United States of America, Plaintiff-appellee, v. Marcus Wadley, Defendant-appellant, 83 F.3d 108 (5th Cir. 1996)

Treating the Suggestion for Rehearing En Banc as a Petition for Panel Rehearing, the Petition for Panel Rehearing is DENIED. The Court having been polled at the request of one of the members of the Court and a majority of the Judges who are in regular active service not having voted in favor (FRAP and Local Rule 35), the Suggestion for Rehearing En Banc is DENIED.

WIENER, Circuit Judge, with whom POLITZ, Chief Judge, JERRY E. SMITH, STEWART and DENNIS, Circuit Judges, join, dissenting from failure to grant rehearing en banc.

[A] police officer, like any other citizen, has the right to approach an individual and ask him questions. The citizen has the corresponding right to walk away (hereafter, the Morin Maxim).¹ 

More through inadvertence and misdirection than design, the opinion of the panel--of which I confess to having been a concurring member--puts the lie to our venerable pronouncement in Morin.²  Worse, in refusing to rehear the panel opinion en banc, this court has furthered the alluvial dismantling of the Fourth Amendment in this circuit by implicitly carving out an exception to the Morin Maxim--an exception which essentially renders this canon meaningless. For, henceforth, the constitutional right recognized in Morin will be unavailable to those citizens who need it most, when they need it most, and where they need it most--at night, in a high-crime, drug-infested, minority-inhabited "bad part of town." I hasten to add that, although I continue to disagree with the panel result, this is not the principal reason I write today. My greater concern is with the sotto voce manner in which this court--my court--produced that crippling exception to the Morin Maxim. I am compelled to write in defense of a principle broader even than the substantive issue at hand: I write in defense of candor.

We should mean what we say and say what we mean. If the Morin Maxim means what it says, the police violated it; conversely, if henceforth our Morin Maxim shall no longer mean what it says, we should have followed our strict stare decisis policy by meeting en banc to disavow or radically modify Morin.³  Either way, our declarations should be overt and explicit. By refusing to vacate the panel opinion and rehear the case en banc, we have not chosen either alternative forthrightly; rather, we have covertly selected the latter alternative. What the panel opinion creates and what the denial of rehearing en banc silently confirms is a "Po' Folks" exception to the Morin Maxim: From now on, a citizen can decline a police invitation to talk unless that citizen happens to be in a poor, crime-infested, or minority neighborhood.

* FACTS AND PROCEEDINGS

At 9:00 p.m. on a cool November evening in 1993, ten Dallas Police Department squad cars descended from four different directions on Prince Hall Chamber Apartments (Prince Hall), a public housing project in a predominantly black, high-crime, drug-prevalent neighborhood of Dallas, Texas.⁴  Fifty to sixty officers simultaneously deployed from the squad cars and began questioning residents about drug activity, attacks on police officers, and the threatened assassination of police officers.⁵  At the time that the officers converged on Prince Hall, there were approximately 150 black persons in the area.

When Craig Adams, one of the officers involved in the fact-finding "raid," parked his squad car on Dixon Circle and got out, Marcus Wadley was standing on the sidewalk some twenty feet away, with his hands in his pockets, talking with a companion.⁶  Officer Adams did not know Wadley, did not have any information about Wadley, and did not harbor any suspicions that Wadley was involved in criminal activity. By all accounts, there was nothing subjectively suspicious about Marcus Wadley.⁷  Neither is it claimed that there was anything objectively suspicious about one black man standing where he was, early in the evening, with his hands in his pockets, talking to his black companion.

Solely in the hope that Wadley might have information about illegal activity in the vicinity, Officer Adams called out, "I want to talk with you" (First Communication). Adams did not, however, explain why he wanted to talk to Wadley. In response to this invitation, Wadley said nothing; he simply turned and began to walk away from Officer Adams--no furtive looks, no questionable moves, no sprinting away, nothing but a normal walk. Yet despite Wadley's unsuspicious and nonthreatening act of simply walking away, Adams failed to allow the encounter to terminate, as he should have under Morin. Instead, he persisted, again calling out to Wadley (Second Communication), this time insisting, without any legal justification whatsoever, that Wadley "needed" to stop and speak with the officers--not, vice versa, that they "needed" to talk with him.

