1998 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

1-12-1998

United States v. Kithcart

Precedential or Non-Precedential:

Docket 97-1168

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Recommended Citation

"United States v. Kithcart" (1998). 1998 Decisions. Paper 7.

http://digitalcommons.law.villanova.edu/thirdcircuit_1998/7
Filed January 12, 1998 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

No. 97-1168 

UNITED STATES OF AMERICA 

v. 

JESSE KITHCART, 

 Appellant 

ON APPEAL FROM THE 

UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF PENNSYLVANIA 

(D.C. Crim. No. 96-00090-1) 

Argued: August 11, 1997 

Before: ALITO, LEWIS, and McKEE, Circuit Judges 

(Opinion Filed January 12, 1998) 

 David L. McColgin (Argued) 

 Defender Association of 

 Philadelphia 

 Federal Court Division 

 437 Chestnut Street 

 Philadelphia, PA 19106 

 Counsel for Appellant 

 Howard L. Perzan (Argued) 

 Suite 1250 

 Office of United States 

 Attorney 

 615 Chestnut Street 

 Philadelphia, PA 19106 

 Counsel for Appellee 
OPINION OF THE COURT 

ALITO, Circuit Judge: 

Jesse Kithcart appeals from a judgment in a criminal 

case. Kithcart pled guilty to one count of being a felon in 

possession of a firearm, in violation of 18 U.S.C.S 922(g)(1), 

but he reserved his right to appeal the district court's 

decision on his motion to suppress the firearm in question. 

This appeal raises the question whether the officers had 

probable cause to arrest and search Kithcart. Because we 

conclude that they did not have probable cause, we reverse 

the district court's denial of the suppression motion on the 

grounds given, and we remand for further proceedings in 

accordance with this opinion. 

I. 

On July 25, 1995, Bensalem Township Police Officer 

Teresa Nelson was assigned to a radio patrol car on the 

evening shift. Over the course of an hour, Officer Nelson 

received three radio transmissions, each reporting an 

armed robbery. The first two robberies occurred at motels 

in Bensalem Township, and the last transmission 

concerned a robbery in neighboring Bristol Township. The 

final report -- which was received at approximately 10:43 

p.m. -- did not specify either the time or location of the 

Bristol robbery. Bristol is north of, and adjacent to, 

Bensalem Township. 

The alleged perpetrators of these robberies were 

described as "two black males in a black sports car." It was 

also reported that one of the perpetrators might have been 

wearing white clothes, and the vehicle was described as a 

"possible Z-28, possible Camaro."1 

At 10:53 p.m. -- approximately ten minutes after 

receiving the final radio transmission regarding the Bristol 

robbery -- Officer Nelson spotted a black Nissan 300ZX, 

which she described as a sports car, traveling south on 

_________________________________________________________________ 

1. The Z-28 is a type of Camaro. 

 2 
Route 13, approximately a mile or less from the boundary 

of Bristol Township. The vehicle was driven by an AfricanAmerican male who appeared to be the only person in the 

car. Officer Nelson testified that since the time when she 

received the first radio transmission more than an hour 

earlier, this was the first occasion when she spotted either 

a black vehicle or a black male driving a car. Officer Nelson 

also testified that immediately after she pulled up behind 

the vehicle, which had stopped at a red light, the driver 

drove the Nissan through the red light. Officer Nelson then 

flashed her dome lights, and the Nissan pulled over to the 

side of the road. At this point, Officer Nelson saw two sets 

of arms raised toward the roof of the car, and she realized 

that there were two people in the car. 

Officer Nelson then called for backup and waited in her 

patrol car until Officers Christine Kellaher and Bill Williams 

arrived at the scene. Officer Williams found a gun in 

Kithcart's white nylon waist pouch, and Officer Kellaher 

found a gun under the driver's seat. 

