United States v. Sealey, 30 F.3d 7 (1st Cir. 1994)

TORRUELLA, Circuit Judge.

Defendant-appellant Steven Sealey was charged with a violation of 18 U.S.C. § 922(g)(1). Sealey filed a motion to suppress a firearm, a magazine, and ammunition which Sealey discarded while he was being

pursued by Boston Police officers. The district court denied Sealey’s motion and, following trial, the jury returned a guilty verdict. Sealey now appeals the district court’s denial of his motion to suppress. We affirm.

I. BACKGROUND

A. Facts

We view the facts in the light most favorable to the district court’s ruling to the extent that they derive support from the record and are not clearly erroneous. United States v. Maguire, 918 F.2d 254, 257 (1st Cir.1990), cert. denied, 499 U.S. 950, 111 S.Ct. 1421, 113 L.Ed.2d 474 (1991); United States v. Aguirre, 839 F.2d 854, 857 (1st Cir.1988).

On February 12, 1991, two individuals were robbed at knifepoint by two black males. Two plainclothes Boston Police Officers, William Donga and William Reynolds, arrived at the scene, and then, with the two victims, drove around the area in an unmarked cruiser, looking for the robbers. Shortly thereafter, the police officers saw Sealey, a black male, carrying a green trash bag over his shoulder. The victims did not identify Sealey as one of the robbers. The officers, however, recognized him from a previous arrest, and decided to approach him.

As the cruiser approached Sealey, Officer Reynolds called out “Hey Steven, what’s up?” Sealey then looked in the direction of the officers and, without responding to the officer’s question, started to run away from the cruiser, dropping the green trash bag as he ran.

Officer Donga then chased Sealey on foot. During the pursuit, Sealey discarded a 9mm semi-automatic pistol, a magazine, and ammunition. A police officer finally apprehended Sealey, who was hiding behind a wooden stockade fence, and arrested him. A federal grand jury subsequently returned an indictment charging Sealey with being a felon-in-possession of a handgun in violation of 18 U.S.C. § 922(g).

B. The District Court’s Ruling

On November 5, 1992, Sealey filed a motion to suppress the physical evidence — the firearm, magazine, and ammunition. Sealey argued that he was seized when Officer Reynolds shouted out to him from the cruiser and, because the officer lacked reasonable suspicion to stop him, this seizure ran afoul of the Fourth Amendment. Consequently, any evidence that was obtained as a result of this improper seizure should be suppressed.

Following an evidentiary hearing, the court denied Sealey’s motion. The court found:

Sealey now challenges the court’s denial of his motion to suppress.

II. THE FOURTH AMENDMENT CLAIM

The dispositive issue on appeal is whether or not the police officers seized Sealey when Officer Reynolds shouted from the cruiser, “Hey, Steven, what’s up?”1 Sealey contends

that this “show of authority” effectively constituted a stop, therefore triggering Fourth Amendment protections. The government maintains that regardless of whether Officer Reynolds’ question constituted a “show of authority,” there was no seizure because Sea-ley ran from the officers and refused to submit to Officer Reynold’s inquiry.

As a preliminary matter, we set forth the applicable standard of review with respect to a motion to suppress. A district court’s findings of fact will only be disturbed if they are clearly erroneous. United States v. Zapata, 18 F.3d 971, 975 (1st Cir.1994); United States v. Rodriguez-Morales, 929 F.2d 780, 783 (1st Cir.1991), cert. denied, — U.S. -, 112 S.Ct. 868, 116 L,Ed.2d 774 (1992). This deferential standard is appropriate because the district court has a superi- or sense of what actually transpired during an incident by virtue of its ability to see and hear the witnesses who have first hand knowledge of the events. Zapata, 18 F.3d at 975; Rodríguez-Morales, 929 F.2d at 783. Questions of law, however, are subject to de novo review. Zapata, 18 F.3d at 975; Rodríguez-Morales, 929 F.2d at 783.

Zapata, 18 F.3d at 975 (citations omitted).

Under the Fourth Amendment, a seizure occurs when a police officer, by means of physical force or a show of authority, has in some way restrained the liberty of a citizen. Terry v. Ohio, 392 U.S. 1, 19 n. 16, 88 S.Ct. 1868, 1879 n. 16, 20 L.Ed.2d 889 (1968). In United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 1877, 64 L.Ed.2d 497 (1980), a plurality first announced a test to determine if an individual’s liberty had been restrained: “a person has been ‘seized’ within the meaning of the Fourth Amendment only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave/The Supreme Court subsequently embraced this analysis. See Michigan v. Chesternut, 486 U.S. 567, 573, 108 S.Ct. 1975, 1979, 100 L.Ed.2d 565 (1988); Immigration & Naturalization Service v. Delgado, 466 U.S. 210, 215, 104 S.Ct. 1758, 1762, 80 L.Ed.2d 247 (1984). The Supreme Court later explained that a person’s reasonable belief that he was not free to leave was “a necessary, but not sufficient condition for seizure.” California v. Hodari D., 499 U.S. 621, 628, 111 S.Ct. 1547, 1551, 113 L.Ed.2d 690 (1991) (emphasis in original). The Supreme Court went on to hold that with respect to a seizure based upon an officer’s show of authority, no seizure occurs until the suspect has submitted to that authority. Id. at 626, 111 S.Ct. at 1551; see also Zapata, 18 F.3d at 976.

