UNITED STATES COURT OF APPEALS
For the Fifth Circuit
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No. 94-10573
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
MARCUS WADLEY,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
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(July 13, 1995)
Before DAVIS and WIENER, Circuit Judges, and VANCE, District
Judge.1
DAVIS, Circuit Judge:
Wadley appeals the district court's denial of his motion to
suppress evidence seized in connection with his warrantless arrest
and a confession he gave to FBI agents shortly after he was taken
into custody. The district court denied Wadley's motion on the
grounds that his arrest was supported by probable cause. Based on
our review of the record, we agree that the arresting officers had
probable cause to arrest Wadley and that the district court did not
1
District Judge of the Eastern District of Louisiana,
sitting by designation.
err in denying Wadley's suppression motion. We therefore affirm
Wadley's judgment of conviction.
I.
Marcus Wadley was arrested during a massive police undercover
operation at the publicly-owned Prince Hall Chambre Apartments in
the Dixon Circle area of South Dallas. On the night of November
19, 1993, approximately 60 Dallas police officers in 10 vehicles
converged on the complex to investigate reports of narcotics
trafficking and an incident in which a marked police cruiser was
pelted with rocks and bottles while driving through the complex's
parking lot. During the operation, Officer Craig Adams pulled into
the complex and saw Marcus Wadley standing with his hands in his
pockets talking to another person. Adams got out of his car,
approached Wadley, and asked Wadley if he could ask him a few
questions. Officer Adams testified during the suppression hearing
that he wanted to ask Wadley about the attack on the police cruiser
and whether he had any knowledge about drug trafficking in the
neighborhood. Wadley refused to talk with Officer Adams and began
to walk away. When Wadley accelerated from a walk to a run,
Officer Adams shouted "Stop bolting, you're under arrest," and
began to pursue him.
According to Officer Adams, as Wadley was fleeing from Adams,
he placed his hand in his inner jacket pocket as though he wanted
to dispose of something hidden in the pocket. Wadley was
eventually cut off by approximately three other officers who had
joined the pursuit. Seeing that his path was blocked, Wadley
turned around and began to run back towards Officer Adams.
2
According to Officer Adams, Wadley attempted to dodge him. However,
Adams grabbed Wadley and the other officers helped Adams pull
Wadley to the ground. At the same time as the officers grabbed
Wadley, he threw a brown paper bag in the direction of a trash
dumpster. After handcuffing Wadley, Officer Adams retrieved the
bag and discovered that it contained numerous plastic zip-lock bags
of crack cocaine. Adams subsequently searched Wadley and found
additional crack cocaine, along with approximately $500 in cash in
his pants pocket. Later that night, Wadley was taken to the FBI's
local office, where he was interviewed about the drugs seized
during his arrest. Wadley waived his Miranda rights and gave the
FBI agents the name of his drug supplier. He admitted that he sold
drugs for this supplier on a weekly basis.
Wadley was eventually charged with one count of possession of
cocaine with the intent to distribute it in violation of 21 U.S.C.
§ 841(a)(1). Wadley filed a motion to suppress the drugs recovered
at the time of his arrest along with his post-arrest confession.
Wadley argued that Officer Adams and the other arresting officers
lacked probable cause to arrest him and that all of the drug
evidence, including the bag thrown at the moment he was seized, was
the fruit of this illegal arrest. After an evidentiary hearing,
the district court found that Wadley threw the bag of crack "at
approximately the same time as" his seizure by Adams and the other
arresting officers. The court, however, found that the arresting
officers had probable cause to arrest Wadley and denied his motion
to suppress. Wadley subsequently entered a conditional guilty
plea, reserving the right to appeal the district court's ruling on
3
his suppression motion. Following sentencing, Wadley timely
appealed.
II.
Wadley challenges the district court's denial of his motion to
suppress his confession and the drug evidence obtained after his
arrest. A warrantless arrest must be based on probable cause.
United States v. Watson, 953 F.2d 895, 897 n.1 (5th Cir.), cert.
denied, 504 U.S. 928 (1992). If the arresting officers lacked
probable cause and the arrest is invalid, evidence discovered as a
result of the arrest is subject to suppression under the Fourth
Amendment as the "fruit" of an illegal arrest. See United States v.
Ramirez-Lujan, 976 F.2d 930 (5th Cir.), cert. denied, ___ U.S. ___,
113 S.Ct. 1587 (1993). After reviewing the record, we conclude
that the district court did not err in finding that the arresting
officers had probable cause to arrest Wadley and that the arrest
was valid.2
Probable cause for a warrantless arrest exists when the
totality of facts and circumstances within a police officer's
knowledge at the moment of arrest are sufficient for a reasonable
person to conclude that the suspect had committed or was committing
an offense. See Harper v. Harris County, 21 F.3d 597 (5th Cir.
