United States v. Baldwin, No. 06-4265 (2d Cir. 2007)
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06-4265-cr United States v. Baldwin 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term, 2006 (Argued: June 11, 2007 Decided: July 23, 2007) Docket No. 06-4265-cr - - - - - - - - - - - - - - - - - - - -x UNITED STATES OF AMERICA, Appellee, -v.JEROME K. BALDWIN, also known as Jerome Baldwin, also known as Brucey B, Defendant-Appellant. - - - - - - - - - - - - - - - - - - - -x Before: JACOBS, Chief Judge, WESLEY and GIBSON,* Circuit Judges. Appeal from a judgment of conviction entered in the District Court for the District of Connecticut (Dorsey, J.). AFFIRMED. 33 34 35 36 DEIRDRE A. MURRAY, Assistant Federal Public Defender (Paul F. Thomas, on the brief), for Thomas G. Dennis, Federal Public * The Honorable John R. Gibson, Circuit Judge, United States Court of Appeals for the Eighth Circuit, sitting by designation. 1 2 3 4 5 6 7 8 9 10 11 Defender, New Haven, CT, for Defendant-Appellant.** ERIC J. GLOVER, Assistant United States Attorney (William J. Nardini, on the brief), for Kevin J. O Connor, United States Attorney, District of Connecticut, for Appellee. DENNIS JACOBS, Chief Judge: 12 When a driver heeds a police order to stop only to 13 drive away as the police approach, has the driver been 14 seized within the meaning of the Fourth Amendment? 15 that a seizure requires submission to police authority, and 16 conclude that the driver s initial fleeting stop does not 17 amount to such submission. 18 of the driver s motion to suppress evidence found on his 19 person and in his car, and affirm the conviction entered in 20 the District Court for the District of Connecticut (Dorsey, 21 J.). We hold We therefore affirm the denial 22 23 I 24 ** After this appeal was fully briefed, the defendant sent the federal public defender a letter which he insisted be read during the defendant s allotted time for oral argument. Counsel then moved to withdraw. We granted the motion and took defendant s letter on submission. 2 1 On the afternoon of September 4, 2005, an anonymous 2 caller told the New Haven police that two black men, one 3 wearing a white t-shirt, were carrying firearms. 4 reported that they were standing next to a grey or silver 5 Chevrolet Impala with Virginia license plates, parked on 6 Downing Street, near an intersection with Bailey Street. 7 The location is adjacent to the Quinnipiac Terrace housing 8 complex, which has been plagued by the sale of guns and 9 illicit drugs. 10 11 The caller According to the tipster, the men had big guns, real real big guns, serious. Police officers Plowman and Donnelly found no one at 12 the reported location; but as they drove along Downing 13 Street, they saw a grey car oncoming which had no front 14 license plate. 15 the driver was a black man (later identified as Jerome 16 Baldwin) wearing a black t-shirt, but could not see any 17 passengers. 18 as a silver 2001 Chevrolet Impala bearing a Virginia license 19 plate on the rear; they turned on their overhead lights and 20 siren and pursued. 21 22 As it approached, the officers observed that As the car passed, the officers identified it The Impala stopped after turning left onto Bailey Street and the marked patrol car pulled up behind it. 3 As 1 Plowman and Donnelly approached the Impala on foot, the 2 driver (Baldwin) leaned out the window and peered back at 3 them. 4 simply stared back and refused to comply. 5 twice repeated the order and, with Baldwin still non- 6 compliant, drew their weapons. 7 Impala s passenger side to determine whether any one else 8 was inside, the car sped off. 9 Plowman instructed Baldwin to show his hands, but he The officers As Donnelly approached the In the chase that ensued, Baldwin broke an untold 10 number of traffic laws and narrowly averted multiple serious 11 accidents. 12 at the bottom of an exit ramp, his car jumped the curb and 13 slammed into an embankment. 14 wearing a white t-shirt opened the passenger door and fled 15 on foot; he was never apprehended. 16 the highway and jumped off an overpass, but was eventually 17 stopped by other officers who had joined the pursuit. 18 Baldwin was handcuffed and taken via patrol car to Plowman 19 and Donnelly, who identified him as the driver of the 20 Impala. 