United States v. Beauchamp

(later identified as a black man ticed KETHLEDGE, Before: MOORE another individual. As Beauchamp) with MARBLEY, District Judges; Circuit Beauchamp hur- approached, Dees Officer Judge.* making eye riedly away without walked Dees contact with the officer. Officer MARBLEY, D.J., the opinion delivered “suspi- partner stop then told his to the J., MOORE, joined. court, in the which subject,” beyond of but the facts cious 575-78), KETHLEDGE, delivered in Price at 2:30 (pp. Beauchamp J. was out Jacob a.m., the basis for this label was never ex- dissenting opinion. separate

plained.1 spotted Fain driving, Officer While OPINION Beauchamp walking across the street two MARBLEY, District L. ALGENON had seen from where Officer Dees blocks Judge. sped up patrol him. Fain his car Officer subject. Beauchamp parked by and the Gevoyl Beauchamp Defendant-appellant wrought walked around a iron fence following entered appeals judgment the by the side of the road. Officer with intent plea guilty possession his of Fain, uniform, in of his car and got out Beauchamp crack cocaine. distribute Beauchamp stop. Beau- instructed of a challenges the district court’s denial in- Officer Fain then champ complied. suppress pur- evidence obtained motion Beauchamp to walk around the structed of- to a seizure. Because the suant again Beauchamp fence and toward him. Beauchamp was neither ficer’s seizure of complied. walking As he was around consensual nor based on reasonable fence, that “he seemed the officer noticed suspicion, articulable and because the con- nervous, wide-eyed, very visibly shaking,” involuntary and given sent to search was kept fall- Beauchamp’s pants and scared. sei- purge illegal did not the taint of the his part down around the lower of zure, court’s order we reverse the district legs shaking. his were Offi- thighs, and denying suppress coming the motion to and re- him cer Fain asked where he was going. from and where he was Beau- proceedings. mand for further * gone me to tell Algenon Marbley, United "Officer Dees had direct with The Honorable L. on, Judge having the Southern District going why States District for he was me what was Ohio, Dees, sitting by designation. stop and what.” Officer how- me him ever, testify as to his rationale for did not 1. Fain's statements about the motiva- Officer unclear; identifying subject suspicious. die as tion for the are he stated vague cruiser. Fain champ gave somewhat answers Officer continued his saying “down there.” search response, simply plastic and removed from be- officer, Cook, arrived at Another Officer tween Beauchamp’s butt cheeks. It con- interview, during some and he point individually-wrapped tained about 18 rocks stood and watched. of crack cocaine. questioning, After Officer Fain Background B. Procedural for Beauchamp weapons.

frisked While frisk, the officer asked conducting the Beauchamp was indicted on two counts: (1) him Beauchamp anything if he had on possession with intent to distribute five of, (crack aware the officer should be and Beau- grams or more of cocaine base co- caine) The officer did not find a champ said no. 841(a)(1); § in violation of 21 U.S.C. weapon. Fain then asked Beau- Officer than five distributing grams less search, conduct a champ if he could crack cocaine violation of U.S.C. The officer then con- Beauchamp yes. said 841(a)(1). § The district court dismissed search; Beauchamp ducted continued Count 2. moved to suppress $1,300 The officer found visibly shake. him in evidence seized from the war- phone. Beauchamp’s cash and a cell hearing, rantless search. After a mag- pants thighs, so were around Officer judge report istrate issued a and recom- pulled piece Fain out and saw a his boxers mendation court deny that the district up between plastic sticking his butt objected motion. writing. cheeks. Fain assumed that Officer The district objections court overruled the plastic drugs, people as on the contained adopted report and and recommenda- drugs in carrying east side were this man- tion.

ner at that time. parties The into a plea agree- entered

It is unclear if Dees arrived on Officer ment, which preserved Beauchamp’s right search or it during the scene after was appeal the motion sup- denial of there, recognized completed.2 Once press. accepted The district court At previous from encounters. plea agreement Beauchamp’s plea and point, upon some either Officer Dees’s ar- guilty Beauchamp’s to Count 1. Guidelines Fain rival or after looked into Officer range was 70 to 87 months. The district boxers, Beauchamp’s gave Officer Fain his court him 84 sentenced to months. indicate that partner a look to he had Recognizing that something. found II. ANALYSIS here,” “hey, got something look meant we A. of Review Standard grabbed Beauchamp by Officer Dees his jeans. pulled reviewing then Beau- the denial Officer Fain “When again and him motion to review the champ’s suppress, boxers back asked we district court’s for clear findings what he had in between his butt of fact error and pants, cheeks, de Beauchamp attempted and to run. its conclusions of law novo.” United (6th 603, him, Henry, hands on States v. 607 Both officers had their so he Cir.2005) (internal marks escaped grasp. quotation never their The officers omit ted). In consider the Beauchamp against doing, secured the hood of a so we evi- Beauchamp’s completed pull boxers. The 2. that he had Fain back dis- Officer Fain testified the search when Dees arrived. Offi- Officer trict court credited officers and found both cer he arrived while the Dees testified that testimony conflicting. that this ongoing search was and observed Officer 566 (1968); 1868, 16, 20 L.Ed.2d 889 n. 88 S.Ct. favorable to the light in the most