The facts of Hodari D. are analogous to the instant case. In Hodari D., a group of youths fled at the approach of an unmarked police car. 499 U.S. at 623, 111 S.Ct. at 1549. The police officers were suspicious, and they gave chase. Id. The state conceded that the officers did not have the reasonable suspicion required to justify stopping Hodari. Id. at 623 n. 1, 111 S.Ct. at 1549 n. 1. One officer followed the defendant, Hodari, and during the pursuit,- Hodari tossed out a “rock” of crack cocaine. Id. at 623, 111 S.Ct. at 1549. The officer then tackled Hodari, and handcuffed him. Id. In the juvenile proceedings brought against him, Hodari moved to suppress the evidence relating to the cocaine, and the court denied the motion. Id. Ho-dari appealed and challenged the government’s right to introduce the evidence. The admissibility of the evidence turned on whether the police seized Hodari at the moment the chase began or at the time of the tackle. The Supreme Court held that where a suspect fails to submit to an officer’s approach and runs away, he is not seized until he is apprehended. Id. at 626, 111 S.Ct. at 1551. Hodari was therefore not seized until he was tackled, and the cocaine was therefore admissible evidence.

Hodari D. controls the resolution of this appeal, and requires us to conclude that Sealey was not improperly seized within the meaning of the Fourth Amendment. There is no allegation that any police officer exerted physical force over Sealey; rather, Sealey alleges that he was seized by virtue of Officer Reynold’s show of authority. Even if we assume that Officer Reynolds’ question to Sealey constituted a show of authority, Sealey did not submit to this inquiry. Instead, Sealey resisted Officer Reynolds, he ran away, and ignored any authority that the officer manifested. While Officer Donga was pursuing him, Sealey then discarded the firearm, the magazine and the ammunition. A police officer finally caught Sealey hiding behind a wooden fence, after he had discarded the contraband. Pursuant to Hodari D., Sealey was not seized until he was caught hiding.2 Because the contraband discarded by Sealey while he was running was not the fruit of this seizure, the act of abandonment extinguished his Fourth Amendment claim. See Abel v. United States, 362 U.S. 217, 241, 80 S.Ct. 683, 698, 4 L.Ed.2d 668 (1959) (a warrantless search or seizure of abandoned property is not a violation of the Fourth Amendment); United States v. Lewis, 921 F.2d 1294, 1302 (D.C.Cir.1990) (when an individual abandons property, he forfeits any reasonable expectation of privacy in it, and consequently police may search it without a warrant).

As an initial matter, Sealey appears to contend that this case is controlled by Men-denhall. The argument is that when Officer Reynolds yelled to him, Sealey reasonably believed that he was not free to leave, and the Fourth Amendment seizure should therefore be deemed to have occurred at that point. This argument, however, ignores the teaching of Hodari D., which stated that the Mendenhall reasonableness inquiry was a necessary, but not sufficient condition for seizure. Hodari D. made it clear that no Fourth Amendment seizure occurs until a suspect submits to police authority.

Sealey also attempts to argue that his case is distinguishable from Hodari D., and that case’s “submission” requirement is not applicable to the circumstances of this case. Sealey claims that when the police officers, who were dressed in plainclothes, yelled to him from their unmarked cruiser, he did not realize that they were police officers. Rather, he suspected that they were private citizens out to get him. Sealey therefore argues that the test to determine when a seizure occurs should be modified so that the seizure is deemed to occur at the moment when the words and actions of the officers would have caused a reasonable person to believe that his personal safety was in jeopardy.

Sealey^ argument, however, cuts against, not in favor, of his position. A seizure is generally deemed to have occurred when a defendant believes that his liberty has been interfered with by virtue of a police officer’s exertion of physical force or show of authority. If Sealey ran away because he believed he was being approached by private citizens, there is even less of a case for a “seizure” taking place because Sealey would not be acting in response to an officer’s interference, or under the belief that his liberty was restricted by governmental power. Additionally, one of the necessary prerequisites for a seizure — a reasonable belief by Sealey that he was not free to leave the police officer’s authority — would be missing. Sealey’s argument is simply illogical.

To conclude, we believe that the court properly determined that the police officers did not seize Sealey until after he had fled, abandoned the contraband, and was finally apprehended. Therefore, the firearm, the magazine and the ammunition were not the fruit of an unconstitutional seizure, and the court properly admitted the contraband into evidence.