United States v. Smith

United States Court of Appeals
For the First Circuit

No. 04-2101

UNITED STATES OF AMERICA,

Appellant,

v.

QUINTON SMITH,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Nancy Gertner, U.S. District Judge]

Before

Selya, Circuit Judge,
Hill,* Senior Circuit Judge,
and Lynch, Circuit Judge.

Judith H. Mizner, Assistant Federal Public Defender, was on
brief, for appellee.
Thomas E. Kanwit, Assistant United States Attorney, with whom
Michael J. Sullivan, United States Attorney, was on brief, for
appellant.

September 9, 2005

*
Of the Eleventh Circuit, sitting by designation.
 HILL, Circuit Judge. The defendant, Quinton Smith, was

arrested by Boston police officers and charged with one count of

being a felon in possession of a firearm and ammunition in

violation of 18 U.S.C. § 922(g)(1). Smith moved to suppress the

gun, claiming that it was seized in violation of his rights under

the Fourth Amendment. After a three-day hearing, the court granted

the motion. This appeal followed.

I.

At approximately 1:30 p.m. on September 16, 2002,

uniformed Boston Police Department officers Tarantino and Griffin

were in their marked police cruiser patrolling, when they passed

Smith, who was sitting on a 2-3 foot wall behind the sidewalk on

Woolson Street. The sidewalk was approximately seven feet wide.

There was a telephone pole in front of Smith and a house with a

chain-link fence enclosing the side-yard behind him.

The officers passed Smith as they drove down Woolson

Street. Although both testified that they regularly patrolled the

area and were familiar with the “locals,” neither officer

recognized Smith. They circled the block and returned to the spot

where Smith was still sitting. Griffin leaned out the passenger

window and asked Smith if he lived at the house behind him. Smith

said that he did not. Griffin then asked Smith what he was doing

sitting on the wall. Smith responded that he was waiting for the

bus that stops on the corner across the street. Griffin asked

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Smith if he meant the bus that stops approximately 100 feet across

the street and around the corner from where he was sitting. Smith

said yes, and Griffin asked him why he was not at the bus stop

itself. Smith responded that he could catch the bus from where he

was sitting.

The officers got out of their patrol car to fill out a

Field Intelligence and Observation Report (“FIO”).1 Tarrantino and

Griffin approached Smith and stood on either side of the telephone

pole that was directly in front of him. Neither officer drew his

weapon. Griffin asked Smith for identification or his name. Smith

produced identification. As Griffin started back to the patrol car

to run Smith’s name through the mobile data terminal, Smith told

the officers that they would find that he had an outstanding

warrant for a motor vehicle violation. Griffin’s data check

revealed that Smith did, indeed, have an outstanding arrest warrant

for receiving stolen property (motor vehicle license plates).

The officers then undertook to arrest Smith, who resisted

by dragging the officers down the sidewalk and flailing his arms

and punching. After subduing Smith, the officers searched him,

finding a loaded .25 caliber automatic pistol with one round in the

1
An FIO is routinely compiled by patrolling officers to record a
person’s name, nickname, residential address, date of birth, social
security number and type of clothing worn in order to develop
information on who is spending time in an area. Compliance with an
officer’s request for such information is voluntary.

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chamber and three in the magazine in his waistband. The officers

also found three plastic bags of marijuana on him.

Smith filed a motion to suppress all evidence derived

from the search, contending that he was seized within the meaning

of the Fourth Amendment at the time the officers approached him and

requested his name or identification. He also argued that this

seizure was not supported by reasonable suspicion because the only

thing the officers knew at that time was that he was a black man in

a high crime area.

The government argued that Smith was not seized until the

police officers confirmed his admission of the outstanding warrant

and attempted to arrest him. Prior to that time, the government

asserts, the encounter was consensual. Since Smith was arrested

pursuant to a valid warrant, the government contends that the

search was incident to a lawful arrest and, therefore, the evidence

is admissible.

The district court rejected these arguments, concluding

that Smith was seized when the officers exited their car to further

question him because, at that point, Smith reasonably believed that

he was not free to refuse to answer and leave. 332 F. Supp. 2d

277, 282-83 (D. Mass. 2004). Furthermore, the court held, the

seizure was unconstitutional as the officers had no reasonable

suspicion to exit their patrol car to question Smith because his

explanation regarding his presence there was “absolutely

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plausible.” Id. at 286. Since the seizure was unconstitutional,

the court held that the gun and ammunition found on Smith is

inadmissible at trial. Id. Our review of these conclusions of law

is de novo. United States v. Cardoza, 129 F.3d 6, 13-14 (1st Cir.

1997). Couching conclusions of law as findings of fact will not

alter the standard of review.

II.

