2009 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

1-29-2009

USA v. Crandell

Precedential or Non-Precedential: Precedential

Docket No. 07-4004

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Recommended Citation

"USA v. Crandell" (2009). 2009 Decisions. Paper 1949.

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

 

No. 07-4004

 

UNITED STATES OF AMERICA

Appellant

v.

RONALD CRANDELL

a/k/a Ricky Crandell

 

Appeal from the United States District Court

for the District of New Jersey

(D.C. Criminal Action No. 06-cr-00232)

District Judge: Honorable Joseph A. Greenaway

 

Argued September 25, 2008

 

Before: BARRY, AMBRO, and JORDAN, Circuit Judges

(Opinion filed: January 29, 2009)
2

Christopher J. Christie

 United States Attorney

George S. Leone

 Chief, Appeals Division

Caroline A. Sadlowski (Argued)

 Assistant U.S. Attorney

Office of United States Attorney

970 Broad Street, Room 700

Newark, NJ 07102-0000

Counsel for Appellant

Richard Coughlin

 Federal Public Defender

Lisa M. Mack, Esquire (Argued)

Louise Arkel, Esquire

Office of Federal Public Defender, 4th Floor

972 Broad Street

Newark, NJ 07102-0000

Counsel for Appellee

 

OPINION OF THE COURT

 

AMBRO, Circuit Judge 

Three police officers were on routine patrol in a Hoboken,

New Jersey housing project when they received an anonymous tip

that a male with dreadlocks and blonde hair tips was seen carrying a

handgun somewhere in the area. The officers immediately believed

the description of the suspect matched the defendant, Ronald “Ricky”
 We have appellate jurisdiction under 18 U.S.C. § 3731. 1

3

Crandell, whom they recognized for his distinctive appearance and

rap sheet. While searching for Crandell in the neighborhood, the

officers spotted him walking toward them. They approached him,

which led to a pat-down and the recovery of a gun. 

A federal grand jury indicted Crandell for possessing a

firearm as a convicted felon in violation of 18 U.S.C. § 922(g)(1).

Prior to trial, he moved to suppress evidence of the handgun as the

fruit of an illegal Fourth Amendment seizure. The District Court held

a suppression hearing. In a comprehensive opinion, the Court

presumed a seizure based on the anonymous tip, and granted the

motion to suppress. 

The Government appeals that ruling. It argues that Crandell 1

was not seized within the meaning of the Fourth Amendment; rather,

based on all the circumstances, the encounter was consensual. 

We agree that the threshold question of whether Crandell was

seized by the officers must be determined by evaluating all the

circumstances surrounding the encounter, as a presumption does not

suffice in this case. In so concluding, we explore why the tip, which

raised the officers’ suspicion and led to the encounter with Crandell,

does not affect the initial seizure inquiry. We thus remand for further

proceedings.

I. Facts

A. The Anonymous Tip
 Officer Drishti described the Housing Authority as 2

approximately twenty buildings located in an area that measures

four blocks by two blocks. 

 When approaching Crandell, Officer Valez observed that he 3

was wearing “loose jeans” and a “tan shirt.” Valez was unsure

4

On July 15, 2005, three Hoboken Police Department

officers—Arbend Drishti, Angel Valez, and Jimmy Miller—were on

routine foot patrol in a residential area known as the Hoboken

Housing Authority. Officer Drishti received an anonymous and

uncorroborated tip from the police dispatch center about an armed

man seen somewhere in the Housing Authority. The police report 2

described “a black male with dread locks and blonde tips[,] wearing

a tan shirt and blue jeans[,] in possession of a handgun on his

waistband (small of his back).” Based on this description, Officers

Drishti and Valez immediately believed the armed man was Crandell.

Officer Valez recognized Crandell’s distinctive description because

Valez had seen Crandell’s picture on numerous occasions in roll call

and knew that he had been arrested several times in the area the

officers patrolled. After receiving the dispatch, the three officers

went to the intersection of Fifth and Jackson Streets in Hoboken to

search for Crandell because it is a “high crime area” that he

“frequents.” However, they did not see him at that location.

B. The Encounter with Police

The officers walked south from the intersection, crossing

Jackson Street toward Fourth Street. “Approximately halfway

between Fourth Street and Fifth Street, [they] saw [Crandell] walking

toward them.” United States v. Crandell, 509 F. Supp. 2d 435, 439 3
whether he could see Crandell’s dreadlocks beneath the towel on

his head, but was nonetheless confident it was Crandell because

“[I] know his face.”

