423 F.3d 25 (1st Cir. 2005), 04-2101, United States v. Smith

Docket Nº:04-2101.
Citation:423 F.3d 25
Party Name:UNITED STATES of America, Appellant, v. Quinton SMITH, Defendant, Appellee.
Case Date:September 09, 2005
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

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423 F.3d 25 (1st Cir. 2005)

UNITED STATES of America, Appellant,


Quinton SMITH, Defendant, Appellee.

No. 04-2101.

United States Court of Appeals, First Circuit.

Sept. 9, 2005

Heard June 7, 2005.

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Judith H. Mizner, Assistant Federal Public Defender, was on brief, for appellee.

Thomas E. Kanwit, Assistant United States Attorney, with whom Michael J. Sullivan, United States Attorney, was on brief, for appellant.

Before SELYA, Circuit Judge, HILL, [*] Senior Circuit Judge, and LYNCH, Circuit Judge.

HILL, Circuit Judge.

The defendant, Quinton Smith, was arrested by Boston police officers and charged with one count of being a felon in possession of a firearm and ammunition in violation of 18 U.S.C. § 922(g)(1). Smith moved to suppress the gun, claiming that it was seized in violation of his rights under the Fourth Amendment. After a three-day hearing, the court granted the motion. This appeal followed.


At approximately 1:30 p.m. on September 16, 2002, uniformed Boston Police Department officers Tarantino and Griffin were in their marked police cruiser patrolling, when they passed Smith, who was sitting on a 2-3 foot wall behind the sidewalk on Woolson Street. The sidewalk was approximately seven feet wide. There was a telephone pole in front of Smith and a

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house with a chain-link fence enclosing the side-yard behind him.

The officers passed Smith as they drove down Woolson Street. Although both testified that they regularly patrolled the area and were familiar with the "locals," neither officer recognized Smith. They circled the block and returned to the spot where Smith was still sitting. Griffin leaned out the passenger window and asked Smith if he lived at the house behind him. Smith said that he did not. Griffin then asked Smith what he was doing sitting on the wall. Smith responded that he was waiting for the bus that stops on the corner across the street. Griffin asked Smith if he meant the bus that stops approximately 100 feet across the street and around the corner from where he was sitting. Smith said yes, and Griffin asked him why he was not at the bus stop itself. Smith responded that he could catch the bus from where he was sitting.

The officers got out of their patrol car to fill out a Field Intelligence and Observation Report ("FIO"). 1 Tarrantino and Griffin approached Smith and stood on either side of the telephone pole that was directly in front of him. Neither officer drew his weapon. Griffin asked Smith for identification or his name. Smith produced identification. As Griffin started back to the patrol car to run Smith's name through the mobile data terminal, Smith told the officers that they would find that he had an outstanding warrant for a motor vehicle violation. Griffin's data check revealed that Smith did, indeed, have an outstanding arrest warrant for receiving stolen property (motor vehicle license plates).

The officers then undertook to arrest Smith, who resisted by dragging the officers down the sidewalk and flailing his arms and punching. After subduing Smith, the officers searched him, finding a loaded .25 caliber automatic pistol with one round in the chamber and three in the magazine in his waistband. The officers also found three plastic bags of marijuana on him.

Smith filed a motion to suppress all evidence derived from the search, contending that he was seized within the meaning of the Fourth Amendment at the time the officers approached him and requested his name or identification. He also argued that this seizure was not supported by reasonable suspicion because the only thing the officers knew at that time was that he was a black man in a high crime area.

The government argued that Smith was not seized until the police officers confirmed his admission of the outstanding warrant and attempted to arrest him. Prior to that time, the government asserts, the encounter was consensual. Since Smith was arrested pursuant to a valid warrant, the government contends that the search was incident to a lawful arrest and, therefore, the evidence is admissible.

The district court rejected these arguments, concluding that Smith was seized when the officers exited their car to further question him because, at that point, Smith reasonably believed that he was not free to refuse to answer and leave. 332 F.Supp.2d 277, 282-83 (D.Mass.2004). Furthermore, the court held, the seizure was unconstitutional as the officers had no reasonable suspicion to exit their patrol car to question Smith because his explanation

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regarding his presence there was "absolutely plausible." Id. at 286. Since the seizure was unconstitutional, the court held that the gun and ammunition found on Smith is inadmissible at trial. Id. Our review of these conclusions of law is de novo. United States v. Cardoza, 129 F.3d 6, 13-14 (1st Cir.1997). Couching conclusions of law as findings of fact will not alter the standard of review.


