U.S. v. Wadley, 94-10573

Decision Date02 May 1996
Docket NumberNo. 94-10573,94-10573
Citation83 F.3d 108
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Marcus WADLEY, Defendant-Appellant.
CourtU.S. Court of Appeals — Fifth Circuit

F. Clinton Broden, Asst. Federal Public Defender and Ira Kirkendoll, Federal Public Defender, Dallas, TX, for appellant.

Madeleine B. Johnson, Jennifer E. Bolen, Asst. U.S. Attys., and Paul E. Coggins, U.S. Atty., Dallas, TX, for appellee.

Appeal from the United States District Court for the Northern District of Texas, Barefoot Sanders, Judge.

ON SUGGESTION FOR REHEARING EN BANC

(Opinion 7/13/95, 5 Cir., 1995, 59 F.3d 510)

Before DAVIS and WIENER, Circuit Judges, and VANCE *, District Judge.

PER CURIAM:

Treating the Suggestion for Rehearing En Banc as a Petition for Panel Rehearing, the Petition for Panel Rehearing is DENIED. The Court having been polled at the request of one of the members of the Court and a majority of the Judges who are in regular active service not having voted in favor (FRAP and Local Rule 35), the Suggestion for Rehearing En Banc is DENIED.

WIENER, Circuit Judge, with whom POLITZ, Chief Judge, JERRY E. SMITH, STEWART and DENNIS, Circuit Judges, join, dissenting from failure to grant rehearing en banc.

[A] police officer, like any other citizen, has the right to approach an individual and ask him questions. The citizen has the corresponding right to walk away (hereafter, the Morin Maxim). 1

More through inadvertence and misdirection than design, the opinion of the panel--of which I confess to having been a concurring member--puts the lie to our venerable pronouncement in Morin. 2 Worse, in refusing to rehear the panel opinion en banc, this court has furthered the alluvial dismantling of the Fourth Amendment in this circuit by We should mean what we say and say what we mean. If the Morin Maxim means what it says, the police violated it; conversely, if henceforth our Morin Maxim shall no longer mean what it says, we should have followed our strict stare decisis policy by meeting en banc to disavow or radically modify Morin. 3 Either way, our declarations should be overt and explicit. By refusing to vacate the panel opinion and rehear the case en banc, we have not chosen either alternative forthrightly; rather, we have covertly selected the latter alternative. What the panel opinion creates and what the denial of rehearing en banc silently confirms is a "Po' Folks" exception to the Morin Maxim: From now on, a citizen can decline a police invitation to talk unless that citizen happens to be in a poor, crime-infested, or minority neighborhood.

                implicitly carving out an exception to the Morin Maxim--an exception which essentially renders this canon meaningless.   For, henceforth, the constitutional right recognized in Morin will be unavailable to those citizens who need it most, when they need it most, and where they need it most--at night, in a high-crime, drug-infested, minority-inhabited "bad part of town."   I hasten to add that, although I continue to disagree with the panel result, this is not the principal reason I write today.   My greater concern is with the sotto voce manner in which this court--my court--produced that crippling exception to the Morin Maxim.   I am compelled to write in defense of a principle broader even than the substantive issue at hand:  I write in defense of candor
                
I FACTS AND PROCEEDINGS

At 9:00 p.m. on a cool November evening in 1993, ten Dallas Police Department squad cars descended from four different directions on Prince Hall Chamber Apartments (Prince Hall), a public housing project in a predominantly black, high-crime, drug-prevalent neighborhood of Dallas, Texas. 4 Fifty to sixty officers simultaneously deployed from the squad cars and began questioning residents about drug activity, attacks on police officers, and the threatened assassination of police officers. 5 At the time that the officers converged on Prince Hall, there were approximately 150 black persons in the area.

When Craig Adams, one of the officers involved in the fact-finding "raid," parked his squad car on Dixon Circle and got out, Marcus Wadley was standing on the sidewalk some twenty feet away, with his hands in his pockets, talking with a companion. 6 Officer Adams did not know Wadley, did not have any information about Wadley, and did not harbor any suspicions that Wadley was involved in criminal activity. By all accounts, there was nothing subjectively suspicious about Marcus Wadley. 7 Neither is it claimed that there was anything objectively suspicious about one black man standing where he was, early in the evening, with his hands in his pockets, talking to his black companion.

