NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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No. 08-3220

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UNITED STATES OF AMERICA

v.

BRIAN GADSDEN,

 Appellant

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Appeal from the United States District Court

for the Middle District of Pennsylvania

(D.C. Criminal No. 1-08-cr-00017-001)

District Judge: Honorable Sylvia H. Rambo

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Argued January 11, 2011

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Before: SCIRICA, BARRY and VANASKIE, Circuit Judges

(Opinion Filed: February 1, 2011)

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James V. Wade, Federal Public Defender

Frederick W. Ulrich, Assistant Federal Public Defender (Argued)

Office of Federal Public Defender

Suite 306

100 Chestnut Street

Harrisburg, PA 17101

Counsel for Appellant

Peter J. Smith, United States Attorney

Michael A. Consiglio, Assistant United States Attorney (Argued)

Eric Pfisterer, Assistant United States Attorney
2

Office of United States Attorney

228 Walnut Street, P.O. Box 11754

220 Federal Building and Courthouse

Harrisburg, PA 17108

Counsel for Appellee

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OPINION OF THE COURT

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VANASKIE, Circuit Judge.

Brian Gadsden pleaded guilty to a charge of possession of a firearm in furtherance 

of drug trafficking on the condition that he could appeal the District Court‟s denial of his 

motions to suppress evidence and an eyewitness identification. Because we conclude that 

the suppression motions were properly denied, we will affirm the Judgment of the 

District Court.

I.

As we write only for the parties, who are familiar with the facts and procedural 

history of this case, we will set forth only those facts necessary to our analysis.

On October 18, 2007, the United States Postal Service delivered a mysterious

package to Allstar Auto, an auto supply business in Harrisburg, Pennsylvania. Over the 

course of that day, several people visited Allstar Auto to inquire about the parcel, the 

receipt of which was denied by Allstar Auto employees. The visitors threatened to “get 

the mailman on the route,” and one individual brandished a gun. (A. 121.) It was later 

discovered that the package contained many pounds of marijuana. 
3

On the morning of October 19, 2007, Angelica Matos, an employee of Allstar 

Auto who interacted with the individuals who inquired about the package, notified a local 

post office of the previous day‟s events, including the fact that a weapon had been 

brandished and some sort of threat had been made against the postal carrier who would 

have delivered the package. The post office relayed Matos‟s complaint to postal 

inspectors, who in turn contacted the Harrisburg Police Department for assistance. Victor 

Rivera, a Harrisburg detective who participated in the investigation, was told that at least 

two African-American individuals visited Allstar Auto regarding the package. One of the 

individuals might have been a woman. Detective Rivera was informed that a “red or 

burgundy vehicle,” likely a Volvo, was one of the cars that the suspects drove. (A. 97.) 

Detective Rivera also remembered hearing about “a dark brown or maroon Jeep 

Cherokee.” (A. 107.) A white minivan and a gray four-door Chrysler might also have 

been mentioned. (Id.) Detective Rivera was told that the individuals would return to 

Allstar Auto on October 19.

Joseph Corrado, a postal inspector who also participated in the investigation, was 

told the suspects drove a red or burgundy vehicle, a dark brown Jeep, and a white 

minivan. He believed a gray Chrysler might have been used as well. Inspector Corrado 

was informed that as many as five African-American males were involved. He did not 

recall being told a woman was one of the suspects. He was, however, told that the 

suspects would come back to Allstar Auto on October 19 to retrieve the package.

Postal inspectors and Harrisburg detectives drove in unmarked vehicles to Allstar 

Auto on October 19 to investigate. Inspector Corrado and another postal inspector drove 
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to Allstar Auto in Inspector Corrado‟s Chevy Blazer. Detective Rivera and other 

Harrisburg detectives drove in an unmarked burgundy Chevy Caprice that, according to

Inspector Corrado, “scream[ed] law enforcement vehicle.” (A. 123.) Both vehicles 

parked in the Allstar Auto parking lot. From there, Detective Rivera and Inspector 

Corrado observed a burgundy four-door Saturn parked across the street from the store. 

Brian Gadsden was in the passenger‟s seat, and his brother Reginald was standing 

approximately thirty yards away from the vehicle, talking on his cell phone. Both 

Gadsdens were watching Allstar Auto. When Reginald saw the unmarked vehicles, he 

slowly walked back to his car. Brian, still seated in the passenger seat, “opened the door, 

leaned down so you couldn‟t see him anymore, and then proceeded to close the door.” 

(A. 98.) The Gadsdens then drove away.

At that point the detectives and the postal inspectors conferred briefly and agreed 

that they should follow the Gadsdens‟ vehicle. After trailing the Saturn for a short 

amount of time, the police initiated a traffic stop. The officers asked for and received the 

Gadsdens‟ photo identifications and detained them in police vehicles. While the 

Gadsdens were being held, Detective Rivera and other officers drove back to Allstar Auto 

and told Matos that they had stopped two individuals. They then drove her to the scene 

to identify the Gadsdens. The police did not show Matos the Gadsdens‟ ID cards before 

bringing her to the scene of the stop.

