2005 D e c i sion s O p inion s of the U nit e d S t at e s C our t of Appe al s for the Thir d C ir c uit
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w . v i l l a no va . e du/thir dc ir c uit_2005/1558NOT PRECEDE NTIAL UNITED STATES COURT OF APPEALS FO R T HE TH IRD CIR CU IT

___________ NO. 03-4357

___________ UNITED S TATES OF AMERI CA

v. ANDREW HENDE RSON Appellant

___________ On A ppeal from the Un ited States District Co urt for the Easte rn D istrict of P enns ylvania (D.C. Crimi nal No. 02-cr -00315) Distri ct Judge: Honorable Herbert J. Hutt on

____________ Argued October 26, 2004

____________ BE FO RE : NY GA AR D, A M BR O, a nd V AN AN TW ER PE N, Circuit Judges (Fil ed: January 20, 2005) Elizabet h T. Hey, Esq. (Argued) David L. McColgin, Esq. Catheri ne C. Henry. Esq. Federal Court

Divisi on De fend er’s A ssocia tion of Philad elphia Suite 540 West - Curtis Center Independence Squ are West Philadelphia, PA 19106 Counsel for Appell ant1 The facts are taken fr om the District Court ’s Findi ngs of Fact and Concl usions of

Law and Order entered J anuary10, 2003. 2 Wendy A. Kelly , Esq. ( Argued) Office of the United State s Attorne y 615 Chestnut St

reet Philadelphia, PA 19106 Counsel for Appell ee

___________ OPI NION

___________ VA N A NT W ER PE N, Circuit Judge Ap pellan t An drew He nder son a ppea ls the D istrict Co urt’s de nial of his m otion to suppress evidence di scovered after he was apprehende d by pol ice. Henderson maintains that he wa s illegally seize d in v iolation of the Fou rth A men dm ent w hen h e brief ly
conv ersed with , and h ande d his id entifica tion to, a police offic er w ho ap proa ched him while inve sti gating an anonymous tip. The parties do not chal lenge many of the Dist rict Court’s f indings and there fore, t his Court is pre sented wit

h the very

narrow question of whether Henderson s ubmitt ed to the police officer ’s show of authority . We hold that he did not . I. FACTUAL HIS TORY Bec ause we write o nly for the parties, w e reco unt o nly the fa cts mo st pertine nt to our decis ion. 1 Earlyon the morning of June 28, 2001, an anonymous ca ller tele phoned the 91 1 call c enter in Ch ester C oun ty, Penns ylvania a nd sta ted, “Y ou g ot a gu y on Eig hth Street with a [si c] orange s hirt on -- he has a gun and drugs on hi m. . . . He is i n the2 Henderson chall enges thi s chronol ogy of event s, but as we discuss late r, t

his fi nding of the Dist

rict Court is consistent with t he testimony off

ered at the suppression he aring. 3 middle of t

he block. ” The call er did not identi fy hi mself and offered no furthe r information, but

police dispat chers were abl e to quic kly trace the cal l to a pay t elephone locat ed on Eighth Avenue and East Lincoln Highway in Coatesvi lle, Pa. Officer Steven Smith, a uniformed Coates vill e Police Officer was on pat rol i n a marked poli ce car nearby . At 4:13 a .m., a Chester County pol ice ra dio dis patcher radioed a

descri ption of the suspec t to Officer S mith and dispatched him to the are a indicated by the caller. Officer Smith knew the area des cribed by the cal ler was a hi gh crime ar ea and he responded within two minut es. Upon arrival, he notic ed severalpeople mil ling about on Eighth Street, includi ng the appel lant, Henderson, who was the onl y per son wearing an orange shi rt. Officer Smith exite d his car , approac hed Henderson and asked for identi fication, whic h Henderson provi ded. Officer Smith the n asked Henderson i f he could pat him down for weapons. 2 Henderson became evasi ve, stepped away fr om the offic er and told him that he did n ot nee d to b e searc hed. A s Of ficer S mith re ache d ou t to touch him, Henderson took se veral more steps ba ck. As he was doing so Offi cer James Dilworth ar

rived at the scene in anothe r marked patrol car . Upon seeing t he second officer , Henderson t

urned and fl ed. Officer Smith purs ued and soon apprehe nded He nder son. In a sub sequ ent sea rch o f his p erson and th e imm ediate vicinity of h is arrest, police found crack cocai ne and a handgun. II . P ROCEDURAL HIS TORY4

