     06-4265-cr
     United States v. Baldwin


 1                       UNITED STATES COURT OF APPEALS
 2
 3                              FOR THE SECOND CIRCUIT
 4
 5                                 August Term, 2006
 6
 7
 8    (Argued: June 11, 2007                     Decided: July 23, 2007)
 9
10                               Docket No. 06-4265-cr
11
12   - - - - - - - - - - - - - - - - - - - -x
13
14   UNITED STATES OF AMERICA,
15
16                      Appellee,
17
18               -v.-
19
20   JEROME K. BALDWIN, also known as Jerome
21   Baldwin, also known as Brucey B,
22
23                      Defendant-Appellant.
24
25   - - - - - - - - - - - - - - - - - - - -x
26
27         Before:              JACOBS, Chief Judge, WESLEY and GIBSON,*
28                              Circuit Judges.
29
30         Appeal from a judgment of conviction entered in the

31   District Court for the District of Connecticut (Dorsey, J.).

32         AFFIRMED.

33                                       DEIRDRE A. MURRAY, Assistant
34                                       Federal Public Defender (Paul F.
35                                       Thomas, on the brief), for
36                                       Thomas G. Dennis, Federal Public

           *
            The Honorable John R. Gibson, Circuit Judge, United
     States Court of Appeals for the Eighth Circuit, sitting by
     designation.
 1                                 Defender, New Haven, CT, for
 2                                 Defendant-Appellant.**
 3
 4                                 ERIC J. GLOVER, Assistant United
 5                                 States Attorney (William J.
 6                                 Nardini, on the brief), for
 7                                 Kevin J. O’Connor, United States
 8                                 Attorney, District of
 9                                 Connecticut, for Appellee.
10
11   DENNIS JACOBS, Chief Judge:

12          When a driver heeds a police order to stop only to

13   drive away as the police approach, has the driver been

14   seized within the meaning of the Fourth Amendment?    We hold

15   that a seizure requires submission to police authority, and

16   conclude that the driver’s initial fleeting stop does not

17   amount to such submission.    We therefore affirm the denial

18   of the driver’s motion to suppress evidence found on his

19   person and in his car, and affirm the conviction entered in

20   the District Court for the District of Connecticut (Dorsey,

21   J.).

22

23

24                                  I


            **
            After this appeal was fully briefed, the defendant
     sent the federal public defender a letter which he insisted
     be read during the defendant’s allotted time for oral
     argument. Counsel then moved to withdraw. We granted the
     motion and took defendant’s letter on submission.
                                    2
1        On the afternoon of September 4, 2005, an anonymous

2    caller told the New Haven police that two black men, one

3    wearing a white t-shirt, were carrying firearms.   The caller

4    reported that they were standing next to a grey or silver

5    Chevrolet Impala with Virginia license plates, parked on

6    Downing Street, near an intersection with Bailey Street.

7    The location is adjacent to the Quinnipiac Terrace housing

8    complex, which has been plagued by the sale of guns and

9    illicit drugs.   According to the tipster, the men had “big

10   guns, real real big guns, serious.”

11       Police officers Plowman and Donnelly found no one at

12   the reported location; but as they drove along Downing

13   Street, they saw a grey car oncoming which had no front

14   license plate.   As it approached, the officers observed that

15   the driver was a black man (later identified as Jerome

16   Baldwin) wearing a black t-shirt, but could not see any

17   passengers.   As the car passed, the officers identified it

18   as a silver 2001 Chevrolet Impala bearing a Virginia license

19   plate on the rear; they turned on their overhead lights and

20   siren and pursued.

21       The Impala stopped after turning left onto Bailey

22   Street and the marked patrol car pulled up behind it.     As


                                   3
1    Plowman and Donnelly approached the Impala on foot, the

2    driver (Baldwin) leaned out the window and peered back at

3    them.     Plowman instructed Baldwin to show his hands, but he

4    simply stared back and refused to comply.      The officers

5    twice repeated the order and, with Baldwin still non-

6    compliant, drew their weapons.      As Donnelly approached the

7    Impala’s passenger side to determine whether any one else

8    was inside, the car sped off.

