit‖ of Navedo into his apartment building 

constituted a valid exigent circumstance that permitted them 

to disregard the warrant requirement.3 See, e.g., Kentucky v. 

King, 131 S. Ct. 1849, 1856 (2011); United States v. Santana, 

427 U.S. 38, 42–43 (1976) (holding that where probable 

cause to arrest exists, ―a suspect may not defeat an arrest 

which has been set in motion in a public place, and is 

therefore proper . . . , by the expedient of escaping to a private 

place‖). ―Hot pursuit‖ need not involve ―an extended hue and 

cry  ̳in and about (the) public streets.‘‖ Santana, 427 U.S. at 

42–43. ―The fact that [a] pursuit . . . end[s] almost as soon as 

it beg[ins]‖ because a suspect flees into and is apprehended 

just inside his own home does not ―render it any the less a 

 ̳hot pursuit‘ sufficient to justify the warrantless entry.‖ Id. at 

 

3 Due to the nature of Navedo‘s apartment building, 

whether he possessed a reasonable expectation of privacy—a 

necessary predicate to his invocation of the exclusionary 

rule—might have presented a close question in this case. See 

United States v. Correa, 653 F.3d 187, 188–90 (3d Cir. 2011) 

(―[A] resident of [a] . . . multi-unit apartment building lacks 

an objectively reasonable expectation of privacy in the 

building‘s common areas‖ even where there is a ―locked 

exterior door.‖). But the Government waived this standing 

argument by failing to raise it in the District Court. E.g., 

United States v. Dupree, 617 F.3d 724, 728 (3d Cir. 2010) (It 

is ―well-established . . . that arguments not raised in the 

district courts are waived on appeal . . . [and] [t]his general 

principle applies fully to criminal cases involving motions to 

suppress.‖); United States v. Stearn, 597 F.3d 540, 552 n.11

(3d Cir. 2010) (Standing is ―subject to the ordinary rule that 

an argument not raised in the district court is waived on 

appeal.‖).
9

43. It matters not that Navedo had only to take a few steps 

before he was inside his building or that he was tackled and 

arrested just moments into the chase. Officers suspected him 

of an illegal gun transaction and knew of at least one gun on 

the scene, which justified immediate action. See Welsh v. 

Wisconsin, 466 U.S. 740, 751 (1984); United States v. Ball, 

90 F.3d 260, 263 (8th Cir. 1996).

The two requisites for a warrantless arrest in the 

home—probable cause and exigent circumstances—were 

established by the Government in this case. See Welsh, 466 

U.S. at 749–50; Payton v. New York, 445 U.S. 573, 586–90 

(1980); Couden v. Duffy, 446 F.3d 483, 496 (3d Cir. 2006). 

And because the firearms evidence Navedo sought to 

suppress was in plain view from the Officers‘ lawful vantage 

point the instant they tackled Navedo, it was admissible.

II

For the foregoing reasons, I would uphold the District 

Court‘s denial of Navedo‘s suppression motion and affirm the 

judgment of conviction.