On M ay 28, 20 02, a g rand jury sitting in th e Ea stern D istrict of P enns ylvania charg ed A ndre w H ende rson w ith an in dictm ent fo r poss ession with intent to distribu te in
exc es s of fi ve g ra ms o f co cai ne b as e, in vi ol at io n of 21 U. S. C. § 841 (a )( 1) & (b) (1 )( B) (Count I) ; posses sion and car ry ing of a weapon in furtheranc e of a drug traffic king cri me, in viola tion of 18 U .S.C. § 924 (c) (C oun t II); and p osses sion o f a w eapo n by a pr eviou sly convicted felon, in violation of 18 U .S.C. § 922 (g) (Cou nt III). (Appellant B rief at 3.) He nde rson mo ved to su ppr ess th e ev iden ce f oun d fo llow ing his a ppr ehe nsio n. (Appellant

App. at 39a. ) He argued that he was il legal ly seized when he was approa ched by Office r Smith and compl ied with hi s request for ident ific ation. (Appellant

App. at 46a.) He furt

her argued t

hat his subsequent

flight , apprehe nsion and di scoveryof phy si ca l e vi de nc e we re al l f ru it of th e u nl awf

ul se iz ur e. (Ap pe ll an t Ap p. at 49a .) On January10, 2003 the Distri ct Court i ssued the Findings of Fact and Conclus ions of Law and Order (her einaft er “Suppres sion Mem.”) deny ing the de fense moti on to suppre ss the physi cal e vid enc e. On July 14, 2003, Henderson entered into a written plea agr eement in which he conditi onally

pled guil ty to Counts Iand III , while reserving his right to appealthe Distri ct Court’ s suppres sion rul ing. On October 30, 2003, the Distri ct Court s entenced Henderson to 121 months impris onment, ei ght y ears of s upervis ed rele ase and a spec ial
asse ssm ent o f $2 00. Co unt II w as d ism issed on a mo tion of th e go ver nm ent. Henderson now appeals the Distri ct Court’ s order, which denied hi s motion t o suppress evidence seized in viola tion of the F ourth Am endm ent.5 II I. STANDARD O F REVIEW The Distri ct Court ha d subject matter juri sdiction over t

his cas e pursuant

to 18 U.S .C. § 323 1. T his C our t has juris dicti on o ver the ti me ly app eal p ursu ant to 28 U .S.C . § 1291. “This Court revi ews the District Court' s denialof a motion t o suppress for cle ar
error as to t he underlying factual fi ndings and exercises plenary review of the District Court' s appli cati on of the l aw to those fa cts. ” U.S. v. Perez , 280 F.3d 318, 336 (3d Cir. 200 2). The parti es confine their arguments to the ti me immediatel y before Henderson fled. Additional ly , the y st ipulate that

prior to Henderson’ s fli ght, Offi cer Smith di d not have a rea sonable su spicion suff icient to justify a stop and frisk un der the standa rd outli ned in Terry v. O hio , 392 U.S. 1, 20-22 (1968) and clari fied i n Flo ri da v. J. L. , 529 U.S . 266, 2 71-7 2 (20 00) (h olding that an anon ymou s tip w ithout a ny indicia of relia bility is i nsuffici ent byits elf t o establ ish a r easonable suspici on that would j usti fy a Te rry stop ). The parti es als o agree that Officer Smith exerc ised a “s how of authorit y, ” but the y di ffer as to when thi s occurr ed. Therefore we will examine when Officer Smith exercised a show of authori ty and whether Henderson ac tuall y submi tted to Officer Smith’s show of auth ority. IV. DIS CUSSI ON The Fou rth A men dm ent state s, “Th e right o f the p eople to be s ecure in their persons, houses, papers, and effects , agai nst unre asonable s earches a nd seizures, s hall not be vio lated, . . . .” U .S. Co nst. am end. IV . This p rotectio n exte nds to the un reaso nable6