9        In the chase that ensued, Baldwin broke an untold

10   number of traffic laws and narrowly averted multiple serious

11   accidents.    As Baldwin attempted to negotiate a right turn

12   at the bottom of an exit ramp, his car jumped the curb and

13   slammed into an embankment.     At that point, a black man

14   wearing a white t-shirt opened the passenger door and fled

15   on foot; he was never apprehended.     Baldwin ran back onto

16   the highway and jumped off an overpass, but was eventually

17   stopped by other officers who had joined the pursuit.

18   Baldwin was handcuffed and taken via patrol car to Plowman

19   and Donnelly, who identified him as the driver of the

20   Impala.

21       A search of Baldwin’s person incident to his arrest

22   yielded a black mask, a wallet containing a Virginia



                                     4
1    driver’s license in his name, and a note which read, “Hi-

2    Point Mansfield-Ohio, Model C, 9MM, 9MM Ammunition too.”

3    One of the arresting officers recognized Baldwin as a member

4    of the Island Brothers gang, known to infest Quinnipiac

5    Terrace.

6        A large machine pistol (later determined to have a

7    round in the chamber) was lying on the front passenger floor

8    of the Impala.   A search of the car’s interior yielded

9    ammunition and a speed loader for the pistol; a Savage 20

10   gauge pump-action shotgun; and a Hi-point 9MM semiautomatic

11   handgun matching the description in the note found in

12   Baldwin’s wallet.   The search also yielded drug

13   paraphernalia: small plastic bags of crack cocaine, a

14   balance scale, a digital scale, and a cutting agent.      The

15   Impala was registered to Baldwin.

16       Baldwin was indicted on three counts: (1) being a felon

17   in possession of a firearm (18 U.S.C. § 922(g)(1)); (2)

18   possession with intent to distribute five grams or more of

19   cocaine base (21 U.S.C. § 841(a)(1), (b)(1)(B)); and (3)

20   using and possessing a firearm during, in relation to, and

21   in furtherance of a drug trafficking crime (18 U.S.C. §

22   924(c)(1)).   Baldwin moved to suppress the evidence


                                   5
1    recovered from his person and his vehicle on the ground that

2    officers Plowman and Donnelly lacked reasonable suspicion

3    when they initially ordered him to stop.   The government

4    responded that, by speeding away, Baldwin had disobeyed that

5    order and therefore had not been seized.   Alternatively, the

6    government argued that the order to stop was supported by

7    reasonable suspicion.1

8        The district court denied Baldwin’s motion on April 7,

9    2006, reasoning that

10       [r]egardless of what Baldwin’s initial motivations were
11       in pulling over his car, he never submitted to the
12       officers’ show of authority and therefore was never
13       seized. . . .
14
15            . . . Baldwin’s pre-seizure behavior--including
16       fleeing from police, the operation of his vehicle,
17       crashing his vehicle and running away on foot--
18       generated reasonable suspicion for his ultimate
19       apprehension.
20
21   United States v. Baldwin, No. 05 Cr. 291, 2006 WL 923721,

22   *3-*4 (D. Conn. Apr. 7, 2006).   The district court thus had

23   no occasion to decide whether the initial order to stop was

24   lawful.

25       Baldwin entered a conditional plea of guilty to the

26   second and third counts of the indictment, reserving the


          1
            On this appeal, the government takes no position on
     the lawfulness of the initial order to stop.
                                  6
1    right to appeal the district court’s denial of the motion to

2    suppress.   He was sentenced principally to 120 months’

3    imprisonment on the second count and 60 months on the third,

4    the sentences to run consecutively.

5        This appeal is taken only from the denial of the motion

6    to suppress.     Where, as here, the district court’s ruling

7    “turned on the legal question of when [the defendant] was

8    seized, we review the decision de novo.”    United States v.

9    Swindle, 407 F.3d 562, 566 (2d Cir. 2005).

10

11                                  II

12       Baldwin argues that he was seized as soon as he pulled

13   to a stop in response to the patrol car’s overhead lights

14   and siren, that this seizure was unlawful when made, and

15   that his subsequent flight did not render the seizure lawful

16   retroactively.

17       The government argues that Baldwin’s position has

18   already been rejected by the Supreme Court in California v.

19   Hodari D., which held that a seizure requires “either

20   physical force . . . or, where that is absent, submission to

21   the assertion of authority.”    499 U.S. 621, 626 (1991).   We

22   have understood the import of Hodari D. to be that “an order


                                     7
1    to stop must be obeyed or enforced physically to constitute

2    a seizure.”   Swindle, 407 F.3d at 572.   Baldwin agrees that

3    Hodari D. and Swindle control, but argues that he obeyed the

4    order to stop when he stopped, albeit temporarily.

