United States v. Dupree

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 09-3391

UNITED STATES OF AMERICA,

Appellant

v.

MAURICE RAY DUPREE

On Appeal from the United States District Court

for the District of Eastern Pennsylvania

(D.C. No. 08-cr-00280)

District Judge: Honorable Cynthia M. Rufe

Argued April 13, 2010

Before: FISHER, HARDIMAN and COWEN, Circuit Judges.

(Filed: August 6, 2010)

Robert A. Zauzmer (Argued)

Jose R. Arteaga

Office of United States Attorney

Suite 1250

615 Chestnut Street

Suite 1250

Philadelphia, PA 19106-0000

Attorneys for Appellant

Brett G. Sweitzer (Argued)

Robert Epstein

Kai N. Scott

Defender Association of Philadelphia

Federal Court Division

601 Walnut Street

The Curtis Center, Suite 540 West

Philadelphia, PA 19106-0000

Attorneys for Appellee

OPINION OF THE COURT

HARDIMAN, Circuit Judge.

This appeal requires us to consider the question of

waiver. The issue arises in the context of a criminal case in

which Defendant Maurice Ray Dupree prevailed on a motion to

suppress evidence after the District Court determined he had

been seized without reasonable suspicion. In the District Court,

the Government argued that one issue was dispositive: whether

Dupree was actually seized when he was first grabbed by police.

Before this Court, the Government concedes that point but urges

reversal for two new—and quite different—reasons. I would

2

hold that both of these new arguments were waived. Although

Judge Fisher does not share my view regarding waiver, he

would affirm the District Court on the merits. Accordingly, we

will affirm.

I.

A.

On the evening of January 16, 2008, Philadelphia Police

Officers Brian Mabry and Steven Shippen were on patrol in a

marked police cruiser when they received a report of gunshots

near 10th and Oxford Streets. The shooter was described as a

black male, approximately five feet, eight inches tall, wearing

blue jeans and a black, hooded sweatshirt. A later report

indicated that the suspect had fled eastward on Oxford Street.

The officers drove approximately one mile to the vicinity

of the shooting. As they crossed Marshall Street, the officers

noticed a man, later identified as Dupree, slowly riding a bicycle

toward Oxford Street. Although Dupree fit the suspect’s

description, Shippen did not stop because the reports said

nothing about the suspect riding a bicycle.

Moments later, Mabry mentioned that Dupree resembled

the suspect’s description, prompting Shippen to return to

Marshall Street. As the officers approached Dupree, he

continued to ride his bicycle slowly in their direction. After

Shippen stopped the cruiser, Mabry alighted from the vehicle,

grabbed the approaching Dupree by the arm, and asked: “Can I

talk to you for a minute?” Although Mabry’s grasp stopped

3

Dupree’s movement, Dupree initially remained perched on the

bicycle.

At this point, the parties’ otherwise consistent versions of

events diverge. According to the Government, Dupree twisted

away, “slammed” his bicycle into Mabry’s legs, and fled on

foot. Dupree concedes that he broke free and fled, but denies

intentionally throwing his bicycle at Mabry. Instead, he claims

the bicycle inadvertently slid into Mabry as he dismounted.

Regardless of how Dupree extricated himself from

Mabry’s grasp, he fled on foot and the officers gave chase.

With the officers close behind, Dupree circled a home on

Marshall Street several times before pulling a loaded, .357

caliber revolver from his waistband and discarding it into a

flowerpot. Mabry stopped to recover the weapon while Shippen

pursued and eventually arrested Dupree after a brief struggle.

B.

Following his arrest, Dupree was charged with one count

of possession of a firearm by a felon, in violation of 18 U.S.C.

§ 922(g)(1). Dupree moved to suppress the gun, contending that

because Mabry lacked reasonable suspicion to grab him on

Marshall Street, the weapon was the fruit of an unlawful seizure.

The Government opposed the motion, arguing that under the

Supreme Court’s decision in California v. Hodari D., 499 U.S.

621 (1991), Dupree was not seized until after the chase, when

Shippen subdued him. Because Dupree discarded the gun

before he was seized, argued the Government, the abandoned

firearm was not subject to suppression.

4

The District Court rejected the Government’s argument.

The Court first observed that “a laying on of hands or

application of physical force to restrain movement, even when

it is ultimately unsuccessful,” constitutes a Fourth Amendment

seizure. United States v. Dupree, No. 08-280-1, 2009 WL

1475276, at *3 (E.D. Pa. May 27, 2009) (quoting United States

v. Brown, 448 F.3d 239, 245 (3d Cir. 2006)). Accordingly, the

District Court held that Dupree was seized unlawfully when

Mabry first grabbed him on Marshall Street. The District Court

then quoted United States v. Coggins, 986 F.2d 651, 653 (3d

Cir. 1993), and held: “when the abandonment of property is

precipitated by an unlawful seizure, that property also must be

excluded.” The District Court’s holding was consistent with

“the Government’s concession that if the initial stop of Dupree

is found to have been a seizure, then the gun must be suppressed

as the seizure’s illegal proceeds.” Dupree, 2009 WL 1475276,

at *6.

The Government filed a motion for reconsideration,

framing the issue for the District Court as follows: “the

suppression issue in this case turns on a single question—was .

. . Dupree seized, within the meaning of the Fourth Amendment,

when . . . Mabry grabbed Dupree for a mere two seconds before

Dupree broke away and attempted to flee?” The Government

then reprised the argument it made at the suppression hearing,

viz., that under Hodari D., the Fourth Amendment was not

implicated because Dupree was not seized until well after he

dropped the firearm. The Government also argued—for the first

time and in the alternative—that Dupree committed an assault

when he intentionally “slammed” his bicycle into Mabry. Even

if Mabry’s initial grab did constitute a seizure, contended the

5

Government, Dupree’s new crime gave the officers probable

cause to arrest and thereby purged the taint of Mabry’s unlawful

seizure. The District Court denied the motion for

reconsideration.

II.

The Government now appeals the District Court’s orders

granting Dupree’s motion to suppress and denying the

Government’s motion for reconsideration. The District Court

had jurisdiction pursuant to 18 U.S.C. § 3231, and we exercise

jurisdiction under 18 U.S.C. § 3731.

The Government’s appeal—in diametric opposition to the

argument it twice made before the District Court—begins with

the concession that Mabry’s initial grab of Dupree was an illegal

seizure under the Fourth Amendment. Notwithstanding the

illegal seizure, the Government urges reversal for two reasons:

(1) even if Dupree’s flight was prompted by Mabry’s unlawful

seizure, the policies underlying the exclusionary rule and the

fruit-of-the-poisonous-tree doctrine do not require suppression