5

(D.N.J. 2007). Crandell did not react when he saw the three

uniformed officers and kept walking in their direction. The officers

approached Crandell in either a semi-circle or line formation and

Officer Valez spoke to him. 

The District Court notes that the testimony of Officers Drishti

and Valez differs slightly with regard to what the officers said prior

to patting Crandell down. Id. at 440. Both accounts, however,

indicate Valez spoke to Crandell before he began the pat-down.

Officer Valez testified:

As [Crandell] walked toward[] us, I stopped him . .

. . and I told him I received information that [he]

might have a weapon on [him] and I wanted to give

[him] a pat down for our protection[.] I told

[Crandell] he was free to leave at any time. . . . [Then

Crandell] put his arms up . . . . [and,] as I was patting

[Crandell] down, he hit my arm, he turned around and

he ran [and] the weapon fell from the back of his

pants. 

Officer Drishti testified:

Officer Valez said to [Crandell], is it all right if we

pat you down for our safety? You can leave at any

time. And [Crandell] said, yeah, what’s this all

about? He started to get towards the fence[;] there
6

was a fence there. I was on . . . Officer Valez’s left,

Officer Miller was on his right, and as he was picking

up to put his hand like toward[] the fence, he was

asking, what’s this all about? And Officer Valez said,

we got a call you might have a handgun on you. At

that moment, as Officer Valez started to try to pat him

down, he may have touched him once or twice, as

soon as he got like towards the back area, Mr.

Crandell turned abruptly and like knocked [Officer

Valez’s] arm to the side and a handgun flew from the

lower back area onto the sidewalk, and Mr. Crandell

then proceeded to run south on Jackson . . . .

According to Drishti (obviously speaking with at least some

overstatement), the whole event took “a couple of seconds.” Officer

Miller recovered the gun while Officers Drishti and Valez chased

Crandell, but were unable to catch him at that time. Thereafter, a

warrant was issued and Crandell was arrested.

C. The Suppression Hearing

After a federal grand jury indicted Crandell for possessing a

firearm as a convicted felon, he moved to suppress evidence of the

handgun as the fruit of an illegal Fourth Amendment seizure. The

District Court held a hearing and granted his motion to suppress, in

effect dismissing the charge against him. The Court ruled that the

seizure was illegal because the anonymous tip did not provide the

officers with reasonable suspicion to justify the stop. Id. at 437. In

so ruling, it presumed Crandell was seized at the outset of the

encounter, as the officers’ suspicion stemming from the tip tainted

the possibility of consensual interaction. Id. at 446–47 n.9. The
7

Government appeals that ruling.

II. Discussion

We review a district court’s grant of “the motion to suppress

for clear error as to the underlying facts, but exercise[] plenary

review as to its legality in light of the court’s properly found facts.”

United States v. Givan, 320 F.3d 452, 458 (3d Cir. 2003) (citation

and internal quotations omitted) (alteration in original).

A. Was Crandell Seized?

The Fourth Amendment protects individuals from

“unreasonable searches and seizures” of “their persons, houses,

papers, and effects.” U.S. Const. amend. IV. Because of the

Amendment’s language, we generally use the phrase “search and

seizure” when evaluating the Fourth Amendment issues involved in

suppression cases. But in certain circumstances, such as this, our

legal analysis is flipped; we begin with whether an individual was

seized, and, if so, whether it was valid, then the search analysis

follows. 

The Fourth Amendment generally requires that police officers

obtain a warrant based on probable cause to justify a seizure and

search. Terry v. Ohio, 392 U.S. 1, 20 (1968). Terry held, however,

that Fourth Amendment seizures can be legal absent a warrant in

certain circumstances, which may include brief investigative

detentions. Id. at 20 (describing beat cops’ encounters with citizens

“predicated upon . . . on-the-spot observations” as an example of

conduct that would not require a warrant).
8

A warrantless Fourth Amendment seizure needs an objective

and particularized justification. United States v. Mendenhall, 446

U.S. 544, 551 (1980). Under Terry, “an officer may, consistent with

the Fourth Amendment, conduct a brief, investigatory stop when the

officer has a reasonable, articulable suspicion that criminal activity

is afoot.” Illinois v. Wardlow, 528 U.S. 119, 123 (2000). 

“Reasonable suspicion [required for a Terry stop] is a less demanding

standard than probable cause [necessary for an arrest] and requires a

showing considerably less than preponderance of the evidence. . . .

[R]easonable suspicion can arise from information that is less reliable

than that required to show probable cause.” United States v.

Valentine, 232 F.3d 350, 353 (3d Cir. 2000) (citations and internal

quotations omitted).