While the Fourth Amendment protects against unreasonable

searches and seizures, not all encounters between law enforcement

officers and citizens constitute seizures. The Supreme Court has

made clear that “[l]aw enforcement officers do not violate the

Fourth Amendment’s prohibition of unreasonable seizures merely by

approaching individuals on the street or in other public places and

putting questions to them if they are willing to listen.” United

States v. Drayton, 536 U.S. 194, 200-01 (2002). “There is nothing

in the Constitution which prevents a policeman from addressing

questions to anyone on the streets.” United States v. Mendenhall,

466 U.S. 544 (1980) (quoting Terry v. Ohio, 392 U.S. 1, 34 (1968)

(White, J. concurring). We, too, have affirmed that the police may

“approach citizens in public spaces and ask them questions without

triggering the protections of the Fourth Amendment.” United States

v. Young, 105 F.3d 1, 6 (1st Cir. 1997).

On the other hand, a seizure may certainly occur without

actual physical restraint. If an officer, by means of show of

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authority, even briefly restrains the liberty of a citizen, we may

conclude that a seizure has occurred. Terry, 392 U.S. at 19. In

order to find a seizure, however, we must be able to conclude that

coercion, not voluntary compliance, most accurately describes the

encounter. Mendenhall, 446 U.S. at 554. In the absence of

evidence of coercion, “otherwise inoffenseive contact between a

member of the public and the police cannot, as a matter of law,

amount to a seizure of that person.” Id. at 555.

Furthermore, since most tend to feel some degree of

compulsion when confronted by law enforcement officers asking

questions, such discomfort cannot be the measure of a Fourth

Amendment seizure. If it were, officers would effectively be

barred from approaching citizens at all, absent full-blown probable

cause. In Mendenhall, the Supreme Court made clear that

“characterizing every street encounter between a citizen and the

police as a ‘seizure,’ . . . would impose wholly unrealistic

restrictions upon a wide variety of legitimate law enforcement

practices.” Id. at 554. Without the authority to approach and

briefly question a citizen, “those who were innocent might be

falsely accused, those who were guilty might wholly escape

prosecution, and many crimes would go unsolved. In short, the

security of all would be diminished. Id. (internal citations

omitted).

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 In order to avoid such an unsatisfactory result, the

Court has made clear that only when a citizen’s freedom of movement

is objectively restrained is there any foundation for invoking

constitutional safeguards. Id. at 553. No seizure occurs when

officers approach a citizen to ask a question unless it was

objectively reasonable for that person to believe that he was

compelled to stay and answer the question. Id.

Nor may we infer such belief from the fact that the

person stayed to answer the question. Id. “While most citizens

will respond to a police request, the fact that people do so, and

do so without being told they are free not to respond, hardly

eliminates the consensual nature of the response.” INS v. Delgado,

266 U.S. 210, 216 (1984). Although a person may regret staying to

answer an officer’s questions, as Smith apparently does, such

regret does not transform an otherwise consensual encounter into an

unconstitutional seizure. Mendenhall, 446 U.S. at 556. In sum,

“[u]nless the circumstances of the encounter are so intimidating as

to demonstrate that a reasonable person would have believed he was

not free to leave if he had not responded, one cannot say that the

questioning resulted in a detention under the Fourth Amendment.”

Delgado, 266 U.S. at 217.

The real question in this case, then, is not whether the

police were entitled to approach Smith to ask him a few questions,

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

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

to answer and walk away. If so, Smith was seized prior to his

admission regarding the outstanding warrant, and the evidence

subsequently discovered was correctly suppressed by the district

court.2

In Mendenhall, the Supreme Court described some of the

circumstances whose presence led it to find permissible

questioning, rather than impermissible restraint:

The events took place in the public concourse.
The agents wore no uniforms and displayed no
weapons. They did not summon the respondent
to their presence, but instead approached her
and identified themselves as federal agents.
They requested, but did not demand to see the
respondent’s identification and ticket.

446 U.S. at 555. The Court summarized these examples of

circumstances that might indicate a seizure as (1) the threatening

presence of several officers; (2) the display of a weapon by an

officer; (3) some physical touching of the person; and (4) the use

of language or tone of voice indicating that compliance with the

officer’s request might be compelled.3 Id. at 554. The Court has

2
The government does not argue, as it did below, that, if Smith
was seized prior to the discovery of the outstanding arrest
warrant, the seizure was reasonable because the officers’ had
articulable suspicion based upon Smith’s claim to be waiting for a
bus when he was sitting across the street from the stop.
3
The district court concluded that three of these factors were
present in this case: there were two officers who were “armed and
in uniform;” their presence was threatening because when they
exited their patrol car, “effectively they surrounded Smith and
blocked his path to the bus stop.” United States v. Smith, 332 F.

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also made clear, however, that this list of factors is not

exhaustive and no single factor is dispositive in any case. “[I]n

order to determine whether a particular encounter constitutes a

seizure, a court must consider all the circumstances surrounding

the encounter to determine whether the police conduct would have

communicated to a reasonable person that the person was not free to

decline the officers’ requests or otherwise terminate the

encounter.” United States v. Bostick, 501 U.S. 429, 439 (1991).