In moving to suppress the evidence seized by the police, 

Kithcart contended among other things, that the police 

lacked reasonable suspicion for an investigatory stop 

pursuant to Delaware v. Prouse, 440 U.S. 648 (1979), Terry 

v. Ohio, 392 U.S. 1 (1968), and related cases. See App. 95a. 

Consistent with this argument, Kithcart argued that Officer 

Williams had discovered his gun during a "pat down" or 

"frisk" but that the standard for conducting a "frisk" under 

Terry had not been met. App. 97a. The government argued 

that the police were justified in stopping the car because 

the driver ran a red light. In addition, the government's 

brief argued as follows: 

 [G]iven that Officers Nelson and Williams were 

 confronted with two black males in a black sports car 

 shortly after and in the vicinity of the reported 

 robberies, and that the males had attempted to flee 

 upon seeing Officer Nelson's car pull behind theirs, the 

 totality of the circumstances established reasonable 

 suspicion to support the pat-down of the defendant 

 and his waist-pack. See Chimel v. California, 395 U.S. 

 752, 763 (1969) (lawful arrest creates a situation which 

 justifies a contemporaneous search of arrestee and 

 3 
 immediate area, including area from within which 

 arrestee might gain possession of a weapon); Terry v. 

 Ohio, 392 U.S. 1 1968 (limited pat-down of a suspect's 

 exterior clothing and protective sweep of area within 

 immediate control are authorized during a lawful stop). 

App. 107a-108a. 

At the hearing on the motion, counsel for Kithcart,

counsel for the government, and the court all referred to 

the government's latter argument as concerning the 

question of "probable cause" (see e.g., App. 27a, 28a, 54a, 

58a), and at the conclusion of the hearing,2 the district 

court orally ruled that the police had "probable cause . . . 

for the stop." App. 60a. The court relied on "the direction, 

the timing, the location of the vehicle, plus the fact it [was] 

a black sports car." App. 60a. The court noted the 

discrepancy between the radioed description of the 

perpetrators as two black males and Officer Nelson's initial 

belief that there was only one black male in the car, but the 

court held that the fact that Officer Nelson had not seen 

any other black men driving cars since she received the 

initial radio transmission heightened the probability that 

the driver of the vehicle had been involved in the robberies. 

Because the court concluded that the officers had probable 

cause, the court found it unnecessary to decide whether 

the alleged running of the red light provided an 

independent basis for Officer Nelson's stop and the

subsequent actions of the officers. 

Following this ruling, Kithcart pled guilty, subject to the 

condition that he be allowed to challenge on appeal the 

district court's denial of his motion to suppress. 

_________________________________________________________________ 

2. Officer Nelson testified at the hearing. Officers Kellaher and Williams 

did not testify. Officer Nelson's account of the traffic violation was 

disputed by the defense. Co-defendant Carl Green-- the driver of the car 

and a cooperating witness against Kithcart -- told the government that 

he had not driven through a red light prior to the stop by Officer Nelson. 

The district court did not resolve this issue, relying instead on its 

finding 

that there was probable cause to arrest and search based on the radio 

transmissions. 

 4 
II. 

We turn first to the ground on which we understand the 

district court to have denied Kithcart's suppression motion, 

viz., that the officers had "probable cause" to arrest 

Kithcart and to search him incident to the arrest. When a 

warrantless search is made pursuant to an arrest, "[t]he 

constitutional validity of the search . . . must depend upon 

the constitutional validity of the . . . arrest." Beck v. Ohio, 

379 U.S. 89, 91 (1964). 

 Whether that [warrantless] arrest was constitutionally 

 valid depends in turn upon whether, at the moment 

 the arrest was made, the officers had probable cause to 

 make it -- whether at that moment the facts and 

 circumstances within their knowledge and of which 

 they had reasonably trustworthy information were 

 sufficient to warrant a prudent man in believing that 

 the [suspect] had committed or was committing an 

 offense. 