The first analytical step a court takes to evaluate the issues

involved in this type of motion to suppress is to determine whether

and when a citizen-police encounter implicates the Fourth

Amendment. “Before even addressing whether the police had

reasonable suspicion to approach [and engage an individual], the

District Court [must first inquire] into whether [the individual was]

‘seized’ by the police” within themeaning of the Fourth Amendment.

United States v. Williams, 413 F.3d 347, 352 (3d Cir. 2005). Courts

regularly grapple with whether a particular encounter “amount[s] to

a ‘seizure’” of a person or “intrudes upon no constitutionally

protected interest.” Mendenhall, 446 U.S. at 552–53. Street

encounters between citizens and police officers, like the encounter in

this case, “are incredibly rich in diversity,” and “[o]bviously[] not all

personal intercourse between policemen and citizens involves

‘seizures’ of persons’” implicating the Fourth Amendment. Terry,

392 U.S. at 13, 19–20 n.16. 
9

The Supreme Court has made clear that a Fourth Amendment

“seizure does not occur simply because a police officer approaches

an individual and asks a few questions.” Florida v. Bostick, 501 U.S.

429, 434 (1991). These encounters of short duration that do not

amount to Fourth Amendment seizures can be characterized as

“consensual” because the citizen has the ability to engage in or

terminate the encounter. See United States v. Wilson, 413 F.3d 382,

386–87 (3d Cir. 2005) (determining whether the further questioning

by the police officer after issuing a traffic citation was a consensual

encounter or a Fourth Amendment seizure). “When an encounter is

consensual, no reasonable suspicion is required.” United States v.

Kim, 27 F.3d 947, 950 (3d Cir. 1994).

A seizure occurs only “when [a police officer], by means of

physical force or show of authority, has in some way restrained the

liberty of a citizen.” Terry, 392 U.S. at 19–20 n.16; see also Curley

v. Klem, 298 F.3d 271, 279 (3d Cir. 2002) (a “seizure occurs

[w]henever an officer restrains the freedom of a person to walk

away” (citations and internal quotations omitted) (alteration in

original)). The “show of authority” test “is an objective one: not

whether the citizen perceived that he was being ordered to restrict his

movement, but whether the officer’s words and actions would have

conveyed that to a reasonable person” in light of all the surrounding

circumstances. California v. Hodari D., 499 U.S. 621, 628 (1991)

(citing Mendenhall, 446 U.S. at 554) (stating that the individual must

submit to a show of authority to effect a seizure). The Supreme

Court cited several circumstances in Mendenhall that might indicate

a seizure, even where the person did not attempt to leave, including

the threatening presence of several officers, the

display of a weapon by an officer, some physical
10

touching of the person of the citizen, or the use of

language or tone of voice indicating that compliance

with the officer’s request might be compelled. In the

absence of some such evidence, otherwise inoffensive

contact between a member of the public and the

police cannot, as a matter of law, amount to a seizure

of that person.

446 U.S. at 554–55 (internal citations omitted). 

The label a court ultimately attaches to an encounter is more

than a legal abstraction of police conduct. In the evidentiary context

of the defendant’s criminal trial, it can affect “the admissibility

against [a defendant] of the evidence uncovered by the search and

seizure.” Terry, 392 U.S. at 12 (referred to as the “exclusionary

rule”). In situationslike Crandell’s—where the criminal charge rests

solely on the physical evidence that is the subject of a motion to

suppress—a ruling in the defendant’s favor results in dismissing the

entire case against him. 

The basis of the District Court’s ruling to suppress the

handgun here was its initial presumption that the officers seized

Crandell within the meaning of the Fourth Amendment. In

presuming that a Fourth Amendment seizure occurred, the Court did

not evaluate the facts and circumstances surrounding the encounter,

but instead reasoned that the anonymous tip tainted the approach and

negated the possibility of consensual interaction between the police

officers and Crandell. Crandell, 509 F. Supp. 2d at 446–47 n.9

(“Accepting the Government’s argument would, in effect, undercut

the anonymous tip jurisprudence by allowing officers to sidestep the

reasonable suspicion requirement by merely asking for consent as
11

they stopped suspects.”). The Court then examined our anonymous

tip case law in-depth to conclude that the officers did not have

“reasonable suspicion,” as Terry requires, to stop Crandell legally.

Id. at 437–51.

