U.S. v. Silva
Decision Date | 18 March 1992 |
Docket Number | No. 91-5609,91-5609 |
Citation | 957 F.2d 157 |
Parties | UNITED STATES of America, Plaintiff-Appellee, v. Roland M. SILVA, Defendant-Appellant. |
Court | U.S. Court of Appeals — Fifth Circuit |
Alfredo R. Villarreal, Asst. Federal Public Defenders, Lucien B. Campbell, Federal Public Defender, San Antonio, Tex., for defendant-appellant.
Michael R. Hardy, Richard L. Durbin, Jr., LeRoy M. Jahn, Asst. U.S. Attys., Ronald F. Ederer, San Antonio, Tex., for defendant-appellant.
Appeal from the United States District Court for the Western District of Texas.
Before THORNBERRY, KING, and DEMOSS, Circuit Judges.
Roland M. Silva appeals the district court's denial of his motion to suppress evidence, a handgun, seized after Silva discarded it while being pursued by police. Silva also appeals his sentence. We affirm.
On May 15, 1990, uniformed police went to Debra Campbell's residence in order to execute a felony arrest warrant on her. When the patrol car approached the driveway, Officer Gustavo Salinas noticed that a pick-up truck, driven by Campbell, was attempting to leave the driveway of the residence. The police blocked the driveway with the patrol car to prevent the truck's departure. The truck stopped, and Campbell and her passenger, Silva, got out. Silva briefly faced Officer Salinas, then turned and started to walk away. When Officer Salinas called out to Silva to halt, Silva broke into a run. Officer Salinas chased him. At some point during the chase Silva slipped and fell. Officer Salinas caught up to Silva and tried to grab him, but was only able to touch him before Officer Salinas, too, slipped and fell. Silva scrambled up and began to run away again. While he was running, Silva reached into his waist band and threw a loaded handgun onto the ground. Another officer apprehended Silva a few seconds later.
Silva moved to suppress the evidence of his handgun. The district court denied Silva's suppression motion without express reasons. After a bench trial, Silva was convicted on one count of possession of a firearm by a convicted felon pursuant to 18 U.S.C. § 922(g)(1). The court found that Silva's prior Texas burglary convictions supported enhancement of his sentence pursuant to 18 U.S.C. § 924(e), and sentenced Silva to fifteen years of imprisonment, three years of supervised release, and a $50 mandatory assessment. Silva appeals both the denial of his motion to suppress and his sentence.
Silva argues on appeal that the officer lacked reasonable suspicion to stop him. 1 He argues that he had been unlawfully seized before he discarded the handgun and, consequently, the handgun should have been suppressed as the fruit of this unlawful seizure.
We review the factual question whether a seizure occurred for clear error. United States v. Valdiosera-Godinez, 932 F.2d 1093, 1098 n. 1 (5th Cir.1991). In the instant case, the district court did not state any factual findings on the record. The parties therefore ask us to determine whether Silva was seized based on our independent review of the record. See United States v. Yeagin, 927 F.2d 798, 800 (5th Cir.1991) (). See generally California v. Hodari D., --- U.S. ----, 111 S.Ct. 1547, 1549-52, 113 L.Ed.2d 690 (1991).
In United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 1877, 64 L.Ed.2d 497 (1980), Justice Stewart stated 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 The Supreme Court explained this test more fully in Hodari D. Justice Scalia, writing for the majority in Hodari D., noted that the Mendenhall test was "a necessary, but not a sufficient condition for seizure" as effected by a show of authority. 111 S.Ct. at 1551 (emphasis in original). To effect a show of authority seizure, the suspect must yield to or comply with that show of authority. Id. at 1552. In Hodari D., the Court held that the eponymous defendant, who fled from police and failed to stop when he saw the police running toward him, was not seized at the time he dropped a rock of crack cocaine because he had not yielded to the show of authority. 111 S.Ct. at 1551. The Court determined that Hodari was not seized until the police tackled him, thereby effecting a seizure by physical force. Id. Hodari's crack cocaine, disclosed prior to the tackling, could not have been the fruit of an unlawful arrest, according to the Court, because there was no arrest at the time of disclosure. Id.
Certainly, at the beginning of the encounter in the driveway, when Officer Salinas told Silva to halt, Silva was not yet seized. Officer Salinas' order to stop and his subsequent pursuit of Silva constituted a show of authority, cf. id. at 1550, in response to which Silva did not yield. Therefore, according to the reasoning of Hodari D., Silva was not seized during this initial pursuit.
