United States v. Ford

United States Court of Appeals
For the First Circuit

No. 07-2613

UNITED STATES,

Appellee,

v.

TYSON FORD,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Joseph L. Tauro, U.S. District Judge]

Before

Boudin, Stahl, and Howard,
Circuit Judges.

Allison J. Koury was on brief, for appellant.
Jack W. Pirozzolo, Assistant United States Attorney, with whom
Michael J. Sullivan, United States Attorney, was on brief, for
appellee.

November 5, 2008
 STAHL, Circuit Judge. Defendant-Appellant Tyson Ford

appeals his conviction under the felon-in-possession statute, 18

U.S.C. § 922(g)(1). His main complaint is that the district court

erred in denying his motion to suppress a firearm found on his

person because it was obtained during an unconstitutional search

and seizure. Finding no error, we affirm the conviction.

I. Background

We relate the facts "'as the trial court found them,

consistent with record support.'" United States v. Ruidíaz, 529

F.3d 25, 27 (1st Cir. 2008) (quoting United States v. Lee, 317 F.3d

26, 30 (1st Cir. 2003)). On September 8, 2005, Officers Daran

Edwards and Daniel Griffin ("the Officers") of the Boston Police

Department ("BPD") were on a routine patrol in a high-crime area of

Dorchester, Massachusetts. The Officers were in uniform and in a

marked police cruiser. They regularly patrolled the Dorchester

area and were familiar with many of the area's residents. At

approximately 3:00 p.m., the Officers observed Ford, who they did

not recognize, walking alone down Harvard Street. Ford looked over

his shoulder, observed the cruiser and then lowered his head, began

walking rapidly, and turned right onto Gleason Street. The

Officers followed Ford the wrong way up Gleason Street for a short

distance, ostensibly to conduct a Field Intelligence and

Observation Report (FIO), used by BPD police officers for

intelligence collection.

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 Upon coming abreast of Ford, Officer Griffin leaned out

of the passenger side window and asked him, "Can I speak to you for

a minute?" Ford stopped walking, took his identification out of

his front pocket, and voluntarily handed it to Officer Griffin. He

told the Officers he had no outstanding warrants and was not on

probation. While Officer Edwards ran a search for warrants using

the BPD database, Officer Griffin continued to ask Ford questions

like "where do you live?" and "where are you headed?" Officer

Griffin observed that Ford appeared annoyed, nervous, and hostile

at times and that he was breathing rapidly, stuttered his words,

and his hands shook. Officer Griffin asked Ford whether he had

anything on him that the Officers needed to know about. Ford

answered in the negative.

Roughly 45 seconds after taking Ford's driver's license,

Officer Griffin exited the cruiser to complete the FIO. Following

BPD protocol, Officer Edwards also exited, walked behind the

cruiser, and approached Ford from the same direction as Officer

Griffin. Neither Officer unholstered his weapon. Ford raised his

hands into the air and said, "Come on man, what's this all about?"

Officer Griffin asked whether Ford had any weapons on his person.

Ford responded, "Yeah, I got a gun in my pocket, but it don't

fire." The Officers then placed Ford in handcuffs, and Officer

Griffin frisked him, discovering and seizing a Grendel, Inc., P-12

.380 semi-automatic handgun from the pocket of Ford's pants. The

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Officers arrested Ford, the entire encounter lasting approximately

two to three minutes from interception to arrest. Before placing

Ford in handcuffs, neither Officer had touched Ford, drawn his

weapon, or told Ford he was not free to leave nor had the Officers

activated the police cruiser's siren or flashing lights.

On November 1, 2005, a single-count complaint charged

Ford as a felon-in-possession of a handgun in violation of 18

U.S.C. § 922(g)(1). On March 3, 2006, Ford moved to suppress the

evidence seized in the warrantless search of his person, contending

he was seized at the time the Officers exited the vehicle in

violation of his Fourth Amendment rights. On July 20, 2006, the

district court denied the motion and issued a well-reasoned

rescript, finding that the Officers had not seized Ford prior to

his incriminating statement. See United States v. Ford, 440 F.

Supp. 2d 16 (D. Mass. 2006).

On October 4, 2006, Ford entered a conditional plea of

guilty, see Fed. R. Crim. P. 11(a)(2), reserving his right to

appeal the denial of his suppression motion. On October 11, 2006,

the district court sentenced Ford to a term of imprisonment of 15

years under the Armed Career Criminal Act, 18 U.S.C. § 924 (e)(1).

