NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

_____________

No. 16

- 3314

_____________ UNITED STATES OF AMERICA

v. HENRY J. ALVIN , JR., Appellant

______________ On Appeal from the United States District Court for the District of New Jersey ( D.N.J. Crim. No. 2

- 14

- cr
- 00 405

- 001 ) District Judge: Hon. Susan D. Wigenton

______________ Submitted Pursuant to Third Circuit L.A.R. 34.1(a) April 25 , 2017

______________ Before: SMITH , Chief Judge , McKEE and RENDELL , Circuit Judges

. (Opinion filed: July 19, 2017 )

_______________________ OPINION *

______________________

* This disposition is not an opinion of the full court and pursuant to I.O.P. 5.7 does not constitute binding precedent.2 McKEE, Circuit Judge

. Henry J. Alvin appeals the District Court’s denial of his Motion to S uppress and
the sentence that was imposed following his conviction. For the reasons that follow, we
will reverse the denial of the Motion to S uppress and remand for further proceedings

. 2
I During the District Court ’s suppression hearing , the G overnment introduced testimony that a fter Alvin recognized cars approaching him as unmarked police cars, he
seemed “ startled , ” and that he then got out of his car and crouched down in front of it , as if hiding. 3 , 4 Alvin eventually got up and walke d back to his car, Offi cers Carvalho and
John son approached him and identified themselves as police officers. In a letter to the District Court opposing Alvin’s Motion to Suppress, t he Government argued that the police had reasonable suspicion to stop Alvin because the “‘whole picture’ led to a

reas onable, articulable suspicion that criminal activity was afoot.” 5 More specifically,
the Government stressed that: the area had a gre at deal of crime, it was late, Alvin appeared “ startled” in response to a car he identified as the police , and Alvin hid in front
of his car

.

2 Accordingly, we need not reach Alvin’s challenge to the sentence imposed

. 3 Alvin’s hearing testimony differed dram atically from the testimony of the police officers. The District Court credited the Government’s testimony. In reaching our result, we rely only on the Government’s testimony. 4 J.A., 70

– 82. 5 J.A. 144.3 The Government reiterates its argument on appeal that the officers had reasonable suspicion for an investigatory stop under Terry v. Ohio

. 6 After the officers identified themselves as police, they instructed Alvin to place his hands on the back of his car , which he did . While thus detained, Officer Carvalho walked to the front of Alvin’s car

. Carvalho testified that Alvin said something to the effec t of “ that’s my vehicle, stay away
from it , ” and Carvalho found that unusual. 7 Carva lho testified that he unsuccessfully
searched for contraband or weapons outside the front of the car . He then looked inside
and saw a handgun inside the cup holder on the center console next to the driver’s seat.
Alvin was then placed in handcuffs, and t he gun was retrieved. After the suppression hearing, the District Court concluded that t h e officers’ testimony “support[ed] that there was a reasonable suspicion to stop the defendant and certainly probable cause to effectuate an arrest based on all of the circumstances that

were surrounding the exchange that evening. ” 8 Without identifying or explaining any such “circumstances , ” the District Court denied Alvin’s Motion to Suppress

. Thereafter, Alvin agreed to a stipulated trial , reserving the right to appeal the suppression order, and

was convicted of illegal possession of the seized fire arm
. II.

6 392 U.S. 1 (1968). 7 J.A. 80. 8 J.A. 10.4 We review the District Court’s factual findings for clear error but our review of the court’s legal conclusions is plenary

. 9
L aw enforcement officers can, w ithout a warrant, “conduct a brief, investigatory stop”

— commonly dubbed a “ Terry stop”

— “when the officer has a reasonable, articulable suspicion that criminal activity is afoot.” 10 In reviewing a challenge to a Terry stop, we ask, “[W] ould the facts availa ble to the officer at the moment of the seizure . . .
warrant a man of reasonable caution in the belief that the action taken was appropriate?” 11 We have a lternatively framed th e question as “ whether a reasonable,
trained officer standing in [the arresting officer’s] shoes could articul ate specific reasons justifying [the present] detention.” 12 Here, the District Court failed to articulate why it found that the officers ’ testimony supported a reasonable articulable suspicion justifying a Terry stop. On appeal, the Government recounts th e testimony it offered at the suppression hearing. It
argues the apartment complex where Alvin was parked was in an area where “numerous .
. . arrests” had occur r ed and that it was “late at night.” 13 T he “most important[] ” factor supporting a finding of reasonable suspicion, according to the Government, was that