Our path differs from that of the District Court. We believe

it should have considered whether the encounter was consensual at

the outset instead of presuming that the police seized Crandell. The

Supreme Court requires us to evaluate all the objective circumstances

surrounding the encounter from the perspective of the “reasonable”

person who is the recipient of the police attention. See Bostick, 501

U.S. at 438 (stating the “Fourth Amendment inquiry [is] whether a

reasonable person would have felt free to decline the officers’

requests or otherwise terminate the encounter”). The subjective

intent underlying an officer’s approach does not affect the seizure

analysis. As noted above, a seizure does not occur simply because an

officer approaches an individual—and gun owners are no

exception—to ask questions. Valentine, 232 F.3d at 356 (citing

Bostick, 501 U.S. at 434); see also Williams, 413 F.3d at 353–54.

Therefore, a tip police received that motivates their encounter with

an individual merely serves to color the backstory at this stage. 

The Supreme Court considered a related question in United

States v. Drayton, 536 U.S. 194 (2002). It dealt with a citizen-police

encounter in the more restrictive confines of a bus. Three officers

boarded a Greyhound bus to conduct routine drug interdiction efforts.

Id. at 197. When they approached Drayton to question and request

consent to search him, theywere suspicious that he had drugs on him.

Id. at 198–99. The officers had just searched and arrested his

traveling companion and seatmate, Brown, for carrying concealed

narcotics. Id. After arresting Brown, they focused their attention on
12

Drayton. In analyzing whether the officers’ encounter with Drayton

was consensual, the Court reiterated Bostick’s holding that police

need not have any suspicion of wrongdoing to approach and request

consent to search an individual. Id. at 201 (citing Bostick, 501 U.S.

at 434–35). The Court acknowledged that the officers were

suspicious of Drayton even before they questioned and requested

consent to search him, yet it concluded that Drayton’s encounter was

consensual and he was not seized by police. It reasoned:

It would be a paradox, and one most puzzling to law

enforcement officials and courts alike, were we to

say, after holding that Brown’s consent was voluntary

[without the police having any suspicion of

wrongdoing], that Drayton’s consent was ineffectual

simply because the police at that point had more

compelling grounds to detain him.

Id. at 207–08. Moreover, “[t]he fact the officers may have had

reasonable suspicion does not prevent them from relying on a

citizen’s consent to the search.” Id. at 207. Indeed, “‘consensual

encounters are important tools of law enforcement,’” particularly in

situations where officers are unsure whether they have the legal

authority to detain a suspect forcibly. Williams, 413 F.3d at 352

(quoting Johnson v. Campbell, 332 F.3d 199, 205 (3d Cir. 2003)). 

The Government suggests we should conclude that Crandell’s

encounter with the police was consensual because any findings of

fact to the contrary would be clearly erroneous. It thus requests that

we reverse the District Court’s order granting the motion to suppress,

rather than vacate it and remand. We decline. The District Court’s

role is to find facts and determine in the first instance whether
 In evaluating this issue, the District Court should also take 4

into consideration what the Supreme Court found was not

coercive in Drayton. For example, at the suppression hearing

the District Court seemed inclined to conclude that the mere

presence of three police officers was sufficient to render the

encounter a seizure. See Appellant’s App. V.II 66 (quoting the

District Court (hearing transcript): “you have three officers

approach you, and it would appear, I think, to the objective

observer, that the statement ‘you’re free to go’ was merely

perfunctory”). Drayton also involved three officers. 536 U.S.

at 197. The officers boarded the bus to question passengers and

conduct narcotics searches, and one of the officers positioned

himself next to the exit at the front of the bus. Yet the Supreme

Court did not find the mere presence of three officers coercive.

Id. at 203–05. With this note, we leave to the District Court in

the first instance the marshaling of evidence and weighing of all

the circumstances pertinent to the seizure issue. 

13

Crandell was seized within the meaning of the Fourth Amendment

under the totality of the circumstances. See Bostick, 501 U.S. at 437.

We note, however, that the Supreme Court’s analysis in

Drayton provides a framework for the District Court to bear in mind

when evaluating this issue. Though the police encounter there

occurred on a bus, the Court concluded that under all the

circumstances Drayton was not seized because “[t]here was no

application of force, no intimidating movement, no overwhelming

show of force, no brandishing of weapons, no blocking of exits, no

threat, no command, not even an authoritative tone of voice.”4

Drayton, 536 U.S. at 204. The Court also noted that “[i]t is beyond

question that had this encounter occurred on the street, it would be
 At the suppression hearing, one of the officers testified that 5

he “has never had anybody say, well, thank you, officer, I

choose to walk away.” As the Supreme Court discussed, this

type of statement does not affect whether Crandell was free to

go. 