We have consistently observed this admonition. Cardoza, 129 F.3d

at 15; Young, 105 F.3d at 6.

III.

In this case, the officers did not activate the patrol

car’s siren or lights. They did not summon Smith to the car, or

ask him to move from his seat on the wall, or demand that he do

anything. When they exited the car, the officers, although in

uniform, did not unholster their weapons. They stood in the only

place they could – on either side of the telephone pole directly in

front of Smith. Immediately upon approaching Smith, without any

further questions regarding his conduct, they asked him for

identification, or his name. At this point, Smith informed the

Supp. 2d 277, 283 (D. Mass. 2004). Furthermore, the district court
said, the officers used “an increasingly aggressive tone.” Id.
These circumstances indicated to the district court that “the
questions were going to continue, whether Smith wanted to leave or
not.” Id.

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officers about his outstanding arrest warrant. Smith remained

seated on the wall until, after the warrant was confirmed, the

officers attempted to arrest him, at which point he tried to flee.

We conclude that under the totality of these

circumstances, Smith was not seized prior to his arrest. Although

the two officers were armed, neither drew his weapon at any time.

Neither officer ever touched Smith. They did not accuse him of any

crime, or attempt to question him about a specific event. When

they exited their car, the officers merely approached Smith

requesting his identification, or even just his name. Such a non-

threatening request does not elevate an otherwise consensual

encounter between a citizen and the police into a seizure. See,

e.g., United States v. Wade, 400 F.3d 1019, 1022 (7th Cir. 2005)

(requests for identification do not constitute a seizure); United

States v. Granillo, 288 F.3d 1071 (8th Cir. 2002); United States v.

Sanchez, 89 F.3d 715 (10th Cir. 1996).

Nor was the officers’ tone of voice sufficient to

escalate the encounter into a seizure. Smith testified that the

first question from the police (“do you live here?”) had a “pretty

aggressive” tone and the second question (“what are you doing

there?”) was voiced with sarcasm. He did not testify that the tone

or content of subsequent questions escalated. We have previously

held that the crucial question is whether the questions themselves

communicate to the citizen that he is compelled to stay and answer.

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Cardoza, 129 F.3d at 15-16. In this case, the officers’ questions

were general and non-threatening. Even if asked with sarcasm, they

did not communicate a command to stay.

Nor did the officers restrict Smith’s freedom of movement

when they approached him as he sat on the wall. Although the

district court concluded that the positioning of the officers

restrained Smith because “effectively they surrounded him,”

photographs in evidence established that they stood where they had

to, given that the telephone pole was in front of Smith, and that

Smith could have moved in a variety of directions, including to the

bus stop, down the sidewalk, or into the side-yard behind him.

Furthermore, even if the pole and the wall created the

illusion of being restrained, it must be remembered that mere

physical limitations on an individual’s movement, not created by

police, are insufficient to turn an encounter with police into a

restraint of liberty. Bostick, 501 U.S. at 436. In Bostick, the

Supreme Court refused to find a seizure when the defendant was on

a bus and police came down the aisle toward him, blocking his path.

Similarly, in Delgado, the Court rejected the argument that

stationing federal agents at the exits of a factory rendered the

subsequent questioning of the workers a seizure. 466 U.S. at 218-

19. Finally, in United States v. Brown, 169 F.3d 89, 92 (1st Cir.

1999), we held that there was no seizure when an officer confronted

the defendant on a stairwell, blocking his path. We conclude that,

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to the extent that there was any apparent physical restriction of

Smith’s movement, it was largely a function of the physical

environment and, in all events, insufficient to constitute a

seizure.4 When the freedom of movement of a person is limited by

a physical obstruction not created by the police, the correct test

for seizure is not “free to leave,” but free to terminate the

encounter by refusing to answer questions. Bostick, 501 U.S. at

436. This Smith surely could have done.

We conclude that, under all the circumstances of this

encounter, an objectively reasonable person would have felt free to

decline the officers’ requests or otherwise terminate this

encounter. Smith could have declined to provide his identification

4
The dissent reaches the opposite conclusion based upon the view
that the district court’s findings of historical fact and
inferences from these facts compel a different result. Smith, 332
F. Supp. at 283.While it is true that these findings and inferences
are entitled to deference, Ornelas v. United States, 517 U.S. 690,
699 (1996), such deference does not insulate the district court’s
separate legal conclusion of Fourth Amendment seizure from de novo
review. Cardoza, 129 F.3d at 14. Couching the legal conclusion of
“seizure” as a finding of fact (Smith was “surrounded” and could
not leave) does not alter the correct standard of review.
Our review of a lower court’s disposition of a suppression
motion is bifurcated: we review the court’s findings of fact for
clear error. Id. at 13. “Conversely, we review conclusions of law
de novo, subjecting constitutional interpretations to plenary
review.” Id. at 14 (citing Ornelas, 517 U.S. at 697). The
conclusion, reached after review of all the facts of the encounter,
that a seizure triggering the protections of the Fourth Amendment
has occurred is a constitutional interpretation. Id. at 13. As
such, we are free to reach a different result. See Ornelas, 517
U.S. at 697 (independent appellate review of these ultimate
constitutional determinations is consistent with the unitary system
of law).

