UNITED STATES OF AMERICA v. ALFONZO COWARD
No. 01-2547
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
July 3, 2002
2002 Decisions. Paper 372.
SLOVITER, FUENTES and MICHEL, Circuit Judges
Precedential. On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. No. 00-cr-00088). District Judge: Hon. Stewart Dalzell. Argued April 1, 2002.
Kairys, Rudovsky, Epstein, Messing
Philadelphia, PA 19106
Attorney for Appellant
_________________________________________________________________
* Hon. Paul R. Michel, United States Circuit Judge for the Federal Circuit, sitting by designation.
Patrick L. Meehan
United States Attorney
Laurie Magid
Deputy United States Attorney for Policy and Appeals
Robert A. Zauzmer (Argued)
Assistant United States Attorney Senior Appellate Counsel
Kathleen M. Rice
Assistant United States Attorney
Office of United States Attorney
Philadelphia, PA 19106
Attorneys for Appellee
OPINION OF THE COURT
SLOVITER, Circuit Judge:
Appellant Alfonzo Coward was convicted for violating
I.
BACKGROUND
At the pretrial suppression hearing, Philadelphia Police Lieutenant Michael Chitwood testified that on the evening of September 23, 1998, he and his partner, Terrence Sweeney, were patrolling the area around 43rd and Walnut Streets. Shortly before 9:00 p.m., a call was broadcast over the police radio requesting the stop of a green Subaru with the license plate BMS 9857, driven by an African-American male. The call did not state the reasons for the requested stop.
Almost immediately after hearing this call, Officers Chitwood and Sweeney saw the vehicle and pulled it over. Chitwood testified that prior to approaching the vehicle, he saw the driver reach for the glove compartment and duck down under the passenger seat before returning to an upright position. When the officers approached the car, the driver, later identified as Coward, stated, “It‘s not mine.” App. at 61. Chitwood then observed a nine-millimeter weapon on the floor of the passenger‘s side.1
Chitwood‘s testimony was the only evidence offered by the government at the suppression hearing to support the legality of the stop. The government did not present the testimony of the officer who requested the stop by radio nor any evidence demonstrating the reason for the request to stop Coward‘s vehicle.
The defense argued that all evidence arising out of the stop of Coward‘s vehicle should be suppressed for lack of reasonable suspicion to justify the stop. In response, the government argued that it “was a lawful stop . . . [b]ased on the radio call.” App. at 97. The government argued that the ” ‘fellow officer rule’ . . . kind of imputes the knowledge of the transmitting officer to the receiving officer, whether it is actually transmitted or not.” App. at 98. The government advised the District Court both in its memorandum and at the oral argument that there was authority in the Ninth Circuit‘s decision in United States v. Robinson, 536 F.2d 1298 (9th Cir. 1976), that “[e]ffective law enforcement cannot be conducted unless police officers can act on
Following the arguments of the government and counsel for Coward, the District Court at the pretrial hearing on January 4, 2001, denied the motion to suppress, noting that it was sufficient that Chitwood reasonably relied on the radio request. App. at 101 (stating that Chitwood‘s testimony demonstrated “ample reasonable suspicion, indeed fear, on the part of . . . Chitwood that[led] to the search“). In an amendment to the order to suppress filed the same day, the District Court added that the burden was on the defendant to show that there was no reasonable suspicion behind the police radio request. The court stated:
The question then becomes who has the burden of showing that there was no reasonable suspicion behind the police radio request. It seems to us that the Government, having prima facie shown the reasonableness of Sergeant Chitwood‘s behavior, should not have to take on the added burden of looking behind the request from police radio. Since the defendant has as much access to this proof as the Government, it seems to us not excessive to place the burden of such proof upon the party claiming that the radio dispatch was illegitimate. As there is not a scintilla of evidence in this record regarding such illegitimacy, we will not infer it retrospectively absent some basis for doing so.
App. at 27. On February 26, 2001, the defense moved to reconsider that order and on March 5, 2001, the District Court denied that motion reiterating the reasons given in the January 4, 2001 Order. App. at 124.
Thereafter, evidence derived from the stop of Coward‘s vehicle was admitted at the jury trial. On June 13, 2001, Coward was found guilty of being a felon in possession of a firearm that had traveled in interstate commerce in
II.
DISCUSSION
A.
Suppression of Evidence
We review the District Court‘s denial of the motion to suppress for clear error as to the underlying factual findings and we exercise plenary review over questions of law. United States v. Perez, 280 F.3d 318, 336 (3d Cir. 2002).
1. Proof of Reasonable Suspicion
The government concedes, as it must, that it did not meet its burden of proof in establishing that the stop of Coward‘s car was based on reasonable suspicion. Br. of Government at 4. The government further acknowledges that the District Court incorrectly shifted the burden of proof to the defendant on this issue.
