U.S. v. Washington

• Citation: 490 F.3d 765
• Decision Date: 19 June 2007
• Docket Number: No. 06-30386.,06-30386.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Bennie Demetrius WASHINGTON, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

490 F.3d 765

UNITED STATES of America, Plaintiff-Appellee, v. Bennie Demetrius WASHINGTON, Defendant-Appellant.

No. 06-30386.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 8, 2007.

Filed June 19, 2007.

Lisa Hay, Assistant Federal Public Defender, Portland, OR, for appellant Bennie D. Washington.

Stephen F. Peifer, Assistant United States Attorney, Portland, OR, for appellee United States of America.

Appeal from the United States District Court for the District of Oregon; Ancer L. Haggerty, District Judge, Presiding. D.C. No. CR-05-00010-1-ALH.

Before: RONALD M. GOULD, RICHARD A. PAEZ, and JOHNNIE B. RAWLINSON, Circuit Judges.

GOULD, Circuit Judge:

On the night that led to the conviction of Bennie Demetrius Washington ("Washington") and this appeal, Washington was seated in his lawfully parked car, on a dark Portland street not long before midnight. Portland police officer Daryl Shaw ("Shaw") decided to initiate investigatory contact with Washington, though he lacked reasonable suspicion or probable cause of criminal activity. During this encounter, Washington consented to a search of his person, was ordered out of and directed away from his car, and was searched. Washington thereafter consented to a search of his car, where officer Troy Pahlke ("Pahlke") discovered a firearm. Washington moved to suppress the firearm, but the district court denied his motion, and Washington subsequently pled guilty to, and was convicted of, being a felon in possession of a firearm.

Although Washington voluntarily consented to the search of his person, we conclude that the encounter then escalated into an impermissible seizure. And even though Washington thereafter consented to the search of his car, during which the firearm was discovered, we conclude, contrary to the district court, that Washington's consent was not voluntary. Alternatively, the search of Washington's car and the firearm discovered therein were "fruits of the poisonous tree" that followed in an immediate unbroken chain from his illegal seizure, and Washington's consent to the car search did not purge the taint of his illegal seizure.

I

On November 23, 2004, at about 11:30 p.m., Washington, an African-American male, was sitting in the driver's seat of his Ford Taurus, which was lawfully parked in downtown Portland, Oregon. Portland police officer Shaw, a white male, saw Washington sitting in the car, did not suspect Washington of any crime, but decided to make contact to investigate.

Without activating his sirens or lights, Shaw parked his squad car a full car length behind Washington's car. Shaw approached Washington's car on the driver side and shined a flashlight into the car. Shaw was uniformed, and his baton and firearm were in plain view of Washington, but remained holstered throughout the encounter.

Shaw asked Washington what he was doing. Washington responded that "he was waiting for a friend." Shaw asked Washington if he had anything on his person that he should not have, and Washington answered "no." Shaw then asked Washington if he would mind if Shaw checked, and Washington responded "sure." Washington does not dispute that he consented to Shaw's search of his person.

Shaw then asked Washington to step out of the car. Although Shaw spoke cordially and did not use any threat of force, Shaw directed Washington to move away from his car until the two reached Shaw's squad car, a full car length away. Once there, Shaw searched Washington's person.

While Washington was exiting his car, Portland police officer Pahlke, a white male, arrived at the scene, parking his vehicle a few car lengths in front of Washington's car. Upon his arrival, Pahlke heard Shaw ask Washington to step out of and then direct Washington away from the car, and noticed that when Washington exited his car, Washington's hands were raised. Pahlke positioned himself at the Taurus's partially open driver's side door, blocking Washington's entrance back into his car.

After the search of Washington's person, Shaw asked Washington if he had anything in his car that he should not have. Washington responded that he did not. Shaw then asked Washington if he minded if Pahlke searched the car. Washington responded "go ahead." During the search of Washington's car, Pahlke found the firearm that was the basis of Washington's prosecution and conviction. It is undisputed that neither Shaw nor Pahlke informed Washington that he could decline to consent to either the search of his person or the search of his car.

