United States v. Ward, 112718 FED6, 18-3034

Docket Nº:18-3034
Opinion Judge:JULIA SMITH GIBBONS, CIRCUIT JUDGE.
Party Name:UNITED STATES OF AMERICA Plaintiff-Appellee, v. DAMITRES WARD Defendant-Appellant.
Judge Panel:BEFORE: GIBBONS, SUTTON, and McKEAGUE, Circuit Judges.
Case Date:November 27, 2018
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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UNITED STATES OF AMERICA Plaintiff-Appellee,

v.

DAMITRES WARD Defendant-Appellant.

No. 18-3034

United States Court of Appeals, Sixth Circuit

November 27, 2018

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO

BEFORE: GIBBONS, SUTTON, and McKEAGUE, Circuit Judges.

JULIA SMITH GIBBONS, CIRCUIT JUDGE.

When the police asked Damitres Ward to come to them, he turned away, ran in the opposite direction, and threw a firearm into the air as he fled. Ward was charged with being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). In a pretrial motion to suppress, Ward claimed that the police obtained the firearm in violation of the Fourth Amendment. The district court denied the motion to suppress, holding that the officers had reasonable suspicion to seize Ward. Ward now appeals that denial. Whether the police violated Ward's Fourth Amendment rights turns on two issues: (1) whether the officers seized Ward before or when he ran from them and discarded the gun; and (2) if so, whether the officers had reasonable suspicion to do so. Because we find that Ward was not seized, we decline to reach the second issue. We therefore affirm the district court's denial of Ward's motion to suppress on alternative grounds.

I.

On November 9, 2016, Ward and his two friends, Marvin Hunter and Brian Harris, stood in front of Food City market in Dayton, Ohio. The market was located across the street from Desoto Bass housing complex, which Dayton police officers consider a high crime area. On this day, Dayton Police Officers Josh Campbell and Adam Sharp were patrolling the neighborhood. Over a period of seven hours, they passed by the market several times and noticed that on each occasion, the three men were standing outside the market and repeatedly entering and exiting a black SUV vehicle parked in front of the store. Believing this conduct to be consistent with drug trafficking, Campbell and Sharp decided to conduct a "field interview." The officers had not received any particular complaints about these three men.

The officers parked their cruiser parallel to the SUV and approached the men. Hunter and Harris stood closest to the officers, while Ward stood about five feet away, holding his dog on a leash. Around the same time that the interaction began, another officer, Mark Orick, arrived at the scene to assist. The officers began by asking the men whether they worked at the market and why they were "hanging out so long." Gov't Ex. 1, Video, 13:35:59-13:36:18. The men responded they were "just chillin.'" Id. The officers then asked whether the men had their IDs on them. Hunter said no, and the officers moved closer to ask follow-up questions. At the same time, Ward, still standing a few feet back and holding his dog, began reciting a string of numbers. The officers asked whether this was his Social Security number, and he said yes. He then repeated his Social Security number again and provided his name. The officers then said that "it's just odd that everyone hangs out here" and re-asked for Ward's and Hunter's Social Security numbers. Id. at 13:36:50-13:37:20. They repeated their numbers.

The officers then asked Hunter questions about the SUV. After learning that the SUV was Hunter's cousin's car, the officers asked Hunter and Ward whether they were involved in drug dealing. They both responded in the negative. Next, the officers moved closer to Hunter and whether they could perform a pat-down. Hunter said "but you got my ID," and Ward, still standing a few feet away with his dog, chimed in "but you got his Social, why are you doing that?" Id. at 13:37:52-13:38:02. The officers proceeded to pat down Hunter. Throughout the pat-down, Ward leaned against the SUV and gave his dog instructions to sit. He mostly looked at his dog and away from the officers.

Following Hunter's pat-down, Officer Sharp turned toward Ward and told him to "come on over here." Id. at 13:38:45-13:38:47. In response to Sharp's request, and before any officers physically touched him or attempted to block his path, Ward took off running in the opposite direction. Approximately three minutes passed between when the officers first approached the men and when Ward ran. Ward fled around the corner of Food City while Sharp and Campbell pursued him by foot. During the chase, Ward discarded a semi-automatic pistol, throwing it about five feet in the air above him.

In December 2016, Ward was indicted for being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). Before trial, Ward moved to suppress evidence of the gun, and a hearing on the suppression motion was held in March 2017. The district court denied Ward's motion. The district court found that although Ward was seized before he discarded the firearm, the seizure was constitutional under Terry. The court ruled that the officers had reasonable suspicion to believe the men were engaged in criminal activity based on the following factors: (1) observing the suspects loitering in front of Food City for several hours;

(2) having received complaints from residents of the Desoto Bass Neighborhood about drug activity in and in front of Food City; and

(3) observing the suspects repeatedly entering and exiting the SUV, which was a common hallmark...

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