United States v. Duty , 204 F. App'x 236 ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4281
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JEREMIAH DUTY,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. James R. Spencer, Chief
District Judge. (3:05-cr-00255-JRS)
Submitted: October 11, 2006 Decided: November 7, 2006
Before MICHAEL, MOTZ, and DUNCAN, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
Michael S. Nachmanoff, Acting Federal Public Defender, Robert J.
Wagner, Assistant Federal Public Defender, Frances H. Pratt,
Research and Writing Attorney, Richmond, Virginia, for Appellant.
Chuck Rosenberg, United States Attorney, Erik R. Smith, Special
Assistant United States Attorney, Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Following the denial of his motion to suppress evidence,
Jeremiah Duty was convicted of felon in possession of a firearm, in
violation of 18 U.S.C. § 922(g)(1) (2000). Duty now appeals,
arguing that the district court erred in denying his motion to
suppress evidence. Duty asserts that he was improperly seized
without reasonable suspicion of wrongdoing on his part. Because we
conclude that the district court erred in denying the motion to
suppress, we vacate and remand for further proceedings
This court reviews the district court’s factual findings
underlying a motion to suppress ruling for clear error, and the
district court’s legal determinations de novo. Ornelas v. United
States, 517 U.S. 690, 699 (1996); United States v. Bush, 404 F.3d
263, 275 (4th Cir. 2005). When a suppression motion has been
denied, this court reviews the evidence in the light most favorable
to the Government. United States v. Grossman, 400 F.3d 212, 216
(4th Cir. 2005).
On March 31, 2005, Richmond police officer Crystal
Winston (“Winston”) was on a routine patrol of the 1900 block of
Raven Street, in Richmond, Virginia. This portion of Raven Street
is managed by the Richmond Redevelopment and Housing Authority
(“RRHA”) and is privatized, restricted only to residents and
authorized guests.
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While on patrol, Winston saw a gray Chevrolet vehicle
parked in the cul-de-sac of the street with its engine running.
Winston testified that the two occupants of the vehicle, later
identified as Duty and Jonathan Bish, looked at her as she passed.
Winston circled around the cul-de-sac, activated her emergency
lights*, and pulled behind the Chevrolet, stopping ten to fifteen
feet behind the vehicle. Winston testified that she stopped “to
see if they were ok, what their business was, and if they had a
legitimate or social reason to be in the area.” Bish and Duty made
no move to leave when Winston pulled behind them.
Winston approached the driver’s side of the Chevrolet,
and asked Duty and Bish for identification to determine if either
lived in the area. Winston ran the information, and learned that
Duty had an outstanding arrest warrant. After confirming the
warrant, Winston placed Duty under arrest. Winston conducted a
search incident to arrest, during which she found several rounds of
.22 caliber ammunition, a syringe, and several pills on Duty’s
person. Winston also searched the trunk of the Chevrolet, in
which she found a .22 caliber rifle.
*
The district court made a factual determination that the
emergency lights on top of Winston’s vehicle were flashing when she
pulled behind the parked car in which Duty and Bish were sitting.
Both Duty and Bish unequivocally testified that the lights were
flashing on top of the police car. Winston, on the other hand,
could not affirmatively recall whether the lights were activated
when she stopped behind the car in which Duty and Bish were
sitting. Therefore, this factual determination was not clearly
erroneous.
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Duty filed a motion to suppress the evidence, alleging
that it was obtained from an improper seizure. After a hearing,
the district court denied the motion to suppress. The district
court found that it was proper for Winston to approach Duty and ask
for identification. Once Winston discovered Duty’s outstanding
warrant, the district court found that Winston acted properly by
arresting Duty, and searching him incident to arrest. Although the
search of the trunk exceeded the scope of the search incident to
arrest, the district court found that the rifle inside of the trunk
would have been inevitably discovered because the car was impounded
and inventoried. Following his conviction, Duty filed a timely
notice of appeal.
The issues on appeal are whether Duty was seized for
purposes of the Fourth Amendment, and if so, whether the seizure
violated Duty’s Fourth Amendment rights. “The Fourth Amendment
protects ‘the people’ against ‘unreasonable searches and
seizures.’” United States v. Hylton, 349 F.3d 781, 785 (4th Cir.
2003) (quoting U.S. Const. amend. IV), cert. denied, 541 U.S. 1065(2004). A person is considered “seized” for Fourth Amendment
purposes if, under the totality of the circumstances, a reasonable
person in the position of the suspect would believe that he or she
was not free to leave or to terminate the encounter. Florida v.
Bostick, 501 U.S. 429, 436-37 (1991). “Because the test [to
determine whether a person has been seized for purposes of the
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Fourth Amendment] is an objective one, its proper application is a
question of law.” United States v. Sullivan, 138 F.3d 126, 133
(4th Cir. 1998).
Winston seized Duty for purposes of the Fourth Amendment
when she activated the emergency lights on top of her car and
pulled behind the parked car in which Duty was sitting. Through
this action, Winston displayed an unmistakable show of authority
that would give a reasonable person the impression that he was not
free to leave. See Brower v. County of Inyo, 489 U.S. 593, 597-98
(1989); Michigan v. Chestnut, 486 U.S. 567, 575 (1988). Thus, the
district court erred in finding the initial encounter consensual.
Because Duty was seized for Fourth Amendment purposes,
Winston was required to have reasonable suspicion. “[A]n officer
may, consistent with the Fourth Amendment, conduct a brief,
investigatory stop when the officer has a reasonable, articulable
suspicion that criminal activity is afoot.” Illinois v. Wardlow,
528 U.S. 119, 123 (2000); see Terry v. Ohio, 392 U.S. 1, 30 (1968).
To conduct a Terry stop, there must be “at least a minimal level of
objective justification for making the stop.” Wardlow, 528 U.S. at
123; see also United States v. Hensley, 469 U.S. 221, 232 (1985).
Reasonable suspicion requires more than a hunch but less than
probable cause, and it may be based on the collective knowledge of
officers involved in an investigation. Id.- 5 -
In assessing police conduct in a Terry stop, courts must
look to the totality of the circumstances. United States v.
Sokolow, 490 U.S. 1, 8 (1989). Officers conducting a lawful Terry
stop may take steps reasonably necessary to protect their personal
safety, check for identification, and maintain the status quo.
Hensley, 469 U.S. at 229, 235; see also United States v. Moore, 817
F.2d 1105, 1108 (4th Cir. 1987) (brief but complete restriction of
liberty is valid under Terry).
We find that Winston lacked the reasonable suspicion
necessary to seize Duty. The only evidence presented was that Duty
was sitting in an idle car on a private street, and looked at
Winston when she drove by. Such evidence plainly does not provide
a basis for reasonable suspicion.
Accordingly, the seizure was invalid because Winston did
not possess articulable, reasonable suspicion that criminal
activity was afoot when she pulled behind Duty with the emergency
lights activated. Because the seizure was illegal, the district
court erred in denying Duty’s motion to suppress evidence.
The judgment of the district court is vacated and the
case is remanded for further proceedings consistent with this
opinion.
VACATED AND REMANDED
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