Under the applicable law, the government was required to present evidence at the suppression hearing of the requesting police officer‘s reasonable suspicion. In Whitely v. Warden, 401 U.S. 560 (1971), the Supreme Court held that although a police officer may rely on the representations of other officers when making an arrest, the officers requesting assistance must have sufficient information to show probable cause. Id. at 568 (“[A]n otherwise illegal arrest cannot be insulated from challenge by the decision of the instigating officer to rely on fellow officers to make the arrest.“).
The Supreme Court reached a similar result in United States v. Hensley, 469 U.S. 221 (1985). In that case, the Supreme Court stated:
[W]hen evidence is uncovered during a search incident to an arrest in reliance merely on a flyer or bulletin, its admissibility turns on whether the officers who issued the flyer possessed probable cause to make the arrest. It does not turn on whether those relying on the flyer were themselves aware of the specific facts which led their colleagues to seek their assistance.
In addition, the District Court erred in holding the burden was on the defense to prove reasonable suspicion. Once a defendant has challenged the admissibility of such evidence, the government must bear the burden of proving the existence of reasonable suspicion. See Florida v. Royer, 460 U.S. 491, 500 (1983) (stating that government has burden of proving seizure was “sufficiently limited in scope and duration to satisfy the conditions of an investigative seizure“); United States v. Johnson, 63 F.3d 242, 245 (3d Cir. 1995) (“once the defendant has established a basis for his motion . . . the burden shifts to the government to show that the search or seizure was reasonable“).
The parties do not dispute that the evidence offered in the District Court was insufficient or that the burden of proving reasonable suspicion should have been on the government. The only question before us is the appropriate resolution. Coward requests that we reverse the denial of his motion to suppress and order a new trial at which all evidence derived from the stop of his vehicle will be suppressed. The government requests that we remand the case to allow the District Court to decide whether the government should be given an opportunity to introduce new evidence on the issue of reasonable suspicion.
2. Reopening the Suppression Hearing
The question of whether the government may augment the record at a suppression hearing after a remand following the conviction of the defendant is analogous to the question of whether the government may reopen its case after resting. United States v. Vastola, 915 F.2d 865, 876 (3d Cir. 1990) (citing United States v. Blankenship, 775 F.2d 735, 740-41 (6th Cir. 1985)). In Vastola , we noted that decisions to reopen proceedings are “traditionally a discretionary matter for the district court.” Id. (citing Blankenship, 775 F.2d at 740-41). For example, we review a district court‘s decision on a motion to reopen for abuse of discretion. Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 332 (1971). However, we have cautioned that ” ‘courts should be extremely reluctant to grant reopenings.’ ” United States v. Kithcart , 218 F.3d 213, 219 (3d Cir. 2000) (Kithcart II) (quoting Blankenship, 775 F.2d at 740).
Our decision in Kithcart II provides our most recent analysis of this issue. In United States v. Kithcart, 134 F.3d 529, 532 (3d Cir. 1998) (Kithcart I), we reversed a district court‘s denial of a motion to suppress for lack of probable cause and remanded the case to determine if the evidence could support a finding of the lesser standard of reasonable suspicion. On remand, the district court allowed the introduction of new evidence on the revisited suppression motion that had not been presented at the initial hearing. Kithcart II, 218 F.3d at 217. On appeal, we held that the district court erred in allowing the prosecution to present additional testimony without explanation of its failure to introduce the evidence at the original suppression hearing. Id. at 221.
In Kithcart II, we set forth a number of factors that a court must consider in deciding whether to permit reopening. We stated that “[w]hen faced with a motion to reopen, the district court‘s primary focus should be on whether the party opposing reopening would be prejudiced if reopening is permitted.” 218 F.3d at 220 (citing Blankenship, 775 F.2d at 740; 28 Charles A. Wright & Victor J. Gold, Federal Practice and Procedure S 6164 (1993)). A critical factor in evaluating prejudice is the timing of the motion to reopen. As the court stated in Blankenship:
If [the motion to reopen] comes at a stage in the proceedings where the opposing party will have an opportunity to respond and attempt to rebut the evidence introduced after reopening, it is not nearly as likely to be prejudicial as when reopening is granted after all parties have rested, or even after the case has been submitted to the jury. Where, as in this case, reopening is permitted after the government has rested its case in chief, but before the defendant has presented any evidence, it is unlikely that prejudice sufficient to establish an abuse of discretion can be established.