5        We hold that, to comply with an order to stop--and thus

6    to become seized--a suspect must do more than halt

7    temporarily; he must submit to police authority, for “there

8    is no seizure without actual submission,” Brendlin v.

9    California, 127 S. Ct. 2400, 2405 (2007).    Several circuits

10   have said as much.   See United States v. Washington, 12 F.3d

11   1128, 1132 (D.C. Cir. 1994) (“[Defendant] initially stopped,

12   but he drove off quickly before Officer Hemphill even

13   reached the car.   Because [defendant] did not submit to

14   Hemphill’s order, he was not seized . . . .”); see also

15   United States v. Valentine, 232 F.3d 350, 359 (3d Cir. 2000)

16   (“Even if Valentine paused for a few moments and gave his

17   name, he did not submit in any realistic sense to the

18   officers’ show of authority, and therefore there was no

19   seizure until Officer Woodard grabbed him.”); United States

20   v. Hernandez, 27 F.3d 1403, 1407 (9th Cir. 1994) (“Hernandez

21   requests we find he submitted to authority and was seized,

22   despite his subsequent flight, merely because he hesitated



                                   8
1    for a moment and made direct eye contact with Sadar.     We

2    decline to hold these actions sufficient to constitute

3    submission to authority.”).   Arguably to the contrary is

4    United States v. Morgan, 936 F.2d 1561, 1567 (10th Cir.

5    1991) (“[S]ince Officer Eubanks had followed the car in

6    which Defendant was a passenger for several blocks with his

7    red lights flashing; since Officer Eubanks exited from a

8    marked police car, in uniform, and asked the Defendant to

9    hold up; and since Defendant, at least momentarily, yielded

10   to the Officer’s apparent show of authority, we find Mr.

11   Morgan was seized for purposes of the Fourth Amendment . . .

12   .”), but for the reasons that follow, we decline to adopt

13   the reasoning of Morgan.

14       Whether conduct constitutes submission to police

15   authority will depend, as does much of the Fourth Amendment

16   analysis, on “the totality of the circumstances--the whole

17   picture.”   United States v. Cortez, 449 U.S. 411, 417

18   (1981); see also Brendlin, 127 S. Ct. at 2409 (“[W]hat may

19   amount to submission depends on what a person was doing

20   before the show of authority: a fleeing man is not seized

21   until he is physically overpowered, but one sitting in a

22   chair may submit to authority by not getting up to run



                                   9
1    away.”).   Baldwin’s conduct, all circumstances considered,

2    amounted to evasion of police authority, not submission.

3    Cf. Hernandez, 27 F.3d at 1407 (“We decline to adopt a rule

4    whereby momentary hesitation and direct eye contact prior to

5    flight constitute submission to a show of authority.”);

6    United States v. Lender, 985 F.2d 151, 155 (4th Cir. 1993)

7    (“Defendant asks us to characterize as capitulation conduct

8    that is fully consistent with preparation to whirl and shoot

9    the officers.”).

10       Baldwin argues that he was seized at the moment he

11   pulled over because “a reasonable person would have believed

12   that he was not free to leave.”   United States v.

13   Mendenhall, 446 U.S. 544, 554 (1980).   But this objective

14   requirement “states a necessary, but not a sufficient,

15   condition for seizure,” Hodari D., 499 U.S. at 628; see also

16   United States v. Sealey, 30 F.3d 7, 10 (1st Cir. 1994).    A

17   reasonable person standing in Baldwin’s place would have

18   felt bound to stop, and having stopped and stayed, would be

19   able to argue suppression on the ground of a baseless

20   seizure.   See Swindle, 407 F.3d at 572 (“Merely feeling

21   restrained is not enough . . . .”); Washington, 12 F.3d at

22   1132 (“Although a reasonable person would not have believed



                                  10
1    that she was free to continue driving once Officer Hemphill

2    activated his sirens and ordered the Mazda’s driver to stop,

3    [defendant] did not in fact submit to the officer’s

4    order.”).2

5        Our ruling is not predicated on the brevity of

6    Baldwin’s stop, but on the fact that the stop itself did not

7    constitute submission.   In other words, it is the nature of

8    the interaction, and not its length, that matters.    See

9    Delaware v. Prouse, 440 U.S. 648, 655 (1979) (“[S]topping an

10   automobile and detaining its occupants constitute a

11   ‘seizure’ . . . even though the purpose of the stop is

12   limited and the resulting detention quite brief.”).    Because

13   Baldwin’s momentary stop did not constitute submission to

14   police authority, he had not been seized within the meaning

15   of the Fourth Amendment.

