United States v. Foster

A Wilmington barbershop employee watched an Accord in the parking lot for approximately 20 minutes and later testified that the passenger had a full beard and that the driver was wearing a red or pink scarf over his face, while repeatedly looking around the strip of stores and “pumping himself up to do something.” He could not identify the occupants; he could only tell that they were black males. When Delaware State Troopers arrived, the Accord left. The barbershop’s owner took a picture of the car’s license plate. Troopers discovered that the car had been reported stolen in an armed robbery and sent an email alert. Trooper Yeldell received the e-mail and patrolled the area the following morning. The car passed; Yeldell saw that the passenger (Foster) was wearing a red or pink scarf; the driver (Payton) was a black male with facial hair. Moments later, in the parking lot, Foster was outside of the Accord, holding an object. The second man was not present. Yeldell pulled out his gun and ordered Foster to the ground. Foster ran. Shot with a Taser, Foster fell, and a gun "went flying.” Officers recovered a loaded semi-automatic pistol. Payton was picked up while walking down the street, based on a generic description of a “black man.” The Accord was transported; a search revealed a loaded rifle, a scope, duct tape, and gloves, which were not in the car when it was stolen. No DNA or fingerprints connected either defendant to those items. The Third Circuit affirmed their convictions for unlawful possession of a firearm by a felon, 18 U.S.C. 922(g)(1), finding there was reasonable suspicion to stop Payton and upholding the admission of the barbershop employees’ testimony and sentencing enhancements for use of a firearm in connection with another offense. View "United States v. Foster" on Justia Law