At one point during the pursuit, however, Officer Salinas touched Silva as they fell to the ground. Silva subsequently escaped Officer Salinas' grasp and continued to flee. During this period of his fugitivity, Silva disclosed the handgun.
The Government argues that the "de minimis" touching which occurred during pursuit was not a seizure because it did not hinder Silva's progress. Because the gun was abandoned without a seizure ever taking place, argues the Government, no Fourth Amendment inquiry is necessary. Silva, on the other hand, argues that this contact constituted a seizure which required reasonable suspicion on the part of Officer Salinas. We need not decide this fact-sensitive issue, however, because we find that, even if the touching constituted a seizure, it was supported by reasonable suspicion. 3
The question whether an officer had reasonable suspicion to stop a person is one of law, subject to de novo review. See United States v. Casteneda, 951 F.2d 44 (5th Cir.1992). An officer is justified in detaining an individual for investigation if, based on specific articulable facts together with rational inferences from the facts, he suspects that an individual may be engaged in criminal activity. See United States v. Sokolow, 490 U.S. 1, 109 S.Ct. 1581, 1585, 104 L.Ed.2d 1 (1989); United States v. Shaw, 701 F.2d 367, 377 n. 4 (5th Cir.1983), cert. denied, 465 U.S. 1067, 104 S.Ct. 1419, 79 L.Ed.2d 744 (1984). The presence or absence of reasonable suspicion must be determined in light of the totality of the circumstances confronting a police officer, including all information available to the officer at the time of the decision to stop a person. United States v. Cortez, 449 U.S. 411, 417-18, 101 S.Ct. 690, 694-95, 66 L.Ed.2d 621 (1981); see also United States v. Flett, 806 F.2d 823, 827 (8th Cir.1986); United States v. Bell, 762 F.2d 495, 499 (6th Cir.), cert. denied, 474 U.S. 853, 106 S.Ct. 155, 88 L.Ed.2d 128 (1985).
During the suppression hearing, Officer Salinas articulated two factors that led him to pursue Silva in order to detain him. First, Silva fled as soon as the uniformed officers approached him. Second, Silva was in the company of an individual upon whom the police were about to execute a felony arrest warrant.
Silva contends that the mere fact of his flight does not support a finding of reasonable suspicion. While it is true that Silva's flight from the officer is insufficient by itself to show probable cause, see United States v. Vasquez, 534 F.2d 1142, 1145 (5th Cir.), cert. denied sub nom. Chavez Cortinas v. United States, 429 U.S. 962, 97 S.Ct. 389, 50 L.Ed.2d 330 and 429 U.S. 979, 97 S.Ct. 489, 50 L.Ed.2d 587 (1976), flight "supplies another element to the reasonable suspicion calculus." 4 United States v. Amuny, 767 F.2d 1113, 1124 (5th Cir.1985). According to the court in Amuny, "[i]f a police officer identifies himself while approaching a suspect and the suspect flees, the suspect's conduct suggests that he knowingly seeks to evade questioning or capture." Id. at 1117.
In Vasquez, we noted that "flight can provide in appropriate circumstances the key ingredient justifying the decision of a law enforcement officer to take action." 534 F.2d at 1145; cf. United States v. Chaidez, 919 F.2d 1193, 1200 (7th Cir.1990) (), cert. denied, --- U.S. ----, 112 S.Ct. 209, 116 L.Ed.2d 167 (1991); United States v. Pope, 561 F.2d 663, 668-69 (6th Cir.1977) (citing Vasquez ) ("flight from a clearly identified law enforcement officer may furnish sufficient ground for a limited investigative stop"); see also Hodari D., 111 S.Ct. at 1549 n. 1 (); 3 W. LaFave, Search and Seizure § 9.3(c), at 69-70 & n. 164.1 (West 1987 & Supp.1991) ("behavior which evinces in the mind of a reasonable police officer an intent to flee from the police is sufficiently suspicious in and of itself to justify a temporary investigative stop by the police") (citation omitted). Silva's flight may therefore be considered as a factor in support of a finding of reasonable suspicion.
Silva also argues that his proximity to Campbell should not be considered in a determination of reasonable suspicion. This argument is without merit. Silva cites Ybarra v. Illinois, 444 U.S. 85, 91, 100 S.Ct. 338, 342, 62 L.Ed.2d 238 (1979), for the proposition that companionship with or propinquity to an arrestee does not alone provide probable cause. Ybarra,...
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