2006 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

5-26-2006

USA v. Smith

Precedential or Non-Precedential: Non-Precedential

Docket No. 05-1774

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Recommended Citation

"USA v. Smith" (2006). 2006 Decisions. Paper 1037.

http://digitalcommons.law.villanova.edu/thirdcircuit_2006/1037
 The Honorable Joseph H. Rodriguez, Senior District Judge, United States *

District Court for the District of New Jersey, sitting by designation.

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

 

No. 05-1774

 

UNITED STATES OF AMERICA

v.

JEROME SMITH, a/k/a PAUL KELLY,

Jerome Smith,

Appellant

 

On Appeal from the United States District Court

for the Eastern District Of Pennsylvania

D.C. No. 03-cr-00683

District Judge: Hon. Timothy J. Savage

 

Submitted Under Third Circuit LAR 34.1(a)

March 9, 2006

Before: ROTH and ALDISERT, Circuit Judges, and RODRIGUEZ, District Judge *

(Filed: May 26, 2006)

 

JUDGMENT ORDER

 
2

This cause came to be considered on the record from the United States District

Court for the Eastern District of Pennsylvania and was submitted under Third Circuit

LAR 34.1(a) on March 9, 2006, and 

IT APPEARING that Appellant Jerome Smith challenges the denial of a motion to

suppress evidence on the basis that the officers lacked reasonable suspicion to search

him; and

IT APPEARING that Smith is the co-defendant of Kareem Brown, the appellant

in United States v. Brown, — F.3d —, Slip Op. No. 05-1723 (3d Cir. May 19, 2006)

(Judges Barry, Ambro and Aldisert), in which this Court, per Judge Ambro, vacated

Brown’s conviction after determining that police did not have reasonable suspicion to

stop Brown and that he was seized before any alleged resistance occurred; and

IT APPEARING that Smith and Brown were together when apprehended and that

the only factual variance between the circumstances surrounding the seizure of Smith and

those surrounding the seizure of Brown is that Smith fled from police moments before

Brown began allegedly resisting; and

IT APPEARING that this distinction is immaterial because Smith had already

submitted to a show of police authority by engaging in a brief discussion, putting down

his coffee, walking over to the police car and starting to place his hands on the officers’

car, see id at *15-16; see also United States v. Coggins, 986 F.2d 651, 654 (3d Cir. 1993)

(holding that defendant submitted to a show of authority where he obeyed agent’s

command to “sit down,” even though defendant subsequently fled); and

UPON CONSIDERATION of all facts and legal contentions, there is no other

ground distinguishing this case from Brown, nor meriting further discussion; accordingly, 

IT IS ORDERED and ADJUDGED that the judgment of the District Court dated

July 20, 2004 be and is hereby REVERSED and the conviction is VACATED.

The mandate of this Court shall issue forthwith.

BY THE COURT,

/s/ Ruggero J. Aldisert 

Circuit Judge