617 F.3d 724 (3rd Cir. 2010), 09-3391, United States v. Dupree

Docket Nº:09-3391.
Citation:617 F.3d 724
Opinion Judge:HARDIMAN, Circuit Judge.
Party Name:UNITED STATES of America, Appellant v. Maurice Ray DUPREE.
Attorney:Robert A. Zauzmer, (Argued), Jose R. Arteaga, Office of United States Attorney, Philadelphia, PA, Attorneys for Appellant. Brett G. Sweitzer, (Argued), Robert Epstein, Kai N. Scott, Defender Association of Philadelphia, Philadelphia, PA, Attorneys for Appellee.
Judge Panel:Before: FISHER, HARDIMAN and COWEN, Circuit Judges. COWEN, Circuit Judge, dissenting. FISHER, Circuit Judge, concurring in part and concurring in the judgment.
Case Date:August 06, 2010
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit
 
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617 F.3d 724 (3rd Cir. 2010)

UNITED STATES of America, Appellant

v.

Maurice Ray DUPREE.

No. 09-3391.

United States Court of Appeals, Third Circuit.

August 6, 2010

Argued April 13, 2010.

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Robert A. Zauzmer, (Argued), Jose R. Arteaga, Office of United States Attorney, Philadelphia, PA, Attorneys for Appellant.

Brett G. Sweitzer, (Argued), Robert Epstein, Kai N. Scott, Defender Association of Philadelphia, Philadelphia, PA, Attorneys for Appellee.

Before: FISHER, HARDIMAN and COWEN, Circuit Judges.

OPINION

HARDIMAN, Circuit Judge.

This appeal requires us to consider the question of waiver. The issue arises in the context of a criminal case in which Defendant Maurice Ray Dupree prevailed on a motion to suppress evidence after the District Court determined he had been seized without reasonable suspicion. In the District Court, the Government argued that one issue was dispositive: whether Dupree

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was actually seized when he was first grabbed by police. Before this Court, the Government concedes that point but urges reversal for two new-and quite different-reasons. I would hold that both of these new arguments were waived. Although Judge Fisher does not share my view regarding waiver, he would affirm the District Court on the merits. Accordingly, we will affirm.

I.

A.

On the evening of January 16, 2008, Philadelphia Police Officers Brian Mabry and Steven Shippen were on patrol in a marked police cruiser when they received a report of gunshots near 10th and Oxford Streets. The shooter was described as a black male, approximately five feet, eight inches tall, wearing blue jeans and a black, hooded sweatshirt. A later report indicated that the suspect had fled eastward on Oxford Street.

The officers drove approximately one mile to the vicinity of the shooting. As they crossed Marshall Street, the officers noticed a man, later identified as Dupree, slowly riding a bicycle toward Oxford Street. Although Dupree fit the suspect's description, Shippen did not stop because the reports said nothing about the suspect riding a bicycle.

Moments later, Mabry mentioned that Dupree resembled the suspect's description, prompting Shippen to return to Marshall Street. As the officers approached Dupree, he continued to ride his bicycle slowly in their direction. After Shippen stopped the cruiser, Mabry alighted from the vehicle, grabbed the approaching Dupree by the arm, and asked: " Can I talk to you for a minute?" Although Mabry's grasp stopped Dupree's movement, Dupree initially remained perched on the bicycle.

At this point, the parties' otherwise consistent versions of events diverge. According to the Government, Dupree twisted away, " slammed" his bicycle into Mabry's legs, and fled on foot. Dupree concedes that he broke free and fled, but denies intentionally throwing his bicycle at Mabry. Instead, he claims the bicycle inadvertently slid into Mabry as he dismounted.

Regardless of how Dupree extricated himself from Mabry's grasp, he fled on foot and the officers gave chase. With the officers close behind, Dupree circled a home on Marshall Street several times before pulling a loaded, .357 caliber revolver from his waistband and discarding it into a flowerpot. Mabry stopped to recover the weapon while Shippen pursued and eventually arrested Dupree after a brief struggle.

B.

Following his arrest, Dupree was charged with one count of possession of a firearm by a felon, in violation of 18 U.S.C. § 922(g)(1). Dupree moved to suppress the gun, contending that because Mabry lacked reasonable suspicion to grab him on Marshall Street, the weapon was the fruit of an unlawful seizure. The Government opposed the motion, arguing that under the Supreme Court's decision in California v. Hodari D., 499 U.S. 621, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991), Dupree was not seized until after the chase, when Shippen subdued him. Because Dupree discarded the gun before he was seized, argued the Government, the abandoned firearm was not subject to suppression.

The District Court rejected the Government's argument. The Court first observed that " a laying on of hands or application of physical force to restrain movement, even when it is ultimately unsuccessful," constitutes a Fourth Amendment seizure.

