                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-20-2005

USA v. Henderson
Precedential or Non-Precedential: Non-Precedential

Docket No. 03-4357




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                                                             NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                  ___________

                                    NO. 03-4357
                                    ___________

                          UNITED STATES OF AMERICA


                                         v.

                              ANDREW HENDERSON

                                                           Appellant

                                    ___________

                   On Appeal from the United States District Court
                      for the Eastern District of Pennsylvania
                          (D.C. Criminal No. 02-cr-00315)
                    District Judge: Honorable Herbert J. Hutton
                                   ____________

                              Argued October 26, 2004
                                  ____________

      BEFORE: NYGAARD, AMBRO, and VAN ANTWERPEN, Circuit Judges

                              (Filed: January 20, 2005)

Elizabeth T. Hey, Esq. (Argued)
David L. McColgin, Esq.
Catherine C. Henry. Esq.
Federal Court Division
Defender’s Association of Philadelphia
Suite 540 West - Curtis Center
Independence Square West
Philadelphia, PA 19106

Counsel for Appellant
Wendy A. Kelly, Esq. (Argued)
Office of the United States Attorney
615 Chestnut Street
Philadelphia, PA 19106

Counsel for Appellee
                                        ___________

                                         OPINION
                                        ___________

VAN ANTWERPEN, Circuit Judge

       Appellant Andrew Henderson appeals the District Court’s denial of his motion to

suppress evidence discovered after he was apprehended by police. Henderson maintains

that he was illegally seized in violation of the Fourth Amendment when he briefly

conversed with, and handed his identification to, a police officer who approached him

while investigating an anonymous tip. The parties do not challenge many of the District

Court’s findings and therefore, this Court is presented with the very narrow question of

whether Henderson submitted to the police officer’s show of authority. We hold that he

did not.

                                 I. FACTUAL HISTORY

       Because we write only for the parties, we recount only the facts most pertinent to

our decision.1 Early on the morning of June 28, 2001, an anonymous caller telephoned

the 911 call center in Chester County, Pennsylvania and stated, “You got a guy on Eighth

Street with a [sic] orange shirt on -- he has a gun and drugs on him. . . . He is in the

   1
   The facts are taken from the District Court’s Findings of Fact and Conclusions of
Law and Order entered January 10, 2003.

                                              2
middle of the block.” The caller did not identify himself and offered no further

information, but police dispatchers were able to quickly trace the call to a pay telephone

located on Eighth Avenue and East Lincoln Highway in Coatesville, Pa. Officer Steven

Smith, a uniformed Coatesville Police Officer was on patrol in a marked police car

nearby. At 4:13 a.m., a Chester County police radio dispatcher radioed a description of

the suspect to Officer Smith and dispatched him to the area indicated by the caller.

       Officer Smith knew the area described by the caller was a high crime area and he

responded within two minutes. Upon arrival, he noticed several people milling about on

Eighth Street, including the appellant, Henderson, who was the only person wearing an

orange shirt. Officer Smith exited his car, approached Henderson and asked for

identification, which Henderson provided. Officer Smith then asked Henderson if he

could pat him down for weapons. 2 Henderson became evasive, stepped away from the

officer and told him that he did not need to be searched. As Officer Smith reached out to

touch him, Henderson took several more steps back. As he was doing so Officer James

Dilworth arrived at the scene in another marked patrol car. Upon seeing the second

officer, Henderson turned and fled. Officer Smith pursued and soon apprehended

Henderson. In a subsequent search of his person and the immediate vicinity of his arrest,

police found crack cocaine and a handgun.

                             II. PROCEDURAL HISTORY



   2
     Henderson challenges this chronology of events, but as we discuss later, this finding
of the District Court is consistent with the testimony offered at the suppression hearing.

                                             3
       On May 28, 2002, a grand jury sitting in the Eastern District of Pennsylvania

charged Andrew Henderson with an indictment for possession with intent to distribute in

excess of five grams of cocaine base, in violation of 21 U.S.C. § 841(a)(1) & (b)(1)(B)

(Count I); possession and carrying of a weapon in furtherance of a drug trafficking crime,

in violation of 18 U.S.C. § 924(c) (Count II); and possession of a weapon by a previously

convicted felon, in violation of 18 U.S.C. § 922(g) (Count III). (Appellant Brief at 3.)

