2007 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

10-22-2007

USA v. Yamba

Precedential or Non-Precedential: Non-Precedential

Docket No. 06-2581

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"USA v. Yamba" (2007). 2007 Decisions. Paper 306.

http://digitalcommons.law.villanova.edu/thirdcircuit_2007/306
 Honorable Harold A. Ackerman, Senior United States *

District Judge for the District of New Jersey, sitting by

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

 

No. 06-2581

 

UNITED STATES OF AMERICA

v.

VIKRAM YAMBA,

Appellant

 

Appeal from the United States District Court

for the Western District of Pennsylvania

(D.C. Criminal Action No. 04-cr-00329-1)

District Judge: Honorable Thomas M. Hardiman

 

Submitted Under Third Circuit LAR 34.1(a)

April 24, 2007

Before: McKEE and AMBRO, Circuit Judges,

ACKERMAN, District Judge. *
designation.

2

(Opinion filed : October 22, 2007)

Adam B. Cogan, Esquire

One Northgate Square

Greensburg, PA 15601

Counsel for Appellant

Mary Beth Buchanan

 United States Attorney

Rebecca R. Haywood

 Assistant U.S. Attorney

Robert L. Eberhardt, Esquire

Office of United States Attorney

700 Grant Street, Suite 400

Pittsburgh, PA 15219

Counsel for Appellee

 

OPINION OF THE COURT

 

AMBRO, Circuit Judge

In this appeal we explore the contours of a corollary to
The indictment lists seven wire communications forming the 1

basis of the seven separate counts against Yamba, “all in

violation of Title 18, United States Code, Sections 1343 and 2.”

The District Court interpreted this to mean that Yamba was

indicted under 18 U.S.C. §§ 1342 and 1343. Though we

recognize that the District Court’s reading is plausible, we

believe instead that the reference to “and 2” seeks to incorporate

accomplice liability into the indictment under 18 U.S.C. § 2.

Given these differing, but reasonable, readings—and the fact

that the first requirement of a valid indictment is that it “fairly

informs a defendant of the charge against which he must

defend,” Hamling v. United States, 408 U.S. 87, 117

(1974)—the Government may wish to consider a manner of

citation to the U.S. Code that causes less confusion.

3

the “plain view” doctrine, known as “plain feel,” in the context

of a Terry search. After doing so, we conclude that the search

at issue here – during which an officer discovered marijuana in

Vikram Yamba’s pocket, and this in turn led to the discovery of

slips of paper resulting in his conviction for wire fraud – was

legal. We therefore affirm the judgment of the District Court.

I. Factual and Procedural Background

Yamba was indicted by a grand jury on seven counts of

wire fraud, in violation of 18 U.S.C. §§ 1343 and 2. The 1

evidence against Yamba included several pieces of paper with

what appeared to be credit card numbers written on them. These

papers were discovered on Yamba’s person during a routine
 The District Court had jurisdiction under 18 U.S.C. § 3231; 2

we have jurisdiction under 28 U.S.C. § 1291.

4

inventory search that took place when he was booked at the

police station after having been arrested for possession of

marijuana. After unsuccessfully moving to suppress the papers

as the fruits of an illegal search, Yamba was found guilty on all

seven counts after a bench trial. He was sentenced to 18 months

in prison and three years of supervised release. On this appeal

he challenges only his conviction, arguing that the search that

turned up the marijuana was illegal and, thus, that the papers

discovered at his booking on marijuana-possession charges

should have been suppressed at his trial on the wire fraud

charges.2

The facts as found by the District Court regarding the

initial search (which revealed the marijuana) are set out in detail

in the District Court’s thorough opinion. See United States v.

Yamba, 407 F. Supp. 2d 703, 705–06 (W.D. Pa. 2006). The

Court’s findings are not clearly erroneous, United States v.

Perez, 280 F.3d 318, 336 (3d Cir. 2002), and we summarize

them here.

While on duty, Officer Matthew Livingstone saw a UHaul truck parked at a gas station in a manner that blocked one

of the entrances from the street, as well as some parking spaces.

Livingstone approached the truck. As he got closer, he saw that

the driver, Charles Coleman, was holding an open pocket knife.
5

Livingstone also saw two passengers in the truck, Yamba and

Jimaah Kpakpo, making “quick and furtive movements” below

the dashboard.