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or answer further questions and, as the officers testified, nothing

further would have happened to him. The fact that he did not

terminate the encounter does not indicate that he felt restrained,

or that if he did, that was an objectively reasonable reaction

under the circumstances.5

In fact, Smith’s attempt to avoid being seized by fleeing

upon being arrested demonstrates that he had not been seized. To

constitute a seizure, there must not only be a show of authority

sufficient to make a reasonable person believe that he was not free

to leave, but also submission to that authority. California v.

Hodari D., 499 U.S. 621, 626-29 (1991). If a defendant manifests

his belief that he has not been seized by attempting to flee, he

has not submitted to a show of authority and, therefore, has not

been seized. Id. Following Hodari D., we have held that in cases

where the seizure depends upon a show of authority, “no seizure

occurs until the suspect has submitted to that authority.” United

States v. Sealey, 30 F.3d 7, 9 (1st Cir. 1994); Young, 105 F.3d at

5
It certainly cannot be argued that Smith’s possession of the gun
and ammunition establishes that it was objectively reasonable for
him to believe that he was compelled to answer the officers’
questions. “[T]he ‘reasonable person’ test presupposes an innocent
person.” Bostick, 501 U.S. at 438 (“We do reject, however,
Bostick’s argument that he must have been seized because no
reasonable person would freely consent to a search of luggage that
he or she know contains drugs”). As long as a reasonable innocent
person, as opposed to a person knowingly carrying contraband, would
feel free to refuse to answer questions, an encounter with police
officers approaching an individual to ask a few questions is
consensual. United States v. Laboy, 979 F.2d 795, 798 (10th Cir.
1992).

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6 (“in the absence of an officer’s exertion of physical force or an

individual’s submission to a show of authority, no seizure

occurs”). In this case, Smith remained seated on the wall until

the officers arrested him. At that point, he fought with them and

attempted to flee. Thus, Smith’s own actions indicate that he had

not submitted to their authority, and, therefore, was not seized

prior to that time. Id.

IV.

We conclude that, under the totality of the circumstances

surrounding the encounter between Smith and the officers, it was

not objectively reasonable for Smith to believe that he was

compelled to remain and answer the officers’ questions. The fact

that he did remain does not indicate otherwise. Accordingly, the

judgment of the district court granting the motion to suppress and

suppressing the evidence in this case is

REVERSED and REMANDED to the district court for further

proceedings not inconsistent with this opinion.

Dissenting opinion follows.

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 LYNCH, Circuit Judge, dissenting. Recognizing this as a

close case, I respectfully dissent. I would affirm the district

court's suppression order on the ground that Smith was seized at

least as of the point when, boxed in by the officers, he was asked

for his identification. See United States v. Smith, 332 F. Supp.

2d 277, 283-84 (D. Mass. 2004). My difference with the majority is

over application of the appellate standard of review, articulated

in Ornelas v. United States, 517 U.S. 690 (1996).

The government does not challenge the district court's

findings of historic fact. Nor, on appeal, does it challenge the

court's ruling that the officers had no reasonable suspicion even

for a Terry stop at any time before the seizure. See Terry v.

Ohio, 392 U.S. 1, 30-31 (1968). Nor is there a claim that the

district court used an incorrect legal standard. The correct

standard, and the one used, is that if there is no reasonable

suspicion of a crime, then the police may not, consistent with the

Fourth Amendment, make a reasonable person feel that he or she is

not free to leave or to terminate the encounter. See Florida v.

Bostick, 501 U.S. 429, 439 (1991); Michigan v. Chesternut, 486 U.S.

567, 573-74 (1988); United States v. Mendenhall, 446 U.S. 544, 554-

55 (1980) (plurality opinion). When the police do so, they have

"seized" a person under the Fourth Amendment. See, e.g., Bostick,

501 U.S. at 439.

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 The prosecution in this case, accordingly, chooses to

fight on the ground that there was no stop at all and thus no

seizure: that the appellate court should, contrary to the district

court, conclude that a reasonable person in Smith's position would

have felt free to leave or to terminate the encounter with the

police.

I.

