United States of America v. Jerome Smith, a/k/a PAUL KELLY, Jerome Smith

The Honorable Joseph H. Rodriguez, Senior District Judge, United States*
District Court for the District of New Jersey, sitting by designation.
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 05-1774
UNITED STATES OF AMERICA
v.
JEROME SMITH, a/k/a PAUL KELLY,
Jerome Smith,
Appellant
On Appeal from the United States District Court
for the Eastern District Of Pennsylvania
D.C. No. 03-cr-00683
District Judge: Hon. Timothy J. Savage
Submitted Under Third Circuit LAR 34.1(a)
March 9, 2006
Before: ROTH and ALDISERT, Circuit Judges, and RODRIGUEZ, District Judge*
(Filed: May 26, 2006)
JUDGMENT ORDER

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This cause came to be considered on the record from the United States District
Court for the Eastern District of Pennsylvania and was submitted under Third Circuit
LAR 34.1(a) on March 9, 2006, and
IT APPEARING that Appellant Jerome Smith challenges the denial of a motion to
suppress evidence on the basis that the officers lacked reasonable suspicion to search
him; and
IT APPEARING that Smith is the co-defendant of Kareem Brown, the appellant
in United States v. Brown, — F.3d —, Slip Op. No. 05-1723 (3d Cir. May 19, 2006)
(Judges Barry, Ambro and Aldisert), in which this Court, per Judge Ambro, vacated
Brown’s conviction after determining that police did not have reasonable suspicion to
stop Brown and that he was seized before any alleged resistance occurred; and
IT APPEARING that Smith and Brown were together when apprehended and that
the only factual variance between the circumstances surrounding the seizure of Smith and
those surrounding the seizure of Brown is that Smith fled from police moments before
Brown began allegedly resisting; and
IT APPEARING that this distinction is immaterial because Smith had already
submitted to a show of police authority by engaging in a brief discussion, putting down
his coffee, walking over to the police car and starting to place his hands on the officers’
car, see id at *15-16; see also United States v. Coggins, 986 F.2d 651, 654 (3d Cir. 1993)
(holding that defendant submitted to a show of authority where he obeyed agent’s
command to “sit down,” even though defendant subsequently fled); and
UPON CONSIDERATION of all facts and legal contentions, there is no other
ground distinguishing this case from Brown, nor meriting further discussion; accordingly,
IT IS ORDERED and ADJUDGED that the judgment of the District Court dated
July 20, 2004 be and is hereby REVERSED and the conviction is VACATED.
The mandate of this Court shall issue forthwith.
BY THE COURT,
/s/ Ruggero J. Aldisert
Circuit Judge

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