659 F.3d 560 (6th Cir. 2011), 10-5102, United States v. Beauchamp
|Citation:||659 F.3d 560|
|Opinion Judge:||ALGENON L. MARBLEY, District Judge.|
|Party Name:||UNITED STATES of America, Plaintiff-Appellee, v. Gevoyl N. BEAUCHAMP, Defendant-Appellant.|
|Attorney:||Curtis Lee Blood, Collinsville, Illinois, for Appellant. Elaine K. Leonhard, Assistant United States Attorney, Fort Mitchell, Kentucky, for Appellee. Curtis Lee Blood, Collinsville, Illinois, for Appellant. Elaine K. Leonhard, Assistant United States Attorney, Fort Mitchell, Kentucky, Charles P. ...|
|Judge Panel:||Before: MOORE and KETHLEDGE, Circuit Judges; MARBLEY, District Judge.[*] MARBLEY, D.J., delivered the opinion of the court, in which MOORE, J., joined. KETHLEDGE, J. (pp. 575-78), delivered a separate dissenting opinion. KETHLEDGE, Circuit Judge, dissenting.|
|Case Date:||October 25, 2011|
|Court:||United States Courts of Appeals, Court of Appeals for the Sixth Circuit|
Argued: July 22, 2011.
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Defendant-appellant Gevoyl Beauchamp appeals the judgment entered following his plea of guilty to possession with intent to distribute crack cocaine. Beauchamp challenges the district court's denial of a motion to suppress evidence obtained pursuant to a seizure. Because the police officer's seizure of Beauchamp was neither consensual nor based on reasonable and articulable suspicion, and because the consent given to search was involuntary and did not purge the taint of the illegal seizure, we reverse the district court's order denying the motion to suppress and remand for further proceedings.
A. Factual Background
At approximately 2:30 a.m. on February 15, 2008, Officer Robert Fain was on patrol near the Jacob Price housing project in Covington, Kentucky. At the time, the police were saturating the area because they were receiving a " ton" of narcotics complaints. His partner, Officer Chris Dees, was patrolling separately and noticed a black man (later identified as Beauchamp) with another individual. As Officer Dees approached, Beauchamp hurriedly walked away without making eye contact with the officer. Officer Dees then told his partner to stop the " suspicious subject," but beyond the facts that Beauchamp was out in Jacob Price at 2:30 a.m., the basis for this label was never explained.1
While driving, Officer Fain spotted Beauchamp walking across the street two blocks from where Officer Dees had seen him. Officer Fain sped up his patrol car and parked by the subject. Beauchamp walked around a wrought iron fence that was by the side of the road. Officer Fain, in uniform, got out of his car and instructed Beauchamp to stop. Beauchamp complied. Officer Fain then instructed Beauchamp to walk around the fence and toward him. Beauchamp again complied. As he was walking around the fence, the officer noticed that " he seemed very nervous, visibly shaking," wide-eyed, and scared. Beauchamp's pants kept falling down around the lower part of his thighs, and his legs were shaking. Officer Fain asked him where he was coming from and where he was going. Beauchamp
gave somewhat vague answers in response, simply saying " down there." Another officer, Officer Cook, arrived at some point during the interview, and he stood by and watched.
After the questioning, Officer Fain frisked Beauchamp for weapons. While conducting the frisk, the officer asked Beauchamp if he had anything on him that the officer should be aware of, and Beauchamp said no. The officer did not find a weapon. Officer Fain then asked Beauchamp if he could conduct a search, and Beauchamp said yes. The officer then conducted the search; Beauchamp continued to visibly shake. The officer found $1,300 in cash and a cell phone. Beauchamp's pants were around his thighs, so Officer Fain pulled out his boxers and saw a piece of plastic sticking up between his butt cheeks. Officer Fain assumed that the plastic contained drugs, as people on the east side were carrying drugs in this manner at that time.
It is unclear if Officer Dees arrived on the scene during the search or after it was completed.2 Once there, he recognized Beauchamp from previous encounters. At some point, either upon Officer Dees's arrival or after Officer Fain looked into Beauchamp's boxers, Officer Fain gave his partner a look to indicate that he had found something. Recognizing that the look meant " hey, we got something here," Officer Dees grabbed Beauchamp by his jeans. Officer Fain then pulled Beauchamp's boxers back again and asked him what he had in his pants, between his butt cheeks, and Beauchamp attempted to run. Both officers had their hands on him, so he never escaped their grasp. The officers secured Beauchamp against the hood of a police cruiser. Officer Fain continued his search and removed the plastic from between Beauchamp's butt cheeks. It contained about 18 individually-wrapped rocks of crack cocaine.
