USCA1 Opinion

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT
____________________
No. 93-1614
UNITED STATES OF AMERICA,
Appellee,
v.
STEVEN SEALEY,
Defendant - Appellant.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. A. David Mazzone, Senior U.S. District Judge]
__________________________
____________________
Before
Breyer,* Chief Judge,
___________
Torruella and Selya, Circuit Judges.
______________
_____________________

Juliane Balliro, with whom Balliro, Mondano & Balliro, P.C.,

_______________
________________________________

was on brief for appellant.

Michael J.
Pelgro, Assistant United
States Attorney,
____________________
Organized Crime Drug Enforcement Task Force, with whom Donald K.
_________
Stern, United States Attorney, was on brief for appellee.
_____
____________________
July 20, 1994
____________________
____________________

*
Chief Judge Stephen Breyer heard oral argument in this matter
but did not participate in the drafting or the issuance of the
panel's opinion.
The remaining two panelists therefore issue
this opinion pursuant to 28 U.S.C.
46(d).

TORRUELLA, Circuit Judge.

_____________
Sealey was
Sealey

filed a

ammunition
Boston

charged with
motion to

suppress a

officers.

The

U.S.C.

firearm, a

district

Steven

922(g)(1).

magazine, and

he was being pursued by

court denied

Sealey's

following trial, the jury returned a guilty verdict.

Sealey now appeals the

suppress.

of 18

which Sealey discarded while

Police

motion and,

a violation

Defendant-appellant

district court's denial of his

We affirm.
I.
I.

BACKGROUND
BACKGROUND
__________

motion to

A.
A.

Facts
Facts

We

view the facts in

district court's

ruling to the

from the record and

Maguire, 918 F.2d
_______

the light most

favorable to the

extent that they

are not clearly erroneous.

254, 257

(1st Cir. 1990),

derive support

United States v.
_____________
cert. denied,
____________

499

U.S. 950 (1991); United States v. Aguirre, 839 F.2d 854, 857 (1st
_____________
_______
Cir. 1988).
On February
knifepoint by
Officers,

two black males.

William Donga

scene, and
an

and

two individuals were

Two plainclothes

William Reynolds,

then, with the two victims,

unmarked

thereafter,

cruiser,
the

identify

looking

police

carrying a green trash

not

12, 1991,

Sealey

however, recognized him

for

officers
bag over his

as one

of

from a previous

approach him.
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arrived at

robbers.

Sealey,

shoulder.

the

Boston Police

the

drove around the area in

the

saw

robbed at

robbers.

Shortly
black

male,

The victims
The

did

officers,

arrest, and decided

to

As

the cruiser

called out "Hey Steven,

direction

of

the

officer's

question,

approached

Sealey,

what's up?"

officers

and,

started

to

Sealey
without

run

away

Officer

Reynolds

then looked in

the

responding

the

from

the

to

cruiser,

dropping the green trash bag as he ran.

Officer Donga then chased
pursuit,

Sealey

magazine, and
Sealey,

who

discarded

ammunition.
was hiding

arrested him.

During

semi-automatic

pistol,

9mm

A police
behind

federal

wooden stockade

and

an

922(g).

The District Court's Ruling

The District Court's Ruling

evidence -- the firearm,

Sealey argued that

to

fence,

subsequently returned

On November 5, 1992, Sealey filed a

out

being a felon-in-possession of a

handgun in violation of 18 U.S.C.

the physical

the

officer finally apprehended

grand jury

indictment charging Sealey with

B.
B.

Sealey on foot.

he was seized

him from

the cruiser

reasonable suspicion to stop

Fourth Amendment.

motion to suppress

magazine, and ammunition.

when Officer Reynolds

and,

because the

officer lacked

him, this seizure ran afoul

Consequently, any evidence

shouted

of the

that was obtained

as a result of this improper seizure should be suppressed.

Following
Sealey's motion.

an

evidentiary

hearing, the

court

The court found:

On these facts, supplemented

by the
record at the evidentiary hearing, I
conclude the defendant was not "seized"
until he was
finally caught by the
police.
Accordingly,
this case
is
controlled by California v. Hodari, __
__________
______
U.S. __ , 111 S. Ct. 1547 (1991). There
is no showing that the defendant yielded

denied

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to
a "show of authority" let alone
physical force.
The inquiry
"Hey,
Steven, what's up?, unaccompanied by any
other demonstration
or more forceful
verbal command is not an impermissible
intrusion by the police.
Whether the
defendant ran from an unknown threat or
because he recognized the police, his
flight cannot be considered a "seizure"
by the police.
The seizure took place
when
the
defendant
was
finally
apprehended, at which point the police
had
a reasonable basis upon which to
detain him. See Terry v. Ohio, 392 U.S.
___ _____
____
1, 27 (1968).
Sealey

now

challenges

the

court's denial

of

his

motion

to

suppress.
II.
II.
The

THE FOURTH AMENDMENT CLAIM

THE FOURTH AMENDMENT CLAIM
__________________________

dispositive issue on appeal is

police officers seized Sealey

the
this

cruiser, "Hey, Steven,

"show

therefore

of

authority"

triggering

whether or not the

when Officer Reynolds shouted from

what's up?"1
effectively

Fourth

Amendment

Sealey

contends that

constituted
protections.

