Federal Motion to Suppress: Third Circuit Affirms District Court's Motion to Suppress Firearm and Upholds Fifteen-year Mandatory Sentence under ACCA

OVERVIEW

In United States v. Michael Torres, the Third Circuit Court considered an appeal from Michael Torres, who was convicted of possessing a firearm as a convicted felon, in violation of 18 U.S.C. § 922(g)(1). Torres received a mandatory 15-year sentence under 18 U.S.C. § 924(e) of the Armed Career Criminal Act (“ACCA”). The case explores:

(1) Federal Fourth Amendment law—specifically, the law on the difference between arrests which require probable cause and investigatory stops which require reasonable suspicion;

(2) the Armed Career Criminal Act (“ACCA”) and whether a felony conspiracy conviction qualifies as an ACCA predicate offense when it encompasses a defendant’s other substantive predicate convictions. 

Opinion filed on May 29, 2020.

FACTS

An officer from the City of York Police Department  was on patrol in York’s west end—a high-crime area known for violent crime. At about 6 pm, the officer was flagged down by a man in a parked car. The man pointed to the only pedestrian on the bridge, described his jacket, pants, and sneakers and told the officer that he saw him pull out a gun and fire twice into an old factory across the street.  The pedestrian was identified as Torres. 

The officer did not ask for the man’s name nor did he ask for the license plate number. The officer radioed for backup and followed Torres. When other officers arrived, the officer took his gun out and ordered Torres to “get to the ground.” Torres got to the ground and the officers asked if he had a weapon on him—he said that he did and that it was in his right pocket. 

MOTION TO SUPPRESS FIREARM

Torres was indicted by a grand jury for violating 18 U.S.C. § 922(g)(1) and brought a motion to suppress the firearm. Torres argued that the officers violated the Fourth Amendment when they seized him, so the firearm should have been suppressed. The seizure was an arrest and lacked probable cause. In the alternative, if the seizure was an investigatory stop, it was not supported by reasonable suspicion to detain him. 

Arrest or Investigator Stop?

First, the Circuit Court had to decide whether this was an arrest or an investigatory stop—this is important because an arrest requires probable cause that a person committed a felony and an investigatory stop merely reasonable suspicion. 

There is no bright-line rule to distinguish a warrantless arrest from an investigatory stop. The “reasonableness of the intrusion is the touchstone” of the analysis. Baker v. Monroe Township, 50 F.3d 1186, 1192 (3d Cir. 1995). There is no per se rule that pointing a gun or handcuffing someone constitutes an arrest. When officers are investigating armed and dangerous offenders, they need to be able to take measures to determine if the person is actually carrying a weapon and neutralize it.  

Applying the rule to this case, the officer received a tip that Torres had just discharged a firearm in a high-crime area. The encounter was brief—only thirty-five seconds elapsed between the time the officer ordered Torres to stop and when the recovered the firearm. Therefore, this was an investigatory stop and not an arrest. 

Was the investigatory stop supported by reasonable suspicion?

Reasonable suspicion exists if an officer can “articulate more than an inchoate and unparticularized suspicion or hunch of criminal activity.” The officer acted on an informant’s tip, therefore, the Court had to decide whether it was reliable. 

There are five factors that go into whether a tip is reliable:

1. the information was provided to the police in person, allowing an officer to assess directly the informant’s credibility; 

2. the informant could be held responsible if his allegations are untrue;  

3. the information would not be available to the ordinary observer; 

4. the informant had recently witnessed the alleged criminal activity at issue; and 

5. the informant’s information accurately predicted future activity. United States v. Brown, 448 F.3d 239, 249–50 (3d Cir. 2006).

The Court considered the Brown factors and considered the tip reliable. The officer interacted with the tipster and could assess his credibility. The tipster waved the forcer down and told him that he had personally witnessed the firearm discharge. The officer could hold the man accountable if the allegation as untrue even though he did not take any information—he knew his fee and car. Finally, the event had just been observed.  

The Court affirmed the District Court’s denial of Torres’ motion to suppress since this was an investigatory stop supported by reasonable suspicion based on a reliable tip. 

ARMED CAREER CRIMINAL ACT

The question the Court answered here is: does a felony conspiracy conviction qualify as an ACCA predicate offense when it encompasses a defendant’s other substantive predicate convictions?

Under the ACCA, a defendant who violates 18 U.S.C. § 922(g)(1) after receiving three or more convictions for “a violent felony or a serious drug offense, or both, committed on occasions different from one another.” 18 U.S.C. § 924(e)(1).

Torres argued that he should not have been subject to the enhanced mandatory-minimum because his federal drug conspiracy encompassed his two state drug possession convictions. Essentially, the two state drug possessions were part of the federal conspiracy—therefore, the conspiracy does not qualify as an ACCA predicate offense when it encompasses a defendant’s other substantive predicate conviction.

The test to determine whether convictions were committed on different occasions is the separate episode test and analyze whether the offenses were “distinct in time.” United States v. Schoolcraft, 879 F.2d 64, 73 (3d Cir. 1989).

In this case, Torres’ drug possession offenses were “distinct in time” from the drug conspiracy offense. The two state drug possession offenses occurred July 2004 and July 2005. However, the federal drug conspiracy continued between July 2004 and February 2006. In his guilty plea, he also admitted to several other overt acts: packing and dispensing drugs and contacting co-conspirators and the ringleaders. Therefore, his participation in the conspiracy was broader than his two drug possession offenses and instead of withdrawing from the conspiracy, he returned to it after the drug convictions and the Circuit Court upheld the 15-year mandatory sentence.