U.S. v. Brown

• Decision Date: 25 March 2005
• Docket Number: No. 04-4353.,04-4353.
• Citation: 401 F.3d 588
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Everett Oshae BROWN, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

401 F.3d 588

UNITED STATES of America, Plaintiff-Appellant, v. Everett Oshae BROWN, Defendant-Appellee.

No. 04-4353.

United States Court of Appeals, Fourth Circuit.

Argued: December 2, 2004.

Decided: March 25, 2005.

COPYRIGHT MATERIAL OMITTED

ARGUED:

Michael James Elston, Assistant United States Attorney, Office of the United States Attorney, Alexandria, Virginia, for Appellant. Larry W. Shelton, Supervisory Assistant Federal Public Defender, Office of the Federal Public Defender, Norfolk, Virginia, for Appellee.

ON BRIEF:

Paul J. McNulty, United States Attorney, Alexandria, Virginia, for Appellant. Frank W. Dunham, Jr., Federal Public Defender, Frances H. Pratt, Research and Writing Attorney, Office of the Federal Public Defender, Norfolk, Virginia, for Appellee.

Before WILKINS, Chief Judge, and NIEMEYER and DUNCAN, Circuit Judges.

Affirmed by published opinion. Chief Judge WILKINS wrote the majority opinion, in which Judge DUNCAN joined. Judge NIEMEYER wrote a dissenting opinion.

OPINION

WILLIAM W. WILKINS, Chief Judge:

Everett Oshae Brown was charged with possession of a firearm by a convicted felon, see 18 U.S.C.A. § 922(g)(1) (West 2000). The United States appeals a decision of the district court suppressing a firearm discovered in Brown's back pocket as well as statements made by Brown following his arrest. Because the officers lacked sufficient justification under the Fourth Amendment to arrest and search Brown, we affirm.

I.

In September 2003, police in Newport News, Virginia, received an anonymous telephone tip that a short, black male with glasses was carrying a firearm outside the Roseman Court apartment complex. Two officers approached the scene: Officer C.J. Lewis in a marked patrol car and Officer Randall Petrosky on foot. Officer Petrosky was accompanied by a K-9 police dog.

Officer Petrosky was the first to arrive at the scene. When he arrived, Brown was standing on the sidewalk outside one of the apartments. Brown generally matched the description provided in the anonymous tip. As Officer Petrosky approached, Brown turned and walked into the apartment. Through the open blinds of the apartment window, Officer Petrosky could see people in the apartment telling and motioning for Brown to leave.¹ Brown left the apartment and walked out onto the sidewalk.

By this point, Officer Lewis had arrived in a patrol car. She approached Brown on the sidewalk and asked, "Excuse me, can we talk to you a minute?" J.A. 103 (internal quotation marks omitted).² Officer Petrosky and the police dog were standing just behind her. Brown voluntarily and without prompting produced his Virginia identification card. Officer Lewis ran the identification through dispatch and returned it to Brown. The officers then told Brown that he matched the description of the anonymous tip. Brown responded that he was not the person for whom they were looking. Officer Lewis asked Brown if he would consent to a pat-down for weapons. Brown refused.

According to Officer Lewis, throughout the conversation Brown had "the strong odor of alcoholic beverage emitting from his breath, [and] his eyes were bloodshot and glassy." Id. at 50. Officer Petrosky agreed that Brown's eyes were "bloodshot and glassy" and added that he was "fidgety and nervous." Id. at 35. At one point, Officer Lewis asked Brown if he had been drinking that evening and Brown responded, "I'm going to be honest. Yes, I have." Id. at 51 (internal quotation marks omitted). Brown exhibited no other physical impairments, such as slurred speech or staggered movements.³

Based on the conversation with Brown and the impairments she observed, Officer Lewis testified that she decided to place Brown under arrest for public intoxication. Before she could do so, a fight broke out inside the apartment from which Brown had exited. Officer Petrosky called for backup to assist with the fight. Especially important to this appeal is the chronology of events that took place after the fight broke out. At the suppression hearing, Officer Petrosky described the ensuing events as follows:

[Officer Lewis] told Mr. Brown to go ahead and place his hands on [a nearby] car. He started to bend over to place his hands on the car. When he bent over, I noticed in the pants that he was wearing, on the left rear pocket of his pants I noticed this bulge that was in the shape of a gun. So immediately to me I knew he had a gun in his left rear pocket.

