2011 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

11-10-2011

USA v. Eric Wallace

Precedential or Non-Precedential: Non-Precedential

Docket No. 10-3348

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Recommended Citation

"USA v. Eric Wallace" (2011). 2011 Decisions. Paper 231.

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_______________

No. 10-3348

_______________

UNITED STATES OF AMERICA

v.

ERIC WALLACE, a/k/a Marshall Gilmore

Eric Wallace,

Appellant

_______________

On Appeal from the United States District Court

For the Eastern District of Pennsylvania

(D.C. Criminal Action No. 2-09-cr-00534-001)

District Judge: Honorable Eduardo C. Robreno

_______________

Submitted Under Third Circuit LAR 34.1(a)

September 19, 2011

_______________

Before: AMBRO, CHAGARES, and ROTH, Circuit Judges

(Opinion filed: November 10, 2011)

_______________

OPINION

_______________

AMBRO, Circuit Judge

Appellant Eric Wallace appeals the District Court’s denial of his motion to 

suppress evidence of a firearm found in his possession. We affirm the judgment of the 
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District Court.

As we write solely for the parties, we recite only those facts necessary to our 

decision. On February 18, 2009, at approximately 7:30 p.m., Philadelphia Police Officers 

Paul Gimbel and John Leinmiller were on a routine patrol when they observed a van 

illegally parked at an intersection in the Germantown neighborhood of Philadelphia. The 

van was in a high-crime area known for drug trafficking activity. 

Officer Gimbel approached the driver’s side of the van while shining his flashlight 

into the van. He identified four people, one in the front passenger seat and three in the 

rear seat. Wallace was sitting in the middle position of the rear seat.

As he approached the van, Officer Gimbel observed Wallace reaching toward his 

“waistband area,” as though he either was going into or adjusting his waistband. Gimbel 

immediately told everyone in the van to stop moving. After issuing the command, he

observed Wallace move briefly. Gimbel notified Officer Leinmiller, who was 

approaching the passenger side of the van, that Wallace was reaching for something. 

Because he believed Wallace was ignoring his command, Gimbel opened the driver’s 

side door of the van and entered the van. Wallace’s hands were at his waist and the other 

two passengers sitting in the rear seat both had their hands up. While ordering the 

passengers to keep their hands still, Gimbel placed his hands on top of Wallace’s hands 

and lifted them away from the waist area. Gimbel patted down Wallace’s waist area

around the belt line and immediately felt a hard, metal object. He recovered a revolver 

loaded with six live rounds of ammunition.
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Wallace was indicted for possession of a firearm by a convicted felon, in violation 

of 18 U.S.C. §§ 922(g)(1) and 924(e). After losing his motion to suppress the revolver, 

he pled guilty to the indictment while preserving his right to appeal the denial of his 

suppression motion. The District Court sentenced Wallace to 180 months’ imprisonment, 

five years of supervised release, a $500 fine, and a $100 special assessment. Wallace 

then filed a timely notice of appeal.1

On appeal, Wallace argues that Officer Gimbel lacked reasonable suspicion to 

justify a frisk for weapons under Terry v. Ohio, 392 U.S. 1 (1968). Terry allows an

officer to “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) (citing Terry, 392 U.S. at 30).2

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

28 U.S.C. § 1291. We review “the District Court’s denial of a motion to suppress for 

clear error as to the underlying factual findings and exercise[] plenary review of the 

District Court’s application of the law to those facts.” United States v. Perez, 280 F.3d 

318, 336 (3d Cir. 2002).

2 Before the District Court, Wallace contended that the officers did not have a valid legal 

basis to approach the van because a parking violation does not constitute a traffic 

violation for purposes of a Terry stop. Wallace has not pursued this claim on appeal.

 The scope of a valid Terry stop includes a 

pat-down search for weapons when an officer has a reasonable belief that a person is 

armed and dangerous. Terry, 392 U.S. at 27. The officer does not need to be certain that 

the person is armed. Rather, “the issue is whether a reasonably prudent [person] in the 

circumstances would be warranted in the belief that his [or her] safety or that of others 

[is] in danger.” Id. The determination is based on a totality of the circumstances, 

recognizing that an officer may have more experience and training “to make inferences 
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from and deductions about the cumulative information available” than an untrained 

person. United States v. Arvizu, 534 U.S. 266, 273 (2002).

We have held that when an officer observes suspicious behavior he reasonably 

believes is intended to conceal a weapon, he is justified in searching for the weapon. See 

United States v. Robertson, 305 F.3d 164, 170-71 (3d Cir. 2002). For example, in United 

States v. Moorefield, 111 F.3d 10 (3d Cir. 1997), officers ordered the defendant to remain 

in the car with his hands visible, after which he appeared to shove something toward his 

waist. Id. at 11-12. We held that the defendant’s “furtive hand movements and refusal to 

obey the officers’ orders constituted suspicious behavior.” Id. at 14. We stated that the 

defendant’s “behavior embodied the kind of specific, articulable facts that Terry

contemplates and, therefore, warranted a pat-down search for weapons.” Id.

Wallace’s behavior likewise warranted Officer Gimbel’s pat-down search for 

weapons. As he approached the van, Gimbel observed Wallace reaching for something 

near his waist, prompting him to instruct Wallace and the other three passengers to stop 

moving. When Wallace did not do so, Gimbel reasonably could have believed Wallace 

was concealing a weapon. In addition, the van was parked illegally in a high-crime area 

known for drug trafficking. See Wardlow, 528 U.S. at 124. It was dark outside, limiting 

Gimbel’s ability to observe Wallace’s movements and heightening his sensitivity to 

Wallace’s behavior. The van was occupied by four passengers, outnumbering Officers

Gimbel and Leinmiller two to one. In this context, any doubt disappears that Gimbel 

reasonably could have suspected that Wallace was armed and dangerous, justifying a 

pat-down search of Wallace. 
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For these reasons, we affirm the judgment of the District Court.