United States v. Swindle, 060105 FED2, 03-1773

Docket Nº:03-1773
Party Name:United States of America, Appellee, v. Swazine Swindle, Defendant-Appellant.
Case Date:June 01, 2005
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

United States of America, Appellee,


Swazine Swindle, Defendant-Appellant.

No. 03-1773

United States Court of Appeals, Second Circuit

June 1, 2005

Argued: September 23, 2004

Last Supplemental Brief Filed: February 22, 2005

Appellant Swindle appeals from a judgment of conviction of the United States District Court for the Western District of New York (Skretny, J.) entered pursuant to a plea of guilty to unlawfully possessing a controlled substance in violation of 21 U.S.C. § 844 (a). Affirmed.

JOHN HUMANN, Federal Public Defender's Office, Western District of New York, Buffalo, NY (MaryBeth Covert, of counsel), for Defendant-Appellant.

MICHAEL DIGIACOMO, Assistant United States Attorney, Western District of New York, Buffalo, NY (Michael A. Battle, United States Attorney, on the brief), for Appellee.

Before: FEINBERG, CARDAMONE, and PARKER, Circuit Judges.

FEINBERG, Circuit Judge:

Swazine Swindle appeals from a judgment of conviction of the United States District Court for the Western District of New York (Skretny, J.) entered after pleading guilty to unlawfully possessing a controlled substance in violation of 21 U.S.C. § 844 (a).1 The appeal poses the ultimate question whether on this record the Fourth Amendment requires exclusion of evidence the police obtained as a result of unreasonably initiating a Terry stop.2 The officers in this case, although lacking reasonable suspicion of Swindle's criminal activity, ordered him to pull his car over. He did not immediately do so, subsequently breaking two traffic laws and throwing a bag of drugs out of his window before being apprehended while fleeing on foot. Swindle argues that the police seized him the moment they ordered him to pull over, and that the drugs therefore should have been suppressed as the fruit of an unconstitutional seizure. The government argues that the officers did not seize Swindle until they physically apprehended him, and that his behavior by then furnished ample grounds for his arrest. Constrained by relevant Supreme Court decisions, we affirm the judgment of the district court.

I. Background

A. Swindle's Arrest

Four Buffalo police officers assigned to an FBI career criminal task force were patrolling the city in an unmarked car on June 11, 2002, in search of Kenneth Foster-Brown, a fugitive wanted for dealing drugs. All four officers had on previous occasions encountered Foster-Brown, a black man who was 5'8" tall and at the time weighed 145 pounds. Defendant-appellant Swindle, also a black man, is 6'1" tall and in June 2002 weighed 215 pounds.

During their patrol, the officers saw a black Pontiac Bonneville, a model of car that Foster-Brown had previously been seen "near" but had never been known to drive. The officers saw the car come to a halt in front of a known drug house that Foster-Brown had supplied in the past. The officers stopped their car and watched as a black man got out of the Bonneville, entered the house, left a short time later and drove away. The officers were unable to tell whether the man was Foster-Brown. In fact, the man in the Bonneville was Swindle. Thinking that he might be Foster-Brown, the officers followed in their car. Within a minute, by activating their police strobe light, they ordered Swindle to pull over.

Swindle disobeyed the officers' order to stop and kept driving. As he did, he violated two traffic laws by crossing a double yellow lane divider and driving the wrong way on a oneway street. Swindle also reached into the visor above the driver's seat, attempted to throw something out of the window and ultimately succeeded in throwing a plastic bag out of the car. The bag was found to contain 33 smaller bags of crack cocaine. Swindle eventually pulled over and fled on foot. The police apprehended him in a yard and placed him under arrest. He was charged with unlawful possession of a controlled substance with intent to distribute, in violation of 21 U.S.C. § 841(a) (1) .

B. The Suppression Hearing

Swindle moved to suppress the drugs on the ground that they were the fruit of an illegal seizure. A magistrate judge held a hearing at which one of the arresting officers and Swindle testified. According to the officer, the man who entered the drug house was a "dark skinned black male, approximately six foot tall, wearing a white muscle shirt, T shirt." The officer admitted that he knew Foster-Brown to be a "5'8", 150 pound[]...black male." The officer also conceded that when Swindle was ordered to pull over, Swindle "had violated no Vehicle and Traffic law at that time." Moreover, when asked whether he had seen Swindle "do anything illegal in any way, shape or form that day," the officer answered: "Not prior to activating the courtesy light." Further, the officer was asked "what was...your reason, the sole reason you activated your emergency light at that point?" He answered: "To ascertain if, in fact, Mr. Swindle was, in fact, Kenneth Foster Brown." Swindle testified that he was 24 years old, 6'1" tall and weighed 215 pounds on June 11. The government did not rebut or attempt to discredit this testimony.

C. The Magistrate Judge's Report and Recommendation

The magistrate judge first determined whether Swindle abandoned the drugs before or after being seized. Looking principally to three Supreme Court decisions for guidance on this question, the magistrate judge cited California v. Hodari D., 499 U.S. 621 (1991), in which the Court stated that a seizure requires "either physical force...or, where that is absent, submission to the assertion of authority." Id. at 626 (emphasis in original). The magistrate judge also cited Brower v. County of Inyo, 489 U.S. 593 (1989), in which a 20-mile police chase of the defendant was presumed not to be a seizure, id. at 596-97, and quoted County of Sacramento v. Lewis, 523 U.S. 833 (1998), which stated that "a police pursuit in attempting to seize a person does not amount to a 'seizure' within the meaning of the Fourth Amendment." Id. at 844. In light of these precedents, the magistrate judge concluded that since "the defendant was being pursued by the police, he had not been seized when he was observed discarding...[a] sandwich bag containing crack cocaine."

The magistrate judge next decided whether the officers had a legitimate basis for both ordering Swindle to stop and later arresting him. Citing Swindle's presence at a known drug house, his refusal to pull over when ordered to do so, his violation of two traffic laws and his throwing the plastic bag from the window, the magistrate judge ruled that "by the time the defendant was actually seized, the police officers possessed not only reasonable suspicion to stop the vehicle, but probable cause to arrest the driver."

Accordingly, the magistrate judge concluded that since "the crack cocaine had been discarded by the defendant prior to his seizure and [since] the defendant's subsequent seizure was supported by probable cause, I recommend that the defendant's motion to suppress the physical evidence be denied."

D. Swindle's Guilty Plea and Sentencing

In a two-page order, the district court accepted the magistrate judge's Report and Recommendation "in its entirety, including the authorities cited and the reasons given therein." Following entry of this order, Swindle agreed to plead guilty to a lesser included charge: unlawful possession of a controlled substance in violation of 21 U.S.C. § 844 (a) . Included in Swindle's plea agreement was a reservation of "the right to appeal the denial of the defendant's suppression motion."

The district judge accepted Swindle's guilty plea on July 24, 2003. Swindle had been in the custody of the United States Marshals since June 26, 2002. After accepting Swindle's guilty plea, the judge released him on bail. In November 2003, the judge sentenced Swindle to time served plus one year of supervised release.

This timely appeal followed.

II. Discussion

On appeal, Swindle argues that the drugs he threw from his car should have been suppressed as the fruit of an illegal seizure. Swindle claims that he was seized at the "moment the emergency overhead lights went on" in the officers' vehicle, at which time the police lacked reasonable suspicion to order a stop. The government argues that Swindle was not seized for Fourth...

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