United States v. De Castro, No. 17-1901 (3d Cir. 2018)Annotate this Case
An anonymous source called 911 to report a Hispanic male pointing a gun at juveniles outside a vacant Philadelphia flower shop. The suspect was reportedly wearing a gray shirt, gray pants, and a bucket hat. Office Mulqueeney, who had worked that area for 13 years and knew about the drug and firearm activity prevalent there, was dispatched. He approached De Castro and his neighbor, who were speaking outside of the vacant flower shop. De Castro was wearing a light gray bucket hat, a gray striped shirt, and gray camouflage pants. Mulqueeney asked De Castro to remove his hands from his pockets. De Castro complied, revealing a pistol grip protruding from his pants pocket. Mulqueeney asked De Castro to raise his hands and removed a loaded firearm from De Castro’s pocket. De Castro had neither identification or a permit to carry the firearm but had a passport from the Dominican Republic. Mulqueeney handcuffed and frisked De Castro, finding a loaded magazine. De Castro was convicted as an alien in possession of a firearm, 18 U.S.C. 922(g)(5)(A), following the denial of his motion to suppress all statements and physical evidence. The Third Circuit affirmed. Mulqueeney’s request that De Castro remove his hands from his pockets did not constitute a seizure under the Fourth Amendment. Mulqueeney “neither ordered nor repeatedly asked De Castro to comply" but used a conversational tone to communicate his request from a distance of at least five feet, with his weapon holstered and without physical touching; a reasonable person would have felt free to decline Mulqueeney’s lone request.