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United States v. Dupree, No. 08-280-1, 2009 WL 1475276, at *3 (E.D.Pa. May 27, 2009) (quoting United States v. Brown, 448 F.3d 239, 245 (3d Cir.2006)). Accordingly, the District Court held that Dupree was seized unlawfully when Mabry first grabbed him on Marshall Street. The District Court then quoted United States v. Coggins, 986 F.2d 651, 653 (3d Cir.1993), and held: " when the abandonment of property is precipitated by an unlawful seizure, that property also must be excluded." The District Court's holding was consistent with " the Government's concession that if the initial stop of Dupree is found to have been a seizure, then the gun must be suppressed as the seizure's illegal proceeds." Dupree, 2009 WL 1475276, at *6.

The Government filed a motion for reconsideration, framing the issue for the District Court as follows: " the suppression issue in this case turns on a single question-was ... Dupree seized, within the meaning of the Fourth Amendment, when ... Mabry grabbed Dupree for a mere two seconds before Dupree broke away and attempted to flee?" The Government then reprised the argument it made at the suppression hearing, viz., that under Hodari D., the Fourth Amendment was not implicated because Dupree was not seized until well after he dropped the firearm. The Government also argued-for the first time and in the alternative-that Dupree committed an assault when he intentionally " slammed" his bicycle into Mabry. Even if Mabry's initial grab did constitute a seizure, contended the Government, Dupree's new crime gave the officers probable cause to arrest and thereby purged the taint of Mabry's unlawful seizure. The District Court denied the motion for reconsideration.

II.

The Government now appeals the District Court's orders granting Dupree's motion to suppress and denying the Government's motion for reconsideration. The District Court had jurisdiction pursuant to 18 U.S.C. § 3231, and we exercise jurisdiction under 18 U.S.C. § 3731.

The Government's appeal-in diametric opposition to the argument it twice made before the District Court-begins with the concession that Mabry's initial grab of Dupree was an illegal seizure under the Fourth Amendment. Notwithstanding the illegal seizure, the Government urges reversal for two reasons: (1) even if Dupree's flight was prompted by Mabry's unlawful seizure, the policies underlying the exclusionary rule and the fruit-of-the-poisonous-tree doctrine do not require suppression of evidence voluntarily discarded by a fleeing defendant; and (2) Dupree's alleged assault of Mabry provided probable cause to arrest and thereby purged the taint of the unlawful seizure. Although the Government's second argument was raised in its motion for reconsideration in the District Court, its principal argument was never raised prior to this appeal. Dupree asserts that both arguments were waived. Alternatively, he argues that both fail on the merits.

We examine the District Court's factual findings for clear error and review de novo the District Court's legal conclusion that Dupree's firearm must be suppressed. See United States v. Johnson, 592 F.3d 442, 447 (3d Cir.2010).

III.

I begin with the well-established proposition that arguments not raised in the district courts are waived on appeal.1

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See Steagald v. United States, 451 U.S. 204, 209, 101 S.Ct. 1642, 68 L.Ed.2d 38 (1981). This general principle applies fully to criminal cases involving motions to suppress. See id. ; United States v. Stearn, 597 F.3d 540, 551 n. 11 (3d Cir.2010). Thus, when a party seeks reversal of a suppression ruling on appeal, any arguments not raised in the district court are waived absent a showing of good cause, and plain error review does not apply.2 United States v. Rose, 538 F.3d 175, 184 (3d Cir.2008); see also Fed.R.Crim.P. 12(e). Just as a defendant may not introduce new " theories of suppression" on appeal that were never argued below, United States v. Lockett, 406 F.3d 207, 212 (3d Cir.2005), the Government is " subject to the ordinary rule that an argument not raised in the district court is waived on appeal[,]" Stearn, 597 F.3d at 551 n. 11 (citing Steagald, 451 U.S. at 209, 101 S.Ct. 1642).

This raise-or-waive rule is essential to the proper functioning of our adversary system because even the most learned judges are not clairvoyant. See United States v. Nee, 261 F.3d 79, 86 (1st Cir.2001). Thus, we do not require district judges to anticipate and join arguments that are never raised by the parties. See United States v. Griffiths, 47 F.3d 74, 77 (2d Cir.1995). Instead courts rely on the litigants not only to cite relevant precedents, but also to frame the issues for decision. See id. (" The government was required to offer some argument or development of its theory. It failed to do so, and has therefore waived the issue." ).

Moreover, " [a] fleeting reference or vague allusion to an issue will not suffice to preserve it for appeal[.]" In re Ins. Brokerage Antitrust Litig., 579 F.3d 241, 262 (3d Cir.2009). Rather, a party " must unequivocally put its position before the trial court at a point and in a manner that permits the court to consider its merits." Shell Petroleum, Inc. v. United States, 182 F.3d 212, 218 (3d Cir.1999). Mindful of the important purposes that animate our waiver jurisprudence, I turn now to Dupree's contention that the Government waived the two arguments it...

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