Even in the face of this second police command, Wadley neither said nor did anything untoward; he simply continued to walk away, albeit at a somewhat "increased pace." But again, Officer Adams would not allow the encounter simply to terminate. Instead, Officer Adams continued to press his pursuit of a conversation with Wadley.

With Officer Adams now "on his heels," Wadley was finally pushed to the point of accelerating from a walk to a run. When he did so, Officer Adams reacted by yelling, "Stop bolting. You are under arrest!" (Third Communication). At that moment Wadley apparently noticed that several officers were converging on him. Attempting to elude them, Wadley reversed field, running back towards Adams. Realizing that he was trapped, Wadley--either just before he was tackled or contemporaneously therewith--reached into his pocket, pulled out a brown paper bag, and tossed it toward a trash dumpster, all in a single fluid motion. The officers then wrestled Wadley to the ground and subdued him. Later, Officer Adams retrieved the bag and discovered that it contained numerous plastic zip-lock bags of crack cocaine.⁸ 

Before trial, Wadley filed a motion to suppress (1) the evidence recovered at the time of his arrest and (2) his post-arrest confession. Wadley argued that the arresting officers lacked probable cause to arrest him and that all the evidence obtained, including the bag thrown at the time of arrest, was the product of an illegal arrest, and thus classic "fruits of a poisoned tree." At the suppression hearing, the district court (like our panel) focused not on the initial, escalating stages of the encounter between Officer Adams and Wadley, but solely on the final chase-tackle-and-toss, akin to the incident made famous in California v. Hodari D.⁹  The district court denied Wadley's motion to suppress, finding that the officers had probable cause to arrest Wadley and that the paper bag was tossed simultaneously with the tackle.

Wadley timely appealed, challenging the district court's denial of his motion to suppress. On appeal, the panel (on which I served) rendered an opinion (in which I concurred), affirming the district court. Like the district court before us, however, our panel focused exclusively on the final chase-tackle-and-toss; and therein lay the genesis of our fundamental mistake. I am convinced that had we not conducted our review with such tunnel vision, considering only the final frame of the "game film" rather than each frame in sequence to see how each purported element of probable cause arose, we would have reached a different result. More importantly, we would have left the Morin Maxim intact for the protection of all citizens, free of qualifications based on the time and place of the police encounter.

II

ANALYSIS

A. POLICE-CITIZEN ENCOUNTERS AND THE FOURTH AMENDMENT

The Fourth Amendment provides that "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated ..."¹⁰ The specific content and incident of this right are shaped by the context in which it is asserted. For "what the Constitution forbids is not all searches and seizures, but unreasonable searches and seizures."¹¹ 

Encounters between the police and citizens involve myriad situations and are complicated by a host of variables.¹²  In efforts to deal with all of the combinations and permutations, courts classify police-citizen encounters in three generic categories.¹³  The first category consists of mere communications involving neither coercion nor detention. As confirmed in Morin, a police officer, like any other citizen, has the right to approach an individual and ask him questions; in turn, the individual has the corresponding right to walk away.¹⁴ 

The second category, known as Terry-stops, comprises brief seizures of the person if the police have a reasonable suspicion.¹⁵  To stop a citizen who does not voluntarily submit to questioning, an officer must possess specific articulable facts which together provide a reasonable suspicion that criminal activity is afoot.¹⁶ 

The final category, arrests and full-blown seizures, requires probable cause.¹⁷  It does not exist unless "the facts and circumstances within the arresting officers' knowledge are sufficient in themselves to warrant a [person] of reasonable caution in the belief that the person to be arrested has committed or is committing an offense."¹⁸ 

These three categories, with their increasingly stricter standards and their different levels of permissible police intrusion, reflect the judiciary's constant struggle to maintain a balance between two important societal interests: (1) every citizen's constitutional right to be free from unreasonable searches and seizures; and (2) the safety of police officers and citizens in general.