Id. See also Barna v. City of Perth Amboy, 42 F.3d 809, 819 

(3d Cir. 1994) (test for probable cause is objective test: did 

the police officer have a reasonable basis for believing that 

the suspect had committed or was committing a crime). 

Our review of a district court's determination that there was 

probable cause to effect a warrantless search is de novo. 

Ornelas v. United States, 116 S. Ct. 1657, 1659 (1996). 

Based on the standard set by the Supreme Court in 

Beck, the district court erred in concluding that there was 

probable cause to arrest and search Kithcart prior to the 

discovery of the guns. The mere fact that Kithcart is black 

and the perpetrators had been described as two black 

males is plainly insufficient. As we have previously noted, 

a description of " `two negro males' and two `black males' 

. . . without more . . . would not have been sufficient to 

provide probable cause to arrest [the suspect]." Edwards v. 

City of Philadelphia, 860 F.2d 568, 571 n.2 (3d Cir. 1988). 

Moreover, the match between the description of the 

perpetrators' car (a black sports car, "possible Z-28, 

possible Camaro)" and the vehicle in which Kithcart was 

spotted (a black Nissan 300ZX) was far from precise. 

Although the Camaro Z-28 and the Nissan 300ZX could be 

 5 
considered "sports cars," there was no evidence offered at 

the suppression hearing that the shapes of the two cars 

were sufficiently similar so as to warrant an inference that 

a 300ZX could be mistaken for a Z-28. 

Nor is probable cause established by either the location 

or time of the stop. There was no evidence presented as to 

where in Bristol Township the final robbery occurred; nor 

was there evidence presented that the Bristol robbery 

occurred shortly before Officer Nelson stopped the car 

carrying Kithcart. Although the radio transmission 

regarding the Bristol robbery came approximately 10

minutes before the vehicle was stopped, Officer Nelson 

testified that she did not recall that the radio transmission 

revealed when the Bristol robbery occurred, other than that 

it occurred that same evening. Compare Edwards, 860 F.2d 

at 571 n.2 (although the description "two negro males" was 

insufficient by itself to provide probable cause to arrest 

suspect, other evidence closely linking suspect to scene of 

reported crime was sufficient). In sum, we think that it is 

clear that the facts and circumstances within Officer 

Nelson's knowledge at the time she stopped the Nissan were 

insufficient to allow a prudent person to believe that the car 

and its occupants had committed or were committing an 

offense. In other words, armed with information that two 

black males driving a black sports car were believed to have 

committed three robberies in the area some relatively short 

time earlier, Officer Nelson could not justifiably arrest any 

African-American man who happened to drive by in any 

type of black sports car. 

III. 

The finding of no probable cause, however, does not end 

the inquiry. In Terry v. Ohio, supra, the Supreme Court 

held that law enforcement officers may stop and 

temporarily detain persons short of arrest without violating 

the Fourth Amendment. A Terry stop is justified when an 

officer has a reasonable suspicion that "criminal activity 

may be afoot." Id. at 30. The officer's suspicion must be 

based on articulable facts and not merely the officer's 

subjective good faith. Id. at 21. An officer may also conduct 

a "reasonable search for weapons for the protection of the 

 6 
police officer, where he has reason to believe that he is 

dealing with an armed and dangerous individual . . .." Id. 

at 27. The test 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. As noted, this 

question was briefed by the parties in the district court, but 

the district court did not base its decision on this ground. 

On remand, the district court should examine whether 

Officer Nelson had a reasonable suspicion sufficient to 

warrant an investigative stop. The court should consider 

both of the government's asserted grounds for the stop: (1) 

the alleged traffic infraction and (2) the information 

regarding the armed robbery suspects discussed in Section 

II, infra. The district court should also consider whether the 

events leading to the discovery of the weapon in Kithcart's 

pouch can be justified as a Terry "pat-down" We offer no 

opinion at this juncture on any of these questions.

IV. 