       Henderson moved to suppress the evidence found following his apprehension.

(Appellant App. at 39a.) He argued that he was illegally seized when he was approached

by Officer Smith and complied with his request for identification. (Appellant App. at

46a.) He further argued that his subsequent flight, apprehension and discovery of

physical evidence were all fruit of the unlawful seizure. (Appellant App. at 49a.) On

January 10, 2003 the District Court issued the Findings of Fact and Conclusions of Law

and Order (hereinafter “Suppression Mem.”) denying the defense motion to suppress the

physical evidence.

       On July 14, 2003, Henderson entered into a written plea agreement in which he

conditionally pled guilty to Counts I and III, while reserving his right to appeal the

District Court’s suppression ruling. On October 30, 2003, the District Court sentenced

Henderson to 121 months imprisonment, eight years of supervised release and a special

assessment of $200. Count II was dismissed on a motion of the government. Henderson

now appeals the District Court’s order, which denied his motion to suppress evidence

seized in violation of the Fourth Amendment.

                                              4
                               III. STANDARD OF REVIEW

         The District Court had subject matter jurisdiction over this case pursuant to 18

U.S.C. § 3231. This Court has jurisdiction over the timely appeal pursuant to 28 U.S.C. §

1291. “This Court reviews the District Court's denial of a motion to suppress for clear

error as to the underlying factual findings and exercises plenary review of the District

Court's application of the law to those facts.” U.S. v. Perez, 280 F.3d 318, 336 (3d Cir.

2002).

         The parties confine their arguments to the time immediately before Henderson

fled. Additionally, they stipulate that prior to Henderson’s flight, Officer Smith did not

have a reasonable suspicion sufficient to justify a stop and frisk under the standard

outlined in Terry v. Ohio, 392 U.S. 1, 20-22 (1968) and clarified in Florida v. J.L., 529

U.S. 266, 271-72 (2000) (holding that an anonymous tip without any indicia of reliability

is insufficient by itself to establish a reasonable suspicion that would justify a Terry stop).

The parties also agree that Officer Smith exercised a “show of authority,” but they differ

as to when this occurred. Therefore we will examine when Officer Smith exercised a

show of authority and whether Henderson actually submitted to Officer Smith’s show of

authority.

                                      IV. DISCUSSION

         The Fourth Amendment states, “The right of the people to be secure in their

persons, houses, papers, and effects, against unreasonable searches and seizures, shall not

be violated, . . . .” U.S. Const. amend. IV. This protection extends to the unreasonable

                                               5
seizure of persons, California v. Hodari D., 499 U.S. 621, 624 (1991), and “belongs as

much to the citizen on the streets of our cities as to the homeowner closeted in his study

to dispose of his secret affairs,” Terry, 392 U.S. at 8-9. Of course, the Fourth

Amendment does not prohibit all seizures, only those that are unreasonable. Id. at 9.

Therefore our examination involves two questions: (1) was there a seizure; and, if so, (2)

was that seizure unreasonable.

       Reserving the initial question, we deal first with the latter part of the inquiry

because it can be easily addressed. Investigative stops of the kind at issue here are

governed by the rules established by the Supreme Court in Terry v. Ohio, 392 U.S. at 27.

In Terry, the Court’s held that “an officer may, consistent with the Fourth Amendment,

conduct a brief, investigatory stop when the officer has a reasonable, articulable suspicion

that criminal activity is afoot.” Illinois v. Wardlow, 528 U.S. 119, 123 (2000). The

government conceded that Officer Smith did not have a reasonable suspicion sufficient to

justify detaining Henderson when he first approached him. (Appellee Brief at 12.) We

find no reason to examine this issue further and assume that if Officer Smith did seize

Henderson, he did so unreasonably.

       With that in mind, we return to the first question: was Henderson seized? In

United States v. Mendenhall, 446 U.S. 544, 553 (1980), the Court explained that “a

person is ‘seized’ only when, by means of physical force or a show of authority, his

freedom of movement is restrained.” Because neither party disputes the District Court’s

finding that Officer Smith never touched Henderson, (Suppression Mem. at 4), we are

                                              6
concerned only with Officer Smith’s show of authority. In California v. Hodari D., 499

U.S. at 626, the Supreme Court explained that, when not accompanied by a physical

touching, a “seizure” requires both a show of authority by the law enforcement officer

and submission to that authority by the person seized. Henderson’s appeal rests on the

contention that he was seized when he handed his identification card to Officer Smith in

response to the officer’s show of authority. (Appellant Brief at 18.)

