U.S. v. Wood

• Decision Date: 25 October 1993
• Docket Number: No. 92-3007,92-3007
• Citation: 981 F.2d 536,299 U.S.App.D.C. 47
• Parties: UNITED STATES of America, Appellee v. Donald Erik WOOD, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 536

981 F.2d 536

299 U.S.App.D.C. 47

UNITED STATES of America, Appellee v. Donald Erik WOOD, Appellant.

No. 92-3007.

United States Court of Appeals, District of Columbia Circuit.

Argued Oct. 16, 1992.

Decided Dec. 29, 1992.

As Amended Oct. 25, 1993.

Mary E. Davis, on brief and Thomas Abbenante, Washington, DC (appointed by the court), for appellant.

James Stephen Arisman, Asst. U.S. Atty., with whom Jay B. Stephens, U.S. Atty., John R. Fisher, Roy W. McLeese, III, and Mary Patrice Brown, Washington, DC, Asst. U.S. Attys., were on the brief, for appellee.

Before: EDWARDS, WILLIAMS and HENDERSON, Circuit Judges.

Concurring opinion filed by Circuit Judge HENDERSON.

Opinion for the Court filed by Circuit Judge HARRY T. EDWARDS. HARRY T. EDWARDS, Circuit Judge:

On August 1, 1991, the appellant, Donald Wood, was charged in a two-count indictment with (1) unlawful receipt of a firearm while under indictment in violation of 18 U.S.C. § 922(n) (1988) and (2) possession of a prohibited weapon in violation of D.C.Code § 22-3214(a) (1989). Prior to his arrest on July 14, 1991, the appellant was followed into the entrance hallway of an apartment building by a police officer who was in full uniform and armed. Acting with no articulable suspicion, the officer ordered the appellant to "halt right there," "stop." The appellant, in response, froze in his tracks and a weapon dropped to the floor between his feet. The officer then drew his gun, grabbed the appellant and held him against the wall. The weapon that had fallen between the appellant's legs was recovered; the appellant was subsequently advised of his Miranda rights and taken to a police station. On November 5, 1991, at a hearing before the trial judge, the appellant moved to suppress statements that he had made and the weapon that had been recovered at the time of his seizure. This motion was denied. Following a jury trial, the appellant was convicted on both counts. The appellant now appeals from the denial of the motion to suppress.

On the record before us, we hold that Wood was illegally seized and that the gun was recovered directly as a result of that illegality. Therefore, the appellant's motion to suppress should have been granted. Accordingly, we reverse.

I. BACKGROUND

The events giving rise to this case occurred at about 9:00 p.m. on July 14, 1991, at 17th and Q Streets, Southeast, in the District of Columbia. Officer Thomas Webb of the Metropolitan Police Department was assigned to the area, working in conjunction with members of the Neighborhood Watch program who were on patrol that evening. As Officer Webb, in full uniform and armed, approached 1608 17th Street, he saw Donald Wood walking away from a group of nine or ten men towards an apartment building at 1606 17th Street. Webb was about twelve feet away from Wood; he noticed that the appellant was "cradling his arms" across his mid-section, but he could not see anything bulging from the appellant's jacket. As the appellant walked away, he looked back at another officer, Charles Brevard, who was following the appellant to his right side. Neither Officer Webb nor Officer Brevard claimed to have any "articulable suspicion" when the appellant walked away from the group of men with whom he had been associating that night.

Wood walked from the group of men into an apartment building at 1606 17th Street, with Webb following immediately behind him. One of the building doors was tied open; the entranceway was largely dark, with the only light in the hallway coming from outside. Just inside the entrance, there were doorways to the left and right, and a staircase directly ahead. Wood attempted to enter the first apartment to the left. Officer Webb, standing directly behind Wood, ordered him to "halt right there," "stop." The appellant froze in his tracks; a dark heavy object then fell from the area of Wood's waist and dropped between his feet. While drawing his gun, Webb grabbed Wood by the front of his neck and held him up against the wall. Officer Brevard entered the building, and Webb told him that he believed a gun was on the floor between Wood's feet. Brevard told Webb, "you'd better let him down;" Webb then released Wood and the appellant fell to the ground. The officers handcuffed the appellant, then recovered a TEC-9 semi-automatic pistol that had fallen between Wood's legs. The appellant told the officers, "that's not mine; I was just carrying it." Wood neither made any gesture nor said anything to threaten or resist the officers. Following his seizure, Wood was advised of his Miranda rights and taken to a police station for post-arrest processing.