For the foregoing reasons, we conclude that the district 

court erred in finding that Officer Nelson had probable 

cause to arrest and search Kithcart. We therefore reverse 

the denial of the suppression motion and remand for

further proceedings to consider whether the officers had 

reasonable suspicion for an investigative stop and weapons 

search of Kithcart's person. 

 7 
McKEE, Circuit Judge, dissenting in part, and concurring 

in part. 

I agree with the majority's conclusion that the 

prosecution did not establish that Officer Nelson had 

probable cause to arrest the defendant. However, the same 

testimony that requires us to reverse the district court's 

determination that the government had probable cause also 

establishes that Officer Nelson did not have reasonable 

suspicion to stop and detain the occupants of the car. 

Therefore, I disagree with the majority's decision to remand 

this matter so that the district court can determine if the 

stop was authorized under Terry v. Ohio, 392 U.S. 1 (1968). 

It clearly was not, and I would so rule as a matter of law. 

Thus, I dissent from that portion of the opinion that allows 

reconsideration under Terry on remand. 

I. 

Terry v. Ohio created a very limited exception to the 

general warrant requirement of the Fourth Amendment to 

the United States Constitution. See 392 U.S. at 21.

Although Terry allows an investigative stop, it still requires 

reasonable suspicion before the government can justify 

even this limited intrusion. "It is well established that an 

investigatory stop short of an arrest is valid based upon a 

reasonable suspicion that criminal activity is afoot." United 

States v. Rickus, 737 F.2d 360, 365 (3d Cir. 1994) 

"Reasonable suspicion must be based upon `specific and 

articulable facts which, taken together with rational 

inferences from those facts reasonably warrant that

intrusion.' " Id. (quoting Terry, 392 U.S. at 21). 

This record establishes only that three armed robberies 

had occurred -- two in Bensalem Township and one in

Bristol -- sometime during the evening of July 25, 1995, 

and that two Black males in a black sports car that was 

probably a Camero Z28 were involved. Officer Nelson did 

not know which direction nor road the car was last reported 

traveling. Although the car in which the defendant was 

riding was a black sports car, it was not a Camero Z28. 

Rather, the defendant was traveling in a Nissan Model 

300ZX. As the majority correctly notes, the record contains 

 8 
no evidence that these two cars are so similar that they can 

easily be confused with each other or that Officer Nelson 

believed the Nissan to be a Camero. Officer Nelson's focus 

was not on a particular model sports car. Instead, it was on 

the color of the sports car and the race of its occupants. 

The car that Officer Nelson stopped was not only a 

different make and model than the one most likely involved 

with the armed robberies, but the number of occupants it 

contained appeared to be inconsistent with the radio 

broadcast as well. The majority points out that it was only 

after Officer Nelson initiated the stop and saw a second pair 

of hands go into the air that she realized that the car did 

in fact contain two males.1 At the suppression hearing, 

Officer Nelson was asked, "from the time you pulled directly 

behind the vehicle and the time you pulled the vehicle over, 

you thought initially that there was one black male in that 

vehicle?" She answered: "Correct." App. 47a. Therefore, 

disregarding the allegation of a traffic violation, Officer 

Nelson stopped this car solely because it was a black sports 

car driven by an African American male near Bristol

Township shortly after she learned that two African

American males had committed a series of armed robberies 

in that area. Based on this record, the majority correctly 

concludes that "Officer Nelson could not justifiably arrest 

any African American man who happened to drive by in any 

type of black sports car." Majority Op. at 6. However, the 

majority then allows the government an opportunity to 

establish that Officer Nelson's stop was appropriate under 

Terry v. Ohio, rather than following the obvious extension of 

its own logic. Just as this record fails to establish that 

Officer Nelson had probable cause to arrest any Black male 

who happened to drive by in a black sports car, it also fails 

to establish reasonable suspicion to justify stopping any 

and all such cars that happened to contain a Black male. 

See Terry, 392 U.S. at 30. 

