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Full Opinion
United States Court of Appeals
For the First Circuit
No. 07-2613
UNITED STATES,
Appellee,
v.
TYSON FORD,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Joseph L. Tauro, U.S. District Judge]
Before
Boudin, Stahl, and Howard,
Circuit Judges.
Allison J. Koury was on brief, for appellant.
Jack W. Pirozzolo, Assistant United States Attorney, with whom
Michael J. Sullivan, United States Attorney, was on brief, for
appellee.
November 5, 2008
STAHL, Circuit Judge. Defendant-Appellant Tyson Ford
appeals his conviction under the felon-in-possession statute, 18
U.S.C. § 922(g)(1). His main complaint is that the district court
erred in denying his motion to suppress a firearm found on his
person because it was obtained during an unconstitutional search
and seizure. Finding no error, we affirm the conviction.
I. Background
We relate the facts "'as the trial court found them,
consistent with record support.'" United States v. RuidĂaz, 529
F.3d 25, 27 (1st Cir. 2008) (quoting United States v. Lee, 317 F.3d
26, 30 (1st Cir. 2003)). On September 8, 2005, Officers Daran
Edwards and Daniel Griffin ("the Officers") of the Boston Police
Department ("BPD") were on a routine patrol in a high-crime area of
Dorchester, Massachusetts. The Officers were in uniform and in a
marked police cruiser. They regularly patrolled the Dorchester
area and were familiar with many of the area's residents. At
approximately 3:00 p.m., the Officers observed Ford, who they did
not recognize, walking alone down Harvard Street. Ford looked over
his shoulder, observed the cruiser and then lowered his head, began
walking rapidly, and turned right onto Gleason Street. The
Officers followed Ford the wrong way up Gleason Street for a short
distance, ostensibly to conduct a Field Intelligence and
Observation Report (FIO), used by BPD police officers for
intelligence collection.
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Upon coming abreast of Ford, Officer Griffin leaned out
of the passenger side window and asked him, "Can I speak to you for
a minute?" Ford stopped walking, took his identification out of
his front pocket, and voluntarily handed it to Officer Griffin. He
told the Officers he had no outstanding warrants and was not on
probation. While Officer Edwards ran a search for warrants using
the BPD database, Officer Griffin continued to ask Ford questions
like "where do you live?" and "where are you headed?" Officer
Griffin observed that Ford appeared annoyed, nervous, and hostile
at times and that he was breathing rapidly, stuttered his words,
and his hands shook. Officer Griffin asked Ford whether he had
anything on him that the Officers needed to know about. Ford
answered in the negative.
Roughly 45 seconds after taking Ford's driver's license,
Officer Griffin exited the cruiser to complete the FIO. Following
BPD protocol, Officer Edwards also exited, walked behind the
cruiser, and approached Ford from the same direction as Officer
Griffin. Neither Officer unholstered his weapon. Ford raised his
hands into the air and said, "Come on man, what's this all about?"
Officer Griffin asked whether Ford had any weapons on his person.
Ford responded, "Yeah, I got a gun in my pocket, but it don't
fire." The Officers then placed Ford in handcuffs, and Officer
Griffin frisked him, discovering and seizing a Grendel, Inc., P-12
.380 semi-automatic handgun from the pocket of Ford's pants. The
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Officers arrested Ford, the entire encounter lasting approximately
two to three minutes from interception to arrest. Before placing
Ford in handcuffs, neither Officer had touched Ford, drawn his
weapon, or told Ford he was not free to leave nor had the Officers
activated the police cruiser's siren or flashing lights.
On November 1, 2005, a single-count complaint charged
Ford as a felon-in-possession of a handgun in violation of 18
U.S.C. § 922(g)(1). On March 3, 2006, Ford moved to suppress the
evidence seized in the warrantless search of his person, contending
he was seized at the time the Officers exited the vehicle in
violation of his Fourth Amendment rights. On July 20, 2006, the
district court denied the motion and issued a well-reasoned
rescript, finding that the Officers had not seized Ford prior to
his incriminating statement. See United States v. Ford, 440 F.
Supp. 2d 16 (D. Mass. 2006).
On October 4, 2006, Ford entered a conditional plea of
guilty, see Fed. R. Crim. P. 11(a)(2), reserving his right to
appeal the denial of his suppression motion. On October 11, 2006,
the district court sentenced Ford to a term of imprisonment of 15
years under the Armed Career Criminal Act, 18 U.S.C. § 924 (e)(1).
Ford now appeals the denial to suppress the handgun and his
conviction.1
1
Ford dropped his appeal of the sentence enhancement under
the Armed Career Criminal Act, 18 U.S.C. § 924(e)(1).
