A blog of the Philadelphia Bar Association’s Criminal Justice Section

By Burt Rose

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The United States Court of Appeals for the Third Circuit has decided the case of UNITED STATES of America v. Alexander NAVEDO, Appellant, 2012 WL 3984595, #11–3413 (Sept. 12, 2012), an appeal from the United States District Court for the District of New Jersey (D.C. No. 10–cr–00359–002), before District Judge Garrett E. Brown, Jr. The Panel was composed of Circuit Judges McKEE and Hardiman along with USDC Judge Darnell JONES. CJ McKee wrote the Opinion; J Hardiman dissented.

Navedo appealed the denial of a motion to suppress weapons that police discovered in his home after a warrantless arrest. He argued that he was detained without reasonable suspicion or probable cause to arrest and that the weapons that were subsequently recovered from his apartment should therefore have been suppressed. Navedo was charged with illegally possessing the weapons that were recovered from inside his apartment, and those weapons were admitted against him to support the sole count upon which he was tried and convicted.

On March 3, 2010, Henry Suarez and Saul DeLaCruz, two Newark Police Department detectives, set up surveillance in front of 315 Park Avenue in Newark, New Jersey. They were in front of 315 Park Avenue because they were actually investigating a shooting that had occurred at 323 Park Avenue two months earlier. The area was not shown to be a “high crime area,” and the police did not have a description of anyone involved in the earlier shooting. Before arriving and setting up their surveillance, the police had no knowledge or information whatsoever about Alexander Navedo. Rather, Officer Suarez testified that they set up surveillance in the area and maintained a presence because of concerns that there may be some kind of retaliation for the January shooting.

At approximately 8:30 pm, the detectives saw a man (later identified as Navedo) come out of the entrance to 315 Park Avenue and stand on the porch, approximately twenty to thirty feet from their unmarked parked car. Officer Suarez testified that Navedo was not doing anything unusual. Soon thereafter, a person later identified as Co-defendant Pozo approached Navedo from the street. Pozo was carrying a bookbag, and Navedo walked down to speak with him. The conversation seemed cordial and friendly, and nobody appeared threatened or threatening. After a few minutes, Pozo took the bag he was carrying off his shoulder, reached inside it, and pulled out an object. The officers then observed Pozo holding what looked like a silver gun with a black handle. Navedo never touched or possessed the gun. In fact, it never left Pozo’s hands, and neither officer observed any conduct that would have suggested that Navedo was doing anything illegal. According to Detective Suarez’s testimony at the suppression hearing, right before the police approached the group, Navedo “was just leaning forward to see what was inside the bag.” Upon seeing what they believed was a gun, the officers got out of their car and approached Navedo, Pozo, and Pozo’s companion. As they approached a fence surrounding the building, the officers identified themselves. The officers were able to clearly see that the object Pozo had in his bookbag was indeed a gun before Pozo quickly threw it back into his bag and ran. Detective Suarez chased Pozo and ultimately overtook him and placed him under arrest.

As Detective Suarez was pursuing Pozo, Navedo ran up the stairs to his home with Officer DeLaCruz pursuing him into the building and up some stairs. DeLaCruz testified that he chased Navedo into the house because the detective thought Navedo was involved in an illegal gun transaction. As he chased Navedo, DeLaCruz yelled: “Police. Stop.” With DeLaCruz in pursuit, Navedo climbed two flights of stairs, reached the third floor, and attempted to open the door to his apartment. As Navedo was opening the front door to his apartment, he was tackled by DeLaCruz. Officer DeLaCruz testified that “the physical contact was as [Navedo] was opening his front door—or his door to his apartment….”  After DeLaCruz tackled Navedo, both men fell to the ground and landed inside the apartment. Officer DeLaCruz testified that he handcuffed Navedo, and then observed a shotgun, two long rifles on the bed, one on the floor, and a stock of ammunition on the floor.

After hearing the testimony of the two detectives, Navedo, and a defense witness, the court denied Navedo’s suppression motion. The court ruled that the officers had reasonable suspicion to stop Navedo and to question him because Navedo was looking at a weapon in Pozo’s bag. The District Court reasoned that Navedo’s flight elevated the reasonable suspicion that justified the initial approach to “probable cause for arrest and justified entry” into the apartment under the theory of hot pursuit. The court ruled that the physical evidence obtained inside Navedo’s apartment was admissible because there was probable cause to arrest Navedo, based upon his flight. The lower court explained: “The individuals ran, creating probable cause for arrest and justified entry, hot pursuit into the apartment. There certainly was a reasonable suspicion of criminal activity, combined with flight, looking at the totality of the circumstances.”

The Court of Appeals held that unprovoked flight, without more, cannot elevate reasonable suspicion to detain and investigate into the probable cause required for an arrest. Rather, a person whom police approach is free to avoid a potential encounter with police by leaving the scene, and “the rate of acceleration of the person’s gait as he leaves is far too ephemeral a gauge to support a finding of probable cause, absent some other indicia of involvement in criminal activity.” Unprovoked flight can only elevate reasonable suspicion to probable cause if police have reasonably trustworthy information or circumstances to believe that an individual is engaged in criminal activity. None of those circumstances were present here. The police had no reason to suspect that Navedo was himself involved in criminal activity, and even if they had appropriately formed such a suspicion, they would only have been entitled to detain and investigate, not arrest. Therefore, the police lacked probable cause to arrest Navedo under these circumstances and the District Court erred in denying his motion to suppress the physical evidence that was seized following that arrest.

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