The majority states "on remand the district court should 

examine whether Officer Nelson had a reasonable suspicion 

sufficient to warrant an investigative stop." Majority Op. at 

_________________________________________________________________ 

1. I do not mean to suggest that Officer Nelson would have been justified 

in stopping this Nissan even if she had seen the passenger. 

 9 
7. However, it is clear that she did not. "In determining 

whether a stop is justified, the court must view the 

circumstances surrounding the stop in their entirety, giving 

due weight to the experience of the officers." Rickus, 737 

F2d at 365. The district court explained the discrepancy 

between the radio broadcast of two Black males and Officer 

Nelson's observation of a different model black sports car 

containing only one Black male as follows: 

 Now, the issue of one black male versus two black 

 males. She testified that she had not seen cars driven 

 by other black males for the time she had been looking, 

 and she sees a black sports car driven by one black 

 male. I do believe its still supported by probable cause 

 that there is another black male in the car, or that 

 perhaps they had split up or whatever. 

 But even so, I think the probable cause is heightened 

 by the fact that she had not seen a lot of cars driven 

 by black males in this area. . . . 

App. at 60a. 

However, there is nothing on this record to suggest that 

the perpetrators "had split up" following the robbery, or 

that someone other than the driver was in the car when 

Officer Nelson stopped it. Unsupported conjecture of this 

type would allow a stop of a car containing any number of 

Black males as one could always speculate that the car 

stopped and perpetrators got in or out of the car. This 

speculation renders the radio information regarding the 

number of suspects irrelevant and allows police officers to 

stop any Black person riding in any car that is"similar" to 

one involved in a crime even where, as here, that car does 

not match the likely description that has been broadcast on 

police radio. Conclusions based upon possibilities, no 

matter how remote or speculative, are inconsistent with the 

need to justify an investigative stop with reasonable 

suspicion based upon specific and articulable facts. 

Accordingly, any attempt to justify the instant stop under 

Terry would elevate speculation and conjecture to the level 

of articulable facts. 

 [T]he types of articulable facts that can provide 

 reasonable suspicion cannot include `circumstances 

 10 
 [which] describe a very large category of presumably 

 innocent travelers, who would be subject to virtually 

 random seizures' were the circumstances accepted as 

 reasons for the investigation. 

Karnes v. Skrutski, 62 F.3d 485, 492 (3d Cir. 1995)

(quoting Reid v. Georgia, 448 U.S. 438 (1980)). That is what 

happened here. Absent a traffic violation, Officer Nelson's 

stop is little more than a random stop of an African 

American male in a black sports car. 

II. 

Although I agree that it would normally be important to 

determine if the car that was stopped went through a red 

light, I question the propriety of allowing that inquiry in 

this case. At the beginning of the suppression hearing, an 

issue arose as to Officer Nelson's credibility. The prosecutor 

stated that he was going to call Officer Nelson, and that she 

was going to testify that the driver of the car in which 

defendant was riding disregarded a red light when she 

pulled up behind the car. The prosecutor also informed the 

district court that Carl Green, the driver of that car, had 

already entered a guilty plea in front of a different judge. As 

part of his plea agreement, Green had agreed to "cooperate, 

and provide truthful testimony" in the government's

prosecution of Kithcart. App. at 13a. Although Green's 

testimony apparently implicated Green in the armed 

robberies, the government stipulated that if he were called 

to testify at Kithcart's suppression hearing, Green would 

testify that he did not go through the red light when Officer 

Nelson pulled up behind his car. 

 Essentially the bottom line is, that Carl Green, if called 

 to testify at this hearing, would say that it was his 

 recollection that he did not go through a red light 

 immediately prior to being stopped by Officer Nelson. 

 And I discussed this matter with [defense counsel] and 

 he felt that if the government would enter into a 

 stipulation that it would be Mr. Green's testimony, that 

 there would be no need to have Mr. Green as a witness 

 in the hearing and that Police Officer Nelson's 

 11 
 testimony would be the only evidence the government 

 would put forward. 