When Officer Livingstone asked Coleman what he was

doing at the gas station, Coleman responded that he, Yamba, and

Kpakpo were delivering furniture to friends. Coleman,

however, could not provide the names of these friends or the

address to which he was delivering the furniture. Livingstone

then asked to see Coleman’s driver’s license and the rental truck

agreement. He also asked if there was anything in the truck

besides furniture. Coleman responded that there was not and

told Livingstone that he could search the truck if he wanted.

Before Livingstone did so, though, he radioed his dispatcher to

check on Coleman’s credentials, and the dispatcher reported that

there was an outstanding warrant for his arrest. Livingstone

then handcuffed Coleman and sat him in the police car.

After that, Livingstone asked Yamba and Kpakpo to step

out of the truck in order to conduct a patdown search of both of

them. When he was frisking Yamba, Livingstone felt a plastic

bag in Yamba’s right jacket pocket. Livingstone testified,

credibly according to the District Court, as follows:

As I was conducting the pat-down, along the right

side, right coat pocket, I could feel a plastic bag.

I noted through training and experience [that]

narcotics are stored and transported in plastic
6

baggies. After a brief second of just feeling it, I

could tell that there was a soft spongy-like

substance that is consistent with marijuana inside.

I then recovered the bag from his pocket and

found it contained suspected marijuana.

Livingstone then handcuffed Yamba and put him in the police

car with Coleman. The patdown search of Kpakpo was

uneventful.

At that point Officer Livingstone searched the rear of the

U-Haul and found that it contained new furniture, wrapped in

plastic. Upon questioning, Kpakpo said that he owned the

furniture, that he had purchased it with a credit card, and that he

was selling it. Soon after this, the dispatcher informed

Livingstone that she had mistakenly reported that there was an

outstanding warrant for Coleman’s arrest, but that his license

was suspended. Livingstone wrote Coleman a ticket for driving

with a suspended license and then released him and Kpakpo.

Because there was now no driver for the U-Haul, Livingstone

had it impounded. He arrested Yamba for possession of

marijuana.

At the police station during Yamba’s booking, an

inventory search of his person revealed “several slips of paper

with the words ‘credit card’ and lines of numbers alternating

down the page.” When Livingstone asked Yamba about it, he

reported that he had received the papers from a friend.
7

Livingstone then read Yamba his Miranda warnings and

questioned him. Based on that questioning, Livingstone

obtained a search warrant for the U-Haul. It was later

determined that the furniture in the U-Haul was purchased from

a Kaufmann’s department store with one of the credit card

numbers found on the papers discovered during the inventory

search. This led to Yamba’s conviction, which forms the basis

of this appeal.

We review de novo the District Court’s ruling that the

initial pat-down search revealing the marijuana was legal and,

thus, that the papers discovered at booking were admissible at

the trial on the wire fraud counts. Perez, 280 F.3d at 336.

II. Discussion

Yamba’s argument proceeds in two parts. First, he

contends that though Officer Livingstone ostensibly seized him

pursuant to Terry v. Ohio, 392 U.S. 1 (1968), the seizure in fact

was illegal, as that case does not permit an officer to do so under

these circumstances. Second, he argues that, even if he was

properly seized, the subsequent search of his person was outside

the scope allowed under Terry. We address each contention in

turn.

A. The Terry Stop

In Terry, the Supreme Court held that a warrantless
8

seizure based on less than probable cause could be

constitutionally permissible. Specifically, the Court said that

where a police officer observes unusual conduct

which leads him reasonably to conclude in light of

his experience that criminal activity may be afoot

and that the persons with whom he is dealing may

be armed and presently dangerous, where in the

course of investigating this behavior he identifies

himself as a policeman and makes reasonable

inquiries, and where nothing in the initial stages

of the encounter serves to dispel his reasonable

fear for his own or others’ safety, he is entitled for

the protection of himself and others in the area to

conduct a carefully limited search of the outer

clothing of such persons in an attempt to discover

weapons which might be used to assault him.

Id. at 30. In outlining the contours of a permissible “Terry

stop,” the Court noted that “[t]he officer need not be absolutely

certain that the individual is armed; the issue is whether a

reasonably prudent man in the circumstances would be

warranted in the belief that his safety or that of others was in

danger.” Id. at 27. “The police officer must be able to point to

specific and articulable facts which, taken together with rational

inferences from those facts, reasonably warrant the intrusion.”