Although a chronological review is generally the clearest and most coherent way to analyze a series of events, in this case a different sequence initially proves more useful and illuminating. Therefore I shall look first at the ultimate facet of the encounter--the final frame of the film strip--and isolate each of these factors, which the district court found, in combination, added up to probable cause as of that moment. Then, with these factors identified, I shall return to the beginning of Wadley's encounter with the police and demonstrate how each factor--purportedly "exigent circumstances" justifying an arrest without a warrant--is either insignificant in context or was "manufactured" by the police.

I begin where the encounter ended, with the arrest of Wadley. The government asserts that the combination of three factors provided probable cause to make that warrantless arrest: (1) Prince Hall was a high crime area; (2) Wadley fled from Officer Adams; and (3) Wadley reached into the inner pocket of his jacket. The district court agreed, and our panel affirmed.

It is undisputed that alone and in isolation none of these factors would be sufficient to constitute probable cause.¹⁹  See United States v. Vasquez, 534 F.2d 1142, 1145 (5th Cir.), cert. denied, 429 U.S. 962, 979, 97 S. Ct. 389, 489, 50 L. Ed. 2d 330, 587 (1976); United States v. Tookes, 633 F.2d 712, 716 (5th Cir. 1980).²⁰  When considered in combination, however, probable cause becomes a close call if, like our panel,²¹  one looks only at the final episode and not at each step of the encounter preceding that final episode.

I have never taken issue with the narrow conclusion that, under other circumstances, a combination of these three exigent circumstances could constitute probable cause. Rather, I have urged that in this particular case we should re-examine each factor to see how it came about.²²  It is one thing for legitimate "exigent circumstances" to justify a warrantless arrest; it is an entirely different matter when the police create or "manufacture" exigent circumstances by provoking a citizen to take action that he would not have otherwise taken--especially when the provocation violates some tenet as basic as the Morin Maxim.

Typically, my next inquiry would be whether the officers had a reasonable articulable suspicion sufficient to support a Terry-stop. In this case, however, there is no need to conduct that inquiry because the government has never contended, and neither the district court nor our panel ever considered, the Terry-stop issue. Indeed, the government has conceded that the encounter between Wadley and the officers sublimed directly from a "first category" non-coercive encounter to a full-blown "third category" probable cause arrest, without ever passing through the "second category" Terry-stop. There simply was no "in between." In retrospect, I find this concession both telling and distracting: telling because it acknowledges that the police lacked a reasonable articulable suspicion to detain Wadley; distracting because, like the proverbial red herring, it drew our panel's attention away from a consideration of all aspects of the encounter that preceded the actual arrest and caused us to focus exclusively on the chase-tackle-and-toss portion of the encounter.

By expanding our examination to cover each stage and step of the whole encounter in chronological order, an entirely different picture emerges. According to Officer Adams, when he exited the squad car, he observed only that Wadley had either one or both hands in his pocket(s). There was nothing objectively suspicious, and Officer Adams' candid testimony confirms that he had no subjective suspicion that Wadley might be dealing drugs or involved in any other criminal activity whatsoever. At this point, Officer Adams could have neither arrested Wadley nor performed a Terry pat-down. The most that Adams could have done lawfully was to ask Wadley questions; and that is all that Adams attempted to do--at first!

In response to the First Communication, however, Wadley exercised his constitutional right under Morin and walked away. Emily Post may not have given Wadley high marks in etiquette, but his non-verbal response to Officer Adams sent the objective message, per Morin, that he did not wish to speak with the police. At that point Officer Adams lacked reasonable suspicion to "Terry-stop" Wadley. Likewise, he lacked probable cause to arrest Wadley. Morin teaches that, after Wadley started to walk away, Officer Adams should have broken off the encounter. But, he did not.

No, Adams persisted, informing Wadley (erroneously) in the Second Communication that he "needed" to talk with the officers. And, for a second time, Wadley walked away, emphasizing his "regret" of the invitation by increasing his pace somewhat. Officer Adams still lacked both reasonable suspicion and probable cause; and again, under Morin, Officer Adams was obligated to break off the encounter at that point. Yet again, he did not.