App. at 22a. 

However, the district court was justifiably concerned 

about making a credibility determination that required it to 

judge the live testimony of Officer Nelson against 

contradicting testimony that was to be admitted by way of 

stipulation. The court told defense counsel: 

 I guess the problem I have is that you want me to 

 assess credibility, and you want me to do it in a 

 vacuum. In other words, assess this police officer's 

 credibility compared to nothing, compared to the fact 

 that Mr. Green wouldn't be testifying, but that he 

 would say. And yet for the purpose of credibility, that 

 makes it very difficult, are you certain this is the way 

 you want me to proceed? 

App. at 25a. 

The government responded that its position was that

Officer Nelson had reasonable suspicion when she pulled 

up behind Green's car, but that the government's argument 

was two prong. The government argued that the car was 

stopped for a traffic violation but, regardless of the alleged 

violation, Officer Nelson still had reasonable suspicion to 

stop the car based upon the radio transmissions she

received regarding armed robberies in a neighboring

township. App. at 26a. The prosecutor stated "even if your 

Honor were to discount . . . Officer Nelson's testimony 

[about the traffic violation] in its entirety, there was still 

reasonable suspicion" to stop the car. App. at 26a. No 

doubt out of a desire to adjudicate this case fairly and 

expeditiously, the district court agreed to hear Green's 

testimony outside the presence of the jury during the 

course of his trial testimony and to reserve any issue of 

credibility until that point. This would have allowed the 

trial to proceed while still affording both sides a fair 

opportunity to litigate the credibility issues that related to 

the suppression motion. The court then reemphasized:"I 

would be very reluctant to make a decision without hearing 

from [Green]." The trial judge told the prosecutor, "I believe 

the ball is in your court." App. at 29a. Almost immediately 

 12 
thereafter, the government called Officer Nelson to testify 

about the circumstances leading up to the arrest of the 

defendant. However, at the conclusion of Officer Nelson's 

testimony the district court upheld the arrest based upon 

its belief that Officer Nelson's testimony established 

probable cause regardless of any traffic violation, and the 

defendant entered his conditional guilty plea immediately 

thereafter. Accordingly, the matter never proceeded to trial, 

and the district court never had an opportunity to hear 

Green's testimony and make a finding of fact about the 

alleged traffic violation. 

Officer Nelson would clearly have been justified in

stopping Green's car to enforce the traffic laws if Green 

drove through a red light. See United States v. Moorefield, 

111 F.3d 10, 12 (3d. Cir. 1997) ("It is well-established that 

a traffic stop is lawful under the Fourth Amendment where 

a police officer observes a violation of the sate traffic 

regulations."). The police would also have been justified in 

ordering Green and Kithcart out of the car if that is what 

happened. See Pennsylvania v. Mimms, 434 U.S. 106, 111 

(1977) (concluding that ordering a driver out of the car after 

a traffic violation is a justifiable, de minimis intrusion). 

However, the record does not allow a court to determine 

what happened after the car was stopped. The prosecutor 

apparently thought that the gun that was seized from 

Kithcart would automatically be admitted if he established 

the legality of the initial stop. However, the traffic violation 

would not necessarily allow the prosecution to admit the 

gun into evidence merely because it justified the traffic 

stop. This record is devoid of evidence to support a 

conclusion that any search of Kithcart's person after the 

stop was reasonable under the Fourth Amendment. 

The prosecution informed the district court that the only 

evidence it planned to present during the suppression 

hearing was Officer Nelson's testimony. The following 

exchange occurred during that testimony: 

 Q. Did any officer recover a gun from the defendant, 

 Jesse Kithcart? 

 A. Yes. 

 Q. Who was that? 

 13 
 A. That was Officer Bill Williams. 

* * * 

 Q. I was given [by Officer Williams] a 32 revolver and 

 I was given a white nylon pouch. 