Ford now appeals the denial to suppress the handgun and his

conviction.1

1
Ford dropped his appeal of the sentence enhancement under
the Armed Career Criminal Act, 18 U.S.C. § 924(e)(1).

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 II. Discussion

A. The Motion to Suppress

This appeal primarily concerns the boundary delineating

casual encounters with police, as when officers question persons in

public places, from seizures requiring probable cause or

articulable suspicion. See United States v. Young, 105 F.3d 1, 5-6

(1st Cir. 1997). Ford challenges the lower court's denial of his

motion to suppress in which he argued the Officers seized him

before possessing the requisite reasonable suspicion. The

Government concedes, and we accept for the purposes of this review,

that the Officers lacked the reasonable suspicion required for a

seizure and that, if a seizure occurred, the handgun found on

Ford's person "must be suppressed as tainted fruit." See Florida

v. Bostick, 501 U.S. 429, 433-34 (1991).

"Our review of a district court's denial of a suppression

motion is bifurcated." United States v. Cardoza, 129 F.3d 6, 13

(1st Cir. 1997). We review the court's factual findings for clear

error and its legal conclusions (including constitutional

determinations) de novo. Ruidíaz, 529 F.3d at 28. Clear error

"'exists only if, after considering all of the evidence, we are

left with a definite and firm conviction that a mistake has been

made.'" Young, 105 F.3d at 5 (quoting United States v. McCarthy,

77 F.3d 522, 529 (1st Cir. 1996)). This deference "reflects our

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awareness that the trial judge . . . sits in the best position to

determine what actually happened." Id.

The Fourth Amendment provides that "[t]he 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. The primary purpose of the Fourth

Amendment is "'to prevent arbitrary and oppressive interference by

enforcement officials with the privacy and personal security of

individuals.'" I.N.S. v. Delgado, 466 U.S. 210, 215 (1984)

(quoting United States v. Martinez-Fuerte, 428 U.S. 543, 554

(1976)).

Not every interaction between a police officer and a

citizen constitutes a seizure triggering Fourth Amendment

protections. Bostick, 501 U.S. at 434; Cardoza, 129 F.3d at 14;

Young, 105 F.3d at 5. While per se rules are inappropriate in

determining when a seizure occurs for Fourth Amendment purposes,

United States v. Drayton, 536 U.S. 194, 201 (2002) (citing Bostick,

501 U.S. at 439), we have observed that encounters "between law

enforcement officials and citizens generally fall[] within three

tiers of Fourth Amendment analysis, depending on the level of

police intrusion into a person's privacy." Young, 105 F.3d at 5.

Because there are no bright-line distinctions between the tiers, we

look to the totality of the circumstances to determine where a

police encounter falls. Drayton, 536 U.S. at 207; Michigan v.

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Chesternut, 486 U.S. 567, 572 (1988); United States v. Smith, 423

F.3d 25, 29-30 (1st Cir. 2005); Cardoza, 129 F.3d at 15. See also

Bostick, 501 U.S. at 439-40 (rejecting per se rule for seizure in

favor of totality inquiry).

The lowest tier, which does not implicate the Fourth

Amendment, involves minimally intrusive interactions such as when

police officers approach individuals on the street or in public

places to ask questions. Young, 105 F.3d at 5-6; Bostick, 501 U.S.

at 434. See Drayton, 536 U.S. at 201 (observing that law

enforcement agents may question and ask a citizen for

identification even when they have no basis to suspect the

individual so long as they "do not induce cooperation by coercive

means"). If the encounter amounts to more than a minimally

intrusive interaction, a seizure occurs, either a de facto arrest

requiring probable cause or an investigative (or Terry) stop

necessitating reasonable suspicion. Young, 105 F.3d at 6.

The Supreme Court has adopted the standard set forth by

Justice Stewart's plurality opinion in United States v. Mendenhall,

446 U.S. 544, 554 (1980), that "a person has been 'seized' within

the meaning of the Fourth Amendment only if, in view of all the

circumstances surrounding the incident, a reasonable person would

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have believed that he was not free to leave."2 See Drayton, 536

U.S. at 202; California v. Hodari D., 499 U.S. 621, 627-28 (1991)

(compiling cases). To constitute seizure, this Circuit requires

one's liberty be restrained by either physical force or an

assertion of authority. Id. at 626; United States v. Sealey, 30

F.3d 7, 9 (1st Cir. 1994); see Smith, 423 F.3d at 28 (finding

seizure can occur without physical restraint if compliance is

coerced and not voluntary).

Under the objective totality of the circumstances

standard, we look not to "whether the citizen perceived that he was

being ordered to restrict his movement, but whether the officer's

words and actions would have conveyed that to a reasonable person."