Id. at 34. Officer Lewis' testimony supported this account: "For our safety, I asked [Brown] to place his hands on the car that was directly in front of him.... As he placed his hands on the car, I saw Officer Petrosky immediately draw his weapon and order Mr. Brown to keep his hands on the car." Id. at 51. At that point, Officer Lewis also drew her weapon and pointed it at Brown. Brown became very nervous and began to lift his hands up and down on the car. According to Officer Lewis, Brown then said, "`The weapon is in my back pocket. Just take it, just take it.'" Id. at 52.⁴ Officer Lewis removed the firearm from Brown's pocket. Officer Petrosky ordered Brown to his knees, and one of the backup officers who had arrived placed Brown in handcuffs and into a patrol car.

According to Officer Lewis, during the car ride to the booking station Brown "was speaking pretty freely and just stated that someone in the apartment had told him to take this burn and bounce," which meant to take the firearm and leave the apartment. Id. at 53. Brown also stated that "the only reason he had taken the gun out of the apartment was because there were children present in the apartment." Id. at 54. At no point before Brown made these statements had the officers informed him of his Miranda rights, though Brown's statements in the patrol car were not in response to any police questioning.

Brown moved to suppress evidence of the firearm and his statements in the patrol car as having been obtained in violation of, inter alia, the Fourth Amendment. The district court found that a reasonable person in Brown's position during his initial encounter with the police — faced with two uniformed officers, a police dog, and information about an anonymous tip — would not have considered himself free to disregard the police and go about his business. The district court concluded, therefore, that the initial encounter between the officers and Brown was a Terry stop, see Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), not a consensual police-citizen encounter, and the officers thus needed reasonable, articulable suspicion that Brown was armed and dangerous to justify the stop. Citing Florida v. J.L., 529 U.S. 266, 120 S.Ct. 1375, 146 L.Ed.2d 254 (2000), the district court explained that the anonymous tip alone did not provide adequate suspicion because the tip contained no information predicting future acts by which the officers could corroborate the substance of the tip. Therefore, the district court ruled that the Terry stop was illegal and suppressed the firearm and statements obtained after the stop.

The district court ruled alternatively that even if the initial encounter between the officers and Brown was a consensual police-citizen encounter, not a Terry stop, the officers did not have probable cause to arrest Brown for public intoxication. Glassy, bloodshot eyes, the smell of alcohol, and Brown's admission that he had been drinking, the district court explained, were not sufficient under Virginia law to establish probable cause for the arrest. Evidence of the firearm and Brown's statements was therefore suppressed as fruit of the illegal arrest. This appeal followed.

II.

Designed "to prevent arbitrary and oppressive interference by enforcement officials with the privacy and personal security of individuals," INS v. Delgado, 466 U.S. 210, 215, 104 S.Ct. 1758, 80 L.Ed.2d 247 (1984) (internal quotation marks omitted), the Fourth Amendment provides that "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated." U.S. Const. amend. IV; see Mapp v. Ohio, 367 U.S. 643, 655, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961) (holding that the Fourth Amendment is incorporated and applied to the states by the Due Process Clause of the Fourteenth Amendment).

The Supreme Court has identified three distinct types of police-citizen encounters, each requiring a different level of suspicion to be deemed reasonable under the Fourth Amendment: "(1) arrest, which must be supported by probable cause; (2) brief investigatory stops, which must be supported by reasonable articulable suspicion; and (3) brief encounters between police and citizens, which require no objective justification." United States v. Weaver, 282 F.3d 302, 309 (4th Cir.2002) (citations omitted). Evidence gathered as fruit of an unreasonable search or seizure is generally inadmissible against a defendant. See Taylor v. Alabama, 457 U.S. 687, 694, 102 S.Ct. 2664, 73 L.Ed.2d 314 (1982); Wong Sun v. United States, 371 U.S. 471, 484-86, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); cf. Walder v. United States, 347 U.S. 62, 64-65, 74 S.Ct. 354, 98 L.Ed. 503 (1954) (holding illegally obtained evidence admissible for purposes of impeachment). In the context of a motion to suppress evidence alleged to have been obtained illegally, "we review the factual findings of the district court for clear error and its legal conclusions de novo." United States v. Simons, 206 F.3d 392, 398 (4th Cir.2000).

A.

The first issue presented is at what point during the exchange between Brown and the officers was Brown seized, thereby triggering the protections of the Fourth Amendment. "[A] seizure does not occur simply because a police officer approaches an individual and asks a few questions. So long as a reasonable person would feel free `to disregard the police and go about his business,' the encounter is consensual and no reasonable suspicion is required." Florida...