dence United, Garner, 1, Tennessee v. U.S. see also Rodriguez- v. States government. (1985) (6th Cir.2003). 7, 85 L.Ed.2d Suazo, F.3d an officer re (stating “[w]henever “ the determina we review “While person the freedom of walk strains of whether question the ultimate tion of If away, person”). he has seized that novo, afford we must consent de there was authority, by acts a show of as officer the factual inferences weight due case, actually the individual must sub this by made the dis credibility determinations authority. mit to that Brendlin v. ” Califor Moon, States court.’ trict nia, 127 S.Ct. Cir.2008) (6th (quoting Unit (2007). L.Ed.2d 132 In order to determine Caruthers, ed States occurred, if a has we will look to seizure Cir.2006)). surrounding “all of the circumstances whether “a reason incident” and consider B. Seizure have believed that he person able would protects Amendment The Fourth was not free to leave.” United right people to be secure “[t]he Mendenhall, 544, 554, against ... unreasonable persons their (1980). 1870, 64 L.Ed.2d 497 Const, and seizures.” U.S. searches per are three kinds of amend. IV. There A person reasonable Beau- between the missible encounters champ’s position would not have felt free “(1) encounter, the consensual when, citizens: away after from the walking to leave any objec may be initiated without times, which an targeted two officer Beau- (2) suspicion; investigative level of him, tive by driving up to champ instructed detention, which, if non-consensual must him stop, him to and then instructed reasonable, supported by a articulable turn around and walk toward the officer. suspicion activity; of criminal compel Two features of the encounter arrest, if only supported probable valid First, a finding. Smith,

cause.” United States v. 594 F.3d Beauchamp’s position perceive would (6th Cir.2010) (internal 530, 535 citations with Dees separate interactions Officer omitted). purely consensual en While then Fain as connected and an Officer subject counters are not to Fourth Amend targeting indication that the officers were Bostick, scrutiny, ment see Florida v. 501 certainly him. There could situations 429, 434, 2382, 111 115 L.Ed.2d person in which a reasonable would not (1991), including 389 all brief in connected; perceive police interactions as seizures— vestigatory stops protection, this perhaps longer period if there was a —receive Smith, Accordingly, see 594 F.3d at 535. they if time between interactions or oc us the first issue before is whether the case, In curred different locations. this initial interaction between Fain Officer and however, Beauchamp encountered Officer Beauchamp was a consensual encounter or away, Dees and walked and then two a non-consensual seizure. presumably only over and a few streets distance, later, given minutes the short

1. Moment of Seizure Beauchamp. up Officer Fain drove say any An not though individual is seized when an Even Officer Dees did “by thing Beauchamp, person a reasonable physical officer means of force or show encounter authority, way has in some restrained would not dismiss the initial Ohio, 1, merely with Dees as coincidental liberty.” Terry v. Officer [his] officer, immediately mation about the defendant’s involvement almost when a second fact, car, In Officer Fain thereafter, parked drug trafficking). sped up patrol acknowledged “didn’t car to initi- and exited his by Beauchamp, want to be there with [him].” ate contact. Second, person a reasonable Beau- are afforded the Just as officers perceive that the champ’s position would or directions re of information

benefit that he and that officer’s instructions when we con from other officers ceived required compli- he move around the fence detaining officer had whether the sider ability ance and restricted his to walk see, Dorsey v. suspicion, e.g., reasonable away. By point, Beauchamp had indi- (6th Barber, Cir.2008), 517 F.3d speak cated that he did not want to with with other prior an individual’s encounters times; police by walking away two a into consideration officers should be taken not person reasonable would have felt free determining whether an encounter when away to walk a third time after an officer Thus, or consensual. was coercive him given express had instructions to do away first walked fact Johnson, otherwise. See States v. United Officer Fain lo from Officer Dees before (6th Cir.2010) (hold- 690-91 up him next to him pulled cated person that a reasonable would feel suggest person to a reasonable would free leave when two officers arrived targeting Beauchamp the officers were police marked cars and ordered defendant not feel free to and therefore he would Smith, stop); (holding Tyler, leave. See United States that once a officer police asked the defen- (7th Cir.2008) (noting that F.3d a stop, person dant reasonable would person “whether the informed leave); not feel free to of a crime or the suspected (6th Richardson, Cir. is a relevant target investigation” of an 2004) (holding person that a reasonable determining factor when whether a rea would not feel free to leave when leave); person sonable would feel free to “just hang officer told the defendant to out Fusci, 92-2126, No. me, okay?”); right Northrop here for 1993) at *2 Cir. Feb. WL (6th Cir.2001) Trippett, order) (discussing how the (unpublished (holding person that a reasonable would actions “would tend to communi agent’s when, not feel free to leave after defendant that, as the cate to area, sought to one officer direct- leave target agents’ investigation, specific him stop ed another officer to and the he was unable to terminate encounter” produce officers asked him to identifica- (internal omitted)); quotation marks Unit Buchanon, tion); v. 72 United States (9th Kerr, 1384, v. ed States 817 F.2d 1387 (6th Cir.1995) 1217, that (noting Cir.1987) (“[SJeveral suggest facts that requiring compliance may words reasonably perceived [the defendant] enough person to make a reasonable feel target of [the officer’s] he was investi leave). they are free to leave.”); not free to gation and thus was at the fence is Saperstein, 723 F.2d The interaction also (6th Cir.1983) 1221, (concluding the moment of the seizure because it was po Beauchamp complied in the defendant’s when with the offi person a reasonable when, and submitted to the offi would not feel free to leave cer’s instructions sition factors, authority. may DEA among agent other in cer’s show of “[W]hat depends on what a the defendant that he had infor- amount to submission formed doing dating before the show of au behavior that would lead a reason- person was Brendlin, 262, ...” that the thority. person person U.S. able believe was ”) Here, Beauchamp not free to leave’ (quoting S.Ct. 2400. was walk (6th Waldon, 597, away separat the officer and was from 206 F.3d Cir. 2000)). aby wrought happened from him iron fence. But that is not what in ed instruction, Here, Upon stopped targeted the officer’s he this case. Officer Fain officer, again him driving up and walked toward and after he instruction, already upon away the officer’s walked had walked from another and, separated around the fence that them. officer as continued to “[s]topping being away, specifically Just as after ordered to walk instructed him to Amendment,” stop triggers stop change the Fourth and to direction which Johnson, going. so too does he was changing complying course and with an The dissent’s view that we must defer to requests. officer’s See also United States the district court’s conclusion that the ini- Jones, 774-75 Cir. tial encounter between Fain and Beau- 2009) (holding that defendant was not champ was consensual is infirm for two seized until he complied with officer’s or First, applies only reasons. the dissent Smith, stop); der 594 F.3d at 539 n. highly deferential “clear error” stan- (holding that defendant was seized when dard of review reserved for factual find- complied); him stop officers instructed and he 575, however, ings; ques- Dissent at D., v. Hodari cf . California tion of consent is conclusion of law which 621, 625-26, 111 S.Ct. Moon, this court reviews de novo. that, (holding assuming L.Ed.2d 690 Taking at 536. factual inferences pursuit that officer’s car constituted light most government favorable to the authority,” “show of defendant was not analyze does not mean we must the en- away). seized when he ran For these rea strictly viewpoint counter from the of the sons, we that Beauchamp conclude Rather, police officer. de novo review re- when, in compliance seized with Officer quires this court to its own draw conclu- instructions, stopped, Fain’s turned whether, from sions the facts about when around, faced the uniformed officer and placed Beauchamp, the shoes of a rea- car, patrol began the marked and to walk sonable would have felt free to toward the officer. Mendenhall, leave. 446 U.S. at S.Ct. 1870.