 Q. Have you spoken to Officer Williams about where 

 they recovered the gun from Mr. Kithcart? 

 A. Yes. 

 Q. What did Officer Williams say? 

 A. Officer Williams stated to me that the gun was 

 recovered from the nylon pouch. 

 Q. And where was the nylon pouch? 

 A. It was on Mr. Kithcart's waist. 

App. at 40a-41a. The prosecution never planned to call 

Officer Williams, or any other witness, (other than Carl 

Green) and there is nothing to suggest that additional 

testimony was unavailable. Officer Nelson neither searched 

the car nor the seized weapon in question. She may have 

seen other officers conduct the search and/or seize the 

gun, but that was not her testimony. There is nothing on 

this record to inform the suppression court whether

Kithcart's gun was discovered during a pat down search or 

whether it was in plain view - though inside the pouch. The 

fact finder must guess about how the gun was seized and 

any basis for the reasonable suspicion that may have been 

necessary to justify the seizure.2 

I appreciate that any police officer approaching this car 

would be apprehensive. That is true whether or not the 

driver had gone through a red light. Indeed, the normal 

experience of a police officer would dictate caution in 

approaching any stopped car whether or not the officer 

believed the car to contain armed suspects. "The Supreme 

Court has repeatedly recognized that traffic stops are 

dangerous encounters that result in assaults and murders 

_________________________________________________________________ 

2. There were several police officers on the scene, and it is unclear 

whether Officer Williams seized the gun from Kithcart, or if he merely 

received it from another officer and gave it to Officer Nelson. 

 14 
of police officers." Moorefield. 111 F.3d at 13. (internal 

quotation marks and citations omitted). However, although 

the exigencies and dangers that are endemic to any such 

confrontation are part of the analysis of whether the 

resulting intrusion is "reasonable" under the Fourth 

Amendment, they do not remove all of the protection

afforded under it. Accordingly, a police officer can conduct 

a pat down search of the occupants of a stopped car"where 

the officer is `able to point to specific and articulable facts 

which, taken together with rational inferences from those 

facts, reasonably warrant that intrusion.' " Id. (quoting 

Terry, 392 U.S. at 27). The reasonable inferences that arise 

from the circumstances of a traffic stop are such that it 

does not require a "leap of faith" to conclude that the 

instant seizure was justified if there was a traffic violation. 

However, the interests protected by the Fourth Amendment 

are too important to allow Officer Nelson's testimony to 

bridge the void in this record. The prosecutor here made no 

effort to have an appropriate witness articulate the 

circumstances surrounding the seizure of the gun. 

Accordingly, I am reluctant to assume that the government 

should now be allowed to produce a witness on remand 

that it should have, and could have, called during the 

initial suppression hearing. 

I would leave it to the trial court's discretion to decide 

whether the prosecutor should be allowed to produce the 

testimony that I think is needed to bridge the interstices in 

this transcript. That court will be in the best position to 

determine whether or not the government should be 

allowed a second the bite of the Terry apple by producing 

testimony beyond that which is necessary to rule upon the 

issue of the alleged traffic violation. If there was no traffic 

violation, Officer Nelson was not justified in stopping the 

car in which Kithcart was riding. If the suppression court 

concludes that there was a traffic violation, then it should 

determine the propriety of allowing testimony regarding the 

circumstances of the seizure after considering any 

explanation as to why that testimony was not produced 

initially. 

I do not think it is asking too much to expect attorneys 

to attempt to meet their burdens of proof when issues are 

 15 
first litigated. A court should not have to connect the dots 

of inferences scattered as far apart as the ones on this 

record to construct a picture of what occurred during the 

stop. Accordingly, although I join the majority opinion 

insofar as it reverses the order of the district court, I must, 

however, respectfully dissent from the remainder of my 

colleagues' opinion. 

A True Copy: 

Teste: 

 Clerk of the United States Court of Appeals 

 for the Third Circuit 

 16