seiz ure of p erso ns, Cal if or ni a v . H odariD. , 499 U.S. 621, 624 (1991), and “belongs a s much to the ci tize n on the st reets of our cit

ies as to the homeowner cl oseted i n his st udy to dis pose of his secret

affair s,” Terry , 392 U .S. at 8-9 . Of c ourse , the Fo urth Am end me nt d oes not pro hib it all se izur es, o nly tho se th at are unr eas ona ble. Id . at 9. Therefore our

examinati on involves two questi ons: (1) was there a s eizure ; and, if so, (2) was that s eizure unreasonabl e. Reserv ing the initial question, w e deal first with the latter part of the inquiry because it can be easily addressed . Investigative stops of the kind at issue h ere are governed bythe rul es est ablis hed by t he Supreme Court i n Terry v. O hio , 392 U.S . at 27
. In Terry , the C ourt’s h eld tha t “an o ffice r may, co nsisten t with th e Fo urth A men dm ent, conduct a brief, investigator y stop when the officer

has a reas onable, arti culabl e suspic ion that c riminalacti vity

is afoot .” Ill inois v. Wardlow , 528 U.S. 119, 123 (2000). The gov ernm ent co nced ed tha t Of ficer S mith d id no t have a reaso nable susp icion su fficien t to j us t i fyde t ai ni ng He nd er so n w he n h e f i r st ap pr oa ch edhi m. ( Ap pe l l ee Br i ef at 12
. ) We find no rea son to examine this issue f urther and assume that

if Officer

Smith did s eize He nde rson , he d id so unr eas ona bly. With that in m ind, we return to the first question: w as Hen derson seize d? In Un ited Sta tes v. M ende nhall , 446 U.S. 544, 553 (1980), the Court e xplaine d that “ a perso n is ‘seiz ed’ o nly wh en, by m eans of p hysical fo rce or a show of au thority, his freedom of mo veme nt is restrained.” Bec ause neither p arty disputes the District Cou rt’s findin g that Off icer Smith ne ver touche d He nderson , (Suppression Me m. at 4), we a re7

concerned onl y with Officer Smith’s show of authority . In Cal if or ni a v . H odariD. , 499 U.S. at 626, the Supreme Court explai ned that , when not accompani ed by a phy sical touching, a “seiz ure” requires both a show of authori ty by the law enforcement officer and submissi on to that

authori ty by the person se ized. Henderson’s appe al res ts on the conte ntion th at he w as seiz ed w hen h e han ded h is identif ication card to Of ficer S mith in response to the officer’s sh ow o f authority. (Appellant B rief at 18.) Both parti es agree t

hat Officer

Smith exerc ised a s how of authorit y, but they

differ on the cruc ial que sti on of when this occ urred. In it s analy sis of t he tota lit y of t he circumst ances, The Dis tri ct Court c oncluded that Officer Smith exerc ised a s how of auth ority w hen he in for me d H end erso n th at he inten ded to se arch him for we apo ns. (Suppress ion Mem. at 10.) The Distri ct Court a lso found that thi s did not occur unti l aft er Hen derson h anded Off icer Smith his ide ntification card. (Sup pression M em. at 3.) Hen derson arg ues that the D istrict Court’s factual findin gs on this po int were
erron eous . We review the fa ctual f inding s in a D istrict Co urt’s de nial of a mo tion to sup pre ss fo r clea r erro r. U.S. v. Perez , 280 F.3d 318, 336 (3d Cir. 2002). I n view of the record , we c anno t say that the Distric t Cou rt’s resolu tion of the testim ony am oun ted to clear error . The recor d, in mul tipl e places , supports the District Court ’s fi nding that Officer Smith announced his i ntenti on to pat- down Henderson only after Henderson had provided hi s identific ation c ard and not, as Henderson maint ains, as soon as Offic er3 Henderson would have us find that the District Court’s chronology of events is wrong and that Officer Smith announced he was going to pat Henderson down as soon as he approached him. To support this assertion, Henderson points to one instance in which Officer Smith answers a lengthy , compound question on cross-examination in the following manner: Counsel: So that wa s your intention when y ou appro ached h