Id. at 21. Consistent with these statements, we have ruled that

when “determining whether a stop is justified, the court must
9

view the circumstances surrounding the stop in their entirety,

giving due weight to the experience of the officers.” United

States v. Rickus, 737 F.2d 360, 365 (3d Cir. 1984).

In this case, the entirety of the circumstances, as

described by Officer Livingstone’s testimony (found by the

District Court to be credible), justified the Terry stop of Yamba.

First, the U-Haul in which Yamba sat was parked in an odd and

obstructive manner. Second, as Livingstone approached the UHaul he observed the driver, Coleman, holding an open pocket

knife. Third, he also noticed “quick and furtive movements” by

the passengers, Yamba and Kpakpo. And fourth, upon having

his dispatcher run a check on Coleman’s license, Livingstone

was informed that Coleman had an outstanding arrest warrant.

This report later proved to be in error, but Livingstone was not

unreasonable in relying on it. See United States v. Mosely, 454

F.3d 259, 260 n.16 (3d Cir. 2006).

Given these facts, Livingstone was “justified in believing

that the individual whose suspicious behavior he [wa]s

investigating at close range [Yamba] [wa]s armed and presently

dangerous to the officer or to others.” Terry, 392 U.S. at 24. As

Livingstone testified,

The pat-down was for officer safety. I

already had one knife. I knew there was a

weapon in the car, and a lot of times we as police

officers like to add plus one. Where there’s one
10

weapon, there’s likely another weapon.

There were three of them at one point

[Coleman, Yamba, and Kpakpo], and there was

myself and my partner[, who arrived at the scene

shortly before Yamba’s pat-down]. So we’re

outnumbered. It was for officer safety.

. . . .

. . . . We already had one wanted person.

. . . .

. . . . The fast movements of the hands

going from the dash and then being concealed

underneath them and what appeared to be in the

pockets was also an issue.

. . .

The fact that Mr. Coleman could not

provide any answers to simple questions that I had

asked him also raised my suspicion of some

possible criminal activity.

This testimony—again, found by the District Court to be

credible—reveals the “specific and articulable facts which,
Yamba does not contest the inventory search, only the Terry 3

search.

11

taken together, with rational inferences from those facts,

reasonably warrant[ed]” subjecting Yamba to a pat-down search.

Id. at 21. The stop, therefore, was justified under Terry.

B. Seizing the Contraband under the “Plain Feel”

Doctrine

That Officer Livingstone was entitled to stop Yamba

under Terry still leaves the question of whether the pat-down

search was properly conducted. For if it was not, there would be

a ripple effect on the criminal case against him, ending in the

exclusion of the papers with allegedly stolen credit card

numbers as “fruit[s] of the poisonous tree.” Wong Sun v. United

States, 371 U.S. 471, 487–88 (1963); see Sibron v. New York,

392 U.S. 40, 65–66 (1968); United States v. Brown, 448 F.3d

239, 244 (3d Cir. 2006). Those papers, of course, were found in

a routine (and legal) inventory search upon Yamba’s booking at

the police station, Illinois v. Lafayette, 462 U.S. 640 (1983),

which took place after his arrest—an arrest made possible only

by the discovery of marijuana during the Terry search.3

In Terry, the Supreme Court said that “[t]he scope of the

search must be strictly tied to and justified by the circumstances

which rendered its initiation permissible.” 392 U.S. at 18. It

later expounded on that statement when speaking about Terry
12

searches specifically:

The purpose of this limited search is not to

discover evidence of crime, but to allow the

officer to pursue his investigation without fear of

violence . . . . So long as the officer is entitled to

make a forcible stop, and has reason to believe

that the suspect is armed and dangerous, he may

conduct a weapons search limited in scope to this

protective purpose.

Adams v. Williams, 407 U.S. 143, 146 (1972) (footnote omitted)

(emphasis added). The proper scope of a search becomes

critical when police discover something suspicious they were

not expecting or intending to find. And in such a case the “plain

view” doctrine often governs whether their discovery can be

admitted against a defendant. See, e.g., Arizona v. Hicks, 480

U.S. 321 (1987).