14

constitutional.” Id. (indicating the setting, such as a bus, was one

factor, but not determinative). Furthermore, 

the fact that in [an officer’s] experience only a few

passengers have refused to cooperate does not suggest

that a reasonable person would not feel free to

terminate the [] encounter. . . . “While most citizens

will respond to a police request, the fact that people

do so, and do so without being told they are free not

to respond, hardly eliminates the consensual nature of

the response.”[ ]

5

Id. at 205 (quoting INS v. Delgado, 466 U.S. 210, 216 (1984)). 

If the District Court determines that, under all the

circumstances, Crandell was seized by the officers when they

approached him, then reasonable suspicion to conduct a Terry stop

must exist. At this stage, the Court in normal course would consider

the significance of the anonymous tip in providing a basis for

reasonable suspicion. 

This normal course does not apply here, however. The

Government opted not to appeal the District Court’s ruling that the

anonymous tip did not provide the officers with a basis for reasonable

suspicion to stop and frisk Crandell. Crandell, 509 F. Supp. 2d
 Wilson is an example of an encounter where we considered 6

a citizen’s consent to search. 413 F.3d at 388. We first

determined “that no seizure occurred, i.e., that Wilson’s

continued encounter with [the officer] was consensual,” and thus

we did not need to reach Wilson’s argument that the officer did

not have reasonable suspicion to justify the questioning. Id. at

388 n.6. We next evaluated whether Wilson’s consent to the

search of his bag was voluntary. Id. at 388 (concluding that

15

at 447–51. It thereby concedes that the officers’ basis for suspicion

did not rise to the constitutionally required standard of “reasonable

suspicion” to validate a Terry stop. Without reasonable suspicion,

the seizure of Crandell would be illegal and the gun obtained in

connection with the ensuing pat-down search would properly be

suppressed under the metaphorical “fruit of the poisonous tree”

doctrine. Wong Sun v. United States, 371 U.S. 471, 487–88 (1963).

In such a circumstance, even if Crandell consented to the pat-down

search, his “search consent” would be overborne by the

unconstitutional stop. See id. 

Thus, this case pivots on whether Crandell was seized. Only

if he was not seized within the meaning of the Fourth Amendment

would the District Court proceed to the search inquiry set out below.

B. Assuming Crandell was not seized, was the search

of him consensual?

If the District Court determines that Crandell was not seized

during his encounter with police, then the Court must evaluate

whether he voluntarily consented to the pat-down search for

weapons. “‘[A] search conducted pursuant to consent is one of the 6
Wilson gave his voluntary consent to the search and thus there

was no Fourth Amendment violation). 

 An officer must place his hands on an individual to conduct 7

a pat-down search, which leads logically to the contention that

this act constitutes a seizure. Mendenhall dealt with this

conflation of seizure and search by explaining that in Terry

[o]bviously the officer “seized” Terry and

subjected him to a “search” when he took hold of

him . . . and patted down the outer surfaces of his

clothing. What was not determined in that case,

however, was that a seizure had taken place

before the officer physically restrained Terry for

purposes of searching his person for weapons.

The Court “assume[d] that up to that point no

intrusion upon constitutionally protected rights

had occurred.”

446 U.S. at 552–53 (internal citations omitted). 

16

specifically established exceptions to the warrant requirement.’”

Wilson, 413 F.3d at 388 (alteration in original) (quoting Givan, 320

F.3d at 459). 

7

Consent to a search is determined by examining all the

circumstances, similar to the inquiry of whether a seizure occurred.

Givan, 320 F.3d at 459. If the initiation of the encounter and the patdown search are close in time, as they are here, then the respective

consent analyses of the seizure and search will turn on similar facts.

See Drayton, 536 U.S. at 206. “‘[T]he critical factors comprising a
17

totality of the circumstances inquiry include the setting in which the

[search] consent was obtained, the parties’ verbal and non-verbal

actions, and the age, intelligence, and educational background of the

consenting [party].’” Wilson, 413 F.3d at 388 (quoting Givan, 320

F.3d at 459). This consent inquiry does not require officers to inform

citizens of their right not to cooperate when “seeking permission to

conduct a warrantless consent search.” Drayton, 536 U.S. at 206

(citations omitted); id. at 207 (stating no “extra weight” should be

given “to the absence of this type of warning”).

CONCLUSION

The District Court needs to determine on remand whether the

officers’ encounter with Crandell was consensual or constituted a

Fourth Amendment seizure, as this will determine whether it needs

to proceed to the remaining suppression issue. We thus vacate its

ruling that granted the motion to suppress and remand this case for

further proceedings consistent with this opinion.