The facts, according to the district court's findings,

are these. Quentin Smith, a black man, was waiting for a bus at

1:30 in the afternoon on a drizzly September day in Dorchester, a

largely minority neighborhood in Boston. Because there were 8 or

10 people crowding the bus stop, which had no seats anyway, Smith

walked across the street to a place where he could sit, and settled

down on a three-foot-high wall. His choice of a place to wait was

a good one: from there he could see the bus coming and have enough

time to get back and board it, and an adjacent tree provided some

shelter from the rain. See Smith, 332 F. Supp. 2d at 280-81.

The bus did not come, but a marked police cruiser did.

The two officers in the cruiser patrolled this-high crime area.

The officers, who knew a number of the regulars in the area,

cruised by Smith and did not recognize him. They went around the

block and saw him again on their return. The cruiser pulled up to

the curb close to Smith. An officer leaned out of the passenger-

side window, nearest Smith, and asked Smith if he lived in the

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house in front of which he was sitting. Smith answered,

accurately, that he did not. The officer asked Smith what he was

doing sitting on the wall. Smith answered that he was waiting for

the bus. The officer sarcastically asked why Smith was not

actually at the bus stop. Smith replied politely that he could

catch the bus from where he was sitting. See id. at 279-81 & n.2.

The officers testified that Smith's responses did not

make sense to them because someone waiting for the bus would not be

sitting where Smith was. See id. at 280-81. As a result, they

believed that they had a basis to be reasonably suspicious of him.

That the officers believed they had reasonable suspicion is also

supported by the fact that their later Incident Report stated:

"[T]he officers stopped their marked [motor vehicle] to talk to the

suspect and to fill out an FIO." Id. at 281 n.10. Officers are

directed by Boston Police Department regulations to complete an

FIO, or Field Intelligence and Observation Report, upon observation

of "known criminals" or persons "suspected of having an unlawful

design." Id. It is clear, then, that the officers considered

Smith to be a "suspect," and that he was either a "known

criminal[]" or was "suspected of having an unlawful design." Their

perception of events is the important point.

The district court, having taken a view of the scene, sat

on the wall, and looked for the bus, found that it was entirely

sensible for someone to wait at that spot for the bus and thus that

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the officers did not in fact have reasonable suspicion of Smith.

The stop was 100 feet away and could be reached in 13 to 16

seconds. See id. at 280-81.

Although the government argues that there was no stop at

all, and so no need for even reasonable suspicion, the next steps

taken by the officers are indeed the steps that would be taken by

officers who believed that they were authorized to detain and

question someone. The officers did not remain in the car to

question Smith, as they easily could have done. They got out of

the car, prepared, if needed, to apprehend him. See id. at 281 &

n.6, n.7. They then came physically close to Smith, apparently

positioning themselves to take him into custody. They did not

stand at normal conversational distance. The district court found

that the two officers placed themselves so that each was within

arm's reach of Smith; Smith testified that they were each three

feet away from him. See id. at 281. The officers also spread

themselves so one was on either side of Smith, again consistent

with officers preparing to take a suspect into custody. See id.

He was seated; they were standing. The district court found that

the officers' tone became "increasingly sarcastic and aggressive"

throughout the encounter.6 Id. They soon asked Smith for his

identification. See id. at 282.

6
It is also true that the officers did not draw their weapons.
See Smith, 332 F. Supp. 2d at 281. They did not say anything one
way or another about whether Smith was free to leave.

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 The officers effectively boxed Smith in, given the

particular geographic features of the location where Smith was

sitting. Since Smith had uneven ground, a fence, and other

obstacles behind him, a telephone pole in front of him, and

officers on either side of him, he literally had no way out. See

id. at 281. He was not free to leave, nor was he free to terminate

the encounter, as the increasingly hostile tone of the officers'

questions made clear. As the district court put it:

Although there were only two officers, their
presence was threatening because effectively
they surrounded Smith and blocked his path to
the bus stop. It was additionally threatening
because, as discussed below, they approached
after he had responded truthfully to the
officers' initial questions. Though
holstered, both officers[] were armed and in
uniform. Griffin's tone was increasingly
aggressive and sarcastic throughout.
Smith gave polite answers. The officers
responded by closing in on him and questioning
him in an increasingly aggressive tone. He
told them the truth, and they became more
forceful rather than less. They moved closer
to him rather than further away. The timing
of their approach was a signal that the
questions were going to continue, whether
Smith wanted to leave or not.
The government has compared the officers'
positions around Smith to that of two friends
who had approached defendant to have a
conversation with him. Their guns, uniforms,
and the fact that they did not know each other
aside, the circumstances under which they
approached Smith would have indicated to him
that this was neither a friendly nor an
optional encounter.
Any doubt about this was removed when
Griffin asked Smith for identification, a
request that Smith reasonably believed he had
no choice but to answer. Putting aside the

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 fact that the officers were blocking his
ability to watch for the bus, much less catch
the bus, Smith would not have had time to
terminate the conversation with the officers,
get his identification back, and still catch
the bus. Griffin's "request" for
identification was a clear statement: forget
about the bus, you are not going anywhere.