16


          2
            Baldwin cites United States v. Coggins for the
     proposition that flight after seizure does not preclude a
     finding of seizure. See 986 F.2d 651, 654 (3d Cir. 1993)
     (“Even though he fled soon thereafter, the 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”). Because we conclude that Baldwin had not been
     seized by the time he fled, we have no occasion to decide
     whether or to what extent the reasoning of Coggins would
     apply.
                                  11
1                                 III

2        We are left to determine the validity of the seizure of

3    evidence from Baldwin’s car and person at the end of the car

4    chase.

5        The district court concluded that “Baldwin’s pre-

6    seizure behavior--including fleeing from police, the

7    operation of his vehicle, crashing his vehicle and running

8    away on foot--generated reasonable suspicion for his

9    ultimate apprehension.”   Baldwin, 2006 WL 923721, *4.    We

10   frame the issue differently: because Baldwin’s ultimate

11   seizure was an arrest,3 the question is one of probable

12   cause.   See Maryland v. Pringle, 540 U.S. 366, 370 (2003)

13   (“A warrantless arrest of an individual in a public place

14   for a felony, or a misdemeanor committed in the officer’s

15   presence, is consistent with the Fourth Amendment if the

16   arrest is supported by probable cause.”).   For the reasons

17   articulated by the district court, we conclude that the

18   arrest was supported by probable cause and that the evidence




          3
            The government’s brief says that the search of
     Baldwin was done “incident to arrest,” thereby conceding
     that his seizure constituted an arrest and required probable
     cause.
                                  12
1    resulting therefrom was properly admitted.4

2          Baldwin argues, however, that his seizure cannot be

3    justified by events that unfolded after an order to stop

4    that, as he contends and as the government implicitly

5    concedes for present purposes, was not based on reasonable

6    suspicion, let alone probable cause.     Baldwin relies chiefly

7    on United States v. Swindle, which observed in dicta that

8    “if subsequent incriminating events cannot justify an

9    unreasonable stop, then it logically follows that subsequent

10   incriminating events should not be able to justify an

11   unreasonable order to stop.”    407 F.3d at 568.   However, the

12   holding of Swindle was that Supreme Court precedent has

13   “implicitly authorized a defendant’s seizure based on events

14   occurring after issuance of an unreasonable order to stop.”

15   Id.     We have since reaffirmed our adherence to this implicit

16   rule:

17               An individual approached by an officer who has no
18               reasonable suspicion of wrongdoing may ignore the
19               officer and go about his business, and his refusal
20               to cooperate may not form the basis for his
21               detention. See Florida v. Royer, 460 U.S. 491,
22               498 (1983). “But unprovoked flight is simply not

           4
            At oral argument, the government argued for the first
     time that the search of Baldwin’s car was justified on the
     theory of abandonment. Because we conclude that the police
     had probable cause to arrest Baldwin, we need not consider
     this alternative basis for the search of his car.
                                    13
1             a mere refusal to cooperate. Flight, by its very
2             nature, is not ‘going about one’s business’; in
3             fact, it is just the opposite.” Illinois v.
4             Wardlow, 528 U.S. 119, 125 (2000).

5    United States v. Muhammad, 463 F.3d 115, 123 (2d Cir. 2006).

6    We acknowledge that this rule could create an incentive for

7    the police to issue unreasonable orders to stop in the hopes

8    of creating reasonable suspicion or probable cause.   But as

9    the Supreme Court has pointed out,

10       [u]nlawful orders will not be deterred . . . by
11       sanctioning through the exclusionary rule those of them
12       that are not obeyed. Since policemen do not command
13       “Stop!” expecting to be ignored, or give chase hoping
14       to be outrun, it fully suffices to apply the deterrent
15       to their genuine, successful seizures.
16
17   Hodari D., 499 U.S. at 627.

18

19                            *    *    *

20       For the foregoing reasons, the judgment of the district

21   court is affirmed.




                                   14
