
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.                                         -2-                    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                                         -6-          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                                         -8-          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.          ______________                                         -9-
