548 F.3d 1 (1st Cir. 2008), 07-2613, United States v. Ford

Docket Nº:07-2613.
Citation:548 F.3d 1
Party Name:UNITED STATES, Appellee, v. Tyson FORD, Defendant, Appellant.
Case Date:November 05, 2008
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

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548 F.3d 1 (1st Cir. 2008)



Tyson FORD, Defendant, Appellant.

No. 07-2613.

United States Court of Appeals, First Circuit.

November 5, 2008

Heard Oct. 6, 2008.

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Allison J. Koury was on brief, for appellant.

Jack W. Pirozzolo, Assistant United States Attorney, with whom Michael J. Sullivan, United States Attorney, was on brief, for appellee.

Before BOUDIN, STAHL, and HOWARD, Circuit Judges.

STAHL, Circuit Judge.

Defendant-Appellant Tyson Ford appeals his conviction under the felon-in-possession statute, 18 U.S.C. § 922(g)(1). His main complaint is that the district court erred in denying his motion to suppress a firearm found on his person because it was obtained during an unconstitutional search and seizure. Finding no error, we affirm the conviction.

I. Background

We relate the facts “ ‘ as the trial court found them, consistent with record support.’ " United States v. Ruidiaz, 529 F.3d 25, 27 (1st Cir.2008) ( quoting United States v. Lee, 317 F.3d 26, 30 (1st Cir.2003)). On September 8, 2005, Officers Daran Edwards and Daniel Griffin (“ the Officers" ) of the Boston Police Department (“ BPD" ) were on a routine patrol in a high-crime area of Dorchester, Massachusetts. The Officers were in uniform and in a marked police cruiser. They regularly patrolled the Dorchester area and were familiar with many of the area's residents. At approximately 3:00 p.m., the Officers observed Ford, who they did not recognize, walking alone down Harvard Street. Ford looked over his shoulder, observed the cruiser and then lowered his head, began walking rapidly, and turned right onto Gleason Street. The Officers followed Ford the wrong way up Gleason Street for a short distance, ostensibly to conduct a Field Intelligence and Observation Report (FIO), used by BPD police officers for intelligence collection.

Upon coming abreast of Ford, Officer Griffin leaned out of the passenger side window and asked him, “ Can I speak to you for a minute?" Ford stopped walking, took his identification out of his front pocket, and voluntarily handed it to Officer Griffin. He told the Officers he had no outstanding warrants and was not on probation. While Officer Edwards ran a search for warrants using the BPD database, Officer Griffin continued to ask Ford questions like “ where do you live?" and “ where are you headed?" Officer Griffin observed that Ford appeared annoyed, nervous, and hostile at times and that he was breathing rapidly, stuttered his words, and his hands shook. Officer Griffin asked Ford whether he had anything on him that the Officers needed to know about. Ford answered in the negative.

Roughly 45 seconds after taking Ford's driver's license, Officer Griffin exited the cruiser to complete the FIO. Following

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BPD protocol, Officer Edwards also exited, walked behind the cruiser, and approached Ford from the same direction as Officer Griffin. Neither Officer unholstered his weapon. Ford raised his hands into the air and said, “ Come on man, what's this all about?" Officer Griffin asked whether Ford had any weapons on his person. Ford responded, “ Yeah, I got a gun in my pocket, but it don't fire." The Officers then placed Ford in handcuffs, and Officer Griffin frisked him, discovering and seizing a Grendel, Inc., P-12 .380 semi-automatic handgun from the pocket of Ford's pants. The Officers arrested Ford, the entire encounter lasting approximately two to three minutes from interception to arrest. Before placing Ford in handcuffs, neither Officer had touched Ford, drawn his weapon, or told Ford he was not free to leave nor had the Officers activated the police cruiser's siren or flashing lights.

On November 1, 2005, a single-count complaint charged Ford as a felon-in-possession of a handgun in violation of 18 U.S.C. § 922(g)(1). On March 3, 2006, Ford moved to suppress the evidence seized in the warrantless search of his person, contending he was seized at the time the Officers exited the vehicle in violation of his Fourth Amendment rights. On July 20, 2006, the district court denied the motion and issued a well-reasoned rescript, finding that the Officers had not seized Ford prior to his incriminating statement. See United States v. Ford, 440 F.Supp.2d 16 (D.Mass.2006).