21 22 As Baldwin attempted to negotiate a right turn At that point, a black man Baldwin ran back onto A search of Baldwin s person incident to his arrest yielded a black mask, a wallet containing a Virginia 4 1 driver s license in his name, and a note which read, Hi- 2 Point Mansfield-Ohio, Model C, 9MM, 9MM Ammunition too. 3 One of the arresting officers recognized Baldwin as a member 4 of the Island Brothers gang, known to infest Quinnipiac 5 Terrace. 6 A large machine pistol (later determined to have a 7 round in the chamber) was lying on the front passenger floor 8 of the Impala. 9 ammunition and a speed loader for the pistol; a Savage 20 A search of the car s interior yielded 10 gauge pump-action shotgun; and a Hi-point 9MM semiautomatic 11 handgun matching the description in the note found in 12 Baldwin s wallet. 13 paraphernalia: small plastic bags of crack cocaine, a 14 balance scale, a digital scale, and a cutting agent. 15 Impala was registered to Baldwin. 16 The search also yielded drug The Baldwin was indicted on three counts: (1) being a felon 17 in possession of a firearm (18 U.S.C. § 922(g)(1)); (2) 18 possession with intent to distribute five grams or more of 19 cocaine base (21 U.S.C. § 841(a)(1), (b)(1)(B)); and (3) 20 using and possessing a firearm during, in relation to, and 21 in furtherance of a drug trafficking crime (18 U.S.C. § 22 924(c)(1)). Baldwin moved to suppress the evidence 5 1 recovered from his person and his vehicle on the ground that 2 officers Plowman and Donnelly lacked reasonable suspicion 3 when they initially ordered him to stop. 4 responded that, by speeding away, Baldwin had disobeyed that 5 order and therefore had not been seized. 6 government argued that the order to stop was supported by 7 reasonable suspicion.1 8 9 The government Alternatively, the The district court denied Baldwin s motion on April 7, 2006, reasoning that 10 11 12 13 14 15 16 17 18 19 20 21 [r]egardless of what Baldwin s initial motivations were in pulling over his car, he never submitted to the officers show of authority and therefore was never seized. . . . United States v. Baldwin, No. 05 Cr. 291, 2006 WL 923721, 22 *3-*4 (D. Conn. Apr. 7, 2006). 23 no occasion to decide whether the initial order to stop was 24 lawful. . . . Baldwin s pre-seizure behavior--including fleeing from police, the operation of his vehicle, crashing his vehicle and running away on foot-generated reasonable suspicion for his ultimate apprehension. The district court thus had 25 Baldwin entered a conditional plea of guilty to the 26 second and third counts of the indictment, reserving the 1 On this appeal, the government takes no position on the lawfulness of the initial order to stop. 6 1 right to appeal the district court s denial of the motion to 2 suppress. 3 imprisonment on the second count and 60 months on the third, 4 the sentences to run consecutively. 5 He was sentenced principally to 120 months This appeal is taken only from the denial of the motion 6 to suppress. Where, as here, the district court s ruling 7 turned on the legal question of when [the defendant] was 8 seized, we review the decision de novo. 9 Swindle, 407 F.3d 562, 566 (2d Cir. 2005). United States v. 10 II 11 12 Baldwin argues that he was seized as soon as he pulled 13 to a stop in response to the patrol car s overhead lights 14 and siren, that this seizure was unlawful when made, and 15 that his subsequent flight did not render the seizure lawful 16 retroactively. 17 The government argues that Baldwin s position has 18 already been rejected by the Supreme Court in California v. 19 Hodari D., which held that a seizure requires either 20 physical force . . . or, where that is absent, submission to 21 the assertion of authority. 22 have understood the import of Hodari D. to be that an order 499 U.S. 621, 626 (1991). 7 We 1 to stop must be obeyed or enforced physically to constitute 2 a seizure. 3 Hodari D. and Swindle control, but argues that he obeyed the 4 order to stop when he stopped, albeit temporarily. 