United States v. Michael Torres

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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No. 19-2940

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UNITED STATES OF AMERICA

v.

MICHAEL E. TORRES,

Appellant

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On Appeal from the United States District Court

for the Middle District of Pennsylvania

(D.C. Criminal No. 1-17-cr-00392-001)

District Judge: Honorable Yvette Kane

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Submitted Under Third Circuit L.A.R. 34.1(a):

April 23, 2020

Before: PORTER, RENDELL and FISHER

Circuit Judges

(Filed: June 5, 2020)

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Heidi R. Freese, Federal Public Defender

Frederick W. Ulrich

OFFICE OF THE FEDERAL PUBLIC DEFENDER

100 Chestnut Street

Suite 306

Harrisburg, PA 17101

Counsel for Appellant Michael Torres

David J. Freed, United States Attorney

Carlo D. Marchioli,

OFFICE OF THE UNITED STATES ATTORNEY

228 Walnut Street, P.O. Box 11754

220 Federal Building and Courthouse

Harrisburg, PA 17108

Counsel for Appellee United States of America

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OPINION OF THE COURT

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PORTER, Circuit Judge.

After a bench trial, the District Court found Michael

Torres guilty of possessing a firearm as a convicted felon, in

violation of 18 U.S.C. § 922(g)(1). The District Court imposed

a fifteen-year mandatory-minimum sentence under 18 U.S.C.

§ 924(e) of the Armed Career Criminal Act (“ACCA”) because

it determined that Torres had three qualifying felony

convictions.

Torres raises two arguments on appeal. First, he

contends that the District Court erred by denying his motion to

suppress the firearm. Second, Torres argues that his prior

federal drug conspiracy conviction does not qualify as an

ACCA predicate offense because it encompasses his other two

substantive ACCA predicates. We will affirm. The firearm was

discovered during a valid investigative stop. And we will join

our sister circuits in holding that a drug conspiracy conviction

counts as an ACCA predicate offense, so long as it was distinct

in time from the underlying substantive offenses.

I

Officer Steven Pickel of the City of York Police

Department patrols York’s west end. The west end is a high-

crime area known for violent crime, such as homicides,

shootings, drug incidents, and aggravated assaults. York police

“regularly” investigate reports of “shots fired” in the west end,

“especially in the evening.” App. 48.

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Around 6:00 p.m. on October 31, 2017, Officer Pickel

drove his patrol car along the border between the west end and

York College’s campus. A man in a parked vehicle flagged the

officer down. The man pointed to the only pedestrian on a

bridge. The man said that the pedestrian was “wearing a black

jacket with his hood up, blue jeans, and black sneakers” and

that he pulled out a gun and fired it twice into an old factory

building across the street. App. 48. The man was “adamant”

about this description.1 Id. The pedestrian was later identified

as Torres.

Instead of asking for the man’s name or recording his

license plate number, Officer Pickel immediately radioed for

backup and followed Torres in his patrol car. Officer Pickel

feared that Torres posed a potential danger to others. And he

knew from his training and experience that any delay would

make it very difficult to locate Torres.

As other officers arrived, Officer Pickel activated his

emergency lights and exited his patrol car. Based on the

information that Torres had discharged a firearm, Officer

Pickel drew his service pistol and ordered Torres to “get to the

ground.” App. 71. Torres complied, and two other officers,

including Officer Jonathan Hatterer, approached Torres.

Officer Hatterer knelt and asked Torres if he had a firearm.

According to Officer Hatterer, Torres said that he did and then

indicated that it was in his right pocket. Officer Hatterer

handcuffed Torres while another officer retrieved the firearm.

A grand jury indicted Torres and charged him with

violating 18 U.S.C. § 922(g)(1) by possessing a firearm as a

convicted felon. Torres pleaded not guilty and moved to

suppress the firearm. The District Court denied the motion. It

determined that the officers found the gun in Torres’s

possession during an investigatory stop under Terry v. Ohio,

392 U.S. 1 (1968), rather than during an arrest. It further

concluded that the stop was constitutional because Officer

Pickel had reasonable suspicion to conduct the stop.