im, righ t? Smith: No, it wasmy in tention to investig ate a suspicious pe rsons com

plaint. Counsel: Well – so how were you planning on doing that when you walked – the first thing you said whe

n you walked up to him, was it not, Office r, was that, sir, I rec eived a radio call o f a man w ith an orange s hirt, carrying a gun, you ha

ve an orange shirt on, I ’m going to have to pat y ou down; isn’t that the f irst thing you said to him w

hen you came u

pon him? Smith: Correct , and that was for m

y sa fety and I also wan t to identif

y the subject. (Mot. to Suppress Hr’g Tr. at 27). However, Officer Smith’s testimony throug hout the rest of his examina

tion is con sistent wit

h the Cour

t’s finding. On dir

ect examination, Of

ficer Smi th states: “And I exited the vehicle and appr oached the subject wearing the or ange shirt and advised him that I was investigating a suspicious person complaint and asked him if he had any identification. . . . [H]e gave me his identification card. . . . I then asked him, for my sa fety, if I could pat him down for weapons, at which time he said y ou don’t need to pat me down, I don’t have nothing and became evasive a nd started walking away

from me.” ( Id . at 9-10) . On cros sexamination he stated, “He ha nded me hi s identification c ard first and I then asked him if I

could pat him down for my safe ty.” (Id . at 30). L

ater in th e testimon

y he said, “A fter he handed me his identification card, I advised him I wanted to do a Terry

stop for weapons.” ( Id .). This testimony is consiste

nt with the

District C ourt’s findings, including the state ment in its Conclusions of Law that the officer told Henderson he intended to frisk him before Henderson fled. (Conclusions of Law at 10). 4 In its brief, the gove

rnment argued that Henderson’s c ontact was only momentar y and was therefore permissible under United Stated v. Valentine , 232 F.3d 350, 359 (3d Cir. 2000). (Appellee Brief at 14-15.) The government also stated that it “does not press the issue” and that Henderson’s claim of factual error is “immaterial.” ( Id . at 1 3, n.1 .) Ho weve r, in t he ne xt sentence the government arg ues that Henderson’s claim of factual err or is based upon “ambiguous cross-examination,” ( Id . at 13, n.1.) , and the governme nt’s state ment of the

facts in its brief adhered to the District Court’s findings, (Id . at 6). I n addition , the governmen t stated in its brief that it, “f urther does not challeng e the distr ict cour t’s deter mination that Officer Smith made a show of authority , stating to Henderson that he intended to search him.” (Id . at 12-13.) We find tha

t the government

was atte mpting to argue that if the

contact was only momentary, under Valentinethe factual issue would not have to be resolved. Similarly at oral argument, the government indicated that if the contact was momentary it would not matter when the show of author

ity w as made. In doing so however, it never conced ed to Henderson’ s claim 8 Smi th app ro ach ed h im. 3 We agree with the government that Henderson i s rel yi ng on “an ambiguous cros s-examinat ion” to s upport hi s clai ms of factualerror . (Appell ee Brief at 13, n .1.) 4of factual error. We need not addre ss whether the contact was as brief as in Valentinebecause

we agree with the District Court that there was no show of authority until Office r Smith stated his intention to search Henderson. 9 The distinctio n is critica l. Until O ffice r Sm ith ann oun ced th at he w as go ing to cond uct a p at-dow n, the e ncou nter w as pe rmissib le. Polic e do n ot viola te the F ourth Am end me nt b y mer ely ap pro ach ing an in div idu al an d as kin g hi m q ues tion s. Flori da v. Royer , 460 U.S. 491, 497 (1983). Nor is it impermiss ible f

or poli ce to ask s omeone for iden tifica tion
. Id . at

502. “As long as the pers on to whom questions are put remains fre e to disregard the q uestions and walk a way, there has b een no intrusion upo n that person ’s liber ty or pri vacy a s would under the Constit ution require s ome parti culari zed and objective jus tifi cati ons.” M ende nhall , 446 U.S. at 554. Alt hough he was in uniform and kept a hand on a hol ster ed gun, Officer Smith did not