Recent relations between police and the African-American community in Portland are also pertinent to our analysis: According to testimony at the suppression hearing, in the one and a half years before Shaw initiated contact with Washington, there were two well-publicized incidents where white Portland police officers, during traffic stops, shot, and in one instance killed, African-American Portland citizens.¹ As a result of these incidents, the Portland Police Bureau published and distributed several pamphlets advising the public how to respond to a police stop.² Washington testified that he knew of and discussed with a friend one of the pamphlets,³ which contained advice to citizens such as "follow the officer's directions" when stopped, and "if ordered, comply with the procedures for a search." Additionally, in a message from the Chief of Portland's Police Department, the pamphlet listed common reasons police will stop a person, such as a person "committed a crime," or "is about to commit a crime."

On January 13, 2005, a grand jury indicted Washington for being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). Washington filed a motion to suppress, and on May 2, 2005, the district court conducted a suppression hearing. The district court orally denied Washington's suppression motion, and issued a written order of that denial on May 3, 2005. The district court found that Shaw and Pahlke did not seize Washington at any time during their encounter with him, and that Washington voluntarily consented to the search of his car.

On November 7, 2005, Washington pled guilty to the charge, reserving his right to appeal the denial of his suppression motion. The district court on June 19, 2006 sentenced Washington to seventy months. Washington timely appealed. We have jurisdiction under 28 U.S.C. § 1291, and we vacate Washington's conviction.

II

We review a district court's denial of a motion to suppress de novo. See United States v. Decoud, 456 F.3d 996, 1007 (9th Cir.2006). Whether an encounter between a defendant and an officer constitutes a seizure is a mixed question of law and fact that we review de novo. See United States v. Chan-Jimenez, 125 F.3d 1324, 1326 (9th Cir.1997). We review the trial court's factual findings, however, for clear error. See United States v. Howard, 447 F.3d 1257, 1262 n. 4 (9th Cir.2006). And a district court's determination whether a defendant voluntarily consented to a search depends on the totality of circumstances and is a question of fact we review for clear error. See United States v. Rodriguez-Preciado, 399 F.3d 1118, 1125-26 (9th Cir.2005).

Washington argues that the district court erred when it denied his motion to suppress because he was illegally seized by Shaw and Pahlke. Washington also argues that even if he was not seized, the district court clearly erred in finding that he voluntarily consented to the search of his car.

A

We first address whether Shaw's initial encounter with Washington constituted a seizure under the Fourth Amendment. A person is seized if "taking into account all of the circumstances surrounding the encounter, the police conduct would have communicated to a reasonable person that he was not at liberty to ignore the police presence and go about his business." Florida v. Bostick, 501 U.S. 429, 437, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991) (internal quotation marks omitted); see also United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980) (holding that an encounter is a seizure if "a reasonable person would have believed that he was not free to leave"); United States v. Washington, 387 F.3d 1060, 1068 (9th Cir.2004).

It is well established, however, that the Fourth Amendment is not implicated when law enforcement officers merely approach an individual in public and ask him if he is willing to answer questions. See Muehler v. Mena, 544 U.S. 93, 101, 125 S.Ct. 1465, 161 L.Ed.2d 299 (2005); see also Florida v. Royer, 460 U.S. 491, 497, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983); United States v. Mendoza-Cepeda, 250 F.3d 626, 628 (8th Cir.2001). No Fourth Amendment seizure occurs when a law enforcement officer merely identifies himself and poses questions to a person if the person is willing to listen. See Royer, 460 U.S. at 497, 103 S.Ct. 1319; see also Orhorhaghe v. INS, 38 F.3d 488, 494 (9th Cir. 1994). This is true whether an officer approaches a person who is on foot or a person who is in a car parked in a public place. See United States v. Kim, 25 F.3d 1426, 1430 (9th Cir.1994). Moreover, it is clear that the permissible questions may include a request for consent to search, see Muehler, 544 U.S. at 101, 125 S.Ct. 1465, "as long as the police do not convey a message that compliance with their requests is required." Bostick, 501 U.S. at 435, 111 S.Ct. 2382.

We conclude that although Shaw conceded he suspected Washington of no criminal activity, Shaw's initial encounter with Washington was not a seizure and did not implicate the Fourth Amendment. In approaching the scene, Shaw parked his squad car a full car length behind Washington's car so he did not block it. Shaw did not activate his sirens or lights. Shaw approached Washington's car on foot, and did not brandish his flashlight as a weapon, but rather used it to illuminate the interior of Washington's car. Although Shaw was uniformed, with his baton and firearm visible, Shaw did not...