The District Court then held a bench trial and found

Torres guilty. The Presentence Investigation Report (“PSR”)

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Officer Pickel believed that his body camera captured the

encounter, but it malfunctioned.

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advised that Torres qualified for enhanced sentencing under 18

U.S.C. § 924(e) of the ACCA because he had at least three

prior convictions for serious drug offenses. The PSR identified

two state drug possession convictions, one federal drug

distribution conspiracy conviction, and a felony conviction for

attempted homicide. Torres objected to the enhancement,

arguing that, because the state drug possession offenses were

part of the federal drug distribution conspiracy, the drug

conspiracy conviction should not be counted as a separate

predicate offense. The District Court denied Torres’s

objection, applied the enhancement, and sentenced Torres to

the mandatory-minimum sentence: 180 months’

imprisonment. Torres timely appealed.

II2

Torres argues that the officers violated the Fourth

Amendment when they seized him, so the firearm should have

been suppressed. He maintains that the seizure amounted to an

arrest that lacked probable cause. Alternatively, he contends

that even if the seizure were an investigatory stop, Officer

Pickel lacked reasonable suspicion to detain him. We disagree.

Officer Pickel conducted a valid investigatory stop to ensure

officer safety and the safety of the community. And the stop

was supported by reasonable suspicion because Officer Pickel

received a reliable tip.

A

“Generally, for a seizure [of a person] to be reasonable

under the Fourth Amendment, it must be effectuated with a

warrant based on probable cause.” United States v. Robertson,

305 F.3d 164, 167 (3d Cir. 2002) (citing Katz v. United States,

389 U.S. 347, 356–57 (1967)). But a police officer may arrest

a person in a public place without a warrant if the officer

2

The District Court had jurisdiction under 18 U.S.C. § 3231.

We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. §

3742(a). For a motion to suppress, we review factual findings

for clear error and legal conclusions de novo. United States v.

Johnson, 592 F.3d 442, 447 (3d Cir. 2010). We review

challenges to the application of an ACCA enhancement de

novo. United States v. Henderson, 841 F.3d 623, 626 (3d Cir.

2016).

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possesses probable cause to believe the person committed a

felony. United States v. McGlory, 968 F.2d 309, 342 (3d Cir.

1992) (citing United States v. Watson, 423 U.S. 411, 421

(1976)). Or, “an officer may . . . conduct a brief, investigatory

stop when the officer has a reasonable, articulable suspicion

that criminal activity is afoot.” Illinois v. Wardlow, 528 U.S.

119, 123 (2000) (citing Terry, 392 U.S. at 30).

The Supreme Court has not established a bright-line

rule to distinguish a warrantless arrest from an investigatory

stop. But the “reasonableness of the intrusion is the

touchstone” of our analysis. Baker v. Monroe Township, 50

F.3d 1186, 1192 (3d Cir. 1995) (citing United States v. Sharpe,

470 U.S. 675, 682–83 (1985)). The Supreme Court “ha[s]

emphasized the need to consider the law enforcement purposes

to be served by the stop as well as the time reasonably needed

to effectuate those purposes.” Sharpe, 470 U.S. at 685

(citations omitted). By these standards, Torres was subjected

to an investigatory stop.

To begin, “[t]here is no per se rule that pointing guns at

people, or handcuffing them, constitutes an arrest.” Baker, 50

F.3d at 1193 (collecting cases); see also United States v.

Edwards, 53 F.3d 616, 619 (3d Cir. 1995) (surrounding a

suspect “with weapons ready, and even drawn, does not

constitute an arrest per se”). Terry recognized that when

officers are investigating a suspect who the officers reasonably

believe “is armed and presently dangerous to the officer[s] or

to others, it would . . . be clearly unreasonable to deny the

officer[s] the power to take necessary measures to determine

whether the person is in fact carrying a weapon and to

neutralize the threat of physical harm.” 392 U.S. at 24.

Torres’s case resembles the factual scenario we

encountered in United States v. Johnson, 592 F.3d 442 (3d Cir.

