U.S. v. Gaines, 17-3270
Decision Date | 12 March 2019 |
Docket Number | No. 17-3270,17-3270 |
Citation | 918 F.3d 793 |
Court | U.S. Court of Appeals — Tenth Circuit |
Parties | UNITED STATES of America, Plaintiff-Appellee, v. Desmond S. GAINES, Defendant-Appellant. |
Paige A. Nichols, Assistant Federal Public Defender (Melody Brannon, Federal Public Defender, with her on the briefs), Kansas Federal Public Defender, Topeka, Kansas, for the Defendant-Appellant.
Stephen A. McAllister, United States Attorney (Carrie N. Capwell, Assistant United States Attorney, with him on the brief), Office of the United States Attorney, Kansas City, Kansas, for the Plaintiff-Appellee.
Before TYMKOVICH, Chief Judge, BACHARACH, and McHUGH, Circuit Judges.
This appeal stems from a search, which took place after the police spoke with the defendant, Mr. Desmond Gaines. After a brief exchange, Mr. Gaines fled but was soon captured. The police then found cocaine, marijuana, PCP, drug paraphernalia, over $640, and a handgun. Mr. Gaines unsuccessfully moved to suppress this evidence. He now appeals,1 and we focus on two issues:
Given our conclusions on these two issues, we vacate the denial of Mr. Gaines’s motion to suppress.
One morning, the police in Kansas City, Kansas, received a 911 call reporting that a man dressed in red had just sold drugs in a parking lot. Based on this information, police officers Carl Rowland and Shenee Davis responded.
The police officers pulled into the parking lot in two separate police cars and turned on their roof lights.2 They parked behind a car in which a man in red clothing (Mr. Gaines) was seated. Officer Rowland gestured for Mr. Gaines to get out of the car. He did, and Officer Rowland confronted Mr. Gaines with the report that he was selling drugs. The police officers soon observed an open container of alcohol and smelled PCP. When they said they were going to detain Mr. Gaines, he grabbed a pouch from his car and fled. The police caught Mr. Gaines and discovered the evidence that underlies this appeal.
The threshold issue is applicability of the Fourth Amendment. This amendment applies if the police had seized Mr. Gaines; it doesn't if the encounter had been consensual. United States v. Reeves , 524 F.3d 1161, 1166 (10th Cir. 2008). The district court characterized the entire encounter as consensual. To determine whether the encounter was consensual or constituted a seizure, we apply a dual standard of review, using the clear-error standard for the district court’s findings of historical fact and de novo review for the court’s legal conclusions. United States v. Roberson , 864 F.3d 1118, 1121 (10th Cir. 2017).3
The existence of a seizure involves a matter of law. See United States v. Salazar , 609 F.3d 1059, 1064 (10th Cir. 2010) ( ). On this matter of law, we consider whether Mr. Gaines yielded to a police officer’s show of authority. California v. Hodari D. , 499 U.S. 621, 626–27, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991). To answer this question of law, we apply an objective test, considering whether a reasonable person would have felt free to leave or terminate the encounter. Florida v. Bostick , 501 U.S. 429, 436, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991). We apply this objective test to the historical facts, which are largely undisputed. Even if a reasonable person would not have felt free to leave, a seizure would occur only if the suspect yielded to a police officer’s show of authority. Hodari D. , 499 U.S. at 626–27, 111 S.Ct. 1547.
So let’s consider how a reasonable person would have felt, facing the same circumstances that Mr. Gaines confronted. The encounter began with Mr. Gaines sitting in his car in a parking lot. Two uniformed police officers arrived in marked police cars, both flashing their roof lights. Would a reasonable person have felt free to leave? Perhaps. But the flashing roof lights,4 two marked police cars, and two uniformed officers5 would undoubtedly have cast at least some doubt on a reasonable person’s belief in his or her freedom to leave.
This doubt would likely have intensified in Kansas (where Mr. Gaines was stopped) because of Kansas’s traffic laws. See Berkemer v. McCarty , 468 U.S. 420, 436–37, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984) ( ). Under Kansas law, motorists must stop whenever a police officer flashes his or her emergency lights. Kan. Stat. Ann. § 8-1568(a)(1), (d).
The district court minimized the impact of the flashing roof lights, crediting testimony by the police officers that they had activated their lights only because their cars were blocking a lane of traffic. But the officers' subjective intent had little bearing on whether a reasonable person would have thought that he or she could leave. See Brendlin v. California , 551 U.S. 249, 260–61, 127 S.Ct. 2400, 168 L.Ed.2d 132 (2007) ( ); see also United States v. Mendenhall , 446 U.S. 544, 554 n.6, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980) ( ).
But let’s assume that a reasonable person would have felt free to drive away at this point.6 One of the police officers then exited his car and gestured for Mr. Gaines to get out of the car. Here is what our reasonable person would have seen:
At a minimum, the police officer’s gesture would have cast further doubt on a reasonable person’s belief that he or she was free to drive away. See Santos v. Frederick Cty. Bd. of Comm'rs , 725 F.3d 451, 462 (4th Cir. 2013) ( ).
But let’s assume that a reasonable person would still have felt free to leave. As Mr. Gaines exited the car, one police officer stood just a few feet away and said that they had come because of a report that Mr. Gaines was "up here selling some dope." The police officer then asked Mr. Gaines whether he had been selling "wet" (street-language for PCP). Meanwhile, another uniformed police officer circled the car, looking inside.7
Would a reasonable person have felt free to leave? At a minimum, the accusatory question would have added to the reasonable person’s doubt about his or her freedom to return to the car and drive away. See United States v. Glass , 128 F.3d 1398, 1407 (10th Cir. 1997) ( ).8
These were the five circumstances that confronted Mr. Gaines:
Viewing these circumstances as a whole, we conclude that (1) the police officers showed their authority and (2) no reasonable person would have felt free to leave.
Still, the encounter would constitute a seizure only if Mr. Gaines had yielded to the show of authority. He ultimately fled, so the government denies that Mr. Gaines yielded. We disagree. One officer gestured for Mr. Gaines to get out of his car, and he did. When Mr. Gaines was asked questions, he responded. See United States v. Camacho , 661 F.3d 718, 726 (1st Cir. 2011) ( ). And when Mr. Gaines was asked for his identification, he opened his car trunk to look for his identification.
Mr. Gaines then fled. But by that point, he had already yielded to the show of authority. We addressed a similar issue in United States v. Morgan , 936 F.2d 1561 (10th Cir. 1991). There the defendant exited his car and fled after asking the officer: "What do you want?" Morgan , 936 F.2d at 1566. We considered this single question enough to conclude that the defendant had yielded to authority. Id. at 1567. By comparison, Mr. Gaines had done more to yield: getting out of his car, answering the officer’s questions, and looking for his identification.
We thus conclude that Mr. Gaines was seized.
The government...
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