1994). Although probable cause requires more than a bare suspicion
2
During the suppression hearing, the government
stipulated that Wadley's seizure was a full scale custodial
arrest supported by probable cause, not a mere investigative
detention pursuant to Terry v. Ohio, 392 U.S. 1 (1968). Given the
government's stipulation and our conclusion that there was
probable cause for a custodial arrest, we need not address
whether Wadley's initial seizure could be justified as a Terry
stop.
4
of wrongdoing, it requires "substantially less evidence than that
sufficient to support a conviction." United States v. Muniz-
Melchor, 894 F.2d 1430, 1438 (5th Cir. 1990). The presence of
probable cause is a mixed question of fact and law. Id. at 1439
n.9. We will not disturb the factual findings underlying the
district court's probable cause determination absent clear error.
Id. Accepting these facts, however, the ultimate determination of
whether there was probable cause to arrest Wadley is a question of
law that we must review de novo. Id. We now turn to the facts and
circumstances surrounding Wadley's arrest to determine whether the
arrest was based on probable cause.
First, Officer Adams knew that the Prince Hall complex was a
high crime area with a high incidence of drug transactions. Prior
to the night of Wadley's arrest, the Dallas Police Department
received FBI intelligence reports revealing that the Prince Hall
apartments had a high incidence of drug transactions. The
department also received reports of drug trafficking by residents
of the complex. The police department's briefing to Adams and the
other officers immediately before the Dixon Circle operation
detailed this information.
Wadley's flight from the arresting officers further supports
the district court's probable cause determination. Standing alone,
a suspect's attempt to walk away or flee from a police officer is
generally not sufficient to create probable cause, even if the
suspect flees in a high crime neighborhood. See United States v.
Vasquez, 534 F.2d 1142, 1145 (5th Cir.), cert. denied, 429 U.S. 979
(1976); United States v. Tookes, 633 F.2d 712, 716 (5th Cir. 1980).
5
However, in combination with other facts and circumstances, flight
from an officer may create probable cause where the defendant
persistently attempts to evade capture. See Tom v. Voida, 963 F.2d
952, 960 (7th Cir. 1992)(holding that the defendant's "obvious
determination to flee from any contact" with the arresting officer
was one factor supporting the presence of probable cause).
According to the testimony of Officers Adams and Benitez, Wadley
was determined to evade capture. He first bolted and ran away from
Officer Adams. When he saw other officers running toward him, he
changed course, ran back toward Adams, and later dodged and weaved
to avoid capture. Officer Adams described Wadley's conduct as a
"cat and mouse" game.
Finally, Officer Adams testified that while Wadley was running
away from him, Wadley reached into the inner pocket of his jacket
as though he was trying to discard something. The district court
credited Officer Adam's testimony that, based on his experience,
drug dealers often try to drop or discard their contraband before
they are captured. Officer Adam's training and prior experience
with drug trafficking arrests and investigations is relevant in
determining whether he had probable cause to arrest Wadley. See
Muniz-Melchor, 894 F.2d at 1438. Based on these facts and
circumstances, a reasonable officer was entitled to conclude that
Wadley was attempting to evade capture so that he could discard the
drugs he was carrying.3 As a result, Wadley's arrest was valid and
3
The government contends that we should consider
Wadley's act of throwing the bag of cocaine as a factor
supporting the presence of probable cause. We disagree. Probable
cause must exist at the moment the arrest is initiated. United
States v. Raborn, 872 F.2d 589 (5th Cir. 1989). The district
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the evidence discovered as a result of the arrest is not subject to
suppression under the Fourth Amendment. It follows that the
confession was not tainted by an illegal arrest. The district
court did not err in denying Wadley's suppression motion.4
AFFIRMED.
court expressly found that Wadley threw the bag of cocaine the
moment he was arrested. Therefore, Wadley's attempt to discard
the bag cannot be considered in determining whether probable
cause existed at the moment the officers initiated the arrest.
See id.
4
Having concluded that Wadley's arrest was supported by
probable cause, we need not address the government's argument
that Wadley abandoned the bag of cocaine before he was seized and
that the bag of cocaine was thus not the fruit of a seizure under
California v. Hodari D., 499 U.S. 621, 629 (1991). Even if Wadley
discarded the bag after his seizure, the evidence is not subject
to suppression because the arrest was based on probable cause.
7