Lead Opinion
MARBLEY, D.J., delivered the opinion of the court, in which MOORE, J., joined. KETHLEDGE, J. (pp. 575-78), delivered a separate dissenting opinion.
OPINION
Defendant-appellant Gevoyl Beauchamp appeals the judgment entered following his plea of guilty to possession with intent to distribute crack cocaine. Beauchamp challenges the district court’s denial of a motion to suppress evidence obtained pursuant to a seizure. Because the police officer’s seizure of Beauchamp was neither consensual nor based on reasonable and articulable suspicion, and because the consent given to search was involuntary and did not purge the taint of the illegal seizure, we reverse the district court’s order denying the motion to suppress and remand for further proceedings.
I. BACKGROUND
A. Factual Background
At approximately 2:30 a.m. on February 15, 2008, Officer Robert Fain was on patrol near the Jacob Price housing project in Covington, Kentucky. At the time, the police were saturating the area because they were receiving a “ton” of narcotics complaints. His partner, Officer Chris Dees, was patrolling separately and noticed a black man (later identified as Beauchamp) with another individual. As Officer Dees approached, Beauchamp hurriedly walked away without making eye contact with the officer. Officer Dees then told his partner to stop the “suspicious subject,” but beyond the facts that Beauchamp was out in Jacob Price at 2:30 a.m., the basis for this label was never explained.
While driving, Officer Fain spotted Beauchamp walking across the street two blocks from where Officer Dees had seen him. Officer Fain sped up his patrol car and parked by the subject. Beauchamp walked around a wrought iron fence that was by the side of the road. Officer Fain, in uniform, got out of his car and instructed Beauchamp to stop. Beau-champ complied. Officer Fain then instructed Beauchamp to walk around the fence and toward him. Beauchamp again complied. As he was walking around the fence, the officer noticed that “he seemed very nervous, visibly shaking,” wide-eyed, and scared. Beauchamp’s pants kept falling down around the lower part of his thighs, and his legs were shaking. Officer Fain asked him where he was coming from and where he was going. Beau-
After the questioning, Officer Fain frisked Beauchamp for weapons. While conducting the frisk, the officer asked Beauchamp if he had anything on him that the officer should be aware of, and Beau-champ said no. The officer did not find a weapon. Officer Fain then asked Beau-champ if he could conduct a search, and Beauchamp said yes. The officer then conducted the search; Beauchamp continued to visibly shake. The officer found $1,300 in cash and a cell phone. Beauchamp’s pants were around his thighs, so Officer Fain pulled out his boxers and saw a piece of plastic sticking up between his butt cheeks. Officer Fain assumed that the plastic contained drugs, as people on the east side were carrying drugs in this manner at that time.
It is unclear if Officer Dees arrived on the scene during the search or after it was completed.
B. Procedural Background
Beauchamp was indicted on two counts: (1) possession with intent to distribute five grams or more of cocaine base (crack cocaine) in violation of 21 U.S.C. § 841(a)(1); and (2) distributing less than five grams of crack cocaine in violation of 21 U.S.C. § 841(a)(1). The district court dismissed Count 2. Beauchamp moved to suppress the evidence seized from him in the warrantless search. After a hearing, the magistrate judge issued a report and recommendation that the district court deny the motion. Beauchamp objected in writing. The district court overruled the objections and adopted the report and recommendation.
The parties entered into a plea agreement, which preserved Beauchamp’s right to appeal the denial of the motion to suppress. The district court accepted the plea agreement and Beauchamp’s plea of guilty to Count 1. Beauchamp’s Guidelines range was 70 to 87 months. The district court sentenced him to 84 months.
