                  United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 13-2291
                         ___________________________

                              United States of America,

                        lllllllllllllllllllll Plaintiff - Appellee,

                                            v.

                                 Julius Eric Hayden,

                       lllllllllllllllllllll Defendant - Appellant.
                                        ____________

                      Appeal from United States District Court
                   for the Eastern District of Missouri - St. Louis
                                   ____________

                            Submitted: January 17, 2014
                               Filed: July 16, 2014
                                 ____________

Before LOKEN, MURPHY, and COLLOTON, Circuit Judges.
                           ____________

COLLOTON, Circuit Judge.

       Julius Hayden was charged with unlawful possession of a firearm as a
previously convicted felon. Hayden moved to suppress the firearm as the fruit of an
illegal search. After an evidentiary hearing, a magistrate judge recommended that the
motion to suppress be granted. The government moved for reconsideration and for
a supplemental hearing to present additional testimony, and the magistrate granted the
motion. After a second hearing, the magistrate judge recommended denial of
Hayden’s motion to suppress. The district court1 adopted the magistrate’s second
report and recommendation, and denied the motion. Thereafter, Hayden pleaded
guilty, reserving his right to appeal the order on his motion to suppress. On appeal,
Hayden challenges the magistrate’s decision to hold a supplemental suppression
hearing and the district court’s conclusion that his Fourth Amendment rights were not
violated. We affirm.

                                         I.

       On December 20, 2011, at approximately 9 p.m., St. Louis police officers
Nicholas Martorano and Michael Kegel observed Hayden and James Crockett
standing near a vacant house in a high-crime area. Although the officers had no
information connecting Hayden or Crockett to any criminal activity, the officers were
told, in preparation for their shift, that there had been a noticeable increase in
burglaries and robberies involving weapons in the vicinity. Ultimately, the officers
stopped and frisked Hayden and found a firearm in his pocket. The events preceding
that stop are disputed and were the subject of two evidentiary hearings held by the
magistrate judge.

       At the first hearing, Officer Martorano testified, but Officer Kegel did not.
Martorano reported that, despite the dim lighting, he observed Hayden and Crockett
wearing dark clothing and standing relatively close to a vacant home. He testified
that both men appeared to be wandering around the residence, that the man closer to
the sidewalk was looking up and down the street, and that the man closer to the home


      1
       The Honorable Jean C. Hamilton, United States District Judge for the Eastern
District of Missouri, adopting the second report and recommendation of the
Honorable Shirley Padmore Mensah, United States Magistrate Judge for the Eastern
District of Missouri.

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glanced in a window. Based upon these observations, Martorano believed that the
two men were about to commit a burglary.

       According to Martorano, as the two men began walking down the sidewalk,
Kegel pulled the vehicle alongside the men, and Martorano exited the car, shined a
flashlight on the men, and yelled “Police!” Hayden turned away from the light and
put his right hand into his right jacket pocket. Martorano ordered Hayden to remove
his hand from his pocket. Hayden complied. Martorano then frisked Hayden, finding
a loaded .22 caliber revolver in Hayden’s right jacket pocket.

       Based on Officer Martorano’s testimony, the magistrate judge found that the
officers seized Hayden when Martorano exited the vehicle, shined his flashlight on
the men, and yelled “Police!” At that point, the magistrate concluded, the officers did
not have reasonable suspicion that Hayden was committing a burglary, so the seizure
was unconstitutional. The court found aspects of Martorano’s testimony not credible,
“given his description of the poor lighting and distance from the two men,” as well
as his having “made no mention of having seen either subject glancing through a
window [on direct examination].” The magistrate therefore recommended that
Hayden’s motion to suppress be granted.

       The government moved for reconsideration of the magistrate’s report and for
a supplemental suppression hearing. The government proffered additional evidence,
namely, photographs demonstrating that there was a streetlight illuminating the street
in front of the residence, a photograph showing the distance between the officers and
the two men, and Officer Kegel’s testimony regarding the events in question. Over
Hayden’s objection, the magistrate judge granted the government’s motion for
reconsideration and for a supplemental hearing.

