USCA1 Opinion
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 93-1614
UNITED STATES OF AMERICA,
Appellee,
v.
STEVEN SEALEY,
Defendant - Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. A. David Mazzone, Senior U.S. District Judge]
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Before
Breyer,* Chief Judge,
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Torruella and Selya, Circuit Judges.
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Juliane Balliro, with whom Balliro, Mondano & Balliro, P.C.,
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was on brief for appellant.
Michael J. Pelgro, Assistant United States Attorney,
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Organized Crime Drug Enforcement Task Force, with whom Donald K.
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Stern, United States Attorney, was on brief for appellee.
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July 20, 1994
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* Chief Judge Stephen Breyer heard oral argument in this matter
but did not participate in the drafting or the issuance of the
panel's opinion. The remaining two panelists therefore issue
this opinion pursuant to 28 U.S.C. 46(d).
TORRUELLA, Circuit Judge. Defendant-appellant Steven
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Sealey was charged with a violation of 18 U.S.C. 922(g)(1).
Sealey filed a motion to suppress a firearm, a magazine, and
ammunition which Sealey discarded while he was being pursued by
Boston Police officers. The district court denied Sealey's
motion and, following trial, the jury returned a guilty verdict.
Sealey now appeals the district court's denial of his motion to
suppress. We affirm.
I. BACKGROUND
I. BACKGROUND
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A. Facts
A. Facts
We view the facts in the light most favorable to the
district court's ruling to the extent that they derive support
from the record and are not clearly erroneous. United States v.
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Maguire, 918 F.2d 254, 257 (1st Cir. 1990), cert. denied, 499
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U.S. 950 (1991); United States v. Aguirre, 839 F.2d 854, 857 (1st
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Cir. 1988).
On February 12, 1991, two individuals were robbed at
knifepoint by two black males. Two plainclothes Boston Police
Officers, William Donga and William Reynolds, arrived at the
scene, and then, with the two victims, drove around the area in
an unmarked cruiser, looking for the robbers. Shortly
thereafter, the police officers saw Sealey, a black male,
carrying a green trash bag over his shoulder. The victims did
not identify Sealey as one of the robbers. The officers,
however, recognized him from a previous arrest, and decided to
approach him.
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As the cruiser approached Sealey, Officer Reynolds
called out "Hey Steven, what's up?" Sealey then looked in the
direction of the officers and, without responding to the
officer's question, started to run away from the cruiser,
dropping the green trash bag as he ran.
Officer Donga then chased Sealey on foot. During the
pursuit, Sealey discarded a 9mm semi-automatic pistol, a
magazine, and ammunition. A police officer finally apprehended
Sealey, who was hiding behind a wooden stockade fence, and
arrested him. A federal grand jury subsequently returned an
indictment charging Sealey with being a felon-in-possession of a
handgun in violation of 18 U.S.C. 922(g).
B. The District Court's Ruling
B. The District Court's Ruling
On November 5, 1992, Sealey filed a motion to suppress
the physical evidence -- the firearm, magazine, and ammunition.
Sealey argued that he was seized when Officer Reynolds shouted
out to him from the cruiser and, because the officer lacked
reasonable suspicion to stop him, this seizure ran afoul of the
Fourth Amendment. Consequently, any evidence that was obtained
as a result of this improper seizure should be suppressed.
Following an evidentiary hearing, the court denied
Sealey's motion. The court found:
On these facts, supplemented by the
record at the evidentiary hearing, I
conclude the defendant was not "seized"
until he was finally caught by the
police. Accordingly, this case is
controlled by California v. Hodari, __
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U.S. __ , 111 S. Ct. 1547 (1991). There
is no showing that the defendant yielded
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to a "show of authority" let alone
physical force. The inquiry "Hey,
Steven, what's up?, unaccompanied by any
other demonstration or more forceful
verbal command is not an impermissible
intrusion by the police. Whether the
defendant ran from an unknown threat or
because he recognized the police, his
flight cannot be considered a "seizure"
by the police. The seizure took place
when the defendant was finally
apprehended, at which point the police
had a reasonable basis upon which to
detain him. See Terry v. Ohio, 392 U.S.
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1, 27 (1968).
Sealey now challenges the court's denial of his motion to
suppress.