9 United States v. Lowe , 791 F.3d 424, 427 (3d Cir. 2015). We have jurisdiction pursuant to 28 U.S.C. § 1291. 10 United States v. Brown , 7 65 F.3d 278, 289 (3d Cir. 2014) (internal quotation marks omitted) (quoting Illinois v. Wardlow , 528 U.S. 119, 123 (2 000 ) )

. 11 Terry v. Ohio , 392 U.S. 1, 22

– 23 (1968) (internal quotation marks omitted). 12 United States v. Brown , 448 F.3d 239, 246 (3d Cir. 2006) (emphasis added) (internal quotation marks omitted) (quoting Johnson v. Campbell , 332 F.3d 199 , 206 (3d Cir. 20 06)). 13 Appellee’s Br., at 23.5 Alvin “appeared startled and exited [i.e., “left”] his car and crouched down” when he recognized the unmarked car as a police car

. 14
That , without more, does not support a reasonable suspicion finding that is a condition of the limited investigatory stop Terry allows. First, to support the relevance of
the late

- night hour in a “high

- crime” area, the Government cites United States v.
Goodrich

. 15 While that case doe s support the Government’s claim that an area’s crime
rate and the time of day are relevant factors when deciding whether reasonable suspicion
has been established , 16 we also stressed in Goodrich that “[a]n individual’s presence in an area of expected crim inal activity

. . . is not enough to support a reasonable, particularized suspicion that the person is committing a crime.” 17
In fact , the officers in Goodrich were not even on routine patrol, as here. The
officers there encountered the defendant while a cting on a tip from a known informant whose reliability was not contested. 18 Ultimately, it was not just the high

- crime area or
the hour , but also the relationship between what the officers observed and the informant’s knowledge

— i.e., the temporal and geog raphical proximity

— as well as the number of persons in the area that “place[d] th[at] case squarely on the constitutional side of the

14 Appellee’s Br., at 24. 15 450 F.3d 552 (3d Cir. 2006). 16 Id. at 561

– 62. 17 Id. at 561 (quoting Wardlow , 528 U.S. at 124). 18 Id. More specifically, the police were on alert in Goodrich because 10 to 15 robberies of anhyd rous ammonia from certain storage tanks had been reported before the police received the reliable tip that someone was in the process of stealing anhydrous ammonia from the tanks. Id.6 divide [between reasonable and unreasonable suspicion]. ” 19 Ironically, the circumstances that supported a reasonable sus pi cion finding in Goodrich are so much more precise and
formidable than the circumstances here that Alvin , himself, might easily have relied upon
that case to distinguish the actions of the police who stopped him.
T he Government’s reliance on the fact that the officers thought that Alvin appeared alarmed and bent down in front of his car after identifying the police car is buttressed by a citation to United States v. Peterson

. 20 Here again, the facts are so distinguishable that Alvin might have convincingly pointed to Peterson as an example of
the kind of articulabl e suspicion needed for a Terry stop.
In Peterson , the arresting officers were aware that security guards had bee n involved in thefts

. 21 On the evening in question, police saw defendant Shawn Peter son and two other men duck behind a car that did not belong to them when the police approached in an unmarked car and plain clothes. 22 One of the men identified himself as a security guard d uring the ensuing conversation

. 23 As Peterson approached, police

n oticed a bulge in a knapsack that he was carrying on his back. When asked about the knapsack’s contents , Peterson curiously responded: “ [ W ] hat knapsack?” 24 The officers told him that they were referring to the knapsack on his back , and he then voluntarily

19 Id. at 562

. For example, the police in Goodrich responded to what w as tantamount to “a theft in progress” within seven minutes of receiving a tip regarding a theft. Id. at 554 (“They arrived . . . within seven minutes of [the informant’s] call . . . .”)

. 20 100 F.3d 7 (2d Cir. 1996). 21 Id. at 9. 22 I d. 23 Id. 24 Id.7 handed it over to them and allowed them to search it while proclaiming , “it’s not my knapsack.” 25 Durin g the ensuing suppression hear i n g, Peterson conceded that “his encounter with the officers began as a consensual interview.” 26
It is then clear that th e fact that the men had ducked behind the car was not dispositive to the officers’ justification for seizing or detaining them. There was neither
seizure nor detention until after circumstances

— that evolved from a consensual interview
and conversation

— gav e police sufficient information to form the basis of the probable cause necessary to seize him. That is simply not the case here

. 27 Clearly, “not every slouch, crouch, or other supposedly furtive movement justifies a stop.” 28 This may be espe cially true in proverbial “high

- crime” area s , where residents may simply want to avoid encounters with police for reasons unrelated to any criminal
conduct on their part