As the Supreme Court has said, precedent has “come to

reflect the rule that if, while lawfully engaged in an activity in

a particular place, police officers perceive a suspicious object,

they may seize it immediately.” Texas v. Brown, 460 U.S. 730,

739 (1983) (plurality opinion) (citing Frazier v. Cupp, 394 U.S.

731 (1969); Harris v. United States, 390 U.S. 234 (1968);

United States v. Lefkowitz, 285 U.S. 452 (1932); Marron v.

United States, 275 U.S. 192 (1927)). The “plain view” doctrine,

therefore, is best understood “not as an independent exception
 This is not to express our disapproval of the “plain hearing” 4

and “plain smell” applications of the “plain view” doctrine,

neither of which our Court has examined in a precedential

opinion.

13

to the warrant clause, but simply as an extension of whatever the

prior justification for an officer’s access to an object may be.”

Brown, 460 U.S. at 738–39 (internal quotation marks omitted).

So understood, courts have logically extended this concept to

permit the admission of evidence discovered with other sensory

faculties. See, e.g., United States v. Angelos, 433 F.3d 738, 747

(10th Cir. 2006) (“plain smell”) (citing United States v. Haley,

669 F.2d 201, 203 (4th Cir. 1982); United States v. Clayton, 210

F.3d 841, 845 (8th Cir. 2000); United States v. Rhiger, 315 F.3d

1283, 1290 (10th Cir. 2003)); United States v. Baranek, 903

F.2d 1068, 1070–72 (6th Cir. 1990) (“plain hearing”). In this

case, we deal with another application of the “plain view”

doctrine: “plain feel.”

Unlike “plain hearing” and “plain smell,” which the

Supreme Court has not decided, it has put its imprimatur on

“plain feel.” In Minnesota v. Dickerson, the Court took up the 4

issue of “whether police officers may seize nonthreatening

contraband detected during a protective patdown search of the

sort permitted by Terry,” and decided that “the answer clearly is

that they may, so long as the officers’ search stays within the

bounds marked by Terry.” 508 U.S. 366, 373 (1993). Since

Dickerson, our Court has not had the opportunity to examine
14

and apply its teachings in a precedential opinion.

In Dickerson, police officers were patrolling a

neighborhood and saw the defendant leaving what was known

to them as a “crack house.” When he saw the officers in their

patrol car, the defendant “abruptly halted and began walking in

the opposite direction.” Id. at 368–69. He then walked into an

alley. This activity aroused the suspicion of the officers, and

they decided to investigate further. After ordering the defendant

to stop, one of the officers conducted a Terry search of the

defendant. According to the Court, “[t]he search revealed no

weapons, but the officer did take an interest in a small lump in

[the defendant’s] nylon jacket.” Id. at 369. The officer testified

later at an evidentiary hearing that, “[a]s I pat-searched the front

of his body, I felt a lump, a small lump, in the front pocket. I

examined it with my fingers and it slid and it felt to be a lump of

crack cocaine in cellophane.” Id. At that point the officer

“reached into [the defendant’s] pocket and retrieved a small

plastic bag containing one fifth of one gram of crack cocaine.”

Id. The trial court admitted the contraband by “analogizing to

the ‘plain-view’ doctrine.” Id. The Minnesota Court of

Appeals, though finding a valid Terry stop, reversed the

evidentiary ruling, concluding that “the officers had overstepped

the bounds allowed by Terry in seizing the cocaine.” Id. at 370.

Both the Minnesota Supreme Court and the U.S. Supreme Court

affirmed.

Before addressing the “plain feel” concept, the Supreme
15

Court first described the “plain view” doctrine from which it

derived:

[I]f police are lawfully in a position from which

they view an object, if its incriminating character

is immediately apparent, and if the officers have

a lawful right of access to the object, they may

seize it without a warrant. If, however, the police

lack probable cause to believe that an object in

plain view is contraband without conducting some

further search of the object—i.e., if its

incriminating character is not immediately

apparent—the plain-view doctrine cannot justify

its seizure.