It is clear that the do not Second, make “merely by unreasonable seizures testimony dissent focuses on approaching argument individuals on the street or that characterizes Officer public places other putting questions Fain’s instructions to Beauchamp as “ask- they willing to them if are ing” to listen.” him to and come around the side Drayton, fence, posits this court 153 L.Ed.2d 242 accept must the term “ask” at face value (2002); Davis, and, therefore, see also United v. stop States find the consensual. (6th Cir.2008) 596, (noting Again, Dissent at 575-76. deny this would that, encounter, in a consensual “law en the court its de interpretation novo of the may circumstances,” forcement officers ‘gener “totality including ask citizens of the questions al having any Beauchamp’s without prior reasonable encounter with Officer suspicion Dees; activity, long of criminal Beauchamp’s so as clear desire to avoid contact; type officers refrain from the of intimi- further targeting (6th Garza, 1241, second, v. by a uni- ed States pursuit Cir.1993)). officer; Second, stop con- if the was formed, proper, Fain’s and Officer “ that he Beauchamp, requesting degree then consider hvhether fronting we of the reasonably to his side intrusion ... was related in come around stop and circumstances, just hand, which scope these to the situation is fence.3 Under judged by examining follows someone reasonableness of when an officer as identification, or to given suspicions for the officials’ conduct their him to “ask” stops ” vehicle, en- surrounding Fain’s and the circumstances.’ Id. him to exit “ask” 1245) (omission Garza, Beauchamp does not lose its 10 F.3d at (quoting with counter Beauchamp only challenges he was simply original). character because coercive having constitutionality stop record as on the first to on the referred Beauchamp’s compliance as prong. for “asked” it. a distinc- “ordering” Such

opposed prong, Under the first the offi Regardless of purely semantic. tion is “reasonable, cer must have articulable sus requests, Fain’s a labels Officer how one been, is, that the has or picion is have felt free person would not in criminal him, engaged activity.” about to be thus Beau- ignore to leave or Place, 696, 702, v. 462 U.S. United States was seized. champ (1983). 2637, 77 L.Ed.2d 110 103 S.Ct. and Articulable 2. Reasonable suspicion specific, “must be based on Such Suspicion Texas, objective facts.” Brown v. 443 U.S. 47, 51, 2637, that the 99 S.Ct. 61 L.Ed.2d 357 Having determined (1979). consensual, requires detaining next consider It that “the we must investigato particularized officers ... have a and ob it a constitutional whether was (or jective suspecting particular in a for stop. engage two- basis ry Terry) We person stopped activity.” the con of criminal analysis in order to evaluate part Cortez, stop. 417- stitutionality investigative of an “ (1981). First, there was a 66 L.Ed.2d 621 we consider ‘whether explained Terry, an “inchoate and stop, judged basis for the which is As proper ” suspicion or ‘hunch’ will unparticularized whether the law enforcement by examining Terry, and articu not do. 392 U.S. at specific were aware of officials determination, In making rise to reasonable 1868. we gave lable facts which ” Davis, totality of the circum 430 must consider suspicion.’ United Cir.2005) (6th they at the time of the (quoting Unit- stances as existed analysis and if went the Central Park Zoo one dissent mischaracterizes our one 3. The too, expect a So when the could to see rhino. compliance Beauchamp’s with the whether review, literally a de novo it court conducts “asking” actually a constituted con- officer’s totality looks at the of the circumstances exchange, noting: "Appellate fact- sensual Raddatz, "anew.” United States v. animal, finding and exotic and often is rare 667, 690, 100 S.Ct. 65 L.Ed.2d 424 appearance place too. Its war- seems out of J., (1980) (Stewart, dissenting)(" 'review de that, say, explanation rants in the manner 'that the court should make an novo' means rhinoceros in Central Park does.” Dissent ”); independent determination of the issues.’ factfinding appellate 576. But there was no Silverman, see also United States here, only fidelity the de novo standard of Cir.1988) ("[u]nder the de novo noteworthy that de And it is our novo review. review, we standard of do not defer explanation analysis need no more than ruling freely but consider the lower court’s anew, appearance rhinoceros in Cen- of the dissent’s matter as if no decision had been ren- below.”). Park, a in Central Park dered tral since there is zoo 570 McCauley, person, v. 548 teract with another and then walk

