United States v. Sealey

                  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
                                        

          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

          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
                                                

          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-