Hodari D., 499 U.S. at 628; Chesternut, 486 U.S. at 574 (noting

objective standard does not vary with mind of each individual).

Thus, there is less reason to inquire into a defendant's subjective

mindset when considering whether there is a submission to

authority, see Cardoza, 129 F.3d at 14 n.4, particularly as all

persons feel "some degree of compulsion" and "discomfort" when

approached by police officers. Smith, 423 F.3d at 28.3

2
The Court has explained the reasonable person test presumes
an innocent person. Bostick, 501 U.S. at 438; Smith, 423 F.3d at
31, n.5.
3
Both the Supreme Court and this Circuit have observed that
exchanges do not lose their consensual nature simply because people
generally answer police officers' questions. Drayton, 536 U.S. at
205 (citing Delgado, 466 U.S. at 216); Cardoza, 129 F.3d at 16
(agreeing with defendant that "few people . . . would ever feel

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 Employing this objective test, the inquiry before us

today is not whether the Officers could approach and question Ford,

but, instead "whether they did so in a manner that would have

communicated to a reasonable person that he was not free to refuse

to answer and walk away." Smith, 423 F.3d at 29. To elucidate

this test, the Supreme Court has provided circumstances that may

indicate a seizure including "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." Mendenhall, 446 U.S. at 554. "[T]his list of

factors is not exhaustive and no single factor is dispositive in

any case." Smith, 423 F.3d at 29. See Chesternut, 486 U.S. at 575

(considering also non-use of patrol car's siren or flashers);

United States v. McKoy, 428 F.3d 38, 40 (1st Cir. 2005) (adding

neighborhood as "only one factor that must be looked at alongside

all the other circumstances").

To evaluate the circumstances leading to Ford's arrest,

our case law provides guidance for discerning the Fourth

Amendment's parameters. In Cardoza, police officers drove the

free to walk away from any police question"). See id. ("The 'free
to walk away' test . . . must be read in conjunction with the
Court's frequent admonitions that 'a seizure does not occur simply
because a police officer approaches an individual and asks a few
questions'") (quoting Bostick, 501 U.S. at 434, and Terry v. Ohio,
392 U.S. 1, 19 n.16 (1968)).

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wrong way on a one-way street to ask the defendant pointed

questions including "Why are you out at this time of night?" 129

F.3d at 15. We found no seizure, noting the police had not used

the cruiser's siren or lights, had stopped at the curb before

calling out to the defendant, and did not exit the car until they

observed the defendant's ammunition round. Id. at 16. Cf.

Chesternut, 486 U.S. at 575 (no seizure where police did not

activate siren or lights, did not order defendant to halt, drew no

weapons, and did not block defendant's course).

In Smith, the police officers framed general, non-

threatening questions to ask why the defendant was sitting on the

wall of a stranger's house and did not command the defendant to

remain on his walled perch. 423 F.3d at 30. Even after the

officers exited their vehicle to conduct an FIO and approached the

defendant from both sides, we found no seizure because the officers

never summoned Smith to the cruiser, did not employ the car's siren

or lights, and did not expose their weapons or touch Smith. Id.

Additionally, because Smith attempted to flee from the officers

after he disclosed that he had an outstanding warrant, we noted his

action indicated he had not submitted to an assertion of authority.

Id. at 31.

Applying this precedent to the instant case, we decline

to hold that the Officers seized Ford before he disclosed that he

was in possession of a firearm. See Mendenhall, 446 U.S. at 555

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(rejecting proposition that making statements contrary to one's

self-interest necessarily indicates involuntary submission). The

Officers, like those in Cardoza, drove a short distance the wrong

way on Gleason Street for the purpose of asking Ford questions but

activated neither the cruiser's siren or flashing lights. Their

questions were largely general and non-threatening, like those in

Smith. Throughout the brief encounter, until Ford's incriminating

statement, the Officers did not draw their guns or touch Ford.

At the onset of the interaction, Ford approached the

cruiser and provided his driver's license voluntarily. While the

Officers retained the license during the two- to three-minute

exchange, they did not otherwise restrict Ford's movement.

Contrast Smith, 423 F.3d at 27, 30 (finding no seizure where

officers approached the defendant from both sides, telephone pole

was directly in front of defendant, and wall directly behind). As

in Smith, where we found no seizure, the Officers exited the

cruiser to complete the FIO.

Ford relies on the Supreme Court's Florida v. Royer

decision where two detectives retained the defendant's driver's

license and airplane ticket while commanding him to accompany them

to a private room because they believed he fit the drug courier

profile. 460 U.S. 491, 493-94 (1983). The Court held these

actions constituted an illegal seizure, id. at 501-02, and

distinguished Mendenhall in part because the government agents

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there immediately returned the driver's license and airplane ticket

before continuing the encounter. Id. at 503 n.9.

