615 F.3d 657 (6th Cir. 2010), 08-4630, United States v. Williams

Docket Nº:08-4630.
Citation:615 F.3d 657
Opinion Judge:KAREN NELSON MOORE, Circuit Judge.
Party Name:UNITED STATES of America, Plaintiff-Appellant, v. Thomas W. WILLIAMS, Defendant-Appellee.
Attorney:Michael J. Hunter, Assistant United States Attorney, Columbus, Ohio, for Appellant. Kevin Michael Schad, Federal Public Defender's Office, Cincinnati, Ohio, for Appellee. Michael J. Hunter, Kevin W. Kelley, Assistant United States Attorneys, Columbus, Ohio, for Appellant. Laura E. Byrum, Federal ...
Judge Panel:Before: MOORE and GILMAN, Circuit Judges; RUSSELL, Chief District Judge.[*]
Case Date:August 06, 2010
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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615 F.3d 657 (6th Cir. 2010)

UNITED STATES of America, Plaintiff-Appellant,

v.

Thomas W. WILLIAMS, Defendant-Appellee.

No. 08-4630.

United States Court of Appeals, Sixth Circuit.

August 6, 2010

Argued: April 30, 2010.

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ARGUED:

Michael J. Hunter, Assistant United States Attorney, Columbus, Ohio, for Appellant.

Kevin Michael Schad, Federal Public Defender's Office, Cincinnati, Ohio, for Appellee.

ON BRIEF:

Michael J. Hunter, Kevin W. Kelley, Assistant United States Attorneys, Columbus, Ohio, for Appellant.

Laura E. Byrum, Federal Public Defender's Office, Columbus, Ohio, for Appellee.

Before: MOORE and GILMAN, Circuit Judges; RUSSELL, Chief District Judge.[*]

OPINION

KAREN NELSON MOORE, Circuit Judge.

On October 12, 2004, Columbus police officers Robert Vass and T. Pappas pulled up in a police cruiser to a group of people standing outside an affordable-housing complex owned by Community Properties of Ohio (" CPO" ). Upon exiting the vehicle and moving toward the group, Vass recognized one of its members, Thomas W. Williams, who was standing on the sidewalk and leaning against a car. Vass immediately told Williams that he was " again trespassing on CPO property." In the ensuing interaction, Williams acknowledged in response to questions that there might be a warrant out for his arrest and that he was carrying a gun. The officers arrested Williams, who was later charged with being a felon in possession of a firearm and ammunition.

On Williams's motion, the district court ruled that Williams had been illegally seized, and the court suppressed the physical

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evidence and Williams's statements during the encounter. The government now appeals, making three arguments: (1) Williams was not seized within the meaning of the Fourth Amendment when Vass first spoke to him; (2) if Williams was seized, Vass had reasonable suspicion to detain him; and (3) even if Vass lacked reasonable suspicion to detain Williams, the emergence of information that Williams was wanted on an arrest warrant constituted an intervening circumstance that attenuated the taint of the unlawful seizure.

After careful review, we AFFIRM. Williams was seized: a reasonable person would not have felt free to leave upon being approached by two uniformed officers in a marked car, singled out of a group, and immediately accused of a crime. The seizure was unlawful: Williams was not trespassing or committing any other crime when the officers approached, and the fact that others in his group were drinking publicly and might have been trespassing did not constitute reasonable suspicion that Williams himself had recently committed a crime or was about to commit one. Finally, there was no attenuation: Williams's statement about the outstanding warrant, made in response to a question posed by Vass at the outset of the seizure, was not " the product of a free will." Brown v. Illinois, 422 U.S. 590, 603, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975). Thus, the incriminating evidence was " come at by exploitation of th[e] illegality" of the seizure, not " by means sufficiently distinguishable to be purged of the primary taint." Wong Sun v. United States, 371 U.S. 471, 488, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).

I. BACKGROUND

We accept the district court's factual findings unless clearly erroneous. United States v. Martin, 289 F.3d 392, 396 (6th Cir.2002). The district court found the following facts, which the parties do not dispute on appeal:

Community Properties of Ohio (" CPO" ) is a subsidized property management company that provides affordable housing to low-income individuals throughout Columbus. (Test. of Joshua Martin, Suppression Hr'g. Tr. p. 6-7 (" Martin Test." ).) Because a large number of CPO's properties are in high crime areas, CPO has instituted several security programs, one of which is to hire Columbus Police Department officers to patrol CPO properties as special duty officers. ( Id. p. 7.) These special duty officers, who work in full Columbus Police Department uniforms and drive marked Columbus Police Department cruisers, patrol CPO properties and strictly enforce criminal laws and CPO regulations prohibiting, among other things, trespassing and loitering in an attempt to " eliminate the elements" of crime. (Test. of Robert Vass, Suppression Hr'g. Tr. p. 34 (" Vass Test." ).)