The police brought Matos to the Gadsdens in a vehicle with tinted windows. 

When Matos arrived, officers removed the Gadsdens from the police vehicle and Matos 

was driven to within approximately thirty feet from where the Gadsdens stood. She 
5

positively identified the Gadsdens as the men who were at her store the day before, and 

the police placed them under arrest. Then, approximately seven hours after the initial 

traffic stop, the police searched the area where the Gadsdens had parked their car across 

the street from Allstar Auto and found a nine-millimeter semiautomatic pistol. The gun‟s

caliber matched ammunition that was found in the Gadsdens‟ car.

On October 22, Inspector Corrado reviewed an Allstar Auto surveillance tape 

depicting Matos and her husband interacting with certain African-American males 

repeatedly over the course of October 18, during the daylight hours. Matos told Inspector 

Corrado that the individuals in the video were the men who were inquiring about the 

package of marijuana. According to Inspector Corrado, the individuals in the video were 

Brian and Reginald Gadsden.

The Gadsdens were subsequently indicted on drug and weapons charges. They 

sought to suppress the evidence police obtained as a result of the stop and search, as well 

as Matos‟s positive identification. Brian Gadsden also attempted to suppress his 

statements to police on the grounds that he was never given his Miranda warnings. The 

District Court held a suppression hearing at which Detective Rivera and Inspector

Corrado testified. Matos, however, did not testify. The post office employee to whom 

Matos made her complaint also did not testify.

The District Court denied the motions to suppress. United States v. Gadsden, Nos. 

1:CR-08-017-01, 1:CR-08-017-02, 2008 WL 794944 (M.D. Pa. Mar. 24, 2008). With 

respect to the traffic stop, the Court determined that the following facts gave rise to a 

reasonable suspicion: the Gadsdens were African-American men in a burgundy sedan 
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and appeared to be casing Allstar Auto on the same day Matos said the suspects would 

return to her store, and the Gadsdens drove away upon seeing the “unmarked, but 

ostensible police vehicles.” Id. at *4. With respect to Matos‟s identification, the Court 

assumed without deciding that the identification was unnecessarily suggestive, but it 

found that there was no substantial likelihood of misidentification because Matos had 

ample opportunity to observe the Gadsdens, the identification happened within twentyfour hours of the initial encounter, and there was no evidence that Matos wavered in her 

identification of the Gadsdens. Id. at *5-6. Finally, the District Court determined that 

Brian Gadsden‟s claim that police failed to give him Miranda warnings was not credible. 

Id. at *6. After the Court denied the motions to suppress, Brian Gadsden pleaded guilty 

to a charge of possession of a firearm in furtherance of drug trafficking on the condition 

that he could appeal the denial of his suppression motions. The District Court sentenced 

him to sixty months‟ imprisonment, and he now appeals.1

II.

The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction 

pursuant to 28 U.S.C. § 1291. We review the District Court‟s denial of Gadsden‟s 

motions 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. 

Gatlin, 613 F.3d 374, 378 (3d Cir. 2010) (internal quotation marks omitted).

 

1Reginald Gadsden pleaded guilty to a charge of conspiracy to possess with intent to 

distribute marijuana and was sentenced to seventy-seven months‟ imprisonment. He 

appealed his sentence and we affirmed. United States v. Gadsden, No. 08-4366, 2011 

WL 179621 (3d Cir. Jan. 20, 2011). 
7

A.

Gadsden argues that the police unlawfully stopped his vehicle. He maintains that 

Matos‟s tip conveyed only that the suspects were African-American males. He 

emphasizes that the car the Gadsdens drove, a Saturn, was not among the cars identified 

to law enforcement officials. He also argues that the Gadsdens‟ conduct on the morning 

of October 19 did not justify a stop.

A police officer may initiate a brief investigatory stop under Terry v. Ohio, 392 

U.S. 1 (1968), if he has “a reasonable, articulable suspicion that criminal activity is

afoot.” Illinois v. Wardlow, 528 U.S. 119, 123 (2000). “[T]he „reasonable suspicion‟

analysis is objective; subjective motive or intent is not relevant for Terry purposes.” 

United States v. Goodrich, 450 F.3d 552, 559 (3d Cir. 2006). “To determine whether 

reasonable suspicion exists, we must consider the totality of the circumstances—the 

whole picture.” United States v. Robertson, 305 F.3d 164, 167 (3d Cir. 2002) (internal 

quotation marks omitted). “„[R]easonable suspicion‟ is measured before the search; 

information acquired subsequent to the initial seizure cannot retroactively justify a Terry 

stop.” Goodrich, 450 F.3d at 559. Conduct justifying a stop may be “ambiguous and 

susceptible of an innocent explanation.” Wardlow, 528 U.S. at 125. “Courts give 

considerable deference to police officers‟ determinations of reasonable suspicion, and the 

cases are steadily increasing the constitutional latitude of the police to pull over 

vehicles.” United States v. Mosley, 454 F.3d 249, 252 (3d Cir. 2006) (citation omitted). 