II. THE FOURTH AMENDMENT CLAIM
II. THE FOURTH AMENDMENT CLAIM
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The dispositive issue on appeal is whether or not the
police officers seized Sealey when Officer Reynolds shouted from
the cruiser, "Hey, Steven, what's up?"1 Sealey contends that
this "show of authority" effectively constituted a stop,
therefore triggering Fourth Amendment protections. The
government maintains that regardless of whether Officer Reynolds'
question constituted a "show of authority," there was no seizure
because Sealey ran from the officers and refused to submit to
Officer Reynold's inquiry.
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1 Sealey argues that Officer Reynolds shouted "[c]ome here, we
want to talk to you," as the officer got out of the cruiser.
Sealey maintains that it was this question and action which
incited him to run. The district court's factual finding that
Officer Reynolds asked "Hey, Steven, what's up?" is supported by
evidence in the record and the finding is not clearly erroneous.
See United States v. Zapata, 18 F.3d 971, 975 (1st Cir. 1994).
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Moreover, the resolution of this appeal in no way depends on the
precise words that Officer Reynolds uttered, and our decision to
affirm would be the same even if Officer Reynolds had asked
Sealey to come over to the cruiser.
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As a preliminary matter, we set forth the applicable
standard of review with respect to a motion to suppress. A
district court's findings of fact will only be disturbed if they
are clearly erroneous. United States v. Zapata, 18 F.3d 971, 975
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(1st Cir. 1994); United States v. Rodr guez-Morales, 929 F.2d
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780, 783 (1st Cir. (1991), cert. denied, 112 S. Ct. 868 (1992).
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This deferential standard is appropriate because the district
court has a superior sense of what actually transpired during an
incident by virtue of its ability to see and hear the witnesses
who have first hand knowledge of the events. Zapata, 18 F.3d at
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975; Rodr guez-Morales, 929 F.2d at 783. Questions of law,
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however, are subject to de novo review. Zapata, 18 F.3d at 975;
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Rodr guez-Morales, 929 F.2d at 783.
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In scrutinizing a district court's denial
of a suppression motion, the court of
appeals will review findings of fact for
clear error, while at the same time
subjecting the trial court's ultimate
constitutional conclusions to plenary
oversight.
Zapata, 18 F.3d at 975 (citations omitted).
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Under the Fourth Amendment, a seizure occurs when a
police officer, by means of physical force or a show of
authority, has in some way restrained the liberty of a citizen.
Terry v. Ohio, 392 U.S. 1, 19 n.16 (1968). In United States v.
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Mendenhall, 446 U.S. 544, 554 (1980), a plurality first announced
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a test to determine if an individual's liberty had been
restrained: "a person has been 'seized' within the meaning of
the Fourth Amendment only if, in view of all of the circumstances
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surrounding the incident, a reasonable person would have believed
that he was not free to leave." The Supreme Court subsequently
embraced this analysis. See Michigan v. Chesternut, 486 U.S.
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567, 573 (1988); Immigration & Naturalization Services v.
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Delgado, 466 U.S. 210, 215 (1984). The Supreme Court later
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explained that a person's reasonable belief that he was not free
to leave was "a necessary, but not sufficient condition for
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seizure." California v. Hodari D., 499 U.S. 621, 628 (1991)
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(emphasis in original). The Supreme Court went on to hold that
with respect to a seizure based upon an officer's show of
authority, no seizure occurs until the suspect has submitted to
that authority. Id. at 626; see also Zapata, 18 F.3d at 976.
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The facts of Hodari D. are analogous to the instant
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case. In Hodari D., a group of youths fled at the approach of an
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unmarked police car. 499 U.S. at 623. The police officers were
suspicious, and they gave chase. Id. The state conceded that
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the officers did not have the reasonable suspicion required to
justify stopping Hodari. Id. at 623 n.1. One officer followed
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the defendant, Hodari, and during the pursuit, Hodari tossed out
a "rock" of crack cocaine. Id. at 623. The officer then tackled
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Hodari, and handcuffed him. Id. In the juvenile proceedings
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brought against him, Hodari moved to suppress the evidence
relating to the cocaine, and the court denied the motion. Id.
