Filed: Nov. 03, 2003
Latest Update: Feb. 21, 2020
Summary: United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS November 3, 2003 FOR THE FIFTH CIRCUIT _ Charles R. Fulbruge III Clerk No. 03-30415 Summary Calendar _ UNITED STATES OF AMERICA, Plaintiff - Appellant, v. PERCY WILLIAMS, Defendant - Appellee. - Appeal from the United States District Court for the Middle District of Louisiana USDC No. 02-CR-84-ALL - Before HIGGINBOTHAM, DAVIS and PRADO, Circuit Judges.1 PRADO, Circuit Judge. The United States appeals the
Summary: United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS November 3, 2003 FOR THE FIFTH CIRCUIT _ Charles R. Fulbruge III Clerk No. 03-30415 Summary Calendar _ UNITED STATES OF AMERICA, Plaintiff - Appellant, v. PERCY WILLIAMS, Defendant - Appellee. - Appeal from the United States District Court for the Middle District of Louisiana USDC No. 02-CR-84-ALL - Before HIGGINBOTHAM, DAVIS and PRADO, Circuit Judges.1 PRADO, Circuit Judge. The United States appeals the ..
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United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS November 3, 2003
FOR THE FIFTH CIRCUIT
_______________________ Charles R. Fulbruge III
Clerk
No. 03-30415
Summary Calendar
_______________________
UNITED STATES OF AMERICA,
Plaintiff - Appellant,
v.
PERCY WILLIAMS,
Defendant - Appellee.
--------------------
Appeal from the United States District Court
for the Middle District of Louisiana
USDC No. 02-CR-84-ALL
--------------------
Before HIGGINBOTHAM, DAVIS and PRADO, Circuit Judges.1
PRADO, Circuit Judge.
The United States appeals the order of the district court
suppressing a firearm seized in connection with the arrest of
Percy Williams and post-arrest statements made by Williams. The
firearm was seized subsequent to police pursuit of a fleeing
Williams, who was observed tossing the gun onto the ground during
flight. Williams was charged with violating 18 U.S.C. §
922(g)(1). The district court, in suppressing the firearm and
1
Pursuant to 5th Cir. R. 47.5, this Court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5th Cir. R.
47.5.4.
1
statements, found that the police pursuit of Williams was
improper, and that, as a result, Williams’s abandonment of the
gun was involuntary. The United States argues that the officer’s
pursuit of Williams was based on a reasonable suspicion of
criminal activity and that the firearm and statements made by
Williams were lawfully obtained. We agree.
Background Facts
On the night of January 8, 2002, Baton Rouge police officer
Douglas Barron caught sight of Percy Williams walking down the
street. Williams made eye contact with Officer Barron, then
immediately turned, jogged south away from the street and up the
driveway of a residence at 4112 Sycamore, and placed something in
his mouth. Upon observing this behavior, Officer Barron stopped
his vehicle and gave chase on foot after Williams. During that
pursuit, Officer Barron saw Williams toss an object onto the
ground, which, when recovered, police found to be a Taurus .357
revolver. Williams was apprehended, given Miranda warnings, and
taken into custody.
Williams was charged with one count of possession of a
firearm by a convicted felon, in violation of 18 U.S.C. §
922(g)(1). During pretrial proceedings, Williams moved to
suppress the firearm along with any statements made in connection
with his arrest. He argued that the police had no probable cause
or reasonable suspicion to justify their pursuit and detention of
2
him, so that the pursuit itself constituted an unlawful seizure
of his person under the Fourth Amendment. Thus, Williams
contended that the gun and any statements derived from his arrest
should be excluded as the “fruit” of an unconstitutional seizure.
The district court found that Williams was not seized while
the officer chased him. The court held, however, that the chase
was “improper,” because the officer did not have reasonable
suspicion to pursue Williams. Thus, the trial judge held that
the gun and Williams’s statements made while in custody were
excludable. The United States timely appealed.
Standard of Review
In reviewing a suppression order based on live testimony at
a suppression hearing, we accept the trial court’s factual
findings unless they are clearly erroneous or influenced by an
incorrect analysis of the law. See United States v. Alvarez, 6
F.3d 287, 289 (5th Cir. 1993); United States v. Maldonado,
735
F.2d 809, 814 (5th Cir. 1984). We review the trial court’s
conclusions of law de novo. See
Alvarez, 6 F.3d at 289.
Finally, we “view the evidence in the light most favorable to the
prevailing party.” United States v. Piaget,
915 F.2d 138, 140
(5th Cir. 1990).
Seizure
On appeal, the United States argues that the district court
erred in excluding the gun and statements of Williams, because
3
(1) Officer Barron had reasonable suspicion to investigate and
chase Williams; and, (2) therefore, Williams lacks standing to
challenge seizure of the firearm, because his abandonment of the
firearm was voluntary and not influenced by any improper police
conduct.