       Both parties agree that Officer Smith exercised a show of authority, but they differ

on the crucial question of when this occurred. In its analysis of the totality of the

circumstances, The District Court concluded that Officer Smith exercised a show of

authority when he informed Henderson that he intended to search him for weapons.

(Suppression Mem. at 10.) The District Court also found that this did not occur until after

Henderson handed Officer Smith his identification card. (Suppression Mem. at 3.)

       Henderson argues that the District Court’s factual findings on this point were

erroneous. We review the factual findings in a District Court’s denial of a motion to

suppress for clear error. U.S. v. Perez, 280 F.3d 318, 336 (3d Cir. 2002). In view of the

record, we cannot say that the District Court’s resolution of the testimony amounted to

clear error. The record, in multiple places, supports the District Court’s finding that

Officer Smith announced his intention to pat-down Henderson only after Henderson had

provided his identification card and not, as Henderson maintains, as soon as Officer




                                              7
Smith approached him.3 We agree with the government that Henderson is relying on “an

ambiguous cross-examination” to support his claims of factual error. (Appellee Brief at

13, n.1.) 4

   3
      Henderson would have us find that the District Court’s chronology of events is wrong and
that Officer Smith announced he was going to pat Henderson down as soon as he approached
him. To support this assertion, Henderson points to one instance in which Officer Smith answers
a lengthy, compound question on cross-examination in the following manner:
         Counsel:         So that was your intention when you approached him, right?
         Smith:           No, it was my intention to investigate a suspicious persons complaint.
         Counsel:         Well – so how were you planning on doing that when you walked – the
                          first thing you said when you walked up to him, was it not, Officer, was
                          that, sir, I received a radio call of a man with an orange shirt, carrying a
                          gun, you have an orange shirt on, I’m going to have to pat you down; isn’t
                          that the first thing you said to him when you came upon him?
         Smith:           Correct, and that was for my safety and I also want to identify the subject.
(Mot. to Suppress Hr’g Tr. at 27). However, Officer Smith’s testimony throughout the rest of
his examination is consistent with the Court’s finding. On direct examination, Officer Smith
states: “And I exited the vehicle and approached the subject wearing the orange shirt and advised
him that I was investigating a suspicious person complaint and asked him if he had any
identification. . . . [H]e gave me his identification card. . . . I then asked him, for my safety, if I
could pat him down for weapons, at which time he said you don’t need to pat me down, I don’t
have nothing and became evasive and started walking away from me.” (Id. at 9-10). On cross-
examination he stated, “He handed me his identification card first and I then asked him if I could
pat him down for my safety.” (Id. at 30). Later in the testimony he said, “After he handed me
his identification card, I advised him I wanted to do a Terry stop for weapons.” (Id.). This
testimony is consistent with the District Court’s findings, including the statement in its
Conclusions of Law that the officer told Henderson he intended to frisk him before Henderson
fled. (Conclusions of Law at 10).
    4
      In its brief, the government argued that Henderson’s contact was only momentary and was
therefore permissible under United Stated v. Valentine, 232 F.3d 350, 359 (3d Cir. 2000).
(Appellee Brief at 14-15.) The government also stated that it “does not press the issue” and that
Henderson’s claim of factual error is “immaterial.” (Id. at 13, n.1.) However, in the next
sentence the government argues that Henderson’s claim of factual error is based upon
“ambiguous cross-examination,” (Id. at 13, n.1.), and the government’s statement of the facts in
its brief adhered to the District Court’s findings, (Id. at 6). In addition, the government stated in
its brief that it, “further does not challenge the district court’s determination that Officer Smith
made a show of authority, stating to Henderson that he intended to search him.” (Id. at 12-13.)
         We find that the government was attempting to argue that if the contact was only
momentary, under Valentine the factual issue would not have to be resolved. Similarly at oral
argument, the government indicated that if the contact was momentary it would not matter when
the show of authority was made. In doing so however, it never conceded to Henderson’s claim

                                                  8
       The distinction is critical. Until Officer Smith announced that he was going to

conduct a pat-down, the encounter was permissible. Police do not violate the Fourth

Amendment by merely approaching an individual and asking him questions. Florida v.