stop,

The

government maintains that regardless of whether Officer Reynolds'

question constituted a "show of

authority," there was no seizure

because Sealey ran

from the

officers and refused

to submit

to

Officer Reynold's inquiry.

____________________

1 Sealey argues that Officer Reynolds shouted "[c]ome here, we

want to talk to you," as the officer got out of the cruiser.
Sealey maintains that it was this question and action which
incited him to run.
The district court's factual finding that
Officer Reynolds asked "Hey, Steven, what's up?" is supported by
evidence in the record and the finding is not clearly erroneous.
See United States v. Zapata, 18 F.3d 971, 975 (1st Cir. 1994).
___ ______________
______
Moreover, the resolution of this appeal in no way depends on the
precise words that Officer Reynolds uttered, and our decision to
affirm would be the same even if Officer Reynolds had asked
Sealey to come over to the cruiser.
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As a

preliminary matter,
with respect

we set forth

standard

of review

district

court's findings of fact will only be disturbed if they

are clearly erroneous.

(1st

Cir. 1994);

780, 783 (1st Cir.

This
court

to a

the applicable

motion to

suppress.

United States v. Zapata, 18 F.3d 971, 975

_____________
______

United States
_____________

v. Rodr guez-Morales,
_________________

(1991), cert. denied, 112 S. Ct.

____________

deferential standard

is appropriate

because

929 F.2d

868 (1992).

the district

has a superior 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.

975;

Rodr guez-Morales, 929

_________________

F.2d

however, are subject to de novo

_______

at 783.

review.

Zapata,
______

18 F.3d at

Questions of

law,

Zapata, 18 F.3d at 975;

______

Rodr guez-Morales, 929 F.2d at 783.

_________________
In scrutinizing a district court's denial
of a suppression motion, the court of
appeals will review findings of fact for
clear error, while at the same time
subjecting the trial court's ultimate
constitutional conclusions
to plenary
oversight.
Zapata, 18 F.3d at 975 (citations omitted).
______
Under
police

the Fourth

officer,

by

means

authority, has in some

Terry v. Ohio, 392
_____
____

Amendment, a

seizure occurs

of

force

physical

or

way restrained the liberty of

U.S. 1, 19 n.16 (1968).

when a
show

of

a citizen.

In United States v.
_____________

Mendenhall, 446 U.S. 544, 554 (1980), a plurality first announced

__________
a

test

to

restrained:

determine

if

"a person has

an

individual's

liberty

been 'seized' within

had

been

the meaning of

the Fourth Amendment only if, in view of all of the circumstances

-5-

surrounding the incident, a reasonable person would have believed

that

he was not free to leave."

embraced this
567,

573

Delgado,
_______

analysis.

(1988);
466

See
___

The Supreme Court subsequently

Michigan v.
________

Chesternut, 486
__________

Immigration & Naturalization

Services
_________________________________________

U.S. 210,

215 (1984).

The Supreme

U.S.

v.

Court later

explained

that a person's reasonable belief that he was not free

to

was "a

leave

seizure."

California
__________

(emphasis in
with

necessary,
_________

to

that authority.

went on to hold that

an

officer's show

occurs until the suspect

of

has submitted to

of Hodari D. are
__________

analogous to the

instant

In Hodari D., a group of youths fled at the approach of an

_________

unmarked police car.

suspicious, and
the

upon

628 (1991)

Id. at 626; see also Zapata, 18 F.3d at 976.

__
________ ______

The facts
case.

based

condition for

U.S. 621,

The Supreme Court

a seizure

authority, no seizure

sufficient
__________

v. Hodari D., 499

__________

original).

respect

but not

at 623.

they gave chase.

officers did not

justify

499 U.S.

Id.
__

The police officers were

The state

have the reasonable

stopping Hodari. Id. at

__

623 n.1.

conceded that

suspicion required to

One officer followed

the defendant, Hodari, and during the pursuit, Hodari tossed

a "rock" of crack cocaine.