      At the second hearing, Kegel testified that the area where the officers observed
the two men was high-crime and generally deserted late at night, that it was cold, that

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there had been a recent spike in burglaries of vacant homes in the neighborhood, and
that the two men appeared to be casing a vacant residence. Kegel stated that while
the officers watched the men, a streetlight enabled the officers to see one man look
into the window of the house and that the man had crossed a fence around the house
so that he could peer inside.

       In light of their observations, Kegel testified that the officers decided to initiate
a “civilian encounter,” that is, to obtain the names and identification of the two men,
and to ascertain their motives for being on the street late at night. The officers drove
toward the men and stopped at the curb without blocking their ability to continue
walking down the sidewalk or cross the street. Kegel testified that Martorano did not
exit the vehicle with “any kind of exigency.” Likewise, Kegel said that Martorano
did not yell “Police!” Instead, Kegel testified that Martorano said the word “police”
loudly enough for the men to hear him. Kegel also explained the photographs of the
scene that the government had added to the record.

       Based on this additional testimony and evidence, the magistrate judge found
that Hayden was not seized when Officer Martorano exited the vehicle and said
“Police.” Rather, Hayden was seized only when he turned his body away from
Martorano, reached his hand into his jacket pocket, and complied with Martorano’s
command that he remove his hand from his pocket. The magistrate determined that
the officers had reasonable suspicion to seize Hayden at that latter point. The stop,
therefore, did not violate Hayden’s Fourth Amendment rights, so the magistrate judge
recommended that his motion to suppress be denied.

       The district court adopted the magistrate judge’s second report and
recommendation and denied Hayden’s motion to suppress. Hayden pleaded guilty to
unlawful possession of a firearm as a previously convicted felon, in violation of
18 U.S.C. §§ 922(g)(1) and 924(e), but reserved his right to appeal the suppression
issue. On appeal, Hayden argues that the magistrate abused her discretion by holding

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a second suppression hearing. Hayden also argues that the district court erred in
denying his motion to suppress evidence of the firearm because the officers found the
firearm during an unlawful stop.

                                          II.

       Hayden contends that the magistrate judge erred in holding a second
suppression hearing. He complains that the government requested reopening to
present previously available evidence without justifying its failure to proffer that
evidence at the initial hearing. We review a court’s decision to reopen a suppression
hearing for abuse of discretion. United States v. Chavez Loya, 528 F.3d 546, 555 (8th
Cir. 2008); United States v. Johnson, 944 F.2d 396, 403 n.5 (8th Cir. 1991). We
conclude that the magistrate judge did not abuse her discretion by holding an
additional suppression hearing before the district court ruled on Hayden’s motion.

       Hayden argues that a suppression hearing may be reopened only if a party has
acquired newly discovered evidence or challenges a newly relevant legal issue. He
contends that under our decision in Chavez Loya, 528 F.3d at 555, and in several
other circuits, a party moving to reopen a suppression hearing must provide a
reasonable and adequate explanation for its failure to provide newly proffered
evidence at the initial hearing if the evidence was previously available. See United
States v. Allen, 573 F.3d 42, 53 (1st Cir. 2009); United States v. Kithcart, 218 F.3d
213, 220 (3d Cir. 2000); United States v. Dickerson, 166 F.3d 667, 679 (4th Cir.
1999), rev’d on other grounds, 530 U.S. 428 (2000); McRae v. United States, 420
F.2d 1283, 1289 (D.C. Cir. 1969). Here, at the second hearing, the government
proffered only evidence that was available at the initial hearing, acknowledging that
“[i]n retrospect, perhaps [it] should have offered all of this additional information at
the original hearing.” Hayden argues, therefore, that the magistrate judge abused her
discretion by reopening the suppression issue because the government did not
adequately explain its failure to offer the evidence at the first hearing.

