2004 D e c i sion s O p inion s of the U nit e d S t at e s C our t of Appe al s for the Thir d C ir c uit
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# U S A v . C ol lins 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 ocke t N o . 02-4433

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w . v i l l a no va . e du/thir dc ir c uit_2004/1022NOT PRE CEDENT IAL THE UNITED STATES COURT OF APPEALS

FO R T HE TH IRD CIR CU IT

___________ No. 02-4433

___________ UNITED S TATES OF AMERI CA

v. JMEAL COLLI NS a/k/a PAUL VAN L OAN J'Meal Collins, Appellant

___________ ON APPEAL FROM THE UNI TED STATES DIST RICT COURT FO R T HE EA STE RN DIST RIC T O F PE NN SY LV AN IA

(D.C. Crimi nal No. 01-cr -00780) Distri ct Judge: The Honorable JayC. Waldman

___________ Submitte d Under Third Circ uit LAR 34.1(a)

October 28, 2003

BE FO RE : SC IRI CA , Chief Judge , NY GA AR D, a nd A M BR O, Circu it Judges
.2 (Fil ed: February 5, 2004)

___________ OPINI ON OF THE COURT

___________ NY GA AR D, Circu it Judge
.

Ap pellan t J’M eal C ollins, a.k .a. Pau l Van Loa n, bring s this ap peal to his
con victi on f or p oss essio n of a fir earm by a c onv icted felo n, in vio latio n of 18 U .S.C . § 922(g)(1) . Coll ins chal lenges t he District Court ’s ref

usal t o suppress the fi rearm that forms the bas is for

this conviction, c ontending t hat the police ’s sei zure of this weapon
was u nl awfu l. We wil l a ffi rm.

The events l eading t o Collins ’s arrest began when a di spatcher for the Philadelphia Poli ce Department received a c all f rom a woman who reported that someone she knew was drivi ng with a handgun under the seat of his car . The call er gave a det aile d descri ption of Col lins and his car , confi rmed the addr ess from which she was calli ng, and
ex pr es se d f

ea r t ha t C ol li ns wou ldse ekre ve nge if he kne w sh e h ad ca ll ed . Wh en two police officer s drove t o the cal ler’ s address to speak wit h her furt

her, t hey s aw a car and driver matching t

he call er’s de scri ption. The officers firs t pull ed thei r poli ce crui ser behind the car, and then moved the cr uiser to try t o block the car when the driver – l ater identi fied as Col lins – started to pul l away. The Distri ct Court a ssumed, but did not decide, that t

his action effectively

blocked the car and pr evented the driver from pulli ng
aw ay.3 As th ey got ou t of the police cruise r, the of ficers s aw Co llins mo ving his hea d up anddown andben di ng t owar d hi s r ig htsi de. Both of fi cer s drew thei r f

ir earms and a ppro ache d the c ar. On e off icer w ent to th e drive r’s side d oor a nd as ked C ollins to show his hands, an order which was r epeated t hree more times before Collins complied. The officer t

hen asked Coll ins t o get out of the car , and he di d so, walki ng toward the rear of his car , reac hing for hi s waistband, and withdrawing a handgun. After one offi cer yel led “gun, ” Colli ns thre w the handgun and ran t oward the adj acent apartment comple x, wh ere h e w as a ppr ehe nde d an d pl ace d un der arre st.

A jury convict ed Colli ns of posses sion of a handgun by a convict ed felon and the Dist

rict Court sent enced him to 240 months in pri son. Before t rial , Coll ins had filed a mo tion to s upp ress the hand gun that fo rmed the ba sis for h is indictm ent, conte ndin g that it w as seiz ed as a resu lt of an unlaw ful arre st and an ins uffic iently reliable anonymous tip. Col lins now contests the Dist rict Court’s de nial of

this motion. The Distric t Cou rt exerc ised jur isdiction und er 18 U.S .C. § 3 231 and th is Co urt has appe llate juri sdiction over t

he finaljudgment under 28 U.S.C. § 1291. The Distri ct Court received briefs fr om the parties and heard tes timonyand argument re late d to the a dmissi bili ty of the gun. Based upon the fact s as outl ined above, the D istrict Co urt fou nd th e off icers ac ted rea sona bly in purs uing the ca ller’s com plaint; used reaso nable force in stop ping Co llins, inclu ding using the po lice cru iser to b lock h is car; an d too k reas onab le prec aution s in pro portion to the ju stified c once rns ab out the ir1 In de ed , i f we wer e t o a ttemp t to a ddres s the merit s o f Co ll in s’ s n ew the or y , w e

would be at a deci ded disadvant age, becaus e the Dist rict Court was not gi ven the opportuni ty to create an adequate factualrecord. Our prior hol dings have made i t cle ar that t he questi on of whether or not the poli ce had suffi cient reason t o suspect

ill egal activ ity is ba sed upo n a v ariet y of h igh ly con textu al co nsid erati ons . See United St ates v. Valenti ne , 232 F .3d 35 0, 356 (3d C ir. 2000 ); Ubiles , 224 F.3d at 217. In this case, these consider ations might i nclude an exami nation of the dif ference between Pennsyl vania gun law and the Vir gin Isl ands law impli cated i n Ubiles , as wellas consi derati on of whether Collins was in a high- crime nei ghborhood when he was approached bypolice , and i f the fear o f repr isal voic ed by the caller co nstituted an ad equa te reaso n fo r the po lice to sus pec t that Co llins w as d ang ero us. Because we find the iss ue to be waive d, we do not add ress th ese que stions furthe r. 4 safety that were prompted byCollins ’s suspi cious behavi or. The Court theref ore found that the offic ers’ be havio r passe d the te st estab lished in Terr y v. O hio , 392 U.S. 1, 30 (1968), and that

theyhad probable cause to arrest Collins and seize his gun when he pulled i t from his waistband and t hrew it whil e att empting t o flee. Dist. Ct. Op. 4-7. In an argument

made for the first t

ime upon appeal, Collins now contends that t he seizure of the gun was unl awful under the standard establ ished i n United Stat es v. Ubiles , 224 F.3d 213, 217 (3d Cir. 2000). He maint ains t hat, as in Ubiles , the re was no reason for

the poli ce officer s to sus pect that Coll ins was engaged i n ill egal activit y, since possessi ng a gun is not

necessarily

ill egal, and the sur

rounding ci rcumstance s did not point to the pres ence of il legal acti vity . The District Court did not

address t

his i ssue because i t was not gi ven the opport unity to do so. Because thi s theory of s uppressi on was not b roug ht bef ore the Distric t Cou rt, we f ind tha t it has be en w aived , and d ecline to review it on its merit s. 1 “A liti gant cannot jump from theory t o theorylike a bee buzzing5

from flower t o flower. To t he preci se contr ary , when a party fai ls t o rais e a theory at the dist rict court l evel, that t

heory is gener ally

regarded a s forfei ted and cannot be advanced on appeal. ” United States v. Torres, 162 F.3d 6, 11 ( 1st C ir. 1998 ); see , e.g., United Stat es v. Hawkins , 249 F.3d 867, 872 (9th Cir. 2001 ); United Stat es v. Neumann , 887 F.2d 880 , 886 (8th C ir. 1989); Un ited S tates v. D i Stef ano , 555 F .2d 1094 , 1100 n.5 (2 d Cir. 197 7)._________________________

TO THE C LERK:

Please fi le the foregoing opi nion.

/s/ Richard L . Nygaard

_________________________________ Circuit Judge