stop. United States (6th Cir.2008). Paulette, 440, away. v. F.3d 443 457 Cf. (6th Cir.2006) 601, 602, (holding F.3d 606 The district court found that the suspicion that officers had reasonable totality consisted of of circumstances high-crime engaged defendant in area had (1) recog Beauchamp five facts. was: in activity criminal when officers saw previous nized an officer from encoun that were consistent with a movements (3) (2) ters; in morning; in the a 2:30 transaction). drug hand-to-hand housing that was the source of project being The fourth seen with anoth- (4) many with another fact— drug complaints; er individual—is not of criminal probative individual; hurriedly walked else, activity. Simply talking to someone away police avoiding from a officer while more, activity without is innocent and does eye contact. happening not indicate that a crime is or is The first fact is erroneous because the place. about take See id. recognize Beauchamp officer did not until began, after the search so it does not hurriedly walking The fifth fact— analysis. factor into this away making eye from an officer without similarly does not rise to the lev contact— high- The second and third facts—the independent suspicion. el of Supreme drug early complaint location and “nervous, explained Court has evasive not, more, ‘may morning hour—“ without pertinent behavior is factor determin give suspicion,’ they rise to reasonable but suspicion,” reasonable Illinois v. may totality of be considered Wardlow, 119, 124, 673, 528 U.S. 120 S.Ct. Johnson, circumstances.” 620 F.3d at 692 (2000), 145 L.Ed.2d 570 and we have held Caruthers, (quoting United States v. speed that “the of suspect’s move (6th Cir.2006)). These fac may ments totality relevant of apply anyone tors would who inwas circumstances,” Caruthers, F.3d at housing project early that morning, and so 466. Consideration of these factors has they given weight.” “should not be undue led to an extensive debate about what See, United States 574 F.3d types responses arrival (6th Cir.2009). arouse particular, high- In Johnson, a suspicion wrongdoing. See activity crime or high-drug label must be cases). 620 F.3d at (collecting 694-95 carefully. applied grounded in fac Unless Nevertheless, walking away it is clear that accuracy, easily tual it “can serve as a an from officer does not create such proxy ethnicity.” for race or suspicion. Royer, reasonable Florida v. Montero-Camargo, 491, 498, (9th Cir.2000) (en banc), cert. (1983); denied, L.Ed.2d 229 see also United States Patterson, Caruthers, (2000); L.Ed.2d 148 Cir. see also 2003) (observing “labeling (stating walking away po 458 F.3d at 467 from ‘high-crime’ special an area lice a factor outrightly raises concerns “constitutes to be dismissed”). racial, ethnic, profil and socioeconomic In those cases in which we ing”). These concerns are “especially ap walking away have found that from propriate” in this case because Officer does contribute to suspicion, reasonable specific Dees did not observe engage facts have shown that the defen any type of behavior that is consistent dant’s suspicious. behavior was otherwise Johnson, See, Caruthers, drug activity. with e.g., See 458 F.3d at 466-67 at 693. in- (finding suspicion Officer Dees saw when the de- suspicion. away hurried from an officer and fendant Sokolow, 1, 9-10, if to conceal by a wall as S.Ct. “hunched down” (1989). weapon). a But or reach for 104 L.Ed.2d the facts here contraband Beauchamp’s are insufficient: exercise of at issue in Nothing about the conduct away if right his to walk the walk —even permissi- transform a this case suffices to hurriedly, briskly, snappily— was made or into a away from a officer walk ble does not turn his otherwise innocuous be- also did not act. suspicious “suspicious havior into the conduct of a the officer. But eye make contact with Thus, suspect.” we find that the officers away? His if had and then looked what suspicion did not have reasonable to detain described as may then have been behavior stop illegal and the was an Beauchamp, ambiguity The “furtive” or “evasive.” in violation of seizure conducted may susceptible conduct be Beauchamp’s Fourth Amendment. interpretations, but many different inquiry An suspicious. it does not render The Consent C. the ex- suspicion looks for into reasonable objective and ambiguity: opposite act Finally, we consider whether Beau- activity. criminal indicia of particularized voluntarily consented to a champ search of reality on If are to be decided cases if person, voluntarily given, wheth- fiction, Beauchamp’s not on the facts dissipated er that consent the taint of the the officer do not meet response to Fourth Amendment violation. Be- prior Wardlow, See constitutional standard. court cause the district did not consider 130-31, (noting that 120 S.Ct. 673 U.S. at Beauchamp’s whether consent to conduct sneer[ing] or “avoid[ing] eye contact even tainted, the search was we will consider de ... not of an officer” “would sight at the illegal stop tainted con- novo whether any per sort of se justify Terry stop or Shaw, sent. United States inference”). (6th Cir.2006). 615, 627 court found that other The district 1. Voluntariness nervousness, eva Beauchamp’s factors— answers, fac pants and low sive Fourth Amendment While the —could totality of the circumstances tored into protects against citizens unreasonable only analysis. But the officer became seizures, a search of a searches after he had seized aware of these factors person gives if that is unreasonable Beauchamp. suspicion As reasonable voluntary consent. See Schneck free and justified by cannot be facts make Bustamonte, loth v. seizure, only after a apparent that become (1973); L.Ed.2d 854 are irrelevant to the court’s these facts (6th Kelly, 913 F.2d States v. McCauley, analysis. See United Cir.1990). the bur government bears Cir.2008). through positive “clear and proving, den of to search testimony” that the consent sum, circumstances totality In Salvo, voluntarily. United States v. given apply of contextual factors that consists (6th Cir.1998). 943, 953 Consent and Offi- 133 F.3d everyone housing project in the voluntary “unequivocal, specif it Dees ob- is when is testimony Fain’s that Officer cer hurriedly away intelligently given, ic and uneontaminated Beauchamp walk served by any or coercion.” United States making eye contact. duress from him without (6th Cir.2008) Moon, in- v. are situations which Certainly there omitted). (internal acts, citations Voluntariness can amount to together, nocent taken 572 by examining totality standing just the of while another officer is a few