initiall y cal l out or

command Henderson, at

tempt t o touch him, tellhim that he would detai n him, or tell hi m that he was not free to go. This fa lls far short of a “show of authority” t hat would cause a
reas ona ble p erso n to belie ve th at he wa s no t fre e to le ave . See id . at 554 (suggesting that a reasonabl e person would not feel fr ee to l eave when he or she i s confront ed with “the th re at eni ng p re se nce of s eve ra l o ffi cer s, th e di spl ay of aweap on b y an o ffi cer , s ome physi cal t ouching of the person of t he citizen, or the us e of language or tone of voi ce indicating t

hat compli ance with the officer ’s reque st might be compelled” ). There fore, Henderson’s ac t of provi ding his identi fication was the pr oduct of a cons ensual encounter , not a n impermiss ible s top res ulti ng from a coerci ve seizure.10

It i s not unusualfor a show of authority to be prec eded by a n initiall y cons ensual encounter . In Flori da v. Roye r , 460 U.S. 491, 501-02 (1983), the Court e xamined a simil ar encount er which began permissi bly when police as ked to see Roy er’s t icket and driver’s license, but esca lated to a “show of official au thority” when tho se officers identi fied themselves as narcoti cs agents , tol d him that theysuspect ed he was carrying ill egal drugs and, whil e reta ining hi s ti cket and i dentif ication, a sked him to ac company them to the polic e room. Henderson’ s case di ffers i n that, when the poli ce acti on eventual ly did ri se to a s how of authorit y, Henderson did not

cooperat e. Pri or to t

hat He nder son n ever in dicate d ver bally or oth erw ise that h e did n ot w ant to id entify him self or sp eak wit h O ffic er S mith
. Our decisi on in U.S. v. Coggins, 986 F.2d 651 , 654 ( 3d C ir. 1993 ), also su ppo rts our decis ion. I n Coggins , a pol ice offi cer and a drug enforcement a gent approa ched the defend ant, Patrick Co ggins, and f our traveling co mpan ions wh ile they sat waiting for a fligh t. Id . at 652 . The offic ers ask ed to s ee the travele rs’ iden tification s and plane tickets and Coggins tol d them that he did not ha ve any i dentif ication with hi m and that anot her
ma n in the g rou p w as h old ing his tic ket. Id . While t he agent was quest

ioning t his other
ma n, C ogg ins s too d up and state d th at he nee ded to g o to the b athr oom . Id . The agent told Coggins to si t down and he complied. A short ti me later , Coggins aga in st ood up and said he n eed ed to go t o th e ba thro om imm edia tely. Id . The agen t again told him to sit dow n, but C ogg ins w alked aw ay, then b roke into a sp rint and proc eede d to d iscard sma ll bag s w hich we re lat er d eterm ined to b e fille d w ith cr ack coc aine
. Id . at 652 -53. T his11

Co urt dete rmine d that C ogg ins yielded to the o ffice r’s auth ority wh en he wa s told to sit back down and he complied. “[T]he combination of Coggins’ expresse d desir e to le ave, Agent Inouy e’s orde r that he stay , and Coggins’ yi elding to police authori ty resul ted in a seizur e for purpos es of the Fourth Amendment.” Id . at 654. It is i mportant to note, how ever, th at the se izure d id no t occu r until C ogg ins ask ed to le ave a nd w as told to sit down. Until t

hat point , the re was no exerci se of authority , and the encounter was
cons ensu al. Once Henderson expresse d that he did not want to submit t o a pat down, Office r Smith would have acted improperl y had he de taine d Henderson. However, Henders on
neve r gav e him the op portu nity. Unlik e Co ggin s wh o com plied w hen o ffice rs told h im to sit down, once Henderson made it known that he di d not want to be fris ked, he never again cooper ated with Officer Smith. He refused to submit t o the pat down and stepped away. Befor e Officer Smit h had the opport

unity to detain him or frisk hi m, Henderson fled. Because he did not submit t o Officer Smith’s show of authority , thi s Court cannot find that H end erso n w as se ized in v iolat ion of th e Fo urth Am end me nt. See California v. Hod ar i D. , 499 U.S . 621 , 629 (19 91)
. Therefore, we affirm the dec isi on of the Dist rict Court denying the motion to suppress.