2012 D e c i sion s O p inion s of the U nit e d S t a t e s C our t of Appe al s for the Thir d C ir c uit

9-20-2012 

# U S A v . N a th a niel P itt s
P r e c e de n t i al or N on-P r e c e de n t i al : N on-P r e c e de n t i al
D ock e t N o . 11-4167

F o l lo w thi s a nd a dd it ion al w ork s a t : h tt p://d i g it alc ommon s .l a w . v i l l a no v a . e du/thir dc ir c uit_2012

Thi s de c i sion i s br ou gh t t o y ou for f r e e a nd ope n a c c e s s b y the O p inion s of the U nit e d S t a t e s C our t of Appe al s for the Thir d C ir c uit a t V i l l a no v a U niv e r sit y S choo l of L a

w Di g it al R e posit or y

. I t h as be e n a c c e pt e d for inclusion in 2012 D e c i sion s b y a n a uthor i z e d a dmini s tr a t or of V i l l a no v a U niv e r sit y S choo l of L a

w Di g it al R e posit or y

. F or mor e infor m a t ion, p le as e c on t a ct Be n j a min

. C a rl s on@l a

w . v i l l a no v a . e du

. R e c omme nde d C it a t ion

" U SA v . N a th a nie l P itts " (2012). 2012 D e cisio n s . P a pe r 410. h tt p://d i g it alc ommon s .l a

w . v i l l a no v a . e du/thir dc ir c uit_2012/410NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

_____________ No. 11

- 4167

_____________ UNITED STATES OF AMERICA

v. NATHANIEL PITTS,

Appellant

_____________ Appeal from the United States District Court for the Eastern District o f Pennsylvania (D.C. Criminal No. 2

- 10

- cr - 00703

- 001) District Judge: Honorable Eduardo C. Robreno

_____________ Submitted Und er Third Circuit LAR 34.1(a)

September 19, 2012 Before: SLOVITER, RENDELL and HARDIMAN , Circuit Judges

(Opinion Filed : September 20, 2012 )

_____________ OPINION OF THE COURT

_____________ RENDELL, Ci rcuit Judge

. Appellant Nathaniel Pitts was convicted of five drug, firearm , and ammunition possession char ges. Pitts ‟s appeal raises two issues: whether the District Court erred in denying his motion to suppress evidence , and whether the government provi ded sufficient evidence to prove that Pitts possessed a fir earm in furtherance of his drug

- trafficking2

crimes in violation of 18 U.S.C. § 924(c)(1)

. For the reasons set forth below, we will affirm Pitts‟s convictions. 1
I. Pitts‟s first argument is that th e District Court erred when it denied his motio n to suppress physical evidence. Pitts argues that the police did not have the requisite reasonable suspicion to conduct the initial Terry stop that led to his arrest and that this defect also tainted the sub sequent search es of his car s, residence , and bank account

. We find that the initial stop, and the subsequent arrest and search es , all were justified under applicable law. We review a d istrict c ourt‟s denial of a suppression
motion for clear error as to the underlying factual findings and exercise plenary review of a d istrict c ourt‟s application of the law to those factual findings. United States v. Perez , 280 F.3d 318, 336 (3d Cir. 2002). First, the authorities had reasonable suspicion to believe that Pitts was engaged in a drug crime and, therefore, to stop him. The Supreme Court h as repeatedly recognized that reasonable suspicion that justifies a Terry stop may arise from on e or several factors , including information from a reliable source , observat ion of suspicious behavior, and investigative inferences made by an officer with experience and specialized training.
U nited States v. Nelson , 284 F.3d 472, 478 (3d Cir. 2002) (citin g Alabama v. White , 496
U.S. 325 , 332 (1990 ) ; Terry v. Ohio , 392 U.S. 1, 30 (1968) ; United States v. Cortez , 449 U.S. 411, 418

- 19 (1981) )

.

1 We have jurisdiction under 28 U.S.C. § 1291.3

In this case, the officers had received a detailed tip from a reliable confidential

source that Pitts was dealing drugs and that he stored drugs in hidden compartments in his car . Through aerial surv eillance of Pitts‟s street, officers observed Pitts circling the block in his car, in what they reasonably believed was a countersurveillance tactic . They also saw Pitts pull into a convenience store parking lot , where a vehicle pulled up behi nd Pitts‟s car, the driver entered the passenger side of Pitts‟s car, and the two remained there for approximately sixteen minutes . B ased on the officers‟ experience with and knowledge of drug transaction s , they reasonably suspected that Pitts and the oth er driver

were engaged in such illegal conduct

. Second, the o fficers were also justified in arresting Pitts

. D uring the course of a Terry stop , reasonable suspicion can escalate to probable cause , justifying an arrest

. United States v. McGlory , 968 F.2d 309, 343 (3d Cir. 1992). After the initial stop , but before requesting a drug

- sniffing dog, the officers were informed that the person they saw Pitts meeting with in the pa rking lot le d police on a high