Signs that prohibit trespassing and state that trespassers will be prosecuted are posted on all CPO properties (Def.Supp.Mem. ex.2, doc. # 32), and special duty officers patrolling CPO properties will engage nonresidents in conversation to determine if they are trespassing. If the nonresident can provide some information indicating that they are a resident's guest, such as a resident's name, or a valid reason for being on the property, then the special duty officer will do nothing other than warn the nonresident that trespassing is prohibited. (Vass Test. p. 38, 52.) If the nonresident cannot provide information indicating that they are a resident's guest, or if a special duty officer has to talk to a nonresident about trespassing a

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second time, the nonresident's name and picture or other identifying information will be entered into the CPO's trespass logbook, a record of all individuals who have been given trespass warnings. (Martin Test. p. 11; Vass Test. p. 37.) If a nonresident trespasses on CPO property after having his or her name entered in the logbook, the nonresident is arrested for criminal trespass and taken to jail. (Vass Test. p. 37.) The special duty officers, however, have discretion to address situations on a case-by-case basis, and do not have to go through the process of issuing warnings before arresting an individual for criminal trespass. ( Id. p. 38-39.)

At approximately 9:00 p.m. on October 12, 2004, Columbus Police Department Officers Robert Vass (" Vass" ) and T. Pappas (" Pappas" ) were working special duty patrol for CPO. ( Id. p. 38-39.) Vass and Pappas were in their cruiser heading southbound on Wilson Avenue to inspect a CPO property located at 1084 East Whittier Street. ( Id. p. 39.) As they turned onto East Whittier from Wilson Avenue, Vass and Pappas observed a group of four to five individuals standing at various locations in front of 1084 East Whittier. Vass and Pappas parked their cruiser in front of the building and approached the group, and as they did Vass recognized Defendant, who was standing on the sidewalk in front of 1084 East Whittier and was leaning against a car parked in the street. ( Id. p. 68; Map of 1084 East Whittier Street, Suppression Hr'g. Def. Ex. 1.) Vass recognized Defendant from a prior unrelated instance in which he had arrested Defendant in June 2004. Additionally, Vass testified that he had also given Defendant a verbal trespass warning after seeing him at 1084 East Whittier at some time after June 2004 and before October 2004. (Vass Test. p. 42-44.) Defendant's name had not been entered into the logbook as a result of this warning because he had indicated he was a resident's guest, but Vass had warned him not to trespass on CPO property. ( Id. )

As he and Pappas approached Defendant, Vass told Defendant that " he was again trespassing on CPO property." (Arrest Information Report, Suppression Hr'g. Gov't. Ex. 3.) Vass then asked Defendant if there were any outstanding warrants for his arrest, and Defendant replied that he thought there might be one related to his June 2004 arrest. Vass told Defendant he would run a warrant check, and then asked Defendant if he was armed. (Vass Test. p. 46.) Defendant replied that he " had to protect himself," which Vass took to mean that Defendant was in fact armed. Vass told Defendant he was going to do a pat-down search, to which Defendant replied that he was carrying a gun, and when Vass conducted the pat-down search he discovered a firearm concealed under Defendant's shirt in the back waistband of his pants. Defendant was then handcuffed and arrested. ( Id. ; p. 70-71.)

United States v. Williams, No. 2:08-cr-62, 2008 WL 4758683, at *1-2 (S.D.Ohio Oct.27, 2008) (unpublished opinion) (footnote omitted).

A grand jury indicted Williams on one count of being a felon in possession of a firearm and one count of being a felon in possession of ammunition. Williams filed a motion to suppress the physical evidence and statements he made during the encounter, which the government opposed. Following an evidentiary hearing on June 25, 2008 and supplemental briefing, the district court issued a written opinion granting the motion on October 27, 2008. The government timely appealed, and the

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district court stayed the case pending appeal.

II. ANALYSIS

A. Standard of Review

We review de novo a district court's legal conclusions in granting a motion to suppress. United States v. Cohen, 481 F.3d 896, 898 (6th Cir.2007). " Where the district court grants a motion to suppress, we view the evidence in the light most favorable to the defendant." United States v. Bailey, 302 F.3d 652, 656 (6th Cir.2002).

B. Whether Williams Was Seized

The Fourth Amendment protects " [t]he right of the people to be secure in their persons ... against unreasonable ... seizures." U.S. Const. amend. IV. This protection, however, applies only if a person is " seized" within the meaning of the Fourth Amendment. Bennett v. City of Eastpointe, 410 F.3d 810, 821 (6th Cir.2005). The government contends that Officers Vass and Pappas never seized Williams.

" Only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a ‘ seizure’ has occurred." Terry v....

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