B. Procedural Background
Beauchamp was indicted on two counts: (1) possession with intent to distribute five grams or more of cocaine base (crack cocaine) in violation of 21 U.S.C. § 841(a)(1); and (2) distributing less than five grams of crack cocaine in violation of 21 U.S.C. § 841(a)(1). The district court dismissed Count 2. Beauchamp moved to suppress the evidence seized from him in the warrantless search. After a hearing, the magistrate judge issued a report and recommendation that the district court deny the motion. Beauchamp objected in writing. The district court overruled the objections and adopted the report and recommendation.
The parties entered into a plea agreement, which preserved Beauchamp's right to appeal the denial of the motion to suppress. The district court accepted the plea agreement and Beauchamp's plea of guilty to Count 1. Beauchamp's Guidelines range was 70 to 87 months. The district court sentenced him to 84 months.
A. Standard of Review
" When reviewing the denial of a motion to suppress, we review the district court's findings of fact for clear error and its conclusions of law de novo. " United States v. Henry, 429 F.3d 603, 607 (6th Cir.2005) (internal quotation marks omitted). In so doing, we consider the evidence
in the light most favorable to the government. United States v. Rodriguez-Suazo, 346 F.3d 637, 643 (6th Cir.2003).
" ‘ While we review the determination of the ultimate question of whether there was consent de novo, we must afford due weight to the factual inferences and credibility determinations made by the district court.’ " United States v. Moon, 513 F.3d 527, 536 (6th Cir.2008) (quoting United States v. Caruthers, 458 F.3d 459, 464 (6th Cir.2006)).
B. The Seizure
The Fourth Amendment protects " [t]he right of the people to be secure in their persons ... against unreasonable searches and seizures." U.S. Const. amend. IV. There are three kinds of permissible encounters between the police and citizens: " (1) the consensual encounter, which may be initiated without any objective level of suspicion; (2) the investigative detention, which, if non-consensual must be supported by a reasonable, articulable suspicion of criminal activity; and (3) the arrest, valid only if supported by probable cause." United States v. Smith, 594 F.3d 530, 535 (6th Cir.2010) (internal citations omitted). While purely consensual encounters are not subject to Fourth Amendment scrutiny, see Florida v. Bostick, 501 U.S. 429, 434, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991), all seizures— including brief investigatory stops— receive this protection, see Smith, 594 F.3d at 535. Accordingly, the first issue before us is whether the initial interaction between Officer Fain and Beauchamp was a consensual encounter or a non-consensual seizure.
1. Moment of Seizure
An individual is seized when an officer " by means of physical force or show of authority, has in some way restrained [his] liberty." Terry v. Ohio, 392 U.S. 1, 19 n. 16, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); see also Tennessee v. Garner, 471 U.S. 1, 7, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985) (stating that " [w]henever an officer restrains the freedom of a person to walk away, he has seized that person" ). If the officer acts by a show of authority, as in this case, the individual must actually submit to that authority. Brendlin v. California, 551 U.S. 249, 254, 127 S.Ct. 2400, 168 L.Ed.2d 132 (2007). In order to determine if a seizure has occurred, we will look to " all of the circumstances surrounding the incident" and consider whether " a reasonable person would have believed that he was not free to leave." United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980).
A reasonable person in Beauchamp's position would not have felt free to leave when, after walking away from the police two times, an officer targeted Beauchamp by driving up to him, instructed him to stop, and then instructed him to turn around and walk toward the officer. Two features of the encounter compel this finding. First, a reasonable person in Beauchamp's position would perceive the separate interactions with Officer Dees and then Officer Fain as connected and an indication that the officers were targeting him. There certainly could be situations in which a reasonable person would not perceive police interactions as connected; perhaps if there was a longer period of time between interactions or if they occurred in different locations. In this case, however, Beauchamp encountered Officer Dees and walked away, and then two streets over and presumably only a few minutes later, given the short distance, Officer Fain drove up to...
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