2010). In Johnson, a witness called a 911 dispatcher to report

that she saw two men struggling before hearing a gunshot. Id.

at 445. After the gunshot, the witness watched a white taxicab

depart the scene. Id. A short time later, police spotted a white

taxicab in the vicinity and stopped it. Id. Officers surrounded

the taxicab with guns drawn. Id. at 445–46. They ordered the

occupants out of the car and handcuffed the defendant and the

taxi driver so that they could “safely clear the vehicle and

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gather information about the [reported] shooting.” Id. at 446.

Officers then discovered a handgun in plain view in the

backseat of the car. Id. Under these facts, we held that the

officers conducted an investigatory stop, not an arrest. Id. at

448.

So, too, here. Officer Pickel received a tip that Torres,

just moments before, had discharged a firearm in a high-crime

area. A brief encounter with police ensued. Only thirty-five

seconds elapsed between the time when Officer Pickel ordered

Torres to stop and when police secured Torres’s firearm.3

Thus, the seizure was an investigatory stop—not an arrest.

B

Because Torres was subjected to an investigatory stop,

we next ask whether the stop was supported by reasonable

suspicion. Wardlow, 528 U.S. at 123. It was.

Reasonable suspicion exists if an officer can “articulate

more than an inchoate and unparticularized suspicion or hunch

of criminal activity.” Id. at 124 (quotation marks and citation

omitted). “Reasonable suspicion requires only a particularized

and objective basis for suspecting criminal activity” based on

“the totality of the circumstances.” United States v. Green, 897

F.3d 173, 183 (3d Cir. 2018) (citations, quotation marks, and

alteration omitted). “We afford significant deference to a law

enforcement officer’s determination of reasonable suspicion.”

United States v. Foster, 891 F.3d 93, 104 (3d Cir. 2018).

Because Officer Pickel acted on an informant’s tip, we

must decide whether the tip was reliable. United States v.

Torres, 534 F.3d 207, 210–11 (3d Cir. 2008). In doing so, we

consider whether: (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

3

Torres tries to distinguish Johnson, arguing that Officer

Pickel did not have as much detailed information as the officers

in Johnson. But this goes to whether Officer Pickel had

reasonable suspicion—not whether the encounter amounted to

an arrest.

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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).

These factors are not exhaustive, and “a tip need not

bear all of the indicia [of reliability]—or even any particular

indicium—to supply reasonable suspicion.” Torres, 534 F.3d

at 213 (citation omitted). “Other factors can bolster what would

otherwise be an insufficient tip,” including “the presence of a

suspect in a high[-]crime area[.]” Id. at 211 (alteration and

citation omitted). At bottom, we must discern whether the tip

had “sufficient indicia of reliability . . . for us to conclude that

the officers possessed an objectively reasonable suspicion” to

justify the stop. Brown, 448 F.3d at 250 (quoting United States

v. Nelson, 284 F.3d 472, 481 (3d Cir. 2002)).

Based on the Brown factors, the tip was reliable. First,

Officer Pickel interacted with the tipster face-to-face and thus

could assess his credibility. The tipster waved down Officer

Pickel and adamantly explained what he had personally

witnessed. Second, Officer Pickel would likely be able to hold

the man accountable if his allegation were untrue. Although

Officer Pickel did not know the tipster’s name or his car’s

license plate number, he did know what the man looked like

and the make of the car that he drove. Third, the tipster had just

witnessed the alleged criminal activity. See Navarette v.

California, 572 U.S. 393, 400 (2014) (observing that a

statement “made under the stress of excitement caused by a

startling event . . . weigh[s] in favor of the [tipster’s] veracity”).

The fact that Torres was in a high-crime area also favors

reliability. See Torres, 534 F.3d at 211. Shootings were

reported “regularly” in the west end. App. 48. Considering all

the circumstances, and “given . . . the danger posed by an

armed criminal, we think that if [Officer Pickel] had done

nothing and continued on [his] way after receiving the

informant’s tip, [he] would have been remiss.” United States v.