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II. Discussion
A. The Motion to Suppress
This appeal primarily concerns the boundary delineating
casual encounters with police, as when officers question persons in
public places, from seizures requiring probable cause or
articulable suspicion. See United States v. Young, 105 F.3d 1, 5-6
(1st Cir. 1997). Ford challenges the lower court's denial of his
motion to suppress in which he argued the Officers seized him
before possessing the requisite reasonable suspicion. The
Government concedes, and we accept for the purposes of this review,
that the Officers lacked the reasonable suspicion required for a
seizure and that, if a seizure occurred, the handgun found on
Ford's person "must be suppressed as tainted fruit." See Florida
v. Bostick, 501 U.S. 429, 433-34 (1991).
"Our review of a district court's denial of a suppression
motion is bifurcated." United States v. Cardoza, 129 F.3d 6, 13
(1st Cir. 1997). We review the court's factual findings for clear
error and its legal conclusions (including constitutional
determinations) de novo. RuidĂaz, 529 F.3d at 28. Clear error
"'exists only if, after considering all of the evidence, we are
left with a definite and firm conviction that a mistake has been
made.'" Young, 105 F.3d at 5 (quoting United States v. McCarthy,
77 F.3d 522, 529 (1st Cir. 1996)). This deference "reflects our
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awareness that the trial judge . . . sits in the best position to
determine what actually happened." Id.
The Fourth Amendment provides that "[t]he right of the
people to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures, shall not be violated."
U.S. Const., amend. IV. The primary purpose of the Fourth
Amendment is "'to prevent arbitrary and oppressive interference by
enforcement officials with the privacy and personal security of
individuals.'" I.N.S. v. Delgado, 466 U.S. 210, 215 (1984)
(quoting United States v. Martinez-Fuerte, 428 U.S. 543, 554
(1976)).
Not every interaction between a police officer and a
citizen constitutes a seizure triggering Fourth Amendment
protections. Bostick, 501 U.S. at 434; Cardoza, 129 F.3d at 14;
Young, 105 F.3d at 5. While per se rules are inappropriate in
determining when a seizure occurs for Fourth Amendment purposes,
United States v. Drayton, 536 U.S. 194, 201 (2002) (citing Bostick,
501 U.S. at 439), we have observed that encounters "between law
enforcement officials and citizens generally fall[] within three
tiers of Fourth Amendment analysis, depending on the level of
police intrusion into a person's privacy." Young, 105 F.3d at 5.
Because there are no bright-line distinctions between the tiers, we
look to the totality of the circumstances to determine where a
police encounter falls. Drayton, 536 U.S. at 207; Michigan v.
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Chesternut, 486 U.S. 567, 572 (1988); United States v. Smith, 423
F.3d 25, 29-30 (1st Cir. 2005); Cardoza, 129 F.3d at 15. See also
Bostick, 501 U.S. at 439-40 (rejecting per se rule for seizure in
favor of totality inquiry).
The lowest tier, which does not implicate the Fourth
Amendment, involves minimally intrusive interactions such as when
police officers approach individuals on the street or in public
places to ask questions. Young, 105 F.3d at 5-6; Bostick, 501 U.S.
at 434. See Drayton, 536 U.S. at 201 (observing that law
enforcement agents may question and ask a citizen for
identification even when they have no basis to suspect the
individual so long as they "do not induce cooperation by coercive
means"). If the encounter amounts to more than a minimally
intrusive interaction, a seizure occurs, either a de facto arrest
requiring probable cause or an investigative (or Terry) stop
necessitating reasonable suspicion. Young, 105 F.3d at 6.
The Supreme Court has adopted the standard set forth by
Justice Stewart's plurality opinion in United States v. Mendenhall,
446 U.S. 544, 554 (1980), that "a person has been 'seized' within
the meaning of the Fourth Amendment only if, in view of all the
circumstances surrounding the incident, a reasonable person would
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have believed that he was not free to leave."2 See Drayton, 536
U.S. at 202; California v. Hodari D., 499 U.S. 621, 627-28 (1991)
(compiling cases). To constitute seizure, this Circuit requires
one's liberty be restrained by either physical force or an
assertion of authority. Id. at 626; United States v. Sealey, 30
F.3d 7, 9 (1st Cir. 1994); see Smith, 423 F.3d at 28 (finding
seizure can occur without physical restraint if compliance is
coerced and not voluntary).
Under the objective totality of the circumstances
standard, we look not to "whether the citizen perceived that he was
being ordered to restrict his movement, but whether the officer's
words and actions would have conveyed that to a reasonable person."