Id. at 623.

out

The officer then tackled

__
Hodari, and handcuffed

him. Id.
__

brought

Hodari

against

him,

relating to the cocaine,

Hodari

appealed

and

In
moved to

and the court

challenged

introduce the evidence.

the juvenile

the

suppress

proceedings
the

evidence

denied the motion.

government's

Id.
__

right

to

The admissibility of the evidence turned

on whether the police seized Hodari at the moment the chase began
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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
was

not seized until he is

apprehended.

therefore not seized until

Id. at
__

he was tackled,

626.

Hodari

and the cocaine

was therefore admissible evidence.

Hodari D.
_________
requires us to
within

Sealey;

conclude that

the meaning

allegation that

controls the resolution of

of

the

any police

Sealey was
Fourth

this appeal, and

not improperly

Amendment.

There

officer exerted physical

rather, Sealey alleges that

he was seized

seized
is

no

force over

by virtue of

Officer Reynold's show

Officer

Reynolds'

authority,
Sealey

of authority.

question

Sealey

did not

to

authority that the officer

if we assume

Sealey constituted

submit

resisted Officer Reynolds,

Even

to this

inquiry.

he ran away,

manifested.

that

show

of

Instead,

and ignored any

While Officer Donga

was

pursuing him, Sealey then discarded the firearm, the magazine and
the

ammunition.

behind a

police officer finally

wooden fence,

after he

Pursuant to Hodari D., Sealey was

_________
hiding.2

Because the

caught Sealey hiding

had discarded

the contraband.

not seized until he was caught

contraband discarded

by Sealey

while he

____________________

2 Sealey does not challenge the district court's ruling that the
police had probable cause to arrest him after the chase. Such a
challenge would be to no avail. The situation rapidly escalated
from one involving a minimum of suspicion to one justifying
arrest based upon probable cause. By the time the police located
and apprehended Sealey, the police had probable cause to arrest
him for violating firearm laws.
The officers observed Sealey
flee for no apparent reason, and Officer Donga observed Sealey
discard a gun during the chase. See, e.g., United States v.
___
____ ______________
Figueroa, 818 F.2d 1020, 1023 (1st Cir. 1987).
________
-7-

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 (1959) (a warrantless search or

______________
seizure

of abandoned property is

Amendment);

United States v.
_____________

not a violation

Lewis, 921
_____

of the Fourth

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

this case is controlled by Mendenhall.

__________
Officer Reynolds

contend that

The argument is that when

yelled to him, Sealey

reasonably believed that

he was not free to leave, and the Fourth Amendment seizure should
therefore

be

argument,

however,

stated

that

deemed

the

to have
ignores the

Mendenhall
__________

necessary, but not sufficient

made it clear

occurred

that no

at

teaching

that
of

reasonableness

point.

This

Hodari D.,
_________

which

inquiry

condition for seizure.

Fourth Amendment seizure

was

Hodari D.
_________

occurs until

suspect submits to police authority.

Sealey
distinguishable

also
from

attempts
Hodari D.,
_________

to
and

argue

that

his

that case's

requirement is not applicable to the circumstances of

Sealey

case

is

"submission"

this case.

claims that when the police officers, who were dressed in

plainclothes, yelled to him from

their unmarked cruiser, he

not realize that they were police officers.

did

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

-8-

modified

so that the

when the words and

reasonable

seizure is deemed

to occur at

actions of the officers

person to

believe

that his

the moment

would have caused

personal safety

was in

jeopardy.

Sealey's argument, however, cuts against, not in favor,

of his position.

A seizure is generally deemed

when a defendant

believes that his

with by virtue of

to have occurred

liberty has been

a police officer's exertion of

or show of authority.

If

interfered

physical force

Sealey ran away because he believed he

was being approached by private citizens, there is even less of a

case for a
acting in
belief

"seizure" taking
response to an

that his

place because Sealey

officer's interference,

liberty was

restricted by

would not

be

or under

the

governmental power.

Additionally, one of the necessary prerequisites for a seizure -a reasonable belief

police

officer's

by Sealey that he was not

authority

argument is simply illogical.

--

would

be

free to leave the

missing.

Sealey's

To

conclude,

determined that the

after

he had

apprehended.

we

believe

that

police officers did

fled, abandoned
Therefore,

the

the

court

properly

not seize Sealey

the contraband,
firearm, the

and was
magazine

until

finally
and

the

ammunition were not the fruit of an unconstitutional seizure, and

the court properly admitted the contraband into evidence.

For the foregoing reasons, we affirm the ruling of the

_______________________________________________________
district court.
______________

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