Under California v. Hodari, seizure of a person by an
officer occurs only by application of physical force or by a show
of authority to which the subject yields. See 499 U.S. 621, 626
(1991); see also United States v. Silva,
957 F.2d 157, 159 (1992)
(subject evading police officer in chase was seized only when
physically apprehended); c.f. Brower v. County of Inyo,
489 U.S.
593, 599 (1989) (driver of stolen car attempting to flee police
was not “seized” until he was stopped by police roadblock). In
Hodari, the Supreme Court found that the fleeing subject, pursued
on foot by police, was not seized until he was physically tackled
by an
officer. 499 U.S. at 626. Thus, the Court held that the
cocaine dropped by Hodari while he was running from police was
not the fruit of his subsequent seizure.
Id.
The facts in the instant case are similar to those in
Hodari. Officer Barron chased Williams through the front yard of
4112 Sycamore and observed him discard something metallic from
his jacket pocket. The officer testified that he then withdrew
his service weapon, ordered Williams to stop, and Williams
complied. Relying on Hodari, the trial judge correctly
4
determined that Williams was not seized during the initial chase
when he abandoned the firearm. Indeed, Williams was not seized,
under Hodari, until Officer Barron made a show of authority by
ordering Williams to halt, and Williams yielded.
Reasonable Suspicion
The trial court further held that, although Officer Barron
had not seized Williams during the initial chase, the officer’s
conduct was improper because it was not founded upon reasonable
suspicion. In justifying an investigation or particular
intrusion upon the constitutionally protected interests of a
private citizen, an officer must be able to attest to “specific
and articulable facts which, taken together with rational
inferences from those facts, reasonably warrant that intrusion.”
Terry v. Ohio, 392 U.S. 1, 21 (1968). The officer’s basis for
the intrusion must be more than an “‘inchoate and
unparticularized suspicion or hunch’ of criminal activity.”
Illinois v. Wardlow,
528 U.S. 119, 124 (2000) (quoting
Terry, 392
U.S. at 27). In measuring the reasonableness of police conduct,
the reviewing court should not assess factors at play
individually, see United States v. Cardona,
955 F.2d 976, 980
(5th Cir. 1992), but should take into account the totality of the
circumstances at issue in the particular case. See United States
v. Sokolow,
490 U.S. 1, 8 (1989); United States v. Rideau,
969
F.2d 1572, 1574 (5th Cir. 1992).
5
For instance, in Illinois v. Wardlow, the defendant fled
upon seeing police vehicles converge in an area known for heavy
drug activity. In determining whether the police had reasonable
suspicion to pursue Defendant Wardlow, the Supreme Court noted
that, while an individual’s presence in a high crime area is not
enough, standing alone, it is among the relevant contextual
factors the court may consider. See 528 U.S. at 124. The Court
explained that “nervous, evasive behavior” is likewise germane to
a reasonable suspicion analysis.
Id. “Headlong flight–wherever
it occurs–is the consummate act of evasion: it is not necessarily
indicative of wrongdoing, but it is certainly suggestive of
such.” Id.; see also United States v. Jordan,
232 F.3d 447, 449
(5th Cir. 2000).
Like the defendant in Wardlow, Williams saw the police in a
high crime area, and then fled. Officer Barron testified that at
approximately 10:00 on the night of January 8, 2003, he was
traveling eastbound on Sycamore Street and noticed Williams
walking westbound along the street. According to the officer,
Williams saw his marked police car, made eye contact with him,
then immediately changed directions and jogged up the driveway of
a residence at 4112 Sycamore. As Williams jogged away from the
street, Officer Barron stated that he saw Williams remove
something from his pocket and place it in his mouth. Upon
observing this behavior, Officer Barron sped up to the driveway,
6
parked and exited his vehicle, and pursued Williams on foot.
Officer Barron was 15 to 30 feet behind Williams as Williams ran
around the back of the house. As Officer Barron chased Williams
into the backyard, he saw Williams remove a metallic object from
his jacket pocket and throw it under the rear steps of the house.
The officer then drew his service weapon and commanded Williams
to move away from the steps and place his hands in the air.
Williams acquiesced, and at this point Officer Carl Mayo arrived
on the scene. Williams was handcuffed and mirandized, and
Officer Mayo recovered a silver Taurus .357 firearm from under
the back stairs.
Officer Barron testified that Williams’s flight upon seeing
him and the act of placing something in his mouth as he quickly
moved away raised his concerns. He also noted that it was night
time, and that the neighborhood in which the incident took place
was known for criminal activity, including three armed robberies
in the previous two days. The Government argues that all of
these considerations, taken together, established a reasonable
and particularized suspicion in Officer Barron that criminal
activity was afoot.
Williams argues, however, and the trial judge held, that
Officer Barron did not have reasonable suspicion to commence his
chase of Williams. The trial judge emphasized that there could
have been an innocent explanation for Williams’s behavior–that
Officer Barron could have just as easily concluded that 4112
7
Sycamore was Williams’s own residence, which he was quickly
returning to. While this assertion may be true, it does not
negate the ability of an officer to have sufficient cause to
investigate an individual. The Court in Wardlow noted that,
“even in Terry, the conduct justifying the stop was ambiguous and
susceptible of an innocent explanation . . . . Terry recognized
that the officers could detain the individual[] to resolve the
ambiguity.” 528 U.S. at 125. The Court concluded that, “in
allowing such detentions, Terry accepts the risk that officers
may stop innocent people.”