Hodari D., 499 U.S. at 628; Chesternut, 486 U.S. at 574 (noting
objective standard does not vary with mind of each individual).
Thus, there is less reason to inquire into a defendant's subjective
mindset when considering whether there is a submission to
authority, see Cardoza, 129 F.3d at 14 n.4, particularly as all
persons feel "some degree of compulsion" and "discomfort" when
approached by police officers. Smith, 423 F.3d at 28.3
2
The Court has explained the reasonable person test presumes
an innocent person. Bostick, 501 U.S. at 438; Smith, 423 F.3d at
31, n.5.
3
Both the Supreme Court and this Circuit have observed that
exchanges do not lose their consensual nature simply because people
generally answer police officers' questions. Drayton, 536 U.S. at
205 (citing Delgado, 466 U.S. at 216); Cardoza, 129 F.3d at 16
(agreeing with defendant that "few people . . . would ever feel
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Employing this objective test, the inquiry before us
today is not whether the Officers could approach and question Ford,
but, instead "whether they did so in a manner that would have
communicated to a reasonable person that he was not free to refuse
to answer and walk away." Smith, 423 F.3d at 29. To elucidate
this test, the Supreme Court has provided circumstances that may
indicate a seizure including "the threatening presence of several
officers, the display of a weapon by an officer, some physical
touching of the person of the citizen, or the use of language or
tone of voice indicating that compliance with the officer's request
might be compelled." Mendenhall, 446 U.S. at 554. "[T]his list of
factors is not exhaustive and no single factor is dispositive in
any case." Smith, 423 F.3d at 29. See Chesternut, 486 U.S. at 575
(considering also non-use of patrol car's siren or flashers);
United States v. McKoy, 428 F.3d 38, 40 (1st Cir. 2005) (adding
neighborhood as "only one factor that must be looked at alongside
all the other circumstances").
To evaluate the circumstances leading to Ford's arrest,
our case law provides guidance for discerning the Fourth
Amendment's parameters. In Cardoza, police officers drove the
free to walk away from any police question"). See id. ("The 'free
to walk away' test . . . must be read in conjunction with the
Court's frequent admonitions that 'a seizure does not occur simply
because a police officer approaches an individual and asks a few
questions'") (quoting Bostick, 501 U.S. at 434, and Terry v. Ohio,
392 U.S. 1, 19 n.16 (1968)).
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wrong way on a one-way street to ask the defendant pointed
questions including "Why are you out at this time of night?" 129
F.3d at 15. We found no seizure, noting the police had not used
the cruiser's siren or lights, had stopped at the curb before
calling out to the defendant, and did not exit the car until they
observed the defendant's ammunition round. Id. at 16. Cf.
Chesternut, 486 U.S. at 575 (no seizure where police did not
activate siren or lights, did not order defendant to halt, drew no
weapons, and did not block defendant's course).
In Smith, the police officers framed general, non-
threatening questions to ask why the defendant was sitting on the
wall of a stranger's house and did not command the defendant to
remain on his walled perch. 423 F.3d at 30. Even after the
officers exited their vehicle to conduct an FIO and approached the
defendant from both sides, we found no seizure because the officers
never summoned Smith to the cruiser, did not employ the car's siren
or lights, and did not expose their weapons or touch Smith. Id.
Additionally, because Smith attempted to flee from the officers
after he disclosed that he had an outstanding warrant, we noted his
action indicated he had not submitted to an assertion of authority.
Id. at 31.
Applying this precedent to the instant case, we decline
to hold that the Officers seized Ford before he disclosed that he
was in possession of a firearm. See Mendenhall, 446 U.S. at 555
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(rejecting proposition that making statements contrary to one's
self-interest necessarily indicates involuntary submission). The
Officers, like those in Cardoza, drove a short distance the wrong
way on Gleason Street for the purpose of asking Ford questions but
activated neither the cruiser's siren or flashing lights. Their
questions were largely general and non-threatening, like those in
Smith. Throughout the brief encounter, until Ford's incriminating
statement, the Officers did not draw their guns or touch Ford.
At the onset of the interaction, Ford approached the
cruiser and provided his driver's license voluntarily. While the
Officers retained the license during the two- to three-minute
exchange, they did not otherwise restrict Ford's movement.
Contrast Smith, 423 F.3d at 27, 30 (finding no seizure where
officers approached the defendant from both sides, telephone pole
was directly in front of defendant, and wall directly behind). As
in Smith, where we found no seizure, the Officers exited the
cruiser to complete the FIO.
