United States v. Gaines, 031219 FED10, 17-3270

Docket Nº:17-3270
Opinion Judge:BACHARACH, CIRCUIT JUDGE.
Party Name:UNITED STATES OF AMERICA Plaintiff - Appellee, v. DESMOND S. GAINES, Defendant-Appellant.
Attorney: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, w...
Judge Panel:Before TYMKOVICH, Chief Judge, BACHARACH, and McHUGH, Circuit Judges. TYMKOVICH, CJ., dissenting.
Case Date:March 12, 2019
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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UNITED STATES OF AMERICA Plaintiff - Appellee,

v.

DESMOND S. GAINES, Defendant-Appellant.

No. 17-3270

United States Court of Appeals, Tenth Circuit

March 12, 2019

Appeal from the United States District Court No. 2:15-CR-20078-JAR-1 for the District of Kansas

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.

BACHARACH, CIRCUIT JUDGE.

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: 1. The existence of a seizure. Two uniformed police officers approached Mr. Gaines with flashing roof lights and confronted him about a report that he was selling PCP. Did this confrontation entail a seizure? The answer turns on whether a reasonable person would have felt free to leave or terminate the encounter. We answer "no" and characterize the encounter as a seizure.

2. The attenuation of a possible Fourth Amendment violation. After effecting a seizure, the police allegedly acquired probable cause and learned of an outstanding arrest warrant. Did the development of probable cause or the subsequent discovery of the arrest warrant attenuate the connection between the seizure and the evidence? We answer "no," so introduction of the evidence can't be supported by attenuation of a Fourth Amendment violation.

Given our conclusions on these two issues, we vacate the denial of Mr. Gaines's motion to suppress.

I. The Kansas City police approach Mr. Gaines in marked police cars and question him about a report that he is selling PCP.

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.

II. Was there a seizure?

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) (stating that determining "when the seizure occurred . . . is a legal [question]"). 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 (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 (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.

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 officers5would 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 (1984) (considering the laws of most states, which criminalize the failure to heed a police officer's signal to stop, as informative on whether the defendant reasonably believed that he wasn't free to leave). 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 (2007) ("The intent that counts under the Fourth Amendment" is the intent conveyed to the suspect, and the court does not consider the officers' "subjective intent when determining who is seized."); see also United States v. Mendenhall, 446 U.S. 544, 554 n.6 (1980) (concluding that a law-enforcement agent's "subjective intention . . . to detain the respondent, had she attempted to leave, is irrelevant except insofar as that may have been conveyed to the respondent").

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:

(Image Omitted)

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) (holding that two deputy sheriffs' gestures to stay seated constituted a seizure).

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]

(Image Omitted)

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) (stating that "particularized focus" on an individual "is certainly a factor" to consider when determining whether a seizure took place).8

These were the five circumstances that confronted Mr. Gaines: 1. He was sitting in his car when two marked police cars approached and stopped right behind him with their roof lights flashing.

2. Both police officers were uniformed.

3. One police officer gestured for Mr. Gaines to get out of his car.

4. Mr. Gaines exited his car, and one of the police officers said that they had come based on a report that he was selling PCP in the parking lot.

5. While one police officer told Mr. Gaines that someone had accused him of selling PCP, the other police officer circled Mr. Gaines's car and looked inside.

(Image Omitted)

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...

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