United States v. Sealey

• Court: Court of Appeals for the First Circuit
• Decided: July 21, 1994
• Docket: 93-1614
• Status: Published

Opinion

USCA1 Opinion

UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT
                                 ____________________

          No. 93-1614

                              UNITED STATES OF AMERICA,

                                      Appellee,

                                          v.

                                    STEVEN SEALEY,

                                Defendant - Appellant.

                                 ____________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                          FOR THE DISTRICT OF MASSACHUSETTS

                 [Hon. A. David Mazzone, Senior U.S. District Judge]
                                         __________________________

                                 ____________________

                                        Before

                                Breyer,* Chief Judge,
                                         ___________

                         Torruella and Selya, Circuit Judges.
                                              ______________

                                _____________________

               Juliane Balliro, with whom Balliro, Mondano & Balliro, P.C.,
               _______________            ________________________________
          was on brief for appellant.
               Michael  J.   Pelgro,  Assistant  United   States  Attorney,
               ____________________
          Organized  Crime Drug Enforcement Task Force, with whom Donald K.
                                                                  _________
          Stern, United States Attorney, was on brief for appellee.
          _____

                                 ____________________

                                     July 20, 1994
                                 ____________________
                              
          ____________________

          *   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
                               _____________

          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
                                        __________

                    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.
                                                           _____________

          Maguire, 918 F.2d  254, 257  (1st Cir. 1990),  cert. denied,  499
          _______                                        ____________

          U.S. 950 (1991); United States v. Aguirre, 839 F.2d 854, 857 (1st
                           _____________    _______

          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, __
                                      __________     ______
                      U.S.  __ , 111 S. Ct. 1547 (1991).  There
                      is  no showing that the defendant yielded

                                         -3-

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.
                                   ___  _____    ____
                      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
                                __________________________

                    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.
                              
          ____________________

          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).
          ___ ______________    ______
          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.

                                         -4-

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
                                  _____________    ______

          (1st  Cir. 1994);  United States  v. Rodr guez-Morales,  929 F.2d
                             _____________     _________________

          780, 783 (1st Cir.  (1991), cert. denied, 112 S. Ct.  868 (1992).
                                      ____________

          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
                                                        ______

          975;  Rodr guez-Morales, 929  F.2d  at 783.    Questions of  law,
                _________________

          however, are subject to de novo  review.  Zapata, 18 F.3d at 975;
                                  _______           ______

          Rodr guez-Morales, 929 F.2d at 783.
          _________________

                      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).
          ______

                    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.
          _____    ____                                    _____________

          Mendenhall, 446 U.S. 544, 554 (1980), a plurality first announced
          __________

          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

-5-

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.
                                    ___  ________     __________

          567,  573  (1988);  Immigration  &  Naturalization   Services  v.
                              _________________________________________

          Delgado,  466  U.S. 210,  215 (1984).    The Supreme  Court later
          _______

          explained  that a person's reasonable belief that he was not free

          to  leave  was "a  necessary,  but not  sufficient  condition for
                             _________            __________

          seizure."   California  v. Hodari  D., 499  U.S. 621,  628 (1991)
                      __________     __________

          (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.
                           __          ________ ______

                    The facts  of Hodari  D. are  analogous to the  instant
                                  __________

          case.  In Hodari D., a group of youths fled at the approach of an
                    _________

          unmarked police car.  499 U.S.  at 623.  The police officers were

          suspicious, and  they gave chase.   Id.  The state  conceded that
                                              __

          the  officers did not  have the reasonable  suspicion required to

          justify  stopping Hodari. Id. at  623 n.1.   One officer followed
                                    __

          the defendant, Hodari, and during the pursuit, Hodari tossed  out

          a "rock" of crack cocaine.  Id. at 623.  The officer then tackled
                                      __

          Hodari, and handcuffed  him. Id.    In  the juvenile  proceedings
                                       __

          brought  against  him,  Hodari  moved to  suppress  the  evidence

          relating to the cocaine,  and the court  denied the motion.   Id.
                                                                        __

          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
                                                       __

          was  therefore not seized until  he was tackled,  and the cocaine

          was therefore admissible evidence.

                    Hodari D.  controls the resolution of  this appeal, and
                    _________

          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
                      _________

          hiding.2   Because the  contraband discarded  by Sealey  while he

____________________

          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.
                                              ___   ____  ______________
          Figueroa, 818 F.2d 1020, 1023 (1st Cir. 1987).
          ________

                                         -7-

was  running  was  not the  fruit  of this  seizure,  the  act of

          abandonment extinguished his Fourth Amendment claim.  See Abel v.
                                                                ___ ____

          United  States, 362 U.S. 217, 241 (1959) (a warrantless search or
          ______________

          seizure  of abandoned property is  not a violation  of the Fourth

          Amendment);  United States v.  Lewis, 921  F.2d 1294,  1302 (D.C.
                       _____________     _____

          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
                                     __________

          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
                                                          _________

          stated  that   the  Mendenhall   reasonableness  inquiry   was  a
                              __________

          necessary, but not sufficient  condition for seizure.   Hodari D.
                                                                  _________

          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"
                                 _________

          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
                    _______________________________________________________

          district court.
          ______________

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