UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                   No. 00-4060

DONTE HAMMOND,
Defendant-Appellant.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Herbert N. Maletz, Senior Judge, sitting by designation.
(CR-99-73-HNM)

Submitted: July 31, 2000

Decided: August 11, 2000

Before WILLIAMS and MOTZ, Circuit Judges,
and HAMILTON, Senior Circuit Judge.

_________________________________________________________________

Vacated and remanded with instructions by unpublished per curiam
opinion.

_________________________________________________________________

COUNSEL

James Wyda, Federal Public Defender, Elizabeth L. Pearl, Assistant
Federal Public Defender, Greenbelt, Maryland, for Appellant. Lynne
A. Battaglia, United States Attorney, Jane M. Erisman, Assistant
United States Attorney, Harvey Ellis Eisenberg, Assistant United
States Attorney, Baltimore, Maryland, for Appellee.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Donte Hammond appeals from his conviction for possession of a
handgun by a convicted felon. According to police testimony, Offi-
cers Omar Wright and Jimmie Dease observed Hammond while on
evening patrol of a residential area known for drug trafficking. Ham-
mond was standing with a group of people who dispersed as Wright's
patrol car drew near. When the group broke up, Hammond headed
towards a nearby house and began to open the gate leading to the
house. Wright, still in his car, called to Hammond through his opened
car window and asked Hammond to identify himself and to state
whether he lived at the house. Hammond replied,"no," reached for
his waist area, and ran away. Wright left his car and gave pursuit,
along with Dease, who was directly behind Hammond. Hammond
kept his hands at his waist throughout the chase.

As Hammond entered an alley, Wright heard a clanging sound of
metal hitting concrete. At about that same time, Dease shouted that
Hammond had dropped a weapon. When Wright looked at the floor
of the alley, he found and recovered a handgun. The officers eventu-
ally caught and arrested Hammond, and testified that they did not
touch him prior to this time.

Hammond testified that as he was going through the gate, Wright
asked him if he lived at the house, to which he replied no, explaining
that he was going to see a friend. Wright then asked him to walk
towards his patrol car. Hammond complied and Wright exited his
vehicle. Hammond then testified that Wright grabbed him, whereupon
Hammond "pushed [Wright] up," got free of his coat, which Wright
was holding, and ran away.

Based on Hammond's version of events, the Defense moved to
suppress the firearm, arguing that it was the fruit of an unlawful

                    2
arrest. Specifically, they asserted that Wright's alleged action in grab-
bing Hammond constituted an arrest and that there was no probable
cause to support an arrest at that time. The district court agreed that
there was no probable cause, but, without making a credibility deter-
mination or a finding of whether an arrest actually occurred, found
that to the extent that there was an arrest, Hammond's action in drop-
ping the gun revealed and constituted an intervening criminal act that
provided probable cause for his arrest. It then concluded that the gun
was admissible, denying Hammond's motion to suppress. Following
a jury trial and conviction, Hammond noted a timely appeal to this
Court.

The parties briefed three issues on appeal. First, they both dis-
cussed an issue left unresolved by the district court --- whether
Wright, in allegedly grabbing Hammond, affected an arrest. Ham-
mond argues that such an action constitutes an arrest under the
Supreme Court's decision in California v. Hodari D., 499 U.S. 621
(1991). The Government, although denying that such an action
occurred, argues that even if Wright did grab Hammond this action
would not constitute an arrest because the force Wright allegedly used
was insufficient to stop Hammond. This is not the standard by which
an arrest is judged. Rather, the Supreme Court in Hodari D. cited with
approval a commentary stating that

          [t]here can be constructive detention, which will constitute
          an arrest, although the party is never actually brought within
          the physical control of the party making an arrest. This is
          accomplished by merely touching, however slightly, the
          body of the accused, by the party making the arrest and for
          that purpose, although he does not succeed in stopping or
          holding him even for an instant; as where the bailiff had
          tried to arrest one who fought him off by a fork, the court
          said, "If the bailiff had touched him, that had been an arrest.
          . . ."

Id. at 625 (citations omitted). We find the Government's arguments
to the contrary to be unpersuasive, and accordingly, we find that if
Wright did, in fact, grab Hammond, an arrest occurred.

