Third Circuit Holds that Fleeing From Law Enforcement Officers, Without Other Supporting Factors, Does Not Create Probable Cause to Arrest

Alexander Navedo was sitting on his porch when a friend approached and, after several minutes, showed him an item which law enforcement officers believed was a gun.  Navedo did not touch the suspected gun nor engage in any illegal activity, but fled when officers approached him and his friend to inquire about the gun.  A law enforcement officer chased Navedo into his apartment and discovered firearms in plain view at the apartment.  The United States Court of Appeals for the Third Circuit held that law enforcement officers lacked probable cause to arrest Navedo and violated the Fourth Amendment. 

At approximately 7:30 or 8:00 pm on March 3, 2010, Detectives Henry Suarez and Saul DeLaCruz of the Newark Police Department set up surveillance at 315 Park Avenue in Newark, NJ.  The officers were in civilian clothes and in an unmarked car.  While the area was not high-crime and was well-illuminated by street lights, there had been a shooting at 323 Park Avenue in January of 2010, and a reported threat of gun violence in the area during February of 2010.  Detectives Suarez and DeLaCruz were conducting surveillance in order to investigate the January shooting, but were also present because they feared a retaliatory shooting might be forthcoming. 

At approximately 8:30 pm, the detectives saw Alexander Navedo come outside of 315 Park Avenue and stand on the front porch.  The Detectives would later testify that Navedo was doing nothing unusual.  A friend who was carrying a book bag, Mr. Pozo, approached Navedo shortly thereafter, and the two conducted what appeared to be a friendly, cordial conversation. 

After a few minutes of conversation, Pozo took off his book bag, opened it, reached into it, and pulled out a silver object which appeared to be a gun.  Navedo never touched the item suspected to be a gun, and officers never observed Navedo do anything which would be indicative of illegal conduct on his part.  However, the officers would later explain that they believed that an illegal gun sale might be taking place. 

Upon seeing the suspected gun, the officers approached Navedo and Pozo and identified themselves as police officers.  Pozo dropped the firearm back into his book bag and ran, while Suarez pursued him.  Navedo also fled and was pursued by DeLaCruz.  Navedo ran into 315 Park Avenue and climbed the stairs to his third floor apartment.  DeLaCruz tackled Navedo just as he was opening his apartment door.  When DeLaCruz tackled Navedo, both men landed inside Navedo’s apartment.  Navedo was arrested, and in plain view just within the apartment door were a shotgun, two rifles, and a large quantity of ammunition. 

Navedo was charged with illegal weapons possession in the United States District Court for the District of New Jersey.  Navedo sought to suppress the evidence against him, arguing that the officers did not have probable cause to arrest him or to justify entry into his apartment.  The government, on the other hand, argued that the officers had reasonable suspicion to question Navedo with regard to a possible illegal gun sale based on the observations of Navedo’s interactions with Pozo, which elevated to probable cause to arrest when Navedo fled; once probable cause was established, officers were permitted to follow Navedo into his apartment under the hot pursuit doctrine.  The district court agreed with the government’s position, finding that the officers had reasonable suspicion to question Navedo which elevated to probable cause when he took flight.  Accordingly, the suppression motion was denied and Navedo was tried and convicted.

Navedo appealed his conviction to the United States Court of Appeals for the Third Circuit on the grounds that his Fourth Amendment protections against unreasonable search and seizure had been violated.  The court of appeals agreed, vacating the district court’s denial of the suppression motion, and remanding the case for further proceedings. 

The court of appeals acknowledged that there may have been reasonable suspicion as to Pozo’s activities, and that the officers were free to approach and investigate at the time that they did.  However, the court of appeals held, there was simply no reasonable suspicion as to Navedo, and the fact that Pozo had shown Navedo a firearm was not sufficient to create reasonable suspicion as to Navedo, even if there was reasonable suspicion as to Pozo.  Furthermore, reasonable suspicion, had it existed, would only permit the officers to briefly question and pat down Navedo, not to arrest him. 

The court of appeals explained that although “reasonable suspicion of criminal activity may be formed by observing exclusively legal activity” under United States v. Ubiles, 224 F.3d 213, 217 (3d Cir. 2000), the activity in question still “must raise a suspicion that the particular individual being stopped is engaged in wrongdoing” pursuant to United States v. Cortez, 449 U.S. 411, 418 (1981).  In this instance, the court of appeals found that there was no basis for reasonable suspicion as to Navedo, noting that:  “Here, police did not have any information from any source that would have supported a reasonable suspicion that Navedo was involved in firearms trafficking or that he intended to purchase a gun from Pozo. . . . [T]he officers knew of nothing that would have suggested Navedo was connected to any prior criminal activity. . . .  The stop here appears to be based on nothing more than an attempt to transfer the reasonable suspicion the police had as to Pozo onto Navedo.  Yet, as the Supreme Court explained in Ybarra v. Illinois, 444 U.S. 85, 91 (1979), ‘a person’s mere propinquity to others independently suspected of criminal activity does not, without more, give rise to probable cause to search that person.’ . . . [T]he Court’s pronouncement is equally applicable to this situation. . . .”  In other words, the mere fact that Navedo was standing near someone for whom reasonable suspicion did exist, taken alone and without more cause to find his conduct suspicious, was not enough to create reasonable suspicion as to Navedo.

With regards, to Navedo’s fleeing, the court of appeals noted that in Illinois v. Wardlow, 528 U.S. 119 (2000), the Supreme Court had held that in a high-crime area known for drug dealing, when a man holding an opaque bag on the sidewalk with several others gathered around him fled at the mere sight of police, the flight created probable cause.  That case explained that fleeing from police did not automatically create probable cause to arrest, but also declined to find that flight from police could never create probable cause; instead, the Supreme Court found that flight’s relation to probable cause must “be assessed in context with all of the circumstances surrounding it.” 

Using Wardlow as a guide, the court of appeals distinguished that case from the circumstances at issue here, noting that in this case, the area was not high-crime, and that Navedo had not engaged in any actions prior to his flight to arouse suspicion.  Navedo’s flight, combined with nothing more than an episode of threatened and actual gun violence from other nearby residences in the recent past, was insufficient to support a finding of probable cause to arrest. 

Accordingly, Navedo’s arrest, on the record before the court of appeals, had violated the Fourth Amendment.  Since the arrest itself was a violation, the court of appeals found that there was no need to consider whether DeLaCruz’s entry into Navedo’s apartment was also a violation. 

The denial of Navedo’s suppression motion was vacated, and the case was remanded to the district court for further proceedings. 

The case, United States v. Navedo, is available here.