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PA CHIEFS OF POLICE ASSOCIATION
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BULLETIN
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WINTER 2016
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www.pachiefs.orgLEGAL UPDATES FOR LAW ENFORCEMENT
would accompany a criminal transaction,
coupled with presence in a high crime area
at night, is sufficient to justify an investiga-
tive stop. The Third Circuit concluded in
United States v. Whitfield, 634 F.3d 741 (3d
Cir. 2010), that the defendant's "presence
in the evening hours after 9:00 o'clock . . .
in a high crime area where there's been drug
transactions, arrests for drug transactions,
shootings, [involvement in] what appears
to be a hand-to-hand exchange, followed
by a movement away from one another, and
from the officers" supported a finding that
the police officers had reasonable suspicion
of criminal activity, particularly where the
defendant made "furtive gestures," put his
hand in his pocket in "an effort to conceal
something or secure something," and refused
to stop and show his hands. Id. at 745 (in-
ternal quotation omitted); see also United
States v. Lopez, 441 F. App'x 910, 913 (3d
Cir. 2011) (stating that the district court
ruled correctly that the police officers had
reasonable suspicion when "[t]he officers,
while working a nighttime shift, observed
[defendants] [walk] toward each other while
continually surveying their surroundings,
and . . . saw them exchange a small article
without first shaking hands. The . . . area . .
. was a high-crime area, and they suspected .
. . a hand-to-hand narcotics transaction").4
4The Government argues that the fact that
the van was parked illegally on the side-
walk, in violation of 75 Pa. Cons. Stat.
Ann. 3353(a)(1)(ii), was one of the factors
contributing to the officers' reasonable sus-
picion. Not only is this factor relevant to a
finding of reasonable suspicion under Terry,
but, it alone, may have also provided the of-
ficers with adequate justification to detain
Defendant in a traffic stop. "The Supreme
Court [has] established a bright-line rule
that any technical violation of a traffic code
legitimizes a stop." United States v. Mos-
ley, 454 F.3d 249, 252 (3d Cir. 2006) (cit-
ing Whren v. United States, 517 U.S. 806
(1996)). To conduct a traffic stop, officers
need only have a reasonable suspicion to
believe that an individual has violated the
traffic laws. United States v. Delfin-Colina,
464 F.3d 392, 397 (3d Cir. 2006) (holding
that "the Terry reasonable suspicion standard
applies to routine traffic stops.") Where, as
here, the officers observed the van on the
sidewalk, they plainly had a reasonable sus-
picion to believe that the driver had violated
a traffic law, namely, 75 Pa. Cons. Stat. Ann.
3353(a)(1)(ii). Thus, at a minimum, it ap-
pears that the officers could, consistent with
the Fourth Amendment, stop Defendant to
investigate the apparent traffic violation.
We conclude, based on the totality of the
circumstances, that the Government has es-
tablished by a preponderance of the evidence
that the officers had reasonable suspicion to
conduct an investigatory stop of Defendant
pursuant to Terry, 392 U.S. at 30. Moreover,
even if we did not credit Officer Filler's tes-
timony that he saw what appeared to him to
be the stock of a shotgun as he drove towards
Defendant, the aggregation of other factors
nonetheless supports reasonable suspicion to
support the Terry stop of Defendant. Defen-
dant's nervous behavior of hastily shutting
the door to the van and dropping shotgun
shells on the ground, at night, near the scene
of a recent crime, in a high crime area, is at
least as suspicious, if not more suspicious,
than similar scenarios in which a finding of
reasonable suspicion was upheld. See Whit-
field, 634 F.3d at 745; Lopez, 441 F. App'x
at 913.
Thus, insofar as the Defendant seeks to sup-
press evidence as fruit of the poisonous tree
based on the illegality of the initial investiga-
tory stop, we conclude that, because the in-
vestigatory stop of Defendant was valid, the
subsequently discovered shotgun may not
be suppressed on this basis. Accordingly, we
deny Defendant's Motion to Suppress with
regard to this argument.
B. The Exclusionary Rule
Defendant argues that, because the warrant-
less search of his van violated the Fourth
Amendment, the shotgun must be sup-
pressed pursuant to the exclusionary rule.
As we discussed above, once Defendant has
established that the shotgun was found dur-
ing a warrantless search, the Government has
the burden to prove, by a preponderance of
the evidence that an exception to the warrant
requirement applies. See Johnson, 63 F.3d at
245; see also United States v. Donahue, 764
F.3d 293, 300 (3d Cir. 2014) (citing Herr-
old, 962 F.2d at 1143; United States v. Vasey,
834 F.2d 782, 785 (9th Cir. 1987)).
1. Automobile Exception
The Government maintains that the auto-
mobile exception to the exclusionary rule
applies in this case. The Supreme Court has
explained the automobile exception as fol-
lows: "[i]f a car is readily mobile and prob-
able cause exists to believe it contains contra-
band, the Fourth Amendment . . . permits
police to search the vehicle without more."
Pennsylvania v. Labron, 518 U.S. 938, 940
(1996) (citing California v. Carney, 471 U.S.
386, 393 (1985)); see also Donahue, 764
F.3d at 299-300 ("The automobile exception
permits vehicle searches without a warrant if
there is 'probable cause to believe that the
vehicle contains evidence of a crime.'" (quot-
ing United States v. Salmon, 944 F.2d 1106,
1123 (3d Cir. 1991))). Although warrantless
searches of property ordinarily require both
[*16] probable cause and exigent circum-
stances, "the ready mobility of automobiles
permits their search based only on probable
cause." United States v. Burton, 288 F.3d 91,
100 (3d Cir. 2002) (citations omitted). Indi-
viduals enjoy a lower expectation of privacy
in the contents of a vehicle if there is prob-
able cause to believe that the vehicle contains
contraband. United States v. Ross, 456 U.S.
798, 823 (1982) ("an individual's expecta-
tion of privacy in a vehicle and its contents
may not survive if probable cause is given to
believe that the vehicle is transporting con-
traband"). Thus, if there is probable cause
"to search a vehicle, the search 'is not unrea-
sonable if based on facts that would justify
the issuance of a warrant, even though a war-
rant has not been actually obtained.'" United
States v. Cobb, 483 F. App'x 719, 723 (3d
Cir. 2012) (quoting Ross, 456 U.S. at 809);
see also, Burton, 288 F.3d at 100 ("The au-
tomobile exception to the warrant require-
ment permits law enforcement to seize and
search an automobile without a warrant 'if
probable cause exists to believe it contains
contraband.'") (quoting Labron, 518 U.S.
at 940)).
Police officers have probable cause to search
a vehicle when the facts available to them
would "'warrant a [person] of reasonable
caution in the belief' that contraband or
evidence of a crime is present." Florida v.
Harris, 133 S. Ct. 1050, 1055 (2013) (al-
terations in original) [*17] (quoting Texas
v. Brown, 460 U.S. 730, 742 (1983)). The
Supreme Court has adopted a totality of the
circumstances approach to determining the
existence of probable cause, thereby
"reject[ing] rigid rules, bright-line tests, and
mechanistic inquiries in favor of a more flex-
ible, all-things-considered approach." Id.
Moreover, while conducting an investigative