II. ANALYSIS
A. Standard of Review
“When reviewing the denial of a motion to suppress, we review the district court’s findings of fact for clear error and its conclusions of law de novo.” United States v. Henry,
“ “While we review the determination of the ultimate question of whether there was consent de novo, we must afford due weight to the factual inferences and credibility determinations made by the district court.’ ” United States v. Moon,
B. The Seizure
The Fourth Amendment protects “[t]he right of the people to be secure in their persons ... against unreasonable searches and seizures.” U.S. Const, amend. IV. There are three kinds of permissible encounters between the police and citizens: “(1) the consensual encounter, which may be initiated without any objective level of suspicion; (2) the investigative detention, which, if non-consensual must be supported by a reasonable, articulable suspicion of criminal activity; and (3) the arrest, valid only if supported by probable cause.” United States v. Smith,
1. Moment of Seizure
An individual is seized when an officer “by means of physical force or show of authority, has in some way restrained [his] liberty.” Terry v. Ohio,
A reasonable person in Beau-champ’s position would not have felt free to leave when, after walking away from the police two times, an officer targeted Beau-champ by driving up to him, instructed him to stop, and then instructed him to turn around and walk toward the officer. Two features of the encounter compel this finding. First, a reasonable person in Beauchamp’s position would perceive the separate interactions with Officer Dees and then Officer Fain as connected and an indication that the officers were targeting him. There certainly could be situations in which a reasonable person would not perceive police interactions as connected; perhaps if there was a longer period of time between interactions or if they occurred in different locations. In this case, however, Beauchamp encountered Officer Dees and walked away, and then two streets over and presumably only a few minutes later, given the short distance, Officer Fain drove up to Beauchamp. Even though Officer Dees did not say anything to Beauchamp, a reasonable person would not dismiss the initial encounter with Officer Dees as merely coincidental
Just as officers are afforded the benefit of information or directions received from other officers when we consider whether the detaining officer had reasonable suspicion, see, e.g., Dorsey v. Barber,
Second, a reasonable person in Beau-champ’s position would perceive that the officer’s instructions that he stop and that he move around the fence required compliance and restricted his ability to walk away. By this point, Beauchamp had indicated that he did not want to speak with the police by walking away two times; a reasonable person would not have felt free to walk away a third time after an officer had given him express instructions to do otherwise. See United States v. Johnson,
The interaction at the fence is also the moment of the seizure because it was when Beauchamp complied with the officer’s instructions and submitted to the officer’s show of authority. “[W]hat may amount to submission depends on what a
It is clear that the police do not make 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,
The dissent’s view that we must defer to the district court’s conclusion that the initial encounter between Fain and Beau-champ was consensual is infirm for two reasons. First, the dissent applies only the highly deferential “clear error” standard of review reserved for factual findings; Dissent at 575, however, the question of consent is a conclusion of law which this court reviews de novo. Moon,
Second, the dissent focuses on testimony and argument that characterizes Officer Fain’s instructions to Beauchamp as “asking” him to stop and come around the side of the fence, and posits that this court must accept the term “ask” at face value and, therefore, find the stop consensual. Dissent at 575-76. Again, this would deny the court its de novo interpretation of the “totality of the circumstances,” including Beauchamp’s prior encounter with Officer Dees; Beauchamp’s clear desire to avoid further police contact; the targeting and
2. Reasonable and Articulable Suspicion
Having determined that the stop was not consensual, we must next consider whether it was a constitutional investigatory (or Terry) stop. We engage in a two-part analysis in order to evaluate the constitutionality of an investigative stop. First, we consider “ ‘whether there was a proper basis for the stop, which is judged by examining whether the law enforcement officials were aware of specific and articulable facts which gave rise to reasonable suspicion.’ ” United States v. Davis,
Under the first prong, the officer must have “reasonable, articulable suspicion that the person has been, is, or is about to be engaged in criminal activity.” United States v. Place,
The district court found that the totality of the circumstances consisted of five facts. Beauchamp was: (1) recognized by an officer from previous encounters; (2) at 2:30 in the morning; (3) in a housing project that was the source of many drug complaints; (4) with another individual; and (5) he hurriedly walked away from a police officer while avoiding eye contact.