Ford argues Royer indicates that the retention of his

driver's license during the encounter is compelling evidence of a

seizure. We think the concerns of the airport cases, where

citizens need documentation to move from place to place, differ

from the instant case where Ford was on foot on a public street.

See Drayton, 536 U.S. at 204 (noting that if the encounter had

occurred on the street rather than on a bus, "[i]t is beyond

question that . . . it would be constitutional"). Moreover, Ford

produced his license voluntarily, not at the request of one of the

Officers, and was not removed from the street to a confined space

while the Officers ran the background check.

While the retention of Ford's license is an important

factor in our analysis, we decline to elevate it above other

considerations. See United States v. Weaver, 282 F.3d 302, 313

(4th Cir. 2002) (refusing to adopt D.C. Circuit's per se rule

regarding license retention).

Ford also asserts that a seizure can be evidenced by his

raising his hands into the air after the Officers exited the

cruiser. But one can draw different inferences from this gesture;

while it could reflect submission, raised hands also can be a

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symbol of protest. On the cold record before us,4 we cannot

recreate the actual gesture demonstrated to the district court.

Instead, this type of inquiry recommends our deferential review of

the lower court's factual findings.5

Evaluating the totality of circumstances, we hold that

Ford was not seized for purposes of the Fourth Amendment

protections when he told the Officers he possessed a handgun.

Assessments of this type "are highly fact-specific and must be

performed on a case-by-case basis." United States v. Taylor, 511

F.3d 87, 92 (1st Cir. 2007). We acknowledge this method of

analysis does not produce a crystalline landscape in our Fourth

Amendment jurisprudence. But it reflects most realistically the

contextual nature of these encounters. See Chesternut, 486 U.S. at

4
At the suppression hearing, Officer Edwards demonstrated the
exact manner in which Ford raised his hands and later explained
that Ford "raised his hands in the air." Officer Griffin similarly
testified twice that Ford "raised his hands." Ford did not
testify. We note that this record does not support the suggestion
initially posited by Ford that he raised his hands above his head.
5
Ford also suggests that the Officer's failure to inform him
of his right to refuse to answer questions and to leave rendered
the encounter nonconsensual. While it is true that such statements
generally make an encounter consensual, Mendenhall, 446 U.S. at
558-59, the Supreme Court has explained that a seizure
determination "is not affected by the fact that the respondent was
not expressly told by the agents that she was free to decline to
cooperate with their inquiry, for the voluntariness of her
responses does not depend upon her having been so informed." Id.
at 555. See also Drayton, 536 U.S. at 206 ("The [Supreme] Court
has rejected in specific terms the suggestion that police officers
must always inform citizens of their right to refuse when seeking
permission to conduct a warrantless consent search.").

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573 ("The test is necessarily imprecise, because it is designed to

assess the coercive effect of police conduct, taken as a whole,

rather than to focus on particular details of that conduct in

isolation.").

B. Other Issues

Ford contests his conviction under 18 U.S.C. § 922(g)(1),

asserting that the handgun on his person did not fall under the

statutory definition of "firearm" because it was inoperable. The

Government argues that Ford waived this argument by entering a

conditional plea of guilty, reserving only his objection to the

suppression order. Fed. R. Crim. P. 11(a)(2). Regardless of the

standard of review we employ, Ford's claim is without merit.

"The term 'firearm' means (A) any weapon . . . which will

or is designed to or may readily be converted to expel a projectile

by action of an explosion.” 18 U.S.C. at § 921(a)(2). We have

recognized that, in order to convict, "the gun must be real, but it

'need not be prove[d] to be loaded or operable.'" United States v.

Taylor, 54 F.3d 967, 975 (1st Cir. 1995) (quoting United States v.

Kirvan, 997 F.2d 963, 966 (1st Cir. 1993)). See also United States

v. Alston, 112 F.3d 32, 38 (1st Cir. 1997). No one, including

Ford, suggests the handgun he carried was not real or that it was

not designed to expel a projectile. Ford's argument thus fails.

Finally, Ford's argument that his prior convictions

should be treated as an element of the enhanced offense, and thus

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proven by the Government beyond reasonable doubt, is foreclosed by

Almendarez-Torres v. United States, 523 U.S. 224 (1998), and our

Circuit's subsequent case law.

III. Conclusion

For the foregoing reasons, we affirm the district court's

denial of Ford's motion to suppress and Ford's conviction under 18

U.S.C. § 922(g)(1).

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