Id. at 283.

Smith had no non-suspicious alternative to turning down

the officers' inquiry.7 The district court's conclusion was not

based on the officers' mere asking of questions, nor on their

merely asking for identification.8

II.

Ornelas held that Fourth Amendment conclusions of law as

to a district court's determination of "reasonable suspicion" and

"probable cause" are subject to a two-part standard of review:

The principal components of a determination of
reasonable suspicion or probable cause will be
the events which occurred leading up to the
stop or search, and then the decision whether
these historical facts, viewed from the
standpoint of an objectively reasonable police
officer, amount to reasonable suspicion or to
probable cause. The first part of the

7
The government argued that Smith was free to leave because he
could have climbed over the wall or climbed through a small opening
in a fence, and so forth. As the district court noted, though,
"[t]here was no meaningful egress." Id. at 281. Any such action
would have been suspicious on his part.
8
I note that none of the officers' actions would have been
improper if there was objectively reasonable suspicion under Terry,
and thus proper grounds for a Terry stop.

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 analysis involves only a determination of
historical facts, but the second is a mixed
question of law and fact: [T]he historical
facts are admitted or established, the rule of
law is undisputed, and the issue is whether
the facts satisfy the [relevant] statutory [or
constitutional] standard, or to put it another
way, whether the rule of law as applied to the
established facts is or is not violated.
. . . .
We therefore hold that as a general matter
determinations of reasonable suspicion and
probable cause should be reviewed de novo on
appeal. . . . [A] reviewing court should take
care . . . to review findings of historical
fact only for clear error . . . .

Ornelas, 517 U.S. at 690, 696-97, 699 (citation and internal

quotation marks omitted; first three alterations in original).

Ornelas therefore indicated that the district court's ultimate

conclusion as to whether probable cause or reasonable suspicion

existed should be reviewed de novo, although it also emphasized

that the district court's historical findings of fact should be

reviewed only for clear error.

The Ornelas Court gave several reasons for subjecting the

ultimate conclusion on these two determinations -- reasonable

suspicion and probable cause -- to de novo review. The first was

the need for uniformity of rules throughout the nation. See id. at

697. Another was that "the legal rules for probable cause and

reasonable suspicion acquire content only through application."

Id. Finally, the Court noted that de novo review tends to "come

closer to providing law enforcement officers with a defined set of

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rules which, in most instances, makes it possible to reach a

correct determination beforehand as to whether an invasion of

privacy is justified in the interest of law enforcement." Id. at

697-98 (citations and internal quotation marks omitted). It

acknowledged, though, that since the legal "mosaic" in this area is

so "multi-faceted, one determination will seldom be a useful

'precedent' for another." Id. at 698 (internal quotation marks

omitted).

The Ornelas Court next clarified the type of de novo

review it envisioned. De novo review in this particular context is

not unmindful of the district court's reasoning (nor of the

reasoning of the officers); rather, the appellate court must give:

due weight to inferences drawn from [the
historical] facts found by resident judges and
local law enforcement officers.
A trial judge views the facts of a
particular case in light of the distinctive
features and events of the community;
likewise, a police officer views the facts
through the lens of his police experience and
expertise. The background facts provide a
context for the historical facts, and when
seen together yield inferences that deserve
deference.

Id. at 699; see also United States v. Arvizu, 534 U.S. 266, 276-77

(2002); Arvizu, 534 U.S. at 278 (Scalia, J., concurring) ("[W]e

have here a peculiar sort of de novo review."); United States v.

Santos, 403 F.3d 1120, 1125 (10th Cir. 2005) (noting that de novo

review under Ornelas "[i]n practice . . . looks more like deference

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-- indeed, double deference"); United States v. Townsend, 305 F.3d

537, 542 (6th Cir. 2002).