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Hodari appealed and challenged the government's right to
introduce the evidence. The admissibility of the evidence turned
on whether the police seized Hodari at the moment the chase began
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or at the time of the tackle. The Supreme Court held that where
a suspect fails to submit to an officer's approach and runs away,
he is not seized until he is apprehended. Id. at 626. Hodari
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was therefore not seized until he was tackled, and the cocaine
was therefore admissible evidence.
Hodari D. controls the resolution of this appeal, and
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requires us to conclude that Sealey was not improperly seized
within the meaning of the Fourth Amendment. There is no
allegation that any police officer exerted physical force over
Sealey; rather, Sealey alleges that he was seized by virtue of
Officer Reynold's show of authority. Even if we assume that
Officer Reynolds' question to Sealey constituted a show of
authority, Sealey did not submit to this inquiry. Instead,
Sealey resisted Officer Reynolds, he ran away, and ignored any
authority that the officer manifested. While Officer Donga was
pursuing him, Sealey then discarded the firearm, the magazine and
the ammunition. A police officer finally caught Sealey hiding
behind a wooden fence, after he had discarded the contraband.
Pursuant to Hodari D., Sealey was not seized until he was caught
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hiding.2 Because the contraband discarded by Sealey while he
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2 Sealey does not challenge the district court's ruling that the
police had probable cause to arrest him after the chase. Such a
challenge would be to no avail. The situation rapidly escalated
from one involving a minimum of suspicion to one justifying
arrest based upon probable cause. By the time the police located
and apprehended Sealey, the police had probable cause to arrest
him for violating firearm laws. The officers observed Sealey
flee for no apparent reason, and Officer Donga observed Sealey
discard a gun during the chase. See, e.g., United States v.
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Figueroa, 818 F.2d 1020, 1023 (1st Cir. 1987).
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was running was not the fruit of this seizure, the act of
abandonment extinguished his Fourth Amendment claim. See Abel v.
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United States, 362 U.S. 217, 241 (1959) (a warrantless search or
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seizure of abandoned property is not a violation of the Fourth
Amendment); United States v. Lewis, 921 F.2d 1294, 1302 (D.C.
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Cir. 1990) (when an individual abandons property, he forfeits any
reasonable expectation of privacy in it, and consequently police
may search it without a warrant).
As an initial matter, Sealey appears to contend that
this case is controlled by Mendenhall. The argument is that when
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Officer Reynolds yelled to him, Sealey reasonably believed that
he was not free to leave, and the Fourth Amendment seizure should
therefore be deemed to have occurred at that point. This
argument, however, ignores the teaching of Hodari D., which
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stated that the Mendenhall reasonableness inquiry was a
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necessary, but not sufficient condition for seizure. Hodari D.
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made it clear that no Fourth Amendment seizure occurs until a
suspect submits to police authority.
Sealey also attempts to argue that his case is
distinguishable from Hodari D., and that case's "submission"
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requirement is not applicable to the circumstances of this case.
Sealey claims that when the police officers, who were dressed in
plainclothes, yelled to him from their unmarked cruiser, he did
not realize that they were police officers. Rather, he suspected
that they were private citizens out to get him. Sealey therefore
argues that the test to determine when a seizure occurs should be
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modified so that the seizure is deemed to occur at the moment
when the words and actions of the officers would have caused a
reasonable person to believe that his personal safety was in
jeopardy.
Sealey's argument, however, cuts against, not in favor,
of his position. A seizure is generally deemed to have occurred
when a defendant believes that his liberty has been interfered
with by virtue of a police officer's exertion of physical force
or show of authority. If Sealey ran away because he believed he
was being approached by private citizens, there is even less of a
case for a "seizure" taking place because Sealey would not be
acting in response to an officer's interference, or under the
belief that his liberty was restricted by governmental power.
Additionally, one of the necessary prerequisites for a seizure --
a reasonable belief by Sealey that he was not free to leave the
police officer's authority -- would be missing. Sealey's
argument is simply illogical.
To conclude, we believe that the court properly
determined that the police officers did not seize Sealey until
after he had fled, abandoned the contraband, and was finally
apprehended. Therefore, the firearm, the magazine and the
ammunition were not the fruit of an unconstitutional seizure, and
the court properly admitted the contraband into evidence.
For the foregoing reasons, we affirm the ruling of the
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district court.
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