The first fact is erroneous because the officer did not recognize Beauchamp until after the search began, so it does not factor into this analysis.
The second and third facts — the high-drug complaint location and the early morning hour — “ ‘may not, without more, give rise to reasonable suspicion,’ but they may be considered in the totality of the circumstances.” Johnson,
The fourth fact — being seen with another individual — is not probative of criminal activity. Simply talking to someone else, without more, is innocent activity and does not indicate that a crime is happening or is about to take place. See id.
The fifth fact — hurriedly walking away from an officer without making eye contact — similarly does not rise to the level of independent suspicion. The Supreme Court has explained that “nervous, evasive behavior is a pertinent factor in determining reasonable suspicion,” Illinois v. Wardlow,
Nothing about the conduct at issue in this case suffices to transform a permissible walk away from a police officer into a suspicious act. Beauchamp also did not make eye contact with the officer. But what if he had and then looked away? His behavior may then have been described as “furtive” or “evasive.” The ambiguity of Beauchamp’s conduct may be susceptible to many different interpretations, but that does not render it suspicious. An inquiry into reasonable suspicion looks for the exact opposite of ambiguity: objective and particularized indicia of criminal activity. If cases are to be decided on reality and not on fiction, the facts of Beauchamp’s response to the officer do not meet the constitutional standard. See Wardlow,
The district court found that other factors — Beauchamp’s nervousness, evasive answers, and low pants — could be factored into the totality of the circumstances analysis. But the officer only became aware of these factors after he had seized Beauchamp. As reasonable suspicion to make a stop cannot be justified by facts that become apparent only after a seizure, these facts are irrelevant to the court’s analysis. See United States v. McCauley,
In sum, the totality of the circumstances consists of contextual factors that apply to everyone in the housing project and Officer Fain’s testimony that Officer Dees observed Beauchamp walk hurriedly away from him without making eye contact. Certainly there are situations in which innocent acts, taken together, can amount to reasonable suspicion. United States v. Sokolow,
C. The Consent
Finally, we consider whether Beau-champ voluntarily consented to a search of his person, and if voluntarily given, whether that consent dissipated the taint of the prior Fourth Amendment violation. Because the district court did not consider whether Beauchamp’s consent to conduct the search was tainted, we will consider de novo whether the illegal stop tainted consent. United States v. Shaw,
1. Voluntariness
While the Fourth Amendment protects citizens against unreasonable searches and seizures, a search of a person is not unreasonable if that person gives free and voluntary consent. See Schneckloth v. Bustamonte,
Police coercion vitiated any consent Beauchamp may have given in this case, and thus consent could not have been made freely or voluntarily. Without being told that he could refuse, Beauchamp said “yes” to Officer Fain’s request to search after another uniformed officer had arrived on the scene. More importantly, Beauchamp gave his response immediately after Officer Fain had placed his hands on Beauchamp’s body to conduct the frisk. A scared, defenseless man is not in a position to say no to a police officer whose hands are still on or just removed from his body while another officer is standing just a few feet away. See Bustamonte,
In each and every situation that morning, police conduct had overborne Beau-champ’s will. He was repeatedly prevented from exercising his right to walk away, and, in effect, to say “no.” Because “[a] suspect’s knowledge of a prior illegal search can also give rise to a sense of futility,” the police conduct in this case easily could have exerted tremendous pressure on Beauchamp to acquiesce. United States v. Haynes,
2. Attenuation
Even if Beauchamp had voluntarily consented, however, the evidence must be suppressed because it is tainted by the illegality of the initial stop. The Supreme Court has held that if consent to search is obtained after an illegal seizure, the consent is tainted by the illegality and does not justify the search. Royer,
As the taint of the unconstitutional seizure “[can] be purged when the suspect’s subsequent consent is the ‘product of an intervening act of free will,’ ” Richardson,
None of the relevant factors, either individually or in the aggregate, dissipates the taint. First, just a few minutes passed between the illegal seizure and the consent. Officer Fain asked Beauchamp a few questions, conducted a brief frisk, and then without reading him his Miranda rights or informing him of his right to refuse, asked him for consent to search. The absence of any intervening time between the seizure and the consent strongly suggests that the taint of the illegality did not dissipate. See Brown,
Second, there were no intervening circumstances. Brown,
Third, the purpose and flagrancy of the officer’s conduct do not tend to dissipate the taint. This is an important factor because “it is tied directly to the rationale underlying the exclusionary rule, deterrence of police misconduct.” Reed,
III. CONCLUSION
For the foregoing reasons, we reverse the district court’s order denying the motion to suppress and remand for further proceedings.