Ford relies on the Supreme Court's Florida v. Royer
decision where two detectives retained the defendant's driver's
license and airplane ticket while commanding him to accompany them
to a private room because they believed he fit the drug courier
profile. 460 U.S. 491, 493-94 (1983). The Court held these
actions constituted an illegal seizure, id. at 501-02, and
distinguished Mendenhall in part because the government agents
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there immediately returned the driver's license and airplane ticket
before continuing the encounter. Id. at 503 n.9.
Ford argues Royer indicates that the retention of his
driver's license during the encounter is compelling evidence of a
seizure. We think the concerns of the airport cases, where
citizens need documentation to move from place to place, differ
from the instant case where Ford was on foot on a public street.
See Drayton, 536 U.S. at 204 (noting that if the encounter had
occurred on the street rather than on a bus, "[i]t is beyond
question that . . . it would be constitutional"). Moreover, Ford
produced his license voluntarily, not at the request of one of the
Officers, and was not removed from the street to a confined space
while the Officers ran the background check.
While the retention of Ford's license is an important
factor in our analysis, we decline to elevate it above other
considerations. See United States v. Weaver, 282 F.3d 302, 313
(4th Cir. 2002) (refusing to adopt D.C. Circuit's per se rule
regarding license retention).
Ford also asserts that a seizure can be evidenced by his
raising his hands into the air after the Officers exited the
cruiser. But one can draw different inferences from this gesture;
while it could reflect submission, raised hands also can be a
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symbol of protest. On the cold record before us,4 we cannot
recreate the actual gesture demonstrated to the district court.
Instead, this type of inquiry recommends our deferential review of
the lower court's factual findings.5
Evaluating the totality of circumstances, we hold that
Ford was not seized for purposes of the Fourth Amendment
protections when he told the Officers he possessed a handgun.
Assessments of this type "are highly fact-specific and must be
performed on a case-by-case basis." United States v. Taylor, 511
F.3d 87, 92 (1st Cir. 2007). We acknowledge this method of
analysis does not produce a crystalline landscape in our Fourth
Amendment jurisprudence. But it reflects most realistically the
contextual nature of these encounters. See Chesternut, 486 U.S. at
4
At the suppression hearing, Officer Edwards demonstrated the
exact manner in which Ford raised his hands and later explained
that Ford "raised his hands in the air." Officer Griffin similarly
testified twice that Ford "raised his hands." Ford did not
testify. We note that this record does not support the suggestion
initially posited by Ford that he raised his hands above his head.
5
Ford also suggests that the Officer's failure to inform him
of his right to refuse to answer questions and to leave rendered
the encounter nonconsensual. While it is true that such statements
generally make an encounter consensual, Mendenhall, 446 U.S. at
558-59, the Supreme Court has explained that a seizure
determination "is not affected by the fact that the respondent was
not expressly told by the agents that she was free to decline to
cooperate with their inquiry, for the voluntariness of her
responses does not depend upon her having been so informed." Id.
at 555. See also Drayton, 536 U.S. at 206 ("The [Supreme] Court
has rejected in specific terms the suggestion that police officers
must always inform citizens of their right to refuse when seeking
permission to conduct a warrantless consent search.").
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573 ("The test is necessarily imprecise, because it is designed to
assess the coercive effect of police conduct, taken as a whole,
rather than to focus on particular details of that conduct in
isolation.").
B. Other Issues
Ford contests his conviction under 18 U.S.C. § 922(g)(1),
asserting that the handgun on his person did not fall under the
statutory definition of "firearm" because it was inoperable. The
Government argues that Ford waived this argument by entering a
conditional plea of guilty, reserving only his objection to the
suppression order. Fed. R. Crim. P. 11(a)(2). Regardless of the
standard of review we employ, Ford's claim is without merit.
"The term 'firearm' means (A) any weapon . . . which will
or is designed to or may readily be converted to expel a projectile
by action of an explosion.â 18 U.S.C. at § 921(a)(2). We have
recognized that, in order to convict, "the gun must be real, but it
'need not be prove[d] to be loaded or operable.'" United States v.
Taylor, 54 F.3d 967, 975 (1st Cir. 1995) (quoting United States v.
Kirvan, 997 F.2d 963, 966 (1st Cir. 1993)). See also United States
v. Alston, 112 F.3d 32, 38 (1st Cir. 1997). No one, including
Ford, suggests the handgun he carried was not real or that it was
not designed to expel a projectile. Ford's argument thus fails.
Finally, Ford's argument that his prior convictions
should be treated as an element of the enhanced offense, and thus
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proven by the Government beyond reasonable doubt, is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224 (1998), and our
Circuit's subsequent case law.
III. Conclusion
For the foregoing reasons, we affirm the district court's
denial of Ford's motion to suppress and Ford's conviction under 18
U.S.C. § 922(g)(1).
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