The parties next address the district court's determination that the
firearm was admissible notwithstanding the possibility of an unlawful

                     3
arrest. This determination was based on this Court's decision in
United States v. Sprinkle, 106 F.3d 613 (4th Cir. 1997), where we
held that a defendant's intervening action in firing at the police fol-
lowing an unlawful stop constituted sufficient attenuation to remove
the taint of the unlawful stop such that the firearm used was admissi-
ble notwithstanding the illegal stop. Hammond asserts that the hold-
ing in Sprinkle is inapposite to his case. We agree.

The rationale for admitting the firearm in Sprinkle was that Sprin-
kle's conduct constituted a new and distinct crime that was a suffi-
cient intervening act so as to attenuate the taint from the improper
police action. That is not the case in Hammond's appeal. Rather,
Hammond's action simply revealed a crime he was already commit-
ting. In United States v. Bailey, 691 F.2d 1009 (11th Cir. 1982), cited
with approval in Sprinkle, the Eleventh Circuit specifically distin-
guished the commission of a new crime from the act of abandonment
at issue in the instant appeal, stating

          [u]nlike the situation where in response to the unlawful
          police action the defendant merely reveals a crime that
          already has been or is being committed, extending the fruits
          doctrine to immunize a defendant from arrest for new
          crimes gives a defendant an intolerable carte blanche to
          commit further criminal acts so long as they are sufficiently
          connected to the chain of causation started by the police
          misconduct.

Id. at 1017 (emphasis added).

We find that in dropping his weapon, Hammond was not commit-
ting a new crime which attenuated any taint from the alleged arrest,
but was simply revealing a crime which he was already committing
-- possessing a firearm after a felony conviction. Accordingly, we
find that the district court's application of Sprinkle was erroneous.

The Government presents a final and alternative basis upon which
to uphold the district court's ruling, stating that under Hammond's
own version of events, Hammond "pushed [Wright] up" when Wright
tried to grab him. Thus, the Government argues that even accepting

                    4
Hammond's story, he committed a new and separate crime -- assault
-- sufficient to attenuate a previously improper arrest under Sprinkle.

Under Maryland law, the relevant definition of assault is the
unlawful application of force to the person of another. See Snowden
v. State, 583 A.2d 1056, 1059 (Md. 1991). "This type of assault
requires proof that: (1) the defendant caused a harmful physical con-
tact with the victim, (2) the contact was intentional, and (3) the con-
tact was not legally justified." Cooper v. Maryland, 737 A.2d 613,
617 (Md. Ct. Spec. App. 1999) (emphasis added). Maryland law pro-
vides that an individual confronted with an unlawful, warrantless
arrest may lawfully resist that arrest by resorting to reasonable force.
See In re Jason Allen D., 733 A.2d 351, 369 (Md. Ct. Spec. App.
1999).

In ruling on Hammond's motion to suppress, the district court
stated, "in the event either police officer had arrested the Defendant,
Mr. Hammond, based on loitering, or based on running away, that
stop would be illegal." (J.A. at 153.) Thus, if Officer Wright did grab
Hammond, as Hammond asserts, Hammond would have had the right
to resist that arrest through the use of reasonable force. Consequently,
his action of "pushing Wright up" would have been legally justified.
This action therefore cannot be an assault under Maryland law absent
a showing that the amount of force applied was unreasonable. There
is no such showing in the record. Therefore, contrary to the Govern-
ment's assertion, Hammond's version of events does not demonstrate
a new, intervening crime sufficient to attenuate the taint from the
alleged improper arrest.

In light of the foregoing determinations, we remand for an addi-
tional suppression hearing at which the district court must make a
finding of fact as to whether Wright actually grabbed Hammond. If
the district court determines that no such contact occurred, then it will
again decline to suppress the firearm and will decline to set aside its
conviction. If, on the other hand, the court determines that such con-
tact did occur, and no other theory of admission is found to exist, then
the district court will enter an order suppressing the firearm, and
vacate the conviction. We dispense with oral argument because the
facts and legal contentions are adequately presented in the materials
before the court and argument would not aid the decisional process.

VACATED AND REMANDED WITH INSTRUCTIONS

                     5