5 Swindle, 407 F.3d at 572. Baldwin agrees that We hold that, to comply with an order to stop--and thus 6 to become seized--a suspect must do more than halt 7 temporarily; he must submit to police authority, for there 8 is no seizure without actual submission, Brendlin v. 9 California, 127 S. Ct. 2400, 2405 (2007). Several circuits 10 have said as much. See United States v. Washington, 12 F.3d 11 1128, 1132 (D.C. Cir. 1994) ( [Defendant] initially stopped, 12 but he drove off quickly before Officer Hemphill even 13 reached the car. 14 Hemphill s order, he was not seized . . . . ); see also 15 United States v. Valentine, 232 F.3d 350, 359 (3d Cir. 2000) 16 ( Even if Valentine paused for a few moments and gave his 17 name, he did not submit in any realistic sense to the 18 officers show of authority, and therefore there was no 19 seizure until Officer Woodard grabbed him. ); United States 20 v. Hernandez, 27 F.3d 1403, 1407 (9th Cir. 1994) ( Hernandez 21 requests we find he submitted to authority and was seized, 22 despite his subsequent flight, merely because he hesitated Because [defendant] did not submit to 8 1 for a moment and made direct eye contact with Sadar. We 2 decline to hold these actions sufficient to constitute 3 submission to authority. ). 4 United States v. Morgan, 936 F.2d 1561, 1567 (10th Cir. 5 1991) ( [S]ince Officer Eubanks had followed the car in 6 which Defendant was a passenger for several blocks with his 7 red lights flashing; since Officer Eubanks exited from a 8 marked police car, in uniform, and asked the Defendant to 9 hold up; and since Defendant, at least momentarily, yielded Arguably to the contrary is 10 to the Officer s apparent show of authority, we find Mr. 11 Morgan was seized for purposes of the Fourth Amendment . . . 12 . ), but for the reasons that follow, we decline to adopt 13 the reasoning of Morgan. 14 Whether conduct constitutes submission to police 15 authority will depend, as does much of the Fourth Amendment 16 analysis, on the totality of the circumstances--the whole 17 picture. 18 (1981); see also Brendlin, 127 S. Ct. at 2409 ( [W]hat may 19 amount to submission depends on what a person was doing 20 before the show of authority: a fleeing man is not seized 21 until he is physically overpowered, but one sitting in a 22 chair may submit to authority by not getting up to run United States v. Cortez, 449 U.S. 411, 417 9 1 away. ). Baldwin s conduct, all circumstances considered, 2 amounted to evasion of police authority, not submission. 3 Cf. Hernandez, 27 F.3d at 1407 ( We decline to adopt a rule 4 whereby momentary hesitation and direct eye contact prior to 5 flight constitute submission to a show of authority. ); 6 United States v. Lender, 985 F.2d 151, 155 (4th Cir. 1993) 7 ( Defendant asks us to characterize as capitulation conduct 8 that is fully consistent with preparation to whirl and shoot 9 the officers. ). 10 Baldwin argues that he was seized at the moment he 11 pulled over because a reasonable person would have believed 12 that he was not free to leave. 13 Mendenhall, 446 U.S. 544, 554 (1980). 14 requirement states a necessary, but not a sufficient, 15 condition for seizure, Hodari D., 499 U.S. at 628; see also 16 United States v. Sealey, 30 F.3d 7, 10 (1st Cir. 1994). 17 reasonable person standing in Baldwin s place would have 18 felt bound to stop, and having stopped and stayed, would be 19 able to argue suppression on the ground of a baseless 20 seizure. 21 restrained is not enough . . . . ); Washington, 12 F.3d at 22 1132 ( Although a reasonable person would not have believed United States v. But this objective A See Swindle, 407 F.3d at 572 ( Merely feeling 10 1 that she was free to continue driving once Officer Hemphill 2 activated his sirens and ordered the Mazda s driver to stop, 3 [defendant] did not in fact submit to the officer s 4 order. ).2 5 Our ruling is not predicated on the brevity of 6 Baldwin s stop, but on the fact that the stop itself did not 7 constitute submission. 8 the interaction, and not its length, that matters. 9 Delaware v. Prouse, 440 U.S. 648, 655 (1979) ( [S]topping an In other words, it is the nature of See 10 automobile and detaining its occupants constitute a 11 seizure . . . even though the purpose of the stop is 12 limited and the resulting detention quite brief. ). 