The issue before us is neither reasonable suspicion nor

probable cause, the subjects of the Ornelas standard, but the

subsidiary issue of whether a "seizure" occurred within the meaning

of the Fourth Amendment. On this issue, the circuits, before

Ornelas, were split.9 Although one circuit has expressly decided

to adhere to settled circuit precedent and to continue reviewing

the determination of whether a seizure occurred using the "clearly

erroneous" standard, see United States v. Mask, 330 F.3d 330, 335

(5th Cir. 2003), several circuits have cited Ornelas -- although

generally without discussion -- as support for the proposition that

the ultimate determination of whether a seizure occurred is

reviewed de novo, see, e.g., United States v. Williams, 413 F.3d

347, 351 (3d Cir. 2005); United States v. Avery, 137 F.3d 343, 348

(6th Cir. 1997); United States v. Hernandez, 93 F.3d 1493, 1498

9
See 6 W. LaFave, Search and Seizure: A Treatise on the Fourth
Amendment § 11.7(c), at 448 (4th ed. 2004). The de novo standard
of review on the "seizure" issue was adopted in United States v.
Buchanon, 72 F.3d 1217, 1222-23 (6th Cir. 1995); United States v.
McKines, 933 F.2d 1412, 1424-25 (8th Cir. 1991); United States v.
Montilla, 928 F.2d 583, 588 (2d Cir. 1991); and United States v.
Maragh, 894 F.2d 415, 417-18 (D.C. Cir. 1990). For decisions
adopting the clearly erroneous standard of review, see, for
example, United States v. Gray, 883 F.2d 320, 322 (4th Cir. 1989);
United States v. Teslim, 869 F.2d 316, 321 (7th Cir. 1989); and
United States v. Archer, 840 F.2d 567, 571 (8th Cir. 1988).

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(10th Cir. 1996). This circuit has never -- either before or after

Ornelas – firmly addressed the question in a clear way.10

I will assume, for these purposes, that the district

court's seizure conclusion is subject to de novo review under

Ornelas. The Supreme Court has described the "probable cause" and

"reasonable suspicion" standards as mixed questions of law and

fact. See Ornelas, 517 U.S. at 696-97. We have said in other

settings that the more the issue is one of law, such as the setting

of standards, the less deference is generally given to a district

judge's conclusion. See, e.g., In re Extradition of Howard, 996

F.2d 1320, 1328 (1st Cir. 1993). The seizure determination is, at

least here, quite heavily at the fact end of the spectrum.

The Supreme Court has described the ultimate seizure

question -- whether a reasonable person would feel free to leave or

terminate an encounter -- as highly dependent on particular facts

10
A de novo standard is perhaps suggested by the language of
United States v. Cardoza, 129 F.3d 6, 13-14 (1st Cir. 1997) and
United States v. Young, 105 F.3d 1, 5 (1st Cir. 1997).
In Thompson v. Keohane, 516 U.S. 99, 115-16 (1995), the
Supreme Court held that the question of whether a defendant was "in
custody" for Fifth Amendment purposes, and therefore must be given
Miranda warnings, was a question of law and not fact for habeas
purposes. Thompson held that no presumption of correctness should
be given to such determinations of state courts on habeas review.
See id. at 116. We have cited Thompson to the effect that,
"arguably," review of a Fifth Amendment "in custody" determination
is de novo in a non-habeas context. United States v. Teemer, 394
F.3d 59, 65 (1st Cir. 2005); see United States v. Fornia-Castillo,
408 F.3d 52, 63 (1st Cir. 2005) (applying de novo standard); United
States v. Trueber, 238 F.3d 79, 93 (1st Cir. 2001) (same).

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and circumstances. See, e.g., Bostick, 501 U.S. at 439. That

means there are fewer policy decisions involved. The inquiry here

is in fact so "multifaceted" and fact-specific that, even as

compared with reasonable suspicion and probable cause

determinations, it is perhaps less likely to be valuable as a

source of guidance for law enforcement.11 See Ornelas, 517 U.S. at

699.

In Bostick, the Court explained:

[I]n order to determine whether a particular
encounter constitutes a seizure, a court must
consider all the circumstances surrounding the
encounter to determine whether the police
conduct would have communicated to a
reasonable person that the person was not free
to decline the officers' requests or otherwise
terminate the encounter.

501 U.S. at 439. "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. Moreover, what constitutes [a seizure] will vary,

not only with the particular police conduct at issue, but also with

the setting in which the conduct occurs." Chesternut, 486 U.S. at

11
As well, since the police officer is the prime actor in the
seizure, it would not be uncommon for an objective person to
conclude that an officer's conduct amounted to a seizure, at the
same time the officer believed his conduct to be entirely benign.
In other words, an objective observer may well believe that the
police had communicated to a reasonable person that the person was
not free to decline the officer's request or otherwise terminate
the encounter, while the officer believed otherwise.

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573; see also United States v. Cardoza, 129 F.3d 6, 15 (1st Cir.

1997) ("The test employed in this area is highly fact specific.").

In making the seizure determination, the pertinent facts are

myriad.

This court has never said that there can be no seizure if

certain facts are not present. Indeed, Supreme Court and circuit

precedent has rejected any such method of analysis. See, e.g.,

Bostick, 501 U.S. at 439-40 (holding that Florida Supreme Court

erred in adopting per se rule that seizure occurs whenever police

questioning occurs on bus, since this fails to consider totality of

circumstances); Florida v. Royer, 460 U.S. 491, 506 (1983) ("We do

not suggest that there is a litmus-paper test for distinguishing a

consensual encounter from a seizure. . . . Even in the discrete

category of airport encounters, there will be endless variations in

the facts and circumstances . . . ."); Cardoza, 129 F.3d at 14-16;

Young, 105 F.3d at 6. Utter disregard by an appellate court of the

district court's views on whether there was a seizure could place

at risk the required multi-factored, totality approach to the

question.