While the Fourth Amendment protects against unreasonable searches and seizures, not all encounters between law enforcement officers and citizens constitute seizures. The Supreme Court has made clear that "[l]aw 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, 536 U.S. 194, 200-01, 122 S.Ct. 2105, 153 L.Ed.2d 242 (2002). "There is nothing in the Constitution which prevents a policeman from addressing questions to anyone on the streets." United States v. Mendenhall, 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980) (quoting Terry v. Ohio, 392 U.S. 1, 34, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) (White, J. concurring). We, too, have affirmed that the police may "approach citizens in public spaces and ask them questions without triggering the protections of the Fourth Amendment." United States v. Young, 105 F.3d 1, 6 (1st Cir.1997).

On the other hand, a seizure may certainly occur without actual physical restraint. If an officer, by means of show of authority, even briefly restrains the liberty of a citizen, we may conclude that a seizure has occurred. Terry, 392 U.S. at 19, 88 S.Ct. 1868. In order to find a seizure, however, we must be able to conclude that coercion, not voluntary compliance, most accurately describes the encounter. Mendenhall, 446 U.S. at 554, 100 S.Ct. 1870. In the absence of evidence of coercion, "otherwise inoffensive contact between a member of the public and the police cannot, as a matter of law, amount to a seizure of that person." Id. at 555, 100 S.Ct. 1870.

Furthermore, since most tend to feel some degree of compulsion when confronted by law enforcement officers asking questions, such discomfort cannot be the measure of a Fourth Amendment seizure. If it were, officers would effectively be barred from approaching citizens at all, absent full-blown probable cause. In Mendenhall, the Supreme Court made clear that "characterizing every street encounter between a citizen and the police as a 'seizure,' ... would impose wholly unrealistic restrictions upon a wide variety of legitimate law enforcement practices." Id. at 554, 100 S.Ct. 1870. Without the authority to approach and briefly question a citizen, "those who were innocent might be falsely accused, those who were guilty might wholly escape prosecution, and many crimes would go unsolved. In short, the security of all would be diminished. Id. (internal citations omitted).

In order to avoid such an unsatisfactory result, the Court has made clear that only when a citizen's freedom of movement is objectively restrained is there any foundation for invoking constitutional safeguards. Id. at 553, 100 S.Ct. 1870. No seizure occurs when officers approach a citizen to ask a question unless it was objectively reasonable for that person to believe that he was compelled to stay and answer the question. Id.

Nor may we infer such belief from the fact that the person stayed to answer the

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question. Id. "While most citizens will respond to a police request, the fact that people do so, and do so without being told they are free not to respond, hardly eliminates the consensual nature of the response." INS v. Delgado, 466 U.S. 210, 216, 104 S.Ct. 1758, 80 L.Ed.2d 247 (1984). Although a person may regret staying to answer an officer's questions, as Smith apparently does, such regret does not transform an otherwise consensual encounter into an unconstitutional seizure. Mendenhall, 446 U.S. at 556, 100 S.Ct. 1870. In sum, "[u]nless the circumstances of the encounter are so intimidating as to demonstrate that a reasonable person would have believed he was not free to leave if he had not responded, one cannot say that the questioning resulted in a detention under the Fourth Amendment." Delgado, 466 U.S. at 217, 104 S.Ct. 1758.

The real question in this case, then, is not whether the police were entitled to approach Smith to ask him a few questions, but, rather, whether they did so in a manner that would have communicated to a reasonable person that he was not free to refuse to answer and walk away. If so, Smith was seized prior to his admission regarding the outstanding warrant, and the evidence subsequently discovered was correctly suppressed by the district court. 2

In Mendenhall, the Supreme Court described some of the circumstances whose presence led it to find permissible questioning, rather than impermissible restraint:

The events took place in the public concourse. The agents wore no uniforms and displayed no weapons. They did not summon the respondent to their presence, but instead approached her and identified themselves as federal agents. They requested, but did not...

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