On Appeal from the United States District Court for the District of Delaware. D.C. Criminal No. 08-cr-00008. (Honorable Gregory M. Sleet).
The opinion of the court was delivered by: Scirica, Chief Judge
Before: SCIRICA, Chief Judge, SLOVITER and FISHER, Circuit Judges.
In this appeal, arising under the Fourth Amendment, we consider what constitutes submission to a police officer's authority. Defendant Thomas J. Smith was arrested and charged with one count of possession of a firearm by a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2), and one count of possession of cocaine base, in violation of 21 U.S.C. § 844(a). Smith filed a motion to suppress evidence and statements. After an evidentiary hearing, the District Court granted the motion, finding the officers had "stopped" Smith without the constitutionally required "reasonable cause." See Terry v. Ohio, 392 U.S. 1, 8 (1968). The Government appealed, contending the District Court erred when it held Smith was seized prior to his physical contact with the officers. We agree and will accordingly reverse and remand.
Neither party disputes the following facts as determined by the District Court. On January 8, 2008, at approximately 3:15 a.m., Officers Rinehart and Muziol, in full uniform in a fully marked police vehicle, were conducting a high-visibility patrol in the 16th District of Wilmington, Delaware, an area of recent high crime activity. The police officers were under orders from their lieutenant to "stop and identify anyone that was out walking in that area, and to just basically make . . . [their] presence known." The officers saw Smith walking down the street, and pulled over about one foot away from him to speak with him and ascertain his identity and where he was going.
Officer Muziol leaned out the window of the patrol vehicle and said to Smith, "Can I talk to you for a second?" Smith stopped walking and turned at a 45 degree angle towards the car, seemingly agreeing to speak with the officers. Officer Muziol asked if Smith had any identification, to which he replied no. The officer asked Smith where he was heading and he replied he was going to his girl's house. Officer Muziol then asked the location of his girl's house and Smith responded, "I am heading to my girl's house." Officer Muziol repeated the question "where is your girl's house?" several times, and Smith always responded by saying he was going to his girl's house.
Officer Muziol then asked Smith to place his hands on the hood of the patrol vehicle so the officers could "speak with him further."*fn1 Smith took two steps toward the vehicle, at which point one or both of the officers began to open their car doors. At the sound of the car door opening, Smith turned and ran. As both officers were still in the vehicle, they pursued Smith by car. Smith attempted to evade the officers by crossing a parking lot and began to scale a fence. Officer Rinehart exited the vehicle and began pursuing Smith by foot. Smith abandoned climbing the fence and began to run through the parking lot again, at which point Officer Rinehart observed a firearm fall from Smith's waistband. Smith dropped to the ground a short distance later after one of the officers verbally commanded him to stop. But Smith resisted arrest and Officer Rinehart gave him a stun blow to the back of the head to gain control, after which he took Smith into custody. Officer Rinehart returned to the area where he had observed the firearm fall and retrieved a semiautomatic handgun. Before he was processed, Smith voluntarily admitted that he possessed approximately one gram of crack cocaine.
The District Court found that Smith was seized when Officer Muziol repeatedly asked him the same question, and in the alternative, he was also seized when, responding to the officer's show of authority, Smith submitted and took two steps towards the hood of the car, before fleeing. The District Court found that the initial submission was "more than momentary, and not undercut by his subsequent attempt to flee the officers." "Because the officers did not have reasonable suspicion that criminal activity was afoot when they seized Smith," the District Court found, the firearm, cocaine, and subsequent statements made by Smith were all fruits of the illegal seizure and must be suppressed. See generally Wong Sun v. United States, 371 U.S. 471 (1963) (requiring the exclusion and suppression of evidence gathered as a result of most unlawful searches or seizures). The District Court granted Smith's motion to suppress all physical evidence and statements stemming from his encounter with the police.*fn2
The Fourth Amendment prohibits unreasonable searches and seizures. U.S. Const. amend. IV. "The Fourth Amendment's requirement that searches and seizures be founded upon an objective justification, governs all seizures of the person, including seizures that involve only a brief detention short of traditional arrest." United States v. Mendenhall, 446 U.S. 544, 551 (1980) (internal quotation marks omitted). But not every interaction between a police officer and a citizen is protected by the Fourth Amendment. An encounter "will not trigger Fourth Amendment scrutiny unless it loses its consensual nature. . . . 'Only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a "seizure" has occurred.'" Florida v. Bostick, 501 U.S. 429, 434 (1991) (quoting Terry, 392 U.S. at 19 n.16); see also California v. Hodari D., 499 U.S. 621, 626 (1991). "Only when such restraint is imposed is there any foundation whatever for invoking constitutional safeguards." Mendenhall, 446 U.S. at 553. Yet "[l]aw enforcement officers do not violate the Fourth Amendment's prohibition of unreasonable seizures merely by approaching individuals on the street or in other public places and putting questions to them if they are willing to listen." United States v. Drayton, 536 U.S. 194, 200 (2002). In fact, "[e]ven when law enforcement officers have no basis for suspecting a particular individual, they may pose questions, [and] ask for identification" without running afoul of the Fourth Amendment's prohibitions. Id. at 201.
Whether an encounter with a police officer constitutes a search and/or seizure under the Fourth Amendment requires consideration of "all the circumstances surrounding the encounter." Bostick, 501 U.S. at 439. Any inquiry into an alleged seizure must begin by determining when the seizure occurred. See United States v. Torres, 534 F.3d 207, 210 (3d Cir. 2008) ("The initial step of a Fourth Amendment suppression analysis requires us to determine the timing of the seizure."). The timing of the seizure is significant-if the seizure occurred after suspicious behavior such as flight, this factors into our analysis of whether there was reasonable suspicion to justify the seizure. But if the seizure occurred before the flight, as the District Court found here, then the flight "plays no role in ...