Applying the de novo standard of review under Ornelas to

seizure issues, we must still, of course, give considerable

deference to the district court's historical findings of fact --

for example, where the officers stood in relation to the sidewalk

and telephone pole, how much space they took up and how much room

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this left Smith to get around them, and what tone of voice the

officers used during the incident. These findings are reviewed

only for clear error, see Ornelas, 517 U.S. at 699, and any

potential challenge by the government to the district court's

factual findings has not been raised on appeal and has therefore

been waived, see, e.g., Diva's Inc. v. City of Bangor, 411 F.3d 30,

39 (1st Cir. 2005). We therefore must assume that the district

court's historical findings of facts are all true.

A reversal here would require departure from this rule as

well as the rule that appellate courts are entitled to draw

conclusions of law, but not to make findings of fact. The district

court distinctly did not find that the officers stood "in the only

place they could -- on either side of the telephone pole directly

in front of Smith." Maj. op. at 10. Indeed, the district court

concluded to the contrary and held that as the encounter escalated,

the officers moved in closer to Smith, obstructing his freedom of

movement. Smith, 332 F. Supp. 2d at 283. In fact, the officers

could have remained in the cruiser or situated themselves

differently on the seven-foot-wide sidewalk. In support of its

contrary fact-finding, the majority relies on its understanding of

photographs of the scene. This disregards the fact that the

district court was actually present at the scene, as the majority

was not. Further, the photographs show that the officers had other

choices as to where to position themselves.

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 As to another key conclusion, it is difficult to see how

an appellate court could reach a different conclusion regarding the

officers' tone of voice and threatening presence than did the

district court, which heard the testimony of all three participants

to the encounter.

The government relies on Bostick, 501 U.S. 429, and

United States v. Brown, 169 F.3d 89 (1st Cir. 1999). Bostick,

which employs the totality of the circumstances test, supports the

district court's conclusion that Smith was free neither to

terminate the encounter nor to walk away from the police. In

Bostick, the defendant was a passenger on a bus scheduled to depart

for a destination he wanted to reach, and thus would not leave even

before the police encounter. Bostick, 501 U.S. at 436-37. Here,

the defendant, before the officers blocked him in, was perfectly

free to leave. The government admits "[t]he physical setting of

Smith's encounter with the officers did not approach the

restrictiveness of the physical setting in Bostick." The

government argued only that "limitations which were not created by

the police . . . are insufficient to make an encounter with police

a seizure." The government is quite correct, but the argument is

misplaced, and the district court did not say otherwise. Here,

physical limitations did not create the seizure; the police did.

Brown likewise would not cause a reversal here. The defendant

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there did not claim to be seized until he assaulted the officer.

Brown, 169 F.3d at 92.

For the reasons explained above, we must also follow

particularly carefully -- in this context -- the Ornelas Court's

dictate to give "due weight" to inferences drawn by the trial judge

from the historical facts and to the perceptions of the officers.

See Ornelas, 517 U.S. at 699. In Arvizu, for instance, a

"reasonable suspicion" case, the Supreme Court applied this

principle to give deference to the district court's inferences that

certain individuals' method of waving was "'methodical,'

'mechanical,' 'abnormal,' and 'certainly . . . a fact that is odd

and would lead a reasonable officer to wonder why they are doing

this.'" 534 U.S. at 276-77. Similarly, the various intermediate

factual inferences made in this case by the district court, which

heard the witnesses and saw the scene, are entitled to deference.

These include, for example, inferences about the threatening nature

of the encounter, that Smith had "no meaningful egress" from his

spot on the wall once the officers had approached because his

possible escape routes would have seemed suspicious, and that the

officers' request for Smith's identification, at the time they

asked for it, was a "clear statement: forget about the bus, you are

not going anywhere." See Smith, 332 F. Supp. 2d at 282-83.

The government argues that Smith's confinement was self-

imposed: he remained where he was because he wanted to catch the

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bus to go home, and the bus shelter was already crowded. It is odd

to think that a person must be put to a choice under the Fourth

Amendment between catching a bus to go home and terminating an

encounter with the police. Once the officers requested Smith's

identification, Smith knew he could not catch a bus while the

police had his identification. Thus, the district court's

inference about the meaning of the officers' request for Smith's

identification makes sense. See id. at 283.

These inferences of the district court must be coupled

with the indications that the officers themselves saw the situation

as one where they had reasonable suspicion to at least engage in a

Terry stop. The officers' actions were entirely consistent with a

seizure based on reasonable suspicion, which explains their failure

to approach Smith in a way which communicated that he was free to

leave.

According the respect due under Ornelas to the district

court's findings of historical fact and inferences from these

facts, and to the actions of the officers based on their beliefs

that they had reasonable suspicion, and applying de novo review,

I would affirm the district court's suppression order.

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