Id. at 375 (citations, brackets, and internal quotation marks

omitted). Applying this rule, the Court focused on the trial

court’s findings regarding what the officer believed about the

lump in the defendant’s pocket. Specifically, it noted that the

officer “made no claim that he suspected this object to be a

weapon.” Id. at 378 (internal quotation marks omitted). “[T]he

officer’s own testimony,” the Court went on to say, “belies any

notion that he ‘immediately’ recognized the lump as crack

cocaine. Rather, . . . the officer determined that the lump was

contraband only after squeezing, sliding, and otherwise

manipulating the contents of the defendant’s pocket—a pocket

which the officer already knew contained no weapon.” Id.
16

Since Dickerson, many courts have focused on exactly

how “immediately” an officer must know that something felt

during a Terry search is contraband or precisely how much a

clothed object can be manipulated before a search becomes

illegal. See, e.g., United States v. Williams, No. CRIM. RDB05-0240, 2005 WL 1902490, at *6 (D. Md. Aug. 9, 2005);

United Stated v. Ramirez, No. 02 CR 1228(GEL), 2003 WL

260572, at *7 (S.D.N.Y. Feb. 5, 2003) (“No doubt a

metaphysician could draw distinctions between ‘immediately’

knowing something, knowing it after a ‘second or two,’ being

90% certain of something after running one’s fingers across it,

and knowing for certain after squeezing it.”). And in the course

of admitting in evidence certain contraband that was discovered

in a Terry search, courts have credited testimony by some police

officers that suggests remarkable sensory powers. See, e.g.,

United States v. Ashley, 37 F.3d 678, 681 (D.C. Cir. 1994)

(admitting in evidence contraband known “immediately” to be

crack, despite the fact that it was found “inside two pair of

pants, a pair of briefs, a paper bag, a paper napkin, and a plastic

bag”). Even the officer in this case testified—credibly,

according to the District Court—that after feeling through a

“middle medium weight jacket” for what “[p]robably wasn’t

even a half second,” he nevertheless “could tell right away” that

the lump in Yamba’s pocket was marijuana.

We reject a narrow focus on how quickly and certainly

the nature of an object felt during a Terry search is known and

on how much manipulation of a person’s clothing is acceptable.
17

In Terry, the Supreme Court authorized police officers to

perform a routine pat-down search for weapons. Such searches

necessarily involve a certain amount of “squeezing, sliding and

otherwise manipulating” of a suspect’s outer clothing, 508 U.S.

at 378, in an attempt to discern whether weapons are hidden

underneath. Thus, the problem with the officer’s actions in

Dickerson must be more than simply their occurrence. And a

close reading of the case reveals what that “more” entails.

The Court in Dickerson clearly identified the object of a

proper Terry search: weapons. Id. at 373 (stating that a Terry

search “must be strictly limited to that which is necessary for the

discovery of weapons which might be used to harm the officer

or others nearby.” (internal quotation marks omitted)). The

same sentence in Dickerson that identified “squeezing, sliding

and otherwise manipulating the contents of the defendant’s

pocket” as a problem also noted that the officer committed the

offending conduct when he “already knew [the pocket]

contained no weapon.” Id. at 378. The Court repeated the

refrain in the next paragraph:

Here, the officer’s continued exploration of [the

defendant’s] pocket after having concluded that

it contained no weapon was unrelated to the sole

justification of the search under Terry: the

protection of the police officer and others nearby.

It therefore amounted to the sort of evidentiary

search that Terry expressly refused to authorize
18

and that we have condemned in subsequent cases.

Id. (emphasis added; brackets, ellipsis, internal quotation marks,

and citations omitted). 

The proper question under Dickerson, therefore, is not

the immediacy and certainty with which an officer knows an

object to be contraband or the amount of manipulation required

to acquire that knowledge, but rather what the officer believes

the object is by the time he concludes that it is not a weapon.

That is, a Terry search cannot purposely be used to discover

contraband, but it is permissible that contraband be confiscated

if spontaneously discovered during a properly executed Terry

search. Moreover, when determining whether the scope of a

particular Terry search was proper, the areas of focus should be

whether the officer had probable cause to believe an object was

contraband before he knew it not to be a weapon and whether he

acquired that knowledge in a manner consistent with a routine

frisk. United States v. Jones, 303 F. Supp. 2d 702, 706 (D. Md.

2004) (citing Dickerson, 508 U.S. at 376; Hicks, 480 U.S. at

327).