The appellant was indicted on August 1, 1991. Subsequently, on November 5, 1991, he appeared before the District Court and moved to suppress the statements that he had made and the weapon that had been recovered during his encounter with the police on July 14, 1991. After a hearing on the matter, the trial judge rendered a decision from the bench denying the motion to suppress, as follows:

I see no reason not to credit fully the police officers' testimony. It is another escalating street scene in which I find nothing constitutionally impermissible about what occurred that led to the seizure of the gun.

I might say I would have reached that conclusion before looking at the case of California versus Hodari, H-O-D-A-R-I, D., 111 Supreme Court 1547. But that legal conclusion is reinforced by that case.

A jury trial commenced on November 6, 1991, and on November 8, 1991, Wood was convicted on both counts. On January 8, 1992, Wood filed this appeal.

II. ANALYSIS

The Government concedes that, until Donald Wood dropped his gun, Officer Webb had no reasonable articulable suspicion to justify a Terry stop. See Terry v. Ohio, 392 U.S. 1, 20-27, 88 S.Ct. 1868, 1879-1883, 20 L.Ed.2d 889 (1968). Therefore, only two issues must be resolved on appeal: (1) whether Wood was seized before he dropped the gun; and, (2) assuming Wood was seized, whether dropping the gun was an independent act that somehow dissipated the taint of the seizure. We hold that Donald Wood was seized before he dropped his gun, and that he dropped the gun directly as a result of the seizure.

A. The Illegal Seizure

The Fourth Amendment's "protection against 'unreasonable ... seizures' extends to seizures of the person, as well as seizures of property." United States v. Jordan, 951 F.2d 1278, 1281 (D.C.Cir.1991). It is also well understood that an individual may be unlawfully seized if restrained either by "physical force or show of authority." Terry, 392 U.S. at 19 n. 16, 88 S.Ct. at 1879 n. 16. The question whether an individual has been "seized" raises a legal issue which we review de novo. Jordan, 951 F.2d at 1281; United States v. Maragh, 894 F.2d 415, 417-18 (D.C.Cir.), cert. denied, 498 U.S. 880, 111 S.Ct. 214, 112 L.Ed.2d 174 (1990).

In considering whether there has been a seizure in a situation, as here, where there is an absence of physical force, we are guided by the Supreme Court's decision in California v. Hodari D., U.S. 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991). In Hodari D., the defendant fled at the approach of a police car. An officer, who was wearing a jacket marked "Police," gave chase using a circuitous route to cut-off the defendant. Looking behind him as he ran away, the defendant did not turn and see the officer until the officer was almost upon him, whereupon the defendant tossed away what later proved to be crack cocaine. A moment later the officer tackled the defendant, handcuffed him and called for assistance. Before the Court, the defendant argued that he had been "seized" at the time when he tossed the drugs, so the drugs were the fruit of that seizure and should have been excluded from evidence. Justice Scalia, writing for the majority, rendered the following opinion:

The narrow question before us is whether, with respect to a show of authority as with respect to application of physical force, a seizure occurs even though the subject does not yield. We hold that it does not.

* * * * * *

An arrest requires either physical force ... or, where that is absent, submission to the assertion of authority.

* * * * * *

We do not think it desirable, even as a policy matter, to stretch the Fourth Amendment beyond its words and beyond the meaning of arrest, as respondent urges. Street pursuits always place the public at some risk, and compliance with police orders to stop should therefore be encouraged. Only a few of those orders, we must presume, will be without adequate basis, and since the addressee has no ready means of identifying the deficient ones it almost invariably is the responsible course to comply. Unlawful orders will not be deterred, moreover, by sanctioning through the exclusionary rule those of them that are not obeyed. Since policemen do not command "Stop!" expecting to be ignored, or give chase hoping to be outrun, it fully suffices to apply the deterrent to their genuine, successful seizures.

Respondent contends that his position is sustained by the so-called Mendenhall test, formulated by Justice Stewart's opinion in United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 1877, 64 L.Ed.2d 497 (1980), and adopted by the Court in later cases. "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." 446 U.S., at 554, 100 S.Ct., at 1877.... In seeking to rely upon that test here, respondent fails to read it carefully. It says that a person has been seized "only if," not that he has been seized "whenever"; it states a necessary, but not a sufficient condition for seizure--or, more precisely, for seizure effected through a "show of authority." Mendenhall establishes that the test for existence of a "show of authority" is an objective one: not whether the citizen perceived that he...