Notes
. Officer Fain's statements about the motivation for the stop are unclear; he stated that "Officer Dees had gone direct with me to tell me what was going on, why he was having me stop him and what.” Officer Dees, however, did not testify as to his rationale for identifying die subject as suspicious.
. Officer Fain testified that he had completed the search when Officer Dees arrived. Officer Dees testified that he arrived while the search was ongoing and observed Officer Fain pull back Beauchamp’s boxers. The district court credited both officers and found that this testimony was not conflicting.
. The dissent mischaracterizes our analysis of whether Beauchamp’s compliance with the officer’s “asking” actually constituted a consensual exchange, noting: "Appellate fact-finding is a rare and exotic animal, and often seems out of place too. Its appearance warrants explanation in the manner that, say, a rhinoceros in Central Park does.” Dissent at 576. But there was no appellate factfinding here, only fidelity to the de novo standard of review. And it is noteworthy that our de novo analysis need no more explanation than the appearance of the dissent’s rhinoceros in Central Park, since there is a zoo in Central Park and if one went to the Central Park Zoo one could expect to see a rhino. So too, when the court conducts a de novo review, it literally looks at the totality of the circumstances "anew.” United States v. Raddatz,
Dissenting Opinion
dissenting.
Standards of review are supposed to mean something. The standard we are bound to apply here is as deferential as they come: we consider the evidence in the light most favorable to the government, deferring particularly to the district court’s credibility determinations; and having done all that, we then review the district court’s factual findings for clear error. See United States v. Montgomery,
But to begin with first principles: “Law 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,
None of those things occurred here. Fain was alone when he approached Beau-champ, and did not display his weapon or activate his cruiser lights. What he did, rather, is what the Supreme Court in Drayton said he is entitled to do: approach a person on a public street and ask whether the person is willing to speak with him. That the officer asks, rather than commands, is critical; and here Fain twice testified that he “asked” Beauchamp to step around the fence and talk with him. The district court found that Fain was credible in all respects, and thus that Fain
Appellate factfinding is a rare and exotic animal, and often seems out of place too. Its appearance warrants explanation in the manner that, say, a rhinoceros in Central Park does. But there is no explanation for the majority’s factfinding here. The majority does not explain why we should — or more to the point, lawfully can — set aside the district court’s determination of Fain’s credibility in favor of our own. It does not explain — or even attempt to explain — why the district court’s factual finding that Fain “asked” rather than instructed Beau-champ was clearly erroneous. Indeed our court does not even acknowledge that the district court made the finding at all. Instead, our court merely announces, near the outset of its factual summary, that Fain “instructed” Beauchamp to stop and come around the fence — as if this factual issue, so central to the issue before us, were undisputed. Which it is, but not in the way our court suggests; for what is undisputed here is that “Officer Fain asked Mr. Beauchamp to step around the fence and talk to him.” Appellant Br. at 15 (emphasis added). Our court oversteps its bounds in finding the contrary.
