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United States v. Hester

United States Court of Appeals, Third Circuit

November 30, 2018


          Argued: September 28, 2017

          On Appeal from the United States District Court for the District of New Jersey (D.C. Criminal Action No. 2-15-cr-00296-001) District Judge: Honorable Kevin McNulty

          MARK E. COYNE, ESQ. JOHN F. ROMANO, ESQ. Office of United States Attorney Counsel for Appellee United States of America.

          LETICIA OLIVERA, ESQ. K. ANTHONY THOMAS, ESQ. Office of Federal Public Defender Counsel for Appellant Michael Hester.

          Before: SMITH, Chief Judge, McKEE, and RESTREPO, Circuit Judges.


          RESTREPO, Circuit Judge.

         Michael Hester was convicted of being a felon in possession of a firearm following the District Court's denial of his motion to suppress. At sentencing, the District Court applied a four-level enhancement to Hester's Guidelines range under the theory that Hester's possession itself constituted New Jersey evidence tampering. In light of the District Court's uncertainty regarding the proper application of the enhancement, the court varied downward to mitigate its effect, and sentenced Hester to 86 months' imprisonment. Hester appeals both the denial of the motion to suppress and the application of the enhancement at sentencing.

         For the reasons that follow, we will affirm the denial of the motion to suppress. However, we hold that the application of the evidence tampering sentencing enhancement was erroneous. Accordingly, we will vacate the sentence and remand to permit resentencing.


         On October 7, 2014 around 11:40 p.m., Hiddayah Muse parked a car in front of a corner store in Newark, New Jersey, in close proximity to a crosswalk. Muse left the car idling while she entered the store, with Appellant Michael Hester waiting in the passenger seat. Meanwhile, four officers in two police cars-one marked, one not-were on patrol in the area and noticed that the idling vehicle was illegally parked fewer than twenty-five feet from the crosswalk.[1]

         The officers remained to investigate in light of the parking violation and the vehicle's location in front of a store with a known history of narcotics sales. Several of the officers had specific knowledge of the store's history. One had made multiple drug arrests there; another testified that he was "very familiar" with the store because it had "been the subject of many investigations" connected to "distribution of many various narcotics." App. 242. The officers also knew that the store had a buzzer system, which would allow staff to deny them permission to enter without a warrant.

         As soon as Muse exited the store and re-entered the vehicle, the marked police car pulled up along the driver's side of the car, and the unmarked car pulled up behind it. The officers exited their cruisers and approached both sides of the vehicle on foot. One of the officers from the marked police car approached Muse at the driver's side window; the other three approached and stood at the passenger's side of the vehicle-in this case, on Hester's side.

         When an officer began his questioning of Muse, she admitted that she did not have a driver's license and that the car was not registered in her name. At that point, the officer directed Muse to turn off the engine and step out of the car. Hester-who had remained in the passenger seat as the officers pulled up, approached the car on foot, and began questioning Muse-interjected, "We're good, officer. I can drive." App. 11. Hester then began to rise and exit the vehicle but, as he did so, one of the officers heard what sounded to him like the familiar thud of a gun hitting the floorboards of a vehicle. Another officer, who had been observing Hester's hands and testified to seeing him drop the gun, verbally alerted the other officers to the presence of a weapon. At the verbal signal, Hester attempted to run, but one officer reached for and caught Hester's shirt and Hester was quickly apprehended. In the interim, one of the officers near the vehicle confirmed the presence of a gun at the foot of the passenger's seat and remained with the weapon per police protocol. Hester was then arrested and taken into custody. Because of the rapid turn of events, the officers did not search Muse and ultimately allowed her to drive away, notwithstanding her lack of a license to drive the vehicle.[2]

         Because Hester had previously been convicted of a felony, he was indicted for being a felon in possession of a firearm under 18 U.S.C. § 922(g)(1). Hester moved to suppress the firearm, arguing that the police had seized him the moment that they parked, with lights flashing, [3] alongside and behind the car in which he sat, and that the stop had not been supported by reasonable suspicion. The District Court denied the motion, concluding that the interaction with the police up until Hester's attempt to flee was a consensual encounter. In the alternative, the District Court determined that, even if it assumed Hester had been seized when the officers boxed in the vehicle, such seizure was a Terry stop supported by reasonable suspicion because the car was illegally parked in front of a known narcotics front late at night in a high crime area. The parties thereafter stipulated to the facts and proceeded by bench trial. Hester was convicted on the sole count of the indictment.

         At Hester's sentencing, the parties disputed the applicable Guidelines range. The pre-sentence report calculated an offense level of 26, which included a four-level enhancement for possession of a firearm in connection with another felony. U.S.S.G. § 2K2.1(b)(6)(B). Without the enhancement, the applicable Guidelines range would have been 84 to 105 months; with the enhancement, the range increased to 120 to 150 months. The Government sought the enhancement on the grounds that Hester's cousin had previously used the same firearm in an unrelated crime and had given it to Hester for disposal. In support of this theory, the Government cited recordings of calls Hester made to relatives from jail in which he expressed regret that he had still been in possession of the firearm when he encountered the officers, having intended to dispose of it. The Government argued that this was tantamount to evidence tampering, a separate felony under New Jersey law. See N.J. Stat. Ann. § 2C:28-6.

         Although the District Court twice described the Government's proposed application of the sentencing enhancement as "a little crazy," the Court nevertheless applied the enhancement. App. 357. To mitigate its effect, however, the Court varied downward by four offense levels-the exact number added by the enhancement. The District Court sentenced Hester to 86 months' imprisonment, the Guidelines range that would have applied without the enhancement was 84 to 105 months.

         Hester timely appealed both the denial of the motion to suppress and his sentence.


         The District Court had jurisdiction under 18 U.S.C. § 3231. We have appellate jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). Our review of the denial of a motion to suppress is for clear error as to the District Court's findings of fact, and plenary as to legal conclusions in light of those facts. United States v. Davis, 726 F.3d 434, 439 (3d Cir. 2013).


         "Warrantless searches and seizures are presumptively unreasonable and are therefore prohibited under the Fourth Amendment, unless an exception applies." United States v. Mundy, 621 F.3d 283, 287 (3d Cir. 2010). One such exception to the warrant requirement permits brief, investigatory seizures commonly called "Terry stops." Terry v. Ohio, 392 U.S. 1 (1968). A police officer may conduct such a stop "when [the] officer has a reasonable, articulable suspicion that criminal activity is afoot[.]" Illinois v. Wardlow, 528 U.S. 119, 123 (2000). However, this reasonable suspicion requirement is only triggered by a seizure, which occurs when an officer applies physical force or when a person submits to an officer's "show of authority[.]" California v. Hodari D., 499 U.S. 621, 625 (1991); see also Terry, 392 U.S. at 19, n.16.

         Consensual encounters, by contrast, "implicat[e] no Fourth Amendment interest." Florida v. Bostick, 501 U.S. 429, 434 (1991) (quoting Florida v. Rodriguez, 469 U.S. 1, 5-6 (1984)). They therefore need not be supported by reasonable suspicion or probable cause. Such voluntary interactions occur when an officer "approach[es] an individual on the street or in another public place[, ]" id., and a reasonable person in that position "would feel ...

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