13 Baldwin s momentary stop did not constitute submission to 14 police authority, he had not been seized within the meaning 15 of the Fourth Amendment. Because 16 2 Baldwin cites United States v. Coggins for the proposition that flight after seizure does not preclude a finding of seizure. See 986 F.2d 651, 654 (3d Cir. 1993) ( Even though he fled soon thereafter, the combination of Coggins expressed desire to leave, Agent Inouye s order that he stay, and Coggins yielding to police authority resulted in a seizure for purposes of the Fourth Amendment ). Because we conclude that Baldwin had not been seized by the time he fled, we have no occasion to decide whether or to what extent the reasoning of Coggins would apply. 11 III 1 2 We are left to determine the validity of the seizure of 3 evidence from Baldwin s car and person at the end of the car 4 chase. 5 The district court concluded that Baldwin s pre- 6 seizure behavior--including fleeing from police, the 7 operation of his vehicle, crashing his vehicle and running 8 away on foot--generated reasonable suspicion for his 9 ultimate apprehension. Baldwin, 2006 WL 923721, *4. We 10 frame the issue differently: because Baldwin s ultimate 11 seizure was an arrest,3 the question is one of probable 12 cause. 13 ( A warrantless arrest of an individual in a public place 14 for a felony, or a misdemeanor committed in the officer s 15 presence, is consistent with the Fourth Amendment if the 16 arrest is supported by probable cause. ). 17 articulated by the district court, we conclude that the 18 arrest was supported by probable cause and that the evidence See Maryland v. Pringle, 540 U.S. 366, 370 (2003) 3 For the reasons The government s brief says that the search of Baldwin was done incident to arrest, thereby conceding that his seizure constituted an arrest and required probable cause. 12 1 resulting therefrom was properly admitted.4 2 Baldwin argues, however, that his seizure cannot be 3 justified by events that unfolded after an order to stop 4 that, as he contends and as the government implicitly 5 concedes for present purposes, was not based on reasonable 6 suspicion, let alone probable cause. 7 on United States v. Swindle, which observed in dicta that 8 if subsequent incriminating events cannot justify an 9 unreasonable stop, then it logically follows that subsequent Baldwin relies chiefly 10 incriminating events should not be able to justify an 11 unreasonable order to stop. 12 holding of Swindle was that Supreme Court precedent has 13 implicitly authorized a defendant s seizure based on events 14 occurring after issuance of an unreasonable order to stop. 15 Id. 16 rule: 407 F.3d at 568. However, the We have since reaffirmed our adherence to this implicit 17 18 19 20 21 22 An individual approached by an officer who has no reasonable suspicion of wrongdoing may ignore the officer and go about his business, and his refusal to cooperate may not form the basis for his detention. See Florida v. Royer, 460 U.S. 491, 498 (1983). But unprovoked flight is simply not 4 At oral argument, the government argued for the first time that the search of Baldwin s car was justified on the theory of abandonment. Because we conclude that the police had probable cause to arrest Baldwin, we need not consider this alternative basis for the search of his car. 13 1 2 3 4 a mere refusal to cooperate. Flight, by its very nature, is not going about one s business ; in fact, it is just the opposite. Illinois v. Wardlow, 528 U.S. 119, 125 (2000). 5 United States v. Muhammad, 463 F.3d 115, 123 (2d Cir. 2006). 6 We acknowledge that this rule could create an incentive for 7 the police to issue unreasonable orders to stop in the hopes 8 of creating reasonable suspicion or probable cause. 9 the Supreme Court has pointed out, 10 11 12 13 14 15 16 17 But as [u]nlawful orders will not be deterred . . . by sanctioning through the exclusionary rule those of them that are not obeyed. Since policemen do not command Stop! expecting to be ignored, or give chase hoping to be outrun, it fully suffices to apply the deterrent to their genuine, successful seizures. Hodari D., 499 U.S. at 627. 18 19 20 21 * * * For the foregoing reasons, the judgment of the district court is affirmed. 14
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