- speed chase , deepening their suspicions that Pitts h ad engaged in a drug transaction. In addition, the officers observed , first hand, Pitts‟s nervous demeanor, especially when the DEA agent identified himself and called Pitts by name. These facts, along with the information the officers had about Pitts be fore the stop, established probable cause for his arrest. 2 See Illinois v. Gates , 462

2 Pitts argues that his Fourth Amendment rig hts were also violated when he was detained for approximately two hours, waiting for the K

- 9 unit to arrive on the scene

. Because we hold that the officers had probable cause to arrest Pitts, we need not consider whether police detained him for longer tha n necessary.4

U.S. 213, 243

- 44 (1983) (finding an an onymous letter corroborated by investigation and an officer‟s knowledge of the pattern of drug

- trafficking behavior was sufficient to constitute probable cause). Third, the same facts that justified Pitt‟s arrest also gave the officers probable cause to believe Pitts‟s car contained evidence of a drug

- trafficking transaction and, therefore, to support the warrant they acquired to sear ch his car. Moreover, the large quantities of cocaine and cash th e officers found in Pitts‟s car also provided sufficient facts to support a warrant for the search of Pitts‟s residence , which in turn yielded ample evidence to justify the subsequent warran ts for and searches of his bank account and other vehicles

. Accordingly, we will affirm the District Court‟s denial of Pitts‟s motion to
suppress. II. Pitts also argues that the government failed to produce sufficient evidence to support his conviction fo r possession of a firearm in furtherance of drug trafficking under
18 U.S.C. § 924(c)(1). We disagree. We apply “a particularly deferential standard” in reviewing whether the jury‟s decision rested on legally sufficient evidence in convicting
Pitts under § 924(c)(1). United States v. Dent, 149 F.3d 180, 187 (3d Cir. 1998). “ We must credit all available inferences in favor of the government , ” U nited States v. Gambone , 3 14 F.3d 163, 170 (3d Cir. 2003), and “ sustain the verdict if „ any rational trier of fa ct could have found the essential elements of the crime beyond a reasonable doubt, ‟ ”
Dent , 149 F.3d at 187 (quoting Jackson v. Virginia , 443 U.S. 307, 319 (1979))

.5

To establish a § 924(c)(1) violation, the government must prove that (1) Pitts committed a t least one of the crimes of possession of a controlled substance with the intent to distribute ; and (2) Pitts knowingly possessed a firear m in furtherance of that crime. See Third Circuit Model Criminal Jury Instructions, § 6.18.924A (2010). Because Pit ts has not challenged his drug

- possession charges on appeal, he has effectively conceded that the government provided sufficient evidence to prove his those charges

. Furthermore, Pitts does not argue that he did not possess a firearm. H e contends only th at the government failed to prove that his possession of the relevant firearm was in furtherance of his drug

- trafficking crimes.
In United States v. Sparrow , 371 F.3d 851, 853 (3d Cir. 2004), this court listed eight non

- exclusive factors to be considered in determining whether a weapon was possessed in furtherance of a drug crime : “the type of activity that is being conducted, accessibility of the firearm, the type of the weapon, whether the weapon is stolen, the status of the possession (legitimate or ill egal), whether the gun is loaded, proximity to drugs or drug profits, and the time and circumstances under which the gun is found.” Applying the above factors to this case, it is evident that Pitts‟ s possession was in furtherance of a drug crime. Pitts‟ s conviction was based on the handgun that officers found in his residence while conducting a search pursuant to a valid warrant . The evidence at trial , which has not been contested on appeal, showed that the amounts of cocaine, crack cocaine, an d marijua na found in Pitts‟s vehicle and residence , in addition to the kilo press, scale used to weigh cocaine, and other drug trafficking paraphernalia found in Pitts‟s residence, established an intent to distribute drugs

. The g un at issue was6

a handgun, meaning it was easy to carry and conceal. The hand gun was fully loaded, and was fo und under a table in his living r oom, approximately ten feet from the front door, steps from his kitchen where crack cocaine and marijuana were found, and in the same room as a bag containing over $80,000 in cash

. Further more , Pitts is a prior felon who may not legally possess such a firearm. All of this evidence supports Pitts‟s § 924(c)(1) conviction. See id. at 854 (affirming conviction where a loaded firearm, along with mariju ana and money, was found underneath the floor tiles of defendant‟s store in a concealed compartment); United States v. Ceballos

- Torres , 218 F.3d 409, 415 (5th Cir. 2009) (finding the firearm at issue was in furtherance of drug trafficking because the gun

w as loaded, owned by defendant, illegally possessed, and found in defendant‟s apartment where a substantial amount of drugs and mone y were also found); United States v. Luciano , 329 F.3d 1, 3

- 6 (1st Cir. 2003) (affirming conviction where a firearm and drugs were found in the crawlspace of a ceiling, which required the defendant to stand on a chair to gain access). Thus, w e find that the evidence presented by the government was more than sufficient to support Pitts‟s § 924(c) (1) conviction for possession of a f irearm in furtherance of a drug

- trafficking felony.
III. For the foregoing reaso ns, we will affirm the District Court‟s judgment of conviction and sentence.