Solely in the hope that Wadley might have information about illegal activity in the vicinity, Officer Adams called out, "I want to talk with you" (First Communication). Adams did not, however, explain why he wanted to talk to Wadley. In response to this invitation, Wadley said nothing; he simply turned and began to walk away from Officer Adams--no furtive looks, no questionable moves, no sprinting away, nothing but a normal walk. Yet despite Wadley's unsuspicious and nonthreatening act of simply walking away, Adams failed to allow the encounter to terminate, as he should have under Morin. Instead, he persisted, again calling out to Wadley (Second Communication), this time insisting, without any legal justification whatsoever, that Wadley "needed" to stop and speak with the officers--not, vice versa, that they "needed" to talk with him.

Even in the face of this second police command, Wadley neither said nor did anything untoward; he simply continued to walk away, albeit at a somewhat "increased pace." But again, Officer Adams would not allow the encounter simply to terminate. Instead, Officer Adams continued to press his pursuit of a conversation with Wadley.

With Officer Adams now "on his heels," Wadley was finally pushed to the point of accelerating from a walk to a run. When he did so, Officer Adams reacted by yelling, "Stop bolting. You are under arrest!" (Third Communication). At that moment Wadley apparently noticed that several officers were converging on him. Attempting to elude them, Wadley reversed field, running back towards Adams. Realizing that he was trapped, Wadley--either just before he was tackled or contemporaneously therewith--reached into his pocket, pulled out a brown paper bag, and tossed it toward a trash dumpster, all in a single fluid motion. The officers then wrestled Wadley to the ground and subdued him. Later, Officer Adams retrieved the bag and discovered that it contained numerous plastic zip-lock bags of crack cocaine. 8

Before trial, Wadley filed a motion to suppress (1) the evidence recovered at the time of his arrest and (2) his post-arrest confession. Wadley argued that the arresting officers lacked probable cause to arrest him and that all the evidence obtained, including the bag thrown at the time of arrest, was the product of an illegal arrest, and thus classic "fruits of a poisoned tree." At the suppression hearing, the district court (like our panel) focused not on the initial, escalating stages of the encounter between Officer Adams and Wadley, but solely on the final chase-tackle-and-toss, akin to the incident made famous in California v. Hodari D. 9 Wadley timely appealed, challenging the district court's denial of his motion to suppress. On appeal, the panel (on which I served) rendered an opinion (in which I concurred), affirming the district court. Like the district court before us, however, our panel focused exclusively on the final chase-tackle-and-toss; and therein lay the genesis of our fundamental mistake. I am convinced that had we not conducted our review with such tunnel vision, considering only the final frame of the "game film" rather than each frame in sequence to see how each purported element of probable cause arose, we would have reached a different result. More importantly, we would have left the Morin Maxim intact for the protection of all citizens, free of qualifications based on the time and place of the police encounter.

The district court denied Wadley's motion to suppress, finding that the officers had probable cause to arrest Wadley and that the paper bag was tossed simultaneously with the tackle.

II ANALYSIS
A. POLICE-CITIZEN ENCOUNTERS AND THE FOURTH AMENDMENT

The Fourth Amendment provides that "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated ..." 10 The specific content and incident of this right are shaped by the context in which it is asserted. For "what the Constitution forbids is not all searches and seizures, but unreasonable searches and seizures." 11

Encounters between the police and citizens involve myriad situations and are complicated by a host of variables. 12 In efforts to deal with all of the combinations and permutations, courts classify police-citizen encounters in three generic categories. 13 The first category consists of mere communications involving neither coercion nor detention. As confirmed in Morin, a police officer, like any other citizen, has the right to approach an individual and ask him questions; in turn, the individual has the corresponding right to walk away. 14

The second category, known as Terry-stops, comprises brief seizures of the person if the police have a reasonable suspicion. 15 To stop a citizen who does not voluntarily submit to questioning, an officer must possess specific articulable facts which together provide a reasonable suspicion that criminal activity is afoot. 16

The final category, arrests and full-blown seizures, requires probable cause. 17 It does not exist unless "the facts and circumstances within the arresting officers' knowledge are sufficient in themselves to warrant a [person] of reasonable caution in the belief that the person to be arrested has committed or is committing...

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