Gadsden has not shown that the District Court‟s factual findings are clearly 

erroneous. The District Court found that at the time of the Terry stop, law enforcement 
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officers had been told that at least two and up to five persons had been casing Allstar 

Auto and had been inquiring about a package to have been delivered through the postal 

service; at least two of the five individuals were African-American; a weapon had been 

brandished; a threat of some sort had been made against the postal carrier; the persons 

casing the store on October 18 said they would return the next day; and vehicles 

associated with the individuals included a red four-door sedan, possibly a Volvo. The 

District Court also found that when investigators arrived at Allstar Auto on the morning 

of October 19, “they saw a tableau that was similar, if not identical to the picture painted 

by the complaint filed that morning.” Gadsden, 2008 WL 794944, at *4. Two black 

men, one inside and the other near a burgundy sedan, appeared to be watching Allstar 

Auto from across the street. The Gadsdens‟ behavior once the detectives and postal 

inspectors arrived at Allstar Auto further aroused the investigators‟ suspicion. Reginald 

Gadsden, who had been talking on a cell phone approximately thirty yards away from his 

car, slowly walked back to the Saturn while looking at the unmarked vehicles. Brian 

Gadsden, seated in the passenger seat, opened the door, crouched down so he could not

be seen, and then closed the door. 

Given the considerable deference accorded to police officers, who must make 

split-second judgments in dangerous contexts, we cannot say that the facts, as found by 

the District Court, were insufficient to support a reasonable suspicion that the Gadsdens 

were engaged in illegal activity. Accordingly, we will affirm the District Court‟s denial 

of Gadsden‟s motion to suppress evidence obtained as a result of the Terry stop.

B.
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Gadsden also argues that the procedure that the police used to identify him was 

unnecessarily suggestive. He further maintains that because Matos did not testify at the 

suppression hearing, the District Court did not have a sufficient factual basis for 

determining that the procedure did not pose a substantial risk of misidentification.

Our assessment of an identification procedure contains two steps. “The first 

question is whether the initial identification procedure was unnecessarily or 

impermissibly suggestive.” United States v. Stevens, 935 F.2d 1380, 1389 (3d Cir. 1991)

(internal quotation marks omitted). When determining whether a procedure is 

unnecessarily suggestive, we focus on “the suggestiveness of the identification, and . . . 

whether there was some good reason for the failure to resort to less suggestive 

procedures.” Id. (emphasis and internal quotation marks omitted). Second, we ask 

“whether the procedure was so conducive to . . . mistaken identification or gave rise to 

such a substantial likelihood of . . . misidentification that admitting the identification 

would be a denial of due process.” Id. (internal quotation marks omitted). In 

determining whether misidentification was likely, we consider the “totality of 

circumstances including: the witness‟s initial opportunity to view the suspect at the 

crime scene and degree of attention at that time, the witness‟s level of certainty in the 

disputed identification, the length of time between initial viewing and disputed 

identification, and the accuracy of any intervening description of the suspect occurring 

between those two events.” United States v. Mathis, 264 F.3d 321, 330 (3d Cir. 2001).

The United States has conceded that the identification procedure in this case was 

suggestive. Like the District Court, we will assume, without deciding, that the procedure 
10

used to identify Gadsden was unnecessarily suggestive. And, like the District Court, we 

conclude that the procedure used to identify Gadsden did not give rise to a substantial 

likelihood of misidentification. Inspector Corrado testified that the surveillance 

videotape showed that Matos had an opportunity to observe the Gadsdens, in the 

daylight, over the course of several hours. The District Court acted within its bounds in 

admitting Inspector Corrado‟s hearsay testimony that Matos identified the individuals in 

the surveillance video as the people who inquired about the package. See United States v. 

Raddatz, 447 U.S. 667, 679 (1980) (“At a suppression hearing, the court may rely on 

hearsay and other evidence, even though that evidence would not be admissible at trial.”). 

The record contains no indication that Matos wavered in her identification. Fewer than 

twenty-four hours passed between Matos‟s initial interaction with the Gadsdens and her 

subsequent identification of them. And, while Matos provided only a general description 

of the Gadsdens in her complaint to the post office, her description was nonetheless 

accurate. Accordingly, the District Court properly denied Gadsden‟s motion to suppress 

Matos‟s identification.

C.

Finally, Gadsden argues that his statements to police should have been suppressed 

because they resulted from the allegedly illegal stop and identification. Having 

determined that the stop and identification were lawful, we conclude that Gadsden‟s 

statements should not have been suppressed.

III.
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In sum, Gadsden‟s motions to suppress were properly denied. Accordingly, we 

will affirm the Judgment of the District Court.