. 29 Nevertheless , the Government relies on Peterson and attempts to distinguish Alvin’s actions a s “involv[ing] more prono unced movement and actions , ”

25 I d. 26 Id . at 10. 27 We are reviewing a Terry stop, not a consensual encounter, or a consensual search leading to a seizure based upon probable cause. Not surprisingly, Peterson did not discuss Terry because the circumstances clearly established a consensu al interview followed by a consensual search that lead to the discovery of guns inside of the knapsack. Indeed, Terry is only mentioned in passing as part of a parenthetical accompaniment to a citation

. See id. at 10

– 11. 28 United States v. Woodrum , 202 F.3d 1, 7 (1st Cir. 2000). 29 “B ehavior that appears evasive could . . . have any number of innocent explanations .” United States v. Hill , 752 F .3d 1029, 1036 (5th Cir. 2014). That is no less true for such behavior in “high

- crime” areas.8 thereby rendering his actions less ambiguous and more suspicious. 30 But , as we have explained , the circumstances here are not comparable

. 31 We realize, of course, that “nervous, evasive behavior is a pe rtinent factor in determining reasonable suspicion

. ” 32 We nevertheless resist the implicit invitation to
elevate nervousness

— or even an isolated evasive act

— to the level that would allow police to detain anyone whom they conclude is nervous or tryi ng to av oid them as they approach

. 33 Moreover, even if Alvin did appear nervous, or “startled,” as Officer
Carvalho testified , “[i]t is certainly not uncommon for most citizens

— whether innocent or guilty

— to exhibit signs of nervousness when confronted by a law enf orcement
officer.” 34

30 Appellee’s Br., at 27

– 28. 31 See also United States v. Valentine , 232 F.3d 350, 357 (3d Cir. 2000) (concluding that “the officers had reasonable suspicion after they received the face

- to

- face tip, were in a high

- crime area at 1:00 a.m., and saw [the defendant] and his two companions walk away as soon as they noticed the police car”). 32 Illinois v. Wardlow , 528 U.S. 119, 124 (2000). 33 Wardlow , on which the Government also relies and often cites in an attempt to base articulable suspicion or even probable cause on a defendan t’s flight, is not to the contrary. Although that case’s facts are often overlooked, in Wardlow , police were traveling in a caravan as they approached an area known for drug sales and weapons. Id. at 121. Moreover, “they expected to find a crowd of peop le in the area, including lookouts and customers.” Id. With these expectations informing their observations, they saw William Wardlow, the defendant, flee, “holding an opaque bag.” Id. at 121

– 22. They apprehended him and “immediately conducted a brief protective patdown search for weapons because . . . it was common for there to be weapons in the near vicinity of narcotics transactions.” Id. at 122. When police “squeezed the bag [Wardlow] was carrying,” they noticed it contained a hard and heavy objec t that they believed to be a gun. Id. This gave police probable cause to arrest Wardlow. Id. at 122, 126. However, as the facts show, before they gave chase, they had reason to believe that he was either a lookout or a seller of drugs. Id. at 121. 34 U nited States v. Wood , 106 F.3d 942, 948 (10th Cir. 1997).9 Lastly, we address t he Go vernment ’s contention that officers’ “ training and observations led them to suspect that Alvin might be engaging in criminal activity .” 35
We do “give considerab le deference to police officers’ determina tions o f reasonable suspicion,” 36 but courts do not owe them “blind deference.” 37 Nor can we accept any suggestion that the officers’ training should somehow be allowed to elevate ambiguous circumstances to the reasonable suspicion required for a Terry stop. Afte r all, that training includes (or should include) awareness of the constitutional limitations the
Fourth Amendment imposes

. Considering the se circumstances as a whole, 38 w e conclude that the District Court erroneously determined that the officers articulat ed sufficient facts supporting reasonable suspicion to justify stopping Alvin

. III For the reasons set forth above, we hold that the District Court erred in denying
Alvin’s Motion to S uppress. We will therefore reverse that order and remand for furthe r proceedings.

35 Appellant’s Br., at 26. 36 United States v. Mosley , 454 F.3d 249, 252 (3d Cir. 2006). 37 Woodrum , 202 F.3d at 7. 38 See United States v. Arvizu , 534 U.S. 266, 273 (2002) (stating that reviewing c ourts “must look at the ‘totality of the circumstances’ of each case to see whether the detaining officer has a ‘particularized and objective basis’ for suspecting legal wrongdoing” (quoting United States v. Cortez , 449 U.S. 411, 417 (1981))).