Royer, 460 U.S. 491, 497 (1983). Nor is it impermissible for police to ask someone for

identification. Id. at 502. “As long as the person to whom questions are put remains free

to disregard the questions and walk away, there has been no intrusion upon that person’s

liberty or privacy as would under the Constitution require some particularized and

objective justifications.” Mendenhall, 446 U.S. at 554. Although he was in uniform and

kept a hand on a holstered gun, Officer Smith did not initially call out or command

Henderson, attempt to touch him, tell him that he would detain him, or tell him that he

was not free to go. This falls far short of a “show of authority” that would cause a

reasonable person to believe that he was not free to leave. See id. at 554 (suggesting that

a reasonable person would not feel free to leave when he or she is confronted with “the

threatening presence of several officers, the display of a weapon by an officer, some

physical touching of the person of the citizen, or the use of language or tone of voice

indicating that compliance with the officer’s request might be compelled”). Therefore,

Henderson’s act of providing his identification was the product of a consensual

encounter, not an impermissible stop resulting from a coercive seizure.




of factual error. We need not address whether the contact was as brief as in Valentine because
we agree with the District Court that there was no show of authority until Officer Smith stated
his intention to search Henderson.

                                                9
       It is not unusual for a show of authority to be preceded by an initially consensual

encounter. In Florida v. Royer, 460 U.S. 491, 501-02 (1983), the Court examined a

similar encounter which began permissibly when police asked to see Royer’s ticket and

driver’s license, but escalated to a “show of official authority” when those officers

identified themselves as narcotics agents, told him that they suspected he was carrying

illegal drugs and, while retaining his ticket and identification, asked him to accompany

them to the police room. Henderson’s case differs in that, when the police action

eventually did rise to a show of authority, Henderson did not cooperate. Prior to that

Henderson never indicated verbally or otherwise that he did not want to identify himself

or speak with Officer Smith.

       Our decision in U.S. v. Coggins, 986 F.2d 651, 654 (3d Cir. 1993), also supports

our decision. In Coggins, a police officer and a drug enforcement agent approached the

defendant, Patrick Coggins, and four traveling companions while they sat waiting for a

flight. Id. at 652. The officers asked to see the travelers’ identifications and plane tickets

and Coggins told them that he did not have any identification with him and that another

man in the group was holding his ticket. Id. While the agent was questioning this other

man, Coggins stood up and stated that he needed to go to the bathroom. Id. The agent

told Coggins to sit down and he complied. A short time later, Coggins again stood up and

said he needed to go to the bathroom immediately. Id. The agent again told him to sit

down, but Coggins walked away, then broke into a sprint and proceeded to discard small

bags which were later determined to be filled with crack cocaine. Id. at 652-53. This

                                             10
Court determined that Coggins yielded to the officer’s authority when he was told to sit

back down and he complied. “[T]he combination of Coggins’ expressed desire to leave,

Agent Inouye’s order that he stay, and Coggins’ yielding to police authority resulted in a

seizure for purposes of the Fourth Amendment.” Id. at 654. It is important to note,

however, that the seizure did not occur until Coggins asked to leave and was told to sit

down. Until that point, there was no exercise of authority, and the encounter was

consensual.

       Once Henderson expressed that he did not want to submit to a pat down, Officer

Smith would have acted improperly had he detained Henderson. However, Henderson

never gave him the opportunity. Unlike Coggins who complied when officers told him to

sit down, once Henderson made it known that he did not want to be frisked, he never

again cooperated with Officer Smith. He refused to submit to the pat down and stepped

away. Before Officer Smith had the opportunity to detain him or frisk him, Henderson

fled. Because he did not submit to Officer Smith’s show of authority, this Court cannot

find that Henderson was seized in violation of the Fourth Amendment. See California v.

Hodari D., 499 U.S. 621, 629 (1991). Therefore, we affirm the decision of the District

Court denying the motion to suppress.




                                            11