No, Adams continued to apply the pressure until finally he provoked Wadley to run.²³  Still lacking probable cause, Adams nevertheless uttered the Third Communication, yelling (again erroneously) that Wadley must stop, that he was under arrest.

Finally, even when Wadley continued to run, Adams still should have broken off the encounter, yet he did not.

No, Adams chased after Wadley and, together with the other officers, tackled and arrested him.

a. Manufactured Exigent Circumstances: The Flight and The Reach

We have long recognized that, alone, fleeing from law enforcement personnel or from a crime scene is insufficient to constitute probable cause to arrest the runner.²⁴  If the law were "otherwise 'anybody who does not desire to talk to the police and who either walks away or runs away from them would always be subject to legal arrest,' which can hardly 'be countenanced under the Fourth and Fourteenth Amendments.' "²⁵  This is particularly true when, as here, the flight in question is neither voluntary nor reflexive. Despite all the excitement and anxiety of the commando raid at Dixon Circle, Wadley never moved. He did not stumble; he did not move in a threatening or suspicious way; he did not stand his ground menacingly or defiantly; he did not even turn and walk away, much less break and run. In Wadley's case flight was merely the final result of repeated provocation and increasingly heightened harassment by the police: It was a manufactured exigent circumstance. As such, the flight should not have been taken into consideration in the probable cause rubric.

We must remember that the avowed purpose of the "raid" at Prince Hall was to question as many persons in the area as possible. It was not a drug bust; it was not a late night/early morning prowl car incident; it was not a response to a call to quell a disturbance or investigate a possible crime in progress. It was purely a planned, voluntary, fact-finding "fishing expedition" at a time and place preselected by the police. True, Wadley finally ran, but not until the police had repeatedly harangued and pursued him. Flight is relevant only when it is a reflexive or unprovoked act. Wadley's flight was neither reflexive nor unprovoked and should not have been considered as an exigent circumstance factor in the court's probable cause inquiry.

The government also asserts--and the district court agrees--that, in combination with other factors, Wadley's reach into his pocket was evidence of exigencies leading to probable cause. As a factor of probable cause, reaching into a pocket is one among the multitude of relatively innocuous actions which, in combination with other actions or factors, has been recognized by courts as establishing probable cause. Again, I am not here to dispute whether such a movement can ever be considered a factor in the search for probable cause. Rather, I am here to emphasize that, in this case, that factor should have been excluded because the police provoked it. They created it by pressing Wadley, in violation of the Morin Maxim, until he finally reached into his pocket as he was running. And, like running, Wadley's reaching into his pocket under these conditions must be deemed to be police-manufactured exigent circumstances, incapable of contributing to a determination of probable cause.

Even though he walked away, Wadley was repeatedly pressed and pressured until he reacted in a "suspicious" manner--running away. Such protracted pressure and pursuit by Officer Adams in the face of Wadley's efforts to walk away violated the Morin Maxim. Morin gave Wadley the right to walk away from Officer Adams. Wadley exercised that right--three times. And three times Officer Adams ignored Wadley's rightful exercise, finally yelling to Wadley that he was under arrest. It is unreasonable to allow an officer, through persistent yet unwarranted pursuit of a citizen, to manufacture exigent circumstances when none exist, particularly in a highly charged atmosphere.²⁶ 

b. The Bad Neighborhood

Finally, the government proffers Wadley's presence at Dixon Circle in Prince Hall, a "bad neighborhood," as a factor contributing to probable cause, as yet another exigent circumstance. In the context of the Fourth Amendment, this should continue to be absolutely irrelevant and immaterial. We have stated before that there is nothing suspicious, criminal, or wrong with being in a bad neighborhood.²⁷  A citizen does not gain or lose constitutional rights as he moves from neighborhood to neighborhood. One's Fourth Amendment rights remain the same, whether jogging in Beverly Hills or standing on a corner in Watts. Certainly, some neighborhoods are much "worse" than others. That is not my point. My point here is that when Wadley's flight and his reach into his pocket are excluded as factors that can be considered because they are police-manufactured exigent circumstances, there remains at least one conclusion that neither the police nor the courts can avoid: Marcus Wadley could never have been arrested for walking away from the police solely because he did so in a bad neighborhood.