Valentine, 232 F.3d 350, 356 (3d Cir. 2000). In short, Officer

Pickel had reasonable suspicion based on the totality of the

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circumstances. See Green, 897 F.3d at 183. Thus, Torres’s

Fourth Amendment argument fails.4

III

Torres next argues that he is not subject to the ACCA’s

enhanced mandatory-minimum sentence under § 924(e).

Specifically, he maintains that, because his federal drug

conspiracy conviction encompassed his two state drug

possession convictions, the federal drug conspiracy conviction

cannot count as one of the necessary predicate offenses. We

disagree.

Under the ACCA, a fifteen-year mandatory-minimum

sentence applies to any 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)

(emphasis added). To decide whether convictions were

committed on different occasions, we apply 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) (per curiam).

We have held that three robberies carried out in four

days were separate episodes because they “occurred on

separate occasions” “and targeted different geographic

locations and victims[.]” United States v. Blair, 734 F.3d 218,

228–29 (3d Cir. 2013) (quotation marks and citations omitted).

In Blair, we cited with approval the decisions of two other

Courts of Appeals, which held that robbery offenses were

4

Torres faults Officer Pickel for failing to corroborate the tip

before pursuing him. But we will not “second-guess the

officer[’s] decision to pursue the suspect immediately. The

officer[] knew [that] the suspect was still in the vicinity[ ]

and[,] had [the officer] stalled for more lengthy questioning of

the informant, the armed suspect could have escaped

detection.” United States v. Valentine, 232 F.3d 350, 355 (3d

Cir. 2000). Torres also attacks the reliability of the tip because

he claims it came from an anonymous source. The identity of

the source is irrelevant because the tip bore sufficient indicia

of reliability under the totality of circumstances. United States

v. Torres, 534 F.3d 207, 211 (3d Cir. 2008)

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separate episodes even when committed less than an hour

apart. Id. at 229 (citing United States v. Pope, 132 F.3d 684,

692 (11th Cir. 1998), and United States v. Brady, 988 F.2d 664,

668–70 (6th Cir. 1993) (en banc)).

We have not decided whether a felony conspiracy

conviction qualifies as an ACCA predicate offense when it

encompasses a defendant’s other substantive predicate

convictions. Our sister circuits have unanimously concluded

that it does. For example, in United States v. Melbie, the Eighth

Circuit held that a drug possession offense that occurred

“during the period” of a drug conspiracy offense counted as a

separate ACCA predicate because “the possession offense was

a discrete episode in a series of events.” 751 F.3d 586, 587 (8th

Cir. 2014). The Eleventh and Sixth Circuits have adopted

Melbie’s approach. See United States v. Longoria, 874 F.3d

1278, 1282 (11th Cir. 2017) (per curiam); United States v.

Pham, 872 F.3d 799, 802–03 (6th Cir. 2017).

We agree and hold that a conspiracy offense counts as

an ACCA predicate offense even when it covers other

substantive ACCA predicate offenses, so long as the

conspiracy offense is a “separate episode” that was distinct in

time from the other offenses. See Schoolcraft, 879 F.2d at 73–

74. A defendant’s participation in a conspiracy may be broader

than his underlying ACCA predicate convictions. Thus, the

relevant inquiry is whether a defendant’s underlying

convictions were distinct episodes in the course of conduct

constituting his participation in the drug conspiracy.

We have no difficulty concluding that Torres’s drug

possession offenses were “distinct in time” from his drug

conspiracy offense. Torres’s two state drug possession

offenses occurred in July 2004 and July 2005, respectively. Yet

his involvement in the federal drug conspiracy continued

between July 2004 and February 2006. As Torres admitted

while pleading guilty to the conspiracy charge, he committed

numerous other overt acts: packing and dispensing drugs and

handling money; attempting homicide to recover stolen drugs;

contacting co-conspirators and the ringleader on numerous

occasions; and exercising responsibility over large amounts of

crack cocaine. Thus, Torres’s participation in the conspiracy

was broader than his two drug possession offenses. And rather

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than withdraw from the conspiracy, he returned to it, even after

his state drug convictions.

* * *

For these reasons, we will affirm the District Court’s

judgment.

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