UNITED STATES OF AMERICA, Appellee, -v.- JEROME K. BALDWIN, also known as Jerome Baldwin, also known as Brucey B, Defendant-Appellant.
Docket No. 06-4265-cr
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
August Term, 2006 (Argued: June 11, 2007 Decided: July 23, 2007)
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.
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:
When a driver heeds a police order to stop only to drive away as the police approach, has the driver been seized within the meaning of the
I
Police officers Plowman and Donnelly found no one at the reported location; but as they drove along Downing Street, they saw a grey car oncoming which had no front license plate. As it approached, the officers observed that the driver was a black man (later identified as Jerome Baldwin) wearing a black t-shirt, but could not see any passengers. As the car passed, the officers identified it as a silver 2001 Chevrolet Impala bearing a Virginia license plate on the rear; they turned on their overhead lights and siren and pursued.
The Impala stopped after turning left onto Bailey Street and the marked patrol car pulled up behind it. As
In the chase that ensued, Baldwin broke an untold number of traffic laws and narrowly averted multiple serious accidents. As Baldwin attempted to negotiate a right turn at the bottom of an exit ramp, his car jumped the curb and slammed into an embankment. At that point, a black man wearing a white t-shirt opened the passenger door and fled on foot; he was never apprehended. Baldwin ran back onto the highway and jumped off an overpass, but was eventually stopped by other officers who had joined the pursuit. Baldwin was handcuffed and taken via patrol car to Plowman and Donnelly, who identified him as the driver of the Impala.
A search of Baldwin‘s person incident to his arrest yielded a black mask, a wallet containing a Virginia
A large machine pistol (later determined to have a round in the chamber) was lying on the front passenger floor of the Impala. A search of the car‘s interior yielded ammunition and a speed loader for the pistol; a Savage 20 gauge pump-action shotgun; and a Hi-point 9MM semiautomatic handgun matching the description in the note found in Baldwin‘s wallet. The search also yielded drug paraphernalia: small plastic bags of crack cocaine, a balance scale, a digital scale, and a cutting agent. The Impala was registered to Baldwin.
Baldwin was indicted on three counts: (1) being a felon in possession of a firearm (
The district court denied Baldwin‘s motion on April 7, 2006, reasoning that
[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. . . .
. . . 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.
United States v. Baldwin, No. 05 Cr. 291, 2006 WL 923721, *3-*4 (D. Conn. Apr. 7, 2006). The district court thus had no occasion to decide whether the initial order to stop was lawful.
Baldwin entered a conditional plea of guilty to the second and third counts of the indictment, reserving the
This appeal is taken only from the denial of the motion to suppress. Where, as here, the district court‘s ruling “turned on the legal question of when [the defendant] was seized, we review the decision de novo.” United States v. Swindle, 407 F.3d 562, 566 (2d Cir. 2005).
II
Baldwin argues that he was seized as soon as he pulled to a stop in response to the patrol car‘s overhead lights and siren, that this seizure was unlawful when made, and that his subsequent flight did not render the seizure lawful retroactively.
The government argues that Baldwin‘s position has already been rejected by the Supreme Court in California v. Hodari D., which held that a seizure requires “either physical force . . . or, where that is absent, submission to the assertion of authority.” 499 U.S. 621, 626 (1991). We have understood the import of Hodari D. to be that “an order
We hold that, to comply with an order to stop--and thus to become seized--a suspect must do more than halt temporarily; he must submit to police authority, for “there is no seizure without actual submission,” Brendlin v. California, 127 S. Ct. 2400, 2405 (2007). Several circuits have said as much. See United States v. Washington, 12 F.3d 1128, 1132 (D.C. Cir. 1994) (“[Defendant] initially stopped, but he drove off quickly before Officer Hemphill even reached the car. Because [defendant] did not submit to Hemphill‘s order, he was not seized . . . .“); see also United States v. Valentine, 232 F.3d 350, 359 (3d Cir. 2000) (“Even if Valentine paused for a few moments and gave his name, he did not submit in any realistic sense to the officers’ show of authority, and therefore there was no seizure until Officer Woodard grabbed him.“); United States v. Hernandez, 27 F.3d 1403, 1407 (9th Cir. 1994) (“Hernandez requests we find he submitted to authority and was seized, despite his subsequent flight, merely because he hesitated
Whether conduct constitutes submission to police authority will depend, as does much of the Fourth Amendment analysis, on “the totality of the circumstances--the whole picture.” United States v. Cortez, 449 U.S. 411, 417 (1981); see also Brendlin, 127 S. Ct. at 2409 (“[W]hat may amount to submission depends on what a person was doing before the show of authority: a fleeing man is not seized until he is physically overpowered, but one sitting in a chair may submit to authority by not getting up to run
Baldwin argues that he was seized at the moment he pulled over because “a reasonable person would have believed that he was not free to leave.” United States v. Mendenhall, 446 U.S. 544, 554 (1980). But this objective requirement “states a necessary, but not a sufficient, condition for seizure,” Hodari D., 499 U.S. at 628; see also United States v. Sealey, 30 F.3d 7, 10 (1st Cir. 1994). A reasonable person standing in Baldwin‘s place would have felt bound to stop, and having stopped and stayed, would be able to argue suppression on the ground of a baseless seizure. See Swindle, 407 F.3d at 572 (“Merely feeling restrained is not enough . . . .“); Washington, 12 F.3d at 1132 (“Although a reasonable person would not have believed
Our ruling is not predicated on the brevity of Baldwin‘s stop, but on the fact that the stop itself did not constitute submission. In other words, it is the nature of the interaction, and not its length, that matters. See Delaware v. Prouse, 440 U.S. 648, 655 (1979) (“[S]topping an automobile and detaining its occupants constitute a ‘seizure’ . . . even though the purpose of the stop is limited and the resulting detention quite brief.“). Because Baldwin‘s momentary stop did not constitute submission to police authority, he had not been seized within the meaning of the Fourth Amendment.
III
The district court concluded that “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.” Baldwin, 2006 WL 923721, *4. We frame the issue differently: because Baldwin‘s ultimate seizure was an arrest,3 the question is one of probable cause. See Maryland v. Pringle, 540 U.S. 366, 370 (2003) (“A warrantless arrest of an individual in a public place for a felony, or a misdemeanor committed in the officer‘s presence, is consistent with the Fourth Amendment if the arrest is supported by probable cause.“). For the reasons articulated by the district court, we conclude that the arrest was supported by probable cause and that the evidence
Baldwin argues, however, that his seizure cannot be justified by events that unfolded after an order to stop that, as he contends and as the government implicitly concedes for present purposes, was not based on reasonable suspicion, let alone probable cause. Baldwin relies chiefly on United States v. Swindle, which observed in dicta that “if subsequent incriminating events cannot justify an unreasonable stop, then it logically follows that subsequent incriminating events should not be able to justify an unreasonable order to stop.” 407 F.3d at 568. However, the holding of Swindle was that Supreme Court precedent has “implicitly authorized a defendant‘s seizure based on events occurring after issuance of an unreasonable order to stop.” Id. We have since reaffirmed our adherence to this implicit rule:
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
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).
United States v. Muhammad, 463 F.3d 115, 123 (2d Cir. 2006).
We acknowledge that this rule could create an incentive for the police to issue unreasonable orders to stop in the hopes of creating reasonable suspicion or probable cause. But as the Supreme Court has pointed out,
[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.
* * *
For the foregoing reasons, the judgment of the district court is affirmed.