The Blankenship court offered further guidelines for
In exercising its discretion, the court must consider the timeliness of the motion, the character of the testimony, and the effect of the granting of the motion. The party moving to reopen should provide a reasonable explanation for failure to present the evidence in its case-in-chief. The evidence proffered should be relevant, admissible, technically adequate, and helpful to the jury in ascertaining the guilt or innocence of the accused. The belated receipt of such testimony should not imbue the evidence with distorted importance, prejudice the opposing party‘s case, or preclude an adversary from having an adequate opportunity to meet the additional evidence offered.
Id. (quoting United States v. Thetford , 676 F.2d 170, 182 (5th Cir. 1982) (quotation omitted)).
In Kithcart II, we placed emphasis on the need for an adequate explanation of the failure to present the relevant evidence earlier. “In order to properly exercise its discretion the district court must evaluate that explanation and determine if it is both reasonable, and adequate to explain why the government initially failed to introduce evidence that may have been essential to meeting its burden of proof.” Kithcart II, 218 F.3d at 220. In that case, we reversed the district court‘s decision to reopen the suppression hearing on remand because “the government offered absolutely no explanation for its initial failure to present the additional witnesses at the original suppression hearing, nor did the district court demand an explanation.” Id. at 217.
We have made clear that the ” ‘party moving to reopen should provide a reasonable explanation for failure to present the evidence [initially].’ ” Kithcart II, 218 F.3d at 220 (alteration in original) (quoting Blankenship , 775 F.2d at 741 (quoting Thetford, 676 F.2d at 182)). Consideration should be given to whether the law on point at the time was unclear or ambiguous, as well as to whether new evidence came to light after the proceedings closed. Id . (suggesting reopening inappropriate because the government “was fully aware of what it had to establish to successfully oppose Kithcart‘s suppression motion” and nothing suggested “that evidence was either newly discovered or unavailable during the first hearing“); see also Vastola, 915 F.2d at 876 (remanding determination on adequacy of government‘s explanation for delay in sealing wiretap tapes because government may have relied on a case that was later overruled by the Supreme Court).
Unlike in Kithcart II where the government offered no explanation for its failure to present the evidence, the
A district court may consider the purpose for reopening. In Blankenship, the court stated, “[r]eopening is often permitted to supply some technical requirement such as the location of a crime--needed to establish venue--or to supply some detail overlooked by inadvertence.” 775 F.2d at 740 (citing United States v. Hinderman, 625 F.2d 994, 996 (10th Cir. 1980)). Nothing suggests that the government in Coward‘s case “overlooked” a “detail” by “inadvertence.” Instead, the government neglected to put on evidence it had readily available to it, out of a faulty interpretation of the law. This case is not one in which the misinterpretation can be justified because the law was ambiguous or changing. The government‘s burden of proof to show probable cause is not merely a “technical
We refrain from expressing our view as to whether the government has provided a reasonable and adequate explanation for its failure to present evidence that the requesting officer had reasonable suspicion to justify the stop, because we believe the District Court is the appropriate body to weigh the government‘s arguments and evidence in favor of reopening. In Vastola, we remanded the determination of whether the government had a reasonable explanation because “the district court should be entitled to exercise its discretion to decide whether the government should now be permitted . . . to offer an explanation for its violation . . . . It seems to us that this threshold determination . . . is similar to that on a ruling on a motion by the government to reopen, traditionally a discretionary matter for the district court.” 915 F.2d at 876 (citing Blankenship, 775 F.2d at 740-41).
For the reasons articulated, we will remand to the District Court to evaluate the government‘s request to reopen the suppression hearing in light of the considerations expressed herein.
B.
Validity of Section 922(g)
In Coward‘s brief, he argued that possession of a firearm that has previously traveled in interstate commerce does not have a substantial relation to and/or impact on interstate commerce and thus falls outside of Congress’ authority under the Commerce Clause,
In Singletary, we examined this precise issue in detail and held that “proof . . . that the gun had traveled in interstate commerce, at some time in the past, was sufficient to satisfy the interstate commerce element” of the statute. Id. at 205. Taking note of our prior decision in United States v. Gateward, 84 F.3d 670 (3d Cir. 1996), we scrutinized the same line of Commerce Clause decisions of the Supreme Court to which Coward directed our attention and ruled that
Despite the rejection of identical constitutional challenges in Singletary, Coward maintains that Singletary did not
Although Singletary does not directly address these rules of statutory construction, it effectively addresses and overcomes Coward‘s arguments. In Singletary, we examined the phrases used in
III.
CONCLUSION
For the reasons stated herein, we will remand this case to the District Court to decide, in its discretion, whether to allow the government to present additional evidence in opposition to the suppression motion. In so considering, the District Court must consider the factors articulated above, including whether or not the government has an adequate and reasonable explanation for its failure to present the evidence initially and whether the presentation of additional evidence will prejudice the defendant.
A True Copy:
Teste:
Clerk of the United States Court of Appeals for the Third Circuit