We cannot permit Wadley's "mere presence" in a bad part of town to be elevated to a per se exigent circumstance, which produces--or is even a factor bearing on--probable cause. This point is particularly true here, given the added feature of the police having selected the time and location for making their raid en masse. Even if we were to assume arguendo that "bad neighborhood" is an exigent circumstance, surely that added feature of selection of time and place constitutes waiver of it here.

Everything that transpired as a result of the police-created or manufactured exigent circumstances, and all evidence acquired from the warrantless arrest, purportedly based on those tainted factors, were classic fruits of a poisoned tree. Every shred of that evidence should have been suppressed.

III

CONCLUSION

My concern is not just that a panel of this circuit has placed its imprimatur on such an arrest and, in the process, rendered the Morin Maxim nugatory. What troubles me even more is our failure to address this matter head on. If Morin is no longer to be good law--or, even worse, if the Morin Maxim is to be suspended in bad neighborhoods--then as a court we should say so, forthrightly and expressly, and explain our reasons candidly. If we were not going to retain the Morin Maxim in fact, we should either have overruled Morin or articulated a manageable "low-rent" exception to that maxim, and in either case we should have done so en banc as only an en banc court can do. But to hide behind the denial of en banc reconsideration and do neither does not comport with this court's historical "upfront" way of doing business.

I regret that I was not able to convince a majority of my colleagues to revisit en banc the central Fourth Amendment issue presented by the entire encounter between Marcus Wadley and the Dallas Police Department. I am convinced that our readership will view this case as one in which our collective bluff was called, forcing this court either to (1) abide by the Morin Maxim or (2) confess that, while "a person in a middle class neighborhood may walk or even run away from police without giving police probable cause to arrest, ... a minority in a poor, crime-infested neighborhood may not."²⁸  I am equally convinced that when our bluff was thus called and we had to show our hand, we couldn't beat a pair of deuces!

By refusing to rehear this case en banc, we chose to stand mute neither "putting our mandate where our mouth is" nor forthrightly admitting that we never have meant, and still do not mean, what we say about the right of a citizen to "just say 'No' " non-verbally by walking away. By taking no position, we ostensibly continue to mouth our hollow obeisance to the Morin Maxim, while failing to acknowledge that here in Wadley we have consciously whittled away yet another layer of the Fourth Amendment's protection from unreasonable seizures. We did that de facto in Wadley by implicitly creating an amorphous, temporal/geographical/societal exception to the constitutional right of a citizen to be free from such a seizure.

Our recent jurisprudential whittling has already pared down the Fourth Amendment's shield.²⁹  In the instant case, we further our creeping erosion of the Fourth Amendment, albeit sub silentio, by approbating a seizure under facts that imply--because we are not so ingenuous as to express it--that the Morin Maxim somehow evaporates at night (temporal), in a high-crime/dangerous/bad part of town (geographical), inhabited principally by poor minorities (societal).

More invidiously, this implicit "low rent" exception to the Morin Maxim--an exception whose paternity we sheepishly disavow through our silence--has neither the temporal definition of a curfew nor the geographic definition of an "off limits" ordinance. Instead, we abdicate to law enforcement personnel the unilateral discretion to decide, incident by incident, just when and where to invoke this exception. Perhaps each time hereafter, when the Morin Maxim is reiterated in one of our opinions, it will bear a footnote--like the accursed asterisk on the late Roger Maris' home run record--confessing today's implied low-rent exception.

If this court, sitting en banc, were to express a late night, high crime, bad neighborhood exception to the Morin Maxim, I could justify nothing more than a dissent on the merits. But when we only imply, through our mute nolo contendere, a denial that we have done precisely that, I simply cannot suffer in silence for our court. That is why I respectfully dissent from our refusal to heed Wadley's suggestion that we rehear his case en banc.