On October 4, 2006, Ford entered a conditional plea of guilty, see Fed.R.Crim.P. 11(a)(2), reserving his right to appeal the denial of his suppression motion. On October 11, 2006, the district court sentenced Ford to a term of imprisonment of 15 years under the Armed Career Criminal Act, 18 U.S.C. § 924(e)(1). Ford now appeals the denial to suppress the handgun and his conviction.1

II. Discussion

A. The Motion to Suppress

This appeal primarily concerns the boundary delineating casual encounters with police, as when officers question persons in public places, from seizures requiring probable cause or articulable suspicion. See United States v. Young, 105 F.3d 1, 5-6 (1st Cir.1997). Ford challenges the lower court's denial of his motion to suppress in which he argued the Officers seized him before possessing the requisite reasonable suspicion. The Government concedes, and we accept for the purposes of this review, that the Officers lacked the reasonable suspicion required for a seizure and that, if a seizure occurred, the handgun found on Ford's person “ must be suppressed as tainted fruit." See Florida v. Bostick, 501 U.S. 429, 433-34, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991).

“ Our review of a district court's denial of a suppression motion is bifurcated." United States v. Cardoza, 129 F.3d 6, 13 (1st Cir.1997). We review the court's factual findings for clear error and its legal conclusions (including constitutional determinations) de novo. Ruidiaz, 529 F.3d at 28. Clear error “ ‘ exists only if, after considering all of the evidence, we are left with a definite and firm conviction that a mistake has been made.’ " Young, 105 F.3d at 5 ( quoting United States v. McCarthy, 77 F.3d 522, 529 (1st Cir.1996)). This deference “ reflects our awareness that the trial judge ... sits in the best position to determine what actually happened." Id.

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The Fourth Amendment provides that “ [t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated." U.S. Const., amend. IV. The primary purpose of the Fourth Amendment is “ ‘ to prevent arbitrary and oppressive interference by enforcement officials with the privacy and personal security of individuals.’ " I.N.S. v. Delgado, 466 U.S. 210, 215, 104 S.Ct. 1758, 80 L.Ed.2d 247 (1984) ( quoting United States v. Martinez-Fuerte, 428 U.S. 543, 554, 96 S.Ct. 3074, 49 L.Ed.2d 1116 (1976)).

Not every interaction between a police officer and a citizen constitutes a seizure triggering Fourth Amendment protections. Bostick, 501 U.S. at 434, 111 S.Ct. 2382; Cardoza, 129 F.3d at 14; Young, 105 F.3d at 5. While per se rules are inappropriate in determining when a seizure occurs for Fourth Amendment purposes, United States v. Drayton, 536 U.S. 194, 201, 122 S.Ct. 2105, 153 L.Ed.2d 242 (2002) ( citing Bostick, 501 U.S. at 439, 111 S.Ct. 2382), we have observed that encounters “ between law enforcement officials and citizens generally fall[ ] within three tiers of Fourth Amendment analysis, depending on the level of police intrusion into a person's privacy." Young, 105 F.3d at 5. Because there are no bright-line distinctions between the tiers, we look to the totality of the circumstances to determine where a police encounter falls. Drayton, 536 U.S. at 207, 122 S.Ct. 2105; Michigan v. Chesternut, 486 U.S. 567, 572, 108 S.Ct. 1975, 100 L.Ed.2d 565 (1988); United States v. Smith, 423 F.3d 25, 29-30 (1st Cir.2005); Cardoza, 129 F.3d at 15. See also Bostick, 501 U.S. at 439-40, 111 S.Ct. 2382 (rejecting per se rule for seizure in favor of totality inquiry).

The lowest tier, which does not implicate the Fourth Amendment, involves minimally intrusive interactions such as when police officers approach individuals on the street or in public places to ask questions. Young, 105 F.3d at 5-6; Bostick, 501 U.S. at 434, 111 S.Ct. 2382. See Drayton, 536 U.S. at 201, 122 S.Ct. 2105 (observing that law enforcement agents may question and ask a citizen for identification even when they have no basis to suspect the individual so long as they “ do not induce cooperation by coercive means" ). If the encounter amounts to more than a minimally intrusive interaction, a seizure occurs, either a de facto arrest requiring probable cause or an investigative (or Terry ) stop necessitating reasonable suspicion. Young, 105 F.3d at 6.

The Supreme Court has adopted the standard set forth by Justice Stewart's plurality opinion in United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980), that “ a person has been ‘ seized’ within the meaning of the Fourth Amendment only if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave." 2 See Drayton, 536 U.S. at 202, 122 S.Ct. 2105; California v. Hodari D., 499 U.S. 621, 627-28, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991)...

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