Argued: September 28, 2017
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
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
RESTREPO, Circuit Judge.
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
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
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.
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 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.
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
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,  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
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.
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
timely appealed both the denial of the motion to suppress and
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).
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.
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 ...