Assuming that an officer is authorized to conduct a Terry

search at all, he is authorized to assure himself that a suspect has

no weapons. He is allowed to slide or manipulate an object in

a suspect’s pocket, consistent with a routine frisk, until the

officer is able reasonably to eliminate the possibility that the

object is a weapon. If, before that point, the officer develops
19

probable cause to believe, given his training and experience, that

an object is contraband, he may lawfully perform a more

intrusive search. If, indeed, he discovers contraband, the officer

may seize it, and it will be admissible against the suspect. If,

however, the officer “goes beyond what is necessary to

determine if the suspect is armed, it is no longer valid under

Terry and its fruits will be suppressed.” Dickerson, 508 U.S. at

373.

In making this ruling, we join at least two of our sister

courts of appeals that have framed the issue in this way. See

United States v. Mattarolo, 209 F.3d 1153, 1158 (9th Cir. 2000)

(“Had the officer continued to manipulate the object beyond

what was necessary to ascertain that it posed no threat, he would

have run afoul of the Supreme Court’s holding in Minnesota v.

Dickerson.”); United States v. Rogers, 129 F.3d 76, 79 (2d Cir.

1997) (“Sergeant Mason was conducting a lawful protective

patdown search (a point that Rogers concedes) when he felt the

heavy object in Rogers’ coat pocket. He manipulated the object

for ‘a few seconds’ to determine what it was, and felt ‘a hard

object and then a softer object.’ At that point, Mason was not

yet able to exclude the possibility that there was a weapon in the

pocket, so that the search was still within the bounds of Terry,

and Mason had become ‘fairly certain’ the pocket contained

drugs. That belief, combined with Rogers’ evasive and

suspicious conduct, gave the officers probable cause to search

Rogers’ pocket for contraband. The police were therefore

permitted to remove and open the rolled-up paper bag.”).
 The context indicates that this refers to the lawn-type 5

variety.

20

In our case, Officer Livingstone “felt around” or

otherwise “manipulated” the contents of Yamba’s pocket in the

process of checking for weapons when he came across what in

his experience could be contraband. It is not key whether

Livingstone was certain that the object in Yamba’s pocket was

contraband by the time he knew it not to be a weapon; what is

key is whether Livingstone had probable cause to believe that it

was and this occurred at the same moment or before he

determined that Yamba had no gun on his person.

The record demonstrates that probable cause indeed

existed before Livingstone’s search went beyond the bounds of

Terry. Livingstone testified that, when he felt Yamba’s pocket,

he could feel a plastic bag containing a “soft[,] spongy-like

substance.” Though it is true, as Yamba’s counsel noted in

cross-examination, “grass or oregano” might feel similarly soft [5]

or spongy, people do not normally go around with those

substances in their pockets. Moreover, Officer Livingstone also

felt “small buds and seeds” along with the contents of the plastic

bag. This detail is more consistent with marijuana than lawn

grass or oregano. Based on Livingstone’s experience, he

reasonably suspected that Yamba had marijuana in his pocket.

His belief was reached quickly and upon minimal manipulation

of Yamba’s pocket from the outside, consistent with a routine

frisk allowed by Terry. And though Livingstone admitted to
21

manipulating the object even after forming the belief that it was

not a weapon, he only did so to “mak[e] sure it was what [he]

knew it to be.” In other words, by that point Officer Livingstone

already had probable cause to conduct a more intrusive search

than that authorized by Terry alone.

While one may reasonably question the veracity of

Officer Livingstone’s testimony, it was credited by the District

Court. Were we the fact-finder, we may not have done the

same; but we cannot say that the Court’s finding was clearly

erroneous. Nevertheless, consistent with the legal standard set

out above, we purposely do not rely on the precision of Officer

Livingstone’s testimony that he reached his conclusion within

“a half second.” However long it took Livingstone to form that

belief, the record indicates that he did so within the bounds of

Terry, as there is nothing to suggest that he conducted anything

beyond a routine frisk until after there was probable cause to

search more intrusively.

* * * * *

For these reasons, the Terry search that revealed

marijuana in Yamba’s coat pocket was conducted within the

bounds set by the Supreme Court. We therefore affirm the

District Court’s denial of Yamba’s motion to suppress the laterdiscovered slips of paper and, consequently, his convictions for

wire fraud.