is determined Bustamonte, Bustamonte, away. feet See 412 U.S. at 412 the circumstances. See 229, (noting 2041 that “account 227, 2041; 93 S.Ct. at 93 S.Ct. United States (6th possibly must be taken of ... the vulnera- McCaleb, 717, Cir. v. subjective of the con- ble state who 1977). factors should be examined Several considering totality sents” in the of the First, calculus. a court in the consent circumstances); Worley, at examine the characteristics of the should that (holding consent to search was not accused, including age, intelligence, the freely given to two officers but was “mere- individual; and education of the whether ly response conveying expression a an of right the individual understands the to re futility authority resistance to or' ac- consent; fuse to and whether the individu in the quiescing request”); officers’ al understands his or her constitutional 407, Young, v. Fed.Appx. States Jones, v. rights. See United States (6th Cir.2009) (not- (unpublished opinion) Cir.1988). 358, While upset that a scared and defendant have to inform an individual police do not facts, may, dependent on the show duress refuse, right of a of his to absence such calculus). that factors into the consent warning totality is considered in the Bustamonte, every In each and situation that morn- analysis. circumstances See ing, police conduct had overborne Beau- Second, 412 U.S. at 93 S.Ct. 2041. champ’s repeatedly prevent- will. He was court consider the should details exercising right away, ed from his to walk detention, including length and nature and, effect, say to “no.” Because “[a] detention, 2041; id. 93 S.Ct. suspect’s knowledge prior illegal of a use of coercive or punishing conduct search can give also rise to a sense of 2041; police, id. 93 S.Ct. and indi futility,” conduct in case cations of “more subtle forms of coercion easily could have exerted tremendous might that flaw judg [an individual’s] pressure Beauchamp acquiesce. on ment,” Watson, United States 423 U.S. Haynes, 411, 424, 46 L.Ed.2d 598 (6th Cir.2002). The district court failed to (1976). carefully We examine cases in implicitly consider the coercive nature of government which the that the de claims events, these and instead focused on the fendant consented. See lights of flashing weap- absence or drawn (6th Cir.1999). Worley, 193 F.3d ons. We find the district court erred any Police coercion vitiated con finding prosecution met its sent Beauchamp may given have in this showing burden of that Beauchamp’s con- case, and thus consent could not have been free, valid, sent and voluntary was because freely or voluntarily. being made Without a consideration of the series of encounters refuse, told he could said morning and the details Officer “yes” to request Officer Fain’s to search Fain’s interaction with indi- after another uniformed officer had ar Beauchamp merely acquiesced cate that rived on the importantly, scene. More authority Bumper of the officer. See Beauchamp gave response immediately Carolina, his 543, 548-49, v. North after Officer Fain had placed his hands on (holding 20 L.Ed.2d 797 Beauchamp’s body to conduct the frisk. A prosecution’s that the “burden cannot be scared, defenseless man is not in a position discharged by showing no than ac- more say no quiescence authority”); officer whose hands a claim of lawful Jones, just body are still on or removed from (holding 846 F.2d at 361 that con- (6th Cir.1990)), the before us is psycho- question due to involuntary part sent ... the evidence to which instant sequence of “whether of coercive logical impact by at objection is made has been come events). Thus, was unreason- the search by illegality of that or instead exploitation Amendment. to the Fourth pursuant able sufficiently distinguishable to be means 2. Attenuation taint,” primary Wong the Sun v. purged of States, 471, 488, 83 S.Ct. United 371 U.S. had voluntari if Even (internal 407, quota 441 9 L.Ed.2d consented, however, must the evidence ly omitted). In and citations or tion marks by it is tainted the because suppressed be der to determine if the consent is suffi stop. Supreme initial The illegality of the seizure, ciently illegal from the attenuated that if consent to search is has held Court factors, of in may we consider a number seizure, the con illegal after an obtained cluding: length the of time between the and does by illegality tainted sent is consent; illegal pres seizure and the Royer, justify the search. not circumstances; intervening ence of 507-08, have re 103 S.Ct. 1319. We flagrancy of the official mis purpose holding precedent, followed this peatedly conduct; and whether the officers read the pursuant obtained that “evidence rights suspect his Miranda before he con if suppressed” must be consent to search Texas, 626, 538 Kaupp sented. v. U.S. 632- an given illegal after sei the consent 33, 1843, (2003); 123 155 L.Ed.2d 814 S.Ct. 344 Lopez-Arias, States v. zure. United 344 at 630. Lopez-Arias, single F.3d No (6th Cir.2003); 623, see also F.3d 629 analysis dispositive factor is of at Richardson, 851, F.2d 949 United States Illinois, 590, 422 tenuation. Brown v. Cir.1991) (holding that an ille 858-59 (1975). 2254, 45 L.Ed.2d 416 subsequent tainted a consent gal arrest government per the burden of bears search); Bradley, 922 States v. United 633, 123 Kaupp, suasion. 538 U.S. at (6th Cir.1991) (holding F.2d 1843. consent to search was that “[defendant's illegal an arrest under State