                                          -5-
        We decline to adopt Hayden’s proposed justification requirement to limit
strictly a magistrate judge’s discretion to reopen a suppression hearing before
submitting a report and recommendation to the district court. The governing statute,
28 U.S.C. § 636(b)(1), provides that a district court, in conducting de novo review of
a magistrate judge’s report and recommendation, “may accept, reject, or modify, in
whole or in part, the findings or recommendations made by the magistrate judge” and
“may also receive further evidence or recommit the matter to the magistrate judge
with instructions.” Because the district court has discretion to receive new evidence
without any special justification while conducting de novo review of a magistrate
judge’s report and recommendation, see Mathews v. Weber, 423 U.S. 261, 271
(1976); United States v. Craft, 30 F.3d 1044, 1045 (8th Cir. 1994), we think it follows
a fortiori that a magistrate judge likewise may receive new evidence before
presenting a final report and recommendation to the district court. Hayden’s
published authorities, including Chavez Loya, concern the authority of a district court
to reopen a suppression hearing after that court has entered a decision on the motion.
It is unnecessary here to address the scope of that authority. Cf. In re Terrorist
Bombings of U.S. Embassies in E. Afr., 552 F.3d 177, 196 (2d Cir. 2008) (“[T]here
is no bright-line rule that necessarily and invariably requires the government to
provide a reasonable justification for its failure to offer relevant evidence at an earlier
suppression proceeding.”).

                                           III.

       Hayden also argues that the district court erred in denying his motion to
suppress on the merits. “We review the denial of a motion to suppress de novo but
the underlying factual determinations for clear error, giving due weight to inferences
drawn by law enforcement officials.” United States v. Clutter, 674 F.3d 980, 982 (8th
Cir. 2012). Hayden contends that the district court clearly erred by accepting Officer
Kegel’s testimony on certain points that arguably conflict with Officer Martorano’s



                                           -6-
testimony, but these were largely credibility determinations that satisfy what is
necessarily deferential review on appeal.

       On the key legal issue, we agree with the district court that Hayden was not
seized when Officer Martorano shined the flashlight on him and said “Police.” “[A]
seizure does not occur simply because a police officer approaches an individual and
asks a few questions.” Florida v. Bostick, 501 U.S. 429, 434 (1991). “So long as a
reasonable person would feel free ‘to disregard the police and go about his business,’
the encounter is consensual and no reasonable suspicion is required.” Id. (internal
citation omitted) (quoting California v. Hodari D., 499 U.S. 621, 628 (1991)).

        The district court found that the officers pulled their vehicle alongside Hayden
and Crockett, shined a flashlight on the subjects, clearly identified themselves as
police, and approached the men. The officers did not block the ability of Hayden and
Crockett to cross the street, did not touch the men, and did not display weapons.
Merely identifying oneself as “Police” does not effect a seizure of a citizen who stops
to listen or talk, because self-identification is not a command in the nature of “Police,
halt!” or “Stop, in the name of the law!” See Florida v. Royer, 460 U.S. 491, 497
(1983) (plurality opinion); United States v. Perdoma, 621 F.3d 745, 749 (8th Cir.
2010). Likewise, shining a flashlight to illuminate a person in the darkness is not a
coercive act that communicates an official order to stop or comply. See United States
v. Mabery, 686 F.3d 591, 597 (8th Cir. 2012); United States v. Douglass, 467 F.3d
621, 624 (7th Cir. 2006). During the initial approach of the police officers, the
encounter was consensual.

       Hayden eventually was seized when he turned his body away from Officer
Martorano, reached his hand into his jacket pocket, and complied with Martorano’s
command that he remove his hand from his pocket. That seizure, however, was
justified under the Fourth Amendment by reasonable suspicion that criminal activity
was afoot. See Terry v. Ohio, 392 U.S. 1, 30 (1968). The patrolling officers knew

                                          -7-
that there had been an increase in burglaries in the area. It was late at night, and the
officers knew from experience that it was unusual to find people on the street after
dark in this high-crime area. Hayden and Crockett appeared to be casing a house for
a burglary: They looked up and down the street; one of the men crossed a fence to
get near the residence and looked into the window of the house; as officers
approached, Hayden turned away from the officers and put his hand into his pocket
as though reaching for a weapon. The totality of the circumstances gave the officers
reasonable suspicion to conclude that a crime of burglary was in the offing. See
United States v. Morgan, 729 F.3d 1086, 1090 (8th Cir. 2013). Consequently, the
seizure of Hayden did not violate the Fourth Amendment, and the district court
properly denied his motion to suppress the firearm obtained during the stop.

                                   *       *       *

      The judgment of the district court is affirmed.
                     ______________________________




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