Id. at 126.
The trial court also noted the many factors that were not
present during Officer Barron’s encounter with Williams, which
could have led him to suspect Williams of criminal activity.
Among other things, the court stressed that Williams did not fit
the description of the recent armed robbery suspects; no crimes
had recently been reported in the area, so that Williams could be
considered a suspect or a witness; and Williams did not furtively
glance over his shoulder at Officer Barron. This Court has held
that under a "totality of the circumstances" analysis, the
absence of a particular factor will not control a court's
conclusions. See Cardona, 955 F.2d at 980. Therefore, we do not
weigh all of the factors that did not contribute to the officer’s
suspicions in this case. We instead assess the factors
considered by the officer, in their totality, in order to
8
determine whether his suspicion was objectively reasonable.
The trial court was correct in noting that Officer Barron
was on the lookout for two armed robbery suspects on the night in
question. Nonetheless, Officer Barron was also conducting a
routine patrol of his assigned district, per his regular duties.
While on the patrol, in an area known for its criminal activity,
Officer Barron spotted Williams, who apparently fled, unprovoked,
upon seeing the officer. Under Wardlow, Williams’s unprovoked
flight upon seeing police in an area known for heavy criminal
activity is enough to support reasonable suspicion. See 528 U.S.
at 124-125. Indeed, Officer Barron’s reason to believe that
Williams might be engaged in criminal conduct was even greater
than those of the police in Wardlow, because he saw Williams take
something from his pocket and place it in his mouth as he fled.
Officer Barron testified that this behavior appeared suspicious
to him, and surmised that Williams may have been placing
narcotics in his mouth. C.f. Rener v. Beto,
447 F.2d 20, 22 (5th
Cir. 1971) (police had probable cause to arrest suspect who
appeared to be about to destroy a marijuana cigarette by eating
it).
We do not dispute the trial court’s factual finding that
Williams did not immediately appear to be one of the robbery
suspects the police were searching for, in particular. However,
we agree with the Government that the specific observations
9
considered by Officer Barron, taken as a whole, were sufficient
to give rise to a reasonable suspicion in Officer Barron that
criminal activity was afoot and, therefore, justify his
investigation and pursuit of Williams. Based on that reasonable
suspicion alone, Officer Barron’s subsequent seizure of Williams
was warranted. See, e.g., United States v. Sharpe, 470 U.S. 675
(1985) (where officer drew his gun, ordered driver out of his
truck, and detained him while truck was searched, the detention
required only reasonable suspicion of criminal activity).
However, we find that once Officer Barron chased the fleeing
Williams into the backyard of the residence and saw him discard
an object, his suspicions increased to probable cause to seize
him. See United States v. Wadley,
59 F.3d 510 (5th Cir. 1995)
(officers had probable cause for warrantless arrest where suspect
persistently evaded police in high crime area and attempted to
discard an object while fleeing). Thus, we hold that Officer
Barron’s pursuit and detention of Williams were not improper.
Standing
Finally, we look to the issue of whether Williams had
standing to challenge the seizure of the firearm. It is well-
established law that a defendant who has voluntarily abandoned
property lacks standing to challenge the seizure of that
property. See, e.g., Abel v. United States, 362 U.S. 217, 240-
241 (1960); United States v. Colbert,
474 F.2d 174, 176 (5th Cir.
10
1973). However, to preclude standing, the abandonment must have
been “voluntary and not influenced by improper police conduct.”
Alvarez, 6 F.3d at 289. When determining whether police conduct
was improper, legal presence of police for pursuit or for
investigation does not, of itself, render the abandonment
involuntary. See
Colbert, 474 F.2d at 176; accord United States
v. Quiroz-Hernandez,
48 F.3d 858 (5th Cir. 1995); Alvarez,
6 F.3d
287. Having held that Officer Barron properly acted on a
reasonable suspicion of criminal activity and with probable
cause, we conclude that Williams voluntarily abandoned the
firearm, and that he did not have standing to challenge seizure
of the weapon and the statements he made incident to his arrest.
Conclusion
We find that the trial court erred in granting Williams’s
motion to suppress. The police officer’s conduct in pursuing and
detaining Williams was based on lawful reasonable suspicion of
criminal activity and on probable cause, and was not improper.
Therefore, Williams’s abandonment of the firearm was voluntary
and he did not have proper standing to complain of its seizure.
Finally, lacking any unconstitutional seizure of either his
person or property under the Fourth Amendment, Williams’s
statements, made after he was given Miranda warnings, were
lawfully obtained. Consequently, we REVERSE the district court’s
order granting Williams’s motion to suppress and REMAND the case
11
to the district court for further proceedings.
REVERSED AND REMANDED.
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