tainted factors, of the relevant either indi- None Buchanan, law”); vidually aggregate, dissipates or in the (6th Cir.1990) (holding 355-56 F.2d First, just passed taint. a few minutes that to search was tainted because consent illegal and the con- between seizure entry into defendant’s prior warrantless Fain asked a sent. Officer Thus, justified). for the home was not frisk, a questions, few conducted brief admissible, only to be “not seized evidence him reading then without his Miranda i.e., valid, voluntary be must the consent him of rights informing right or the ille ... but the causal chain between refuse, asked him for consent to search. gal seizure and the consent must be bro intervening time be- any The absence of of the exclu consequences ken to avoid the strongly tween the seizure and the consent 344 F.3d at sionary Lopez-Arias, rule.” suggests illegality that the taint of the did 629. Brown, dissipate. not See U.S. at (finding separation that a of the taint the unconstitu 95 S.Ct. 2254

As intervening an set of purged when the two hours without tional seizure “[can] taint); dissipate did not subsequent ‘prod consent is the circumstances suspect’s ”will,’ Lopez-Arias, (finding intervening uct an act of free Richardson, dissipate a minutes did not (quoting lapse at 858 of 30 (find- Richardson, taint); Grant, 949 F.2d at 859 (holding post-arrest discovery of 20 minutes did not at 629 lapse taint); Buchanan, incriminating not an evidence is inter- dissipate the vening that breaks the circumstance causal lapse of one hour did (finding at 356 Baldwin, chain); taint). Fed. dissipate (6th Cir.2004) Appx. (unpublished Second, intervening no there were (holding that opinion) evidence discovered Brown, 422 U.S. at circumstances. attempted to defendant resist and before that the absence of an (finding S.Ct. 2254 by illegal flee was tainted seizure and must taint intervening event indicated that the suppressed). Intervening circum dissipated). was not Third, purpose flagrancy the and of the effectively that attenuate the con stances dissipate officer’s conduct do not tend to illegal sent from the seizure “are those an important the taint. This is factor be that sever the causal connection between directly cause “it is tied to the rationale illegal discovery arrest and the of the rule, underlying exclusionary deter Shaw, v. evidence.” United States Reed, rence of misconduct.” Cir.2006) (6th (quoting F.3d 628-29 F.3d at 464-65. While officers’ con Reed, United States v. may in qualify duct this case not as fla (7th Cir.2003)). particular, In we have grant, purpose stop of the seems to be suspect’s response that if a to an held “investigatory,” “expedi undertaken as an crime, illegal stop is a new and distinct tion for hope evidence that some force, flight any as or such use of evidence Brown, thing might up.” turn recovered incident to the arrest for the 605, 95 S.Ct. 2254. Officer Fain did not subsequent crime is not tainted stop until he found something pin to on initial unlawfulness detention. See Beauchamp. He did engage not Beau- Castillo, champ in a consensual encounter. He did (6th (Table), WL *5-6 not have suspicion stop and 2000) Nov. (unpublished opinion) Cir. detain him. Even if the had been (holding that a suspect’s high-speed flight legal, the district court found that he did purged from an unlawful detention taint probable not have cause to make an arrest detention, may have resulted from his until after pulled Beauchamp’s back drug and rendered the inci evidence found public underwear on a street and looked admissible); dent to flight his arrest for previously explained, inside. As we have Jefferson, type stopping “[t]his misconduct — (Table), 1999 WL at *4 Cir. suspect without probable cause for inves 1999) (hold July (unpublished opinion) tigatory purposes' precisely type —is flight defendant’s and use of force conduct that progeny Brown and its seeks against intervening officers constituted cir Baldwin, Fed.Appx. deter.” at 685. taint). purged cumstances that Unlike Accordingly, suggest as none of the factors however, Jefferson, Castillo and the police that Beauchamp’s consent is due to an discovered the evidence in this case—the will, intervening act of free the evidence baggie— cash and the plastic $1300 by exploiting was obtained the initial ille Beauchamp’s before struggle began. brief gality illegal and the taint of the seizure is Thus, Beauchamp’s struggle cannot serve dissipated. govern We find an intervening as circumstance because it carry ment has failed to its burden of does not illegal come between the seizure proving sufficiently that the consent was evidence; discovery and the there original is attenuated from the seizure to Shaw, admissible, no break the chain. See render the seized evidence little, valid consent to search —has if suppress give Beauchamp’s motion any, support in the law. granted. have been should begin principles:

But to with first “Law officers do not violate the enforcement III. CONCLUSION prohibition Amendment’s of unrea Fourth reasons, we reverse foregoing For the merely by approaching seizures sonable the mo- denying order the district court’s public on the or in other individuals street remand for further suppress tion to them if places putting questions proceedings. they willing are to listen.” United States 194, 200, 122 Drayton, KETHLEDGE, Judge, Circuit (2002). Thus, 2105, 153 L.Ed.2d 242 offi dissenting. may approach person ques and ask cers having any reasonable sus tions “without supposed of review are Standards activity,” long they criminal so as picion of are something. The standard we mean “intimidating refrain from behavior that as deferential as apply bound to here is a to person would lead believe in the evidence they come: we consider person that the was not free to leave.” govern- favorable to the light the most Waldon, ment, to the district deferring particularly (6th Cir.2000). “Whether an encounter be determinations; and credibility court’s tween a officer and a citizen is con that, all we then review the having done sensual,” therefore, “depends on the offi for clear findings court’s factual district objective cer’s Id. Coercive behavior[.]” Montgomery, States v. error. See United threatening pres includes “the behavior (6th Cir.2010). Under officers, display ence of several the of a standard, if an testifies that he that officer officer, physical an some touch weapon him, speak to with “asked” the defendant citizen, ing person of the or the use 19; Hearing Tr. at and the Suppression language indicating or tone of voice judge who observes that testi- magistrate request might with compliance the officer’s credible, Report mony finds the officer and Peters, compelled.” 5; judge agrees, at and the district Rec. Cir.1999) (quoting 4-5; R. R. at and the Adopting & Order Mendenhall, concedes in expressly defendant himself (1980)). 554, 100 1870, 64 L.Ed.2d 497 of his briefs to this court that the both Beauchamp step things None of those occurred here. officer “asked Mr. him[,]” approached Fain was alone when he Beau- Appel- the fence and talk to around or (emphasis champ, display weapon at and did not his Reply Br. at add- lant did, ed); lights. to con- activate his cruiser What he prerogative then it is not our rather, in Supreme is what the Court the “asked” into an “instructed” and vert Drayton ap- a said he is entitled to do: find the encounter coercive as result. today. proach person public a on a street and ask is what our court does Yet person willing speak is with goes then on to find a second whether The court asks, violation, That rather than holding that him. the officer constitutional commands, critical; Fain Beauchamp’s person is and here twice officer’s search of Beauchamp to Beauchamp unequiv- testified that he “asked” though coercive even the fence and talk with him. majority’s step to it. The around ocally consented Fain was district court found that holding recently premise for that —that and thus that Fain respects, credible in all necessarily is too scared frisked “instruction,” this putative than commanded Beau- Absent there “asked” rather nothing is about Fain’s conduct that was Beauchamp champ things. to do these But our court coercive. broadens the finding rather, does not even contest — that, scope inquiry: prior of its it observes point he concedes the his briefs. Usual- officer, Dees, approach, to Fain’s another ly at word on that sort party we take a proximity his cruiser in some had driven thing. sweeps everything But our court undefined, Beauchamp. proximity That is testimony, findings, aside—the close, apparently very was not because but concession, all, surely, them our with them, not a passed word between standard of review—and itself finds away walked without even Fain than Beau- “instructed” rather asked eye “making contact with the officer.” Maj. champ stop. Op. 564. The find- Maj. Op. light 564. Viewed most repeated is thereafter times government, favorable to the or even neu- opinion, eventually ripening into assertions trally, might one characterize this interac- given [Beauchamp] express that Fain “had merely a But sighting. tion as our court in- “specifically instructions” to thereby powering calls it an “encounter” — structed him” to do so. Id. at 568. up machinery of the Fourth Amend- ment —and asserts that then factfinding Appellate is rare and exotic “indicated” he did not want to talk to animal, and often seems out of too. place away. when he walked Id. at appearance explanation Its warrants result, majority’s 567. The in the con- that, say, manner a rhinoceros in Central struct, that Fain approached is when then explanation Park does. But no there is for Beauchamp on a different street —over majority’s the factfinding here. The ma- Beauchamp’s objection, speak so to —a jority explain why does not we should—or person think would that he had more to point, lawfully the can—set aside “targeted]” by been the officers and thus the district court’s determination of Fain’s was not “free to leave.” Id. at 567. credibility favor of our own. It not does theory the merits of explain Whatever this as a attempt explain why even to —or — matter, psychological it is untenable as a the district factual finding court’s that legal first, one. For two reasons: the Fain “asked” rather than instructed Beau- theory upon rests inferences that we champ clearly was erroneous. Indeed our fairly should not make when viewing the court acknowledge does not even that the supposed record as we are to it. view To finding district court made the at all. In- mere-proximity call Dees’ approach an stead, announces, merely our court near stretch; say “encounter” is a that Beau- the outset of factual summary, its champ then “indicated” to the officers that Fain Beauchamp “instructed” and them, he did not want to talk to is even come around if the fence—as this factual more so. To make those inferences is to issue, us, so central to the issue before light view the record in the most favorable is, undisputed. were it Which but not reversal, not affirmance. way the our court suggests; for what is undisputed here is that “Officer Fain Second, majority’s theory the if a —that step asked Mr. around the officers, targeted feels his en- fence and talk to Appellant him.” Br. at counter with them is coercive as result— added). (emphasis oversteps Our court contrary is to the caselaw. In Florida v. in finding contrary. Rodriguez, its bounds curiam), escalator, (per provided two nar- a much stronger L.Ed.2d 165 detectives, Facchiano, than we “indication]” and have here Rod- cotics McGee Ramirez, men, not riguez speak “did want to with the Rodriguez, three followed Blanco, Maj. Op. police[.]” from a in the at 567. Yet the Su- ticket counter hold, preme majority area Court did as the Airport way gate all to the Miami case, targeting, in this that all this flight. Eventually they all rode does for their indications, and all these rendered Rodri- together, with the detec- up an escalator guez’s Al- encounter with the officers coercive. standing behind the other three. tives clothes, Supreme held—in a officers Instead Court though plain wore reversal, summary no ini- “[t]he makes that the three less—that opinion clear Court’s tial contact between and [Rod- as such: the officers recognized men detectives they if he riguez], simply where asked stairs, of the Blanco top At the escalator them, step would aside and talk with detectives; back saw the looked clearly the sort of encounter consensual Ramirez. spoke a lower voice to then implicates no Fourth Amendment in- turned around and looked di- Ramirez 5-6, at terest.” U.S.' 105 S.Ct. 308. detectives, at the then turned his rectly here, is true The same and our court con- very and talked to quickly head back Rodriguez by holding flicts with the con- Blanco. trary. As the three cohorts left the escalator file, turned, Blanco looked direct-