Absent this putative “instruction,” there is nothing about Fain’s conduct that was coercive. But our court broadens the scope of its inquiry: it observes that, prior to Fain’s approach, another officer, Dees, had driven his cruiser in some proximity to Beauchamp. That proximity is undefined, but apparently was not very close, because not a word passed between them, and Beauchamp walked away without even “making eye contact with the officer.” Maj. Op. at 564. Viewed in the light most favorable to the government, or even neutrally, one might characterize this interaction as merely a sighting. But our court calls it an “encounter” — thereby powering up the machinery of the Fourth Amendment — and asserts that Beauchamp then “indicated” that he did not want to talk to the police when he walked away. Id. at 566, 567. The result, in the majority’s construct, is that when Fain then approached Beauchamp on a different street — over Beauchamp’s objection, so to speak — a reasonable person would think that he had been “targeted]” by the officers and thus was not “free to leave.” Id. at 567.
Whatever the merits of this theory as a psychological matter, it is untenable as a legal one. For two reasons: first, the theory rests upon inferences that we should not fairly make when viewing the record as we are supposed to view it. To call Dees’ mere-proximity approach an “encounter” is a stretch; to say that Beau-champ then “indicated” to the officers that he did not want to talk to them, is even more so. To make those inferences is to view the record in the light most favorable to reversal, not affirmance.
Second, the majority’s theory — that if a person feels targeted by officers, his encounter with them is coercive as a result— is contrary to the caselaw. In Florida v. Rodriguez,
At the top of the escalator stairs, Blanco looked back and saw the detectives; he then spoke in a lower voice to Ramirez. Ramirez turned around and looked directly at the detectives, then turned his head back very quickly and talked to Blanco.
As the three cohorts left the escalator single file, Blanco turned, looked directly at [Rodriguez], and said, “Let’s get out of here.” He then repeated in a much lower voice, “Get out of here.” [Rodriguez] turned around and caught sight of the detectives. He attempted to move away, in the words of Officer McGee, “His legs were pumping up and down very fast and not covering much ground, but the legs were as if the person were running in place.”
Id. at 3-4,
It is obvious from the passage quoted above that the three men felt targeted by the detectives. It is just as obvious that Rodriguez tried to run away. That fact, along with the trio’s verbal exchanges on the escalator, provided a much stronger “indication]” than we have here that Rodriguez “did not want to speak with the police[.]” Maj. Op. at 567. Yet the Supreme Court did not hold, as the majority does in this case, that all this targeting, and all these indications, rendered Rodriguez’s encounter with the officers coercive. Instead the Supreme Court held — in a summary reversal, no less — that “[t]he initial contact between the officers and [Rodriguez], where they simply asked if he would step aside and talk with them, was clearly the sort of consensual encounter that implicates no Fourth Amendment interest.” 469 U.S.' at 5-6,
The majority also observes that “Officer Fain acknowledged that Beauchamp ‘didn’t want to be there with [him].’ ” Maj. Op. at 567. Why the majority finds Fain’s testimony credible on this point, but not on others, the majority does not say; but the point provides zero support for the majority’s conclusion that Fain’s encounter with Beauchamp was coercive. “[T]he ‘reasonable person’ test presupposes an innocent person[,]” Florida v. Bostick,
The majority finds yet another constitutional violation in this case, this time with respect to Fain’s search of Beauchamp’s person. In the majority’s view that search was coercive, even though Beauchamp consented to it. The majority reasons: “More importantly, Beauchamp gave his response
But that is a minor point in comparison to the potential sweep of the majority’s holding on this issue. The supposedly coercive circumstances presented here — a protective frisk, followed by consent to search — are hardly unique. Cf. Kolender v. Lawson,
It also bears mention that we throw the caselaw into incoherence by holding, as the majority does here, that a police officer’s protective frisk renders coercive the rest of his encounter with the person who was frisked. In a wide range of circumstances, the law permits a police officer to “placet ] his hands” on a person’s body, Maj. Op. at 572, in order to protect himself by means of a protective frisk. We should not penalize officers for protecting themselves in ways the law expressly permits. I think that is the effect of the majority’s decision here.
I would affirm the district court’s judgment, and thus I respectfully dissent.