single majority also observes that “Officer said, [Rodriguez], get “Let’s ly acknowledged Fain ‘didn’t ” He in a repeated of here.” then Maj. out there with Op. want to be [him].’ voice, here.” much lower out of Why majority “Get Fain’s 567. finds testi- caught turned [Rodriguez] around and mony on not on point, credible but attempted others, He sight majority detectives. say; does not but the away, the words of Officer provides majori- move zero point support for the McGee, legs pumping up “His were ty’s conclusion Fain’s encounter with very covering fast not much down Beauchamp was coercive. ‘reason- “[T]he legs per- but the as if the ground, were person’ presupposes able test an innocent running in place.” Bostick, son were Florida v. person[,]” 501 U.S. 111 S.Ct. 115 L.Ed.2d 389 added). 3-4, 105 (emphasis Id. at S.Ct. 308 (emphasis original); and thus whether gave trying soon to run Rodriguez up Beauchamp wanted “be there” —with away airport crowd- must have been —the rocks of crack cocaine in his boxer top of ed near that escalator—and completely point. shorts —is beside the [Rodriguez] they might “asked if McGee clearly The district court did not err Rodriguez agreed, though Id. talk.” finding the initial encounter between Fain it; surely happy was not and later about to be consensual. luggage. to a of his he consented search cocaine, officers but the There the found suppressed that evidence on

Florida courts majority yet finds constitu- another grounds. Amendment Fourth case, in this this time with tional violation passage quoted respect Beauchamp’s It is obvious from the to Fain’s search of by targeted person. majority’s that the three felt In the view that search above men coercive, though Beauchamp It is even con- just the detectives. as obvious was fact, “More away. majority tried to run That to it. The reasons: Rodriguez sented response his exchanges importantly, Beauchamp gave the trio’s on along with verbal McRae, immediately placed after Officer Fain had (10th Cir.1996) (consent Beauchamp’s body his on to conduct hands granted dur- scared, valid). A man is the frisk. defenseless ing officer’s frisk was court Our say in a no to a position not split creates a with by those circuits hold- just officer whose hands are still on or contrary. body from while removed another offi- It also mention that bears we throw the standing just away.” Maj. cer is a few feet by holding, caselaw into incoherence as the matter, Op. at 572. As an initial here, majority does that a officer’s suggesting characterization is inaccurate in protective frisk renders coercive the rest just that Dees “standing was a few feet his encounter with the who was away” when Beauchamp consented to the circumstances, In range frisked. a wide majority search. As the appears itself permits the law a police “placet officer to ] recognize opinion, Maj. elsewhere in its see Maj. his hands” on a person’s body, Op. at Op. at 565 n. each officer testified that 572, in protect by order to himself means yet Dees had not arrived when protective of a frisk. should penal- We gave person. consent to search his ize officers for protecting themselves in (Whether thereafter arrived Dees while ways expressly permits. the law I think the search ongoing, or after it was that is the majority’s effect of the decision unclear.) done, is analyze We should here.

validity Beauchamp’s according- consent I would affirm the district ly- judg- court’s ment, respectfully and thus I dissent. point that is a minor in comparison But potential to the sweep majority’s

holding supposedly on this issue. The co- presented

ercive circumstances here —a frisk,

protective followed consent hardly unique. search —are Kolender Cf. TENNY, al., Robert et Plaintiffs- Lawson, 352, 364, Appellants, (1983) (Brennan, J, 75 L.Ed.2d 903 (“Our concurring) reports replete case are examples with of suspects’ cooperation BLAGOJEVICH, al., R. Rod et encounters, during Terry even when the Defendants-Appellees. suspects great have a by coop- deal to lose Gray, Plaintiff-Appellant, Marcos erating”). Other routinely uphold circuits the validity of the defendant’s consent to See,

search in these e.g., circumstances. Roger Walker, Jr., al., E. et United States v. Campa, 234 F.3d Defendants-Appellees. (1st Cir.2000) (consent to search was valid 10-3075, 10-3076, 10-3077, 10-3078, Nos. despite before); officer’s frisk moments 10-3106, 10-3140, 10-3169. Kikumura, United States (3d Cir.1990) (rejecting the defen- Appeals, Court of dant’s argument that an “stop officer’s Seventh Circuit. frisk” moments before a requires search Argued June 2011. scrutiny consent”); “stricter Aug. Decided 2011. Dupree, Cir.2000) (consent to search was valid de-

spite before); officer’s frisk moments

Case Details

Case Name: United States v. Beauchamp

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Oct 25, 2011

Citation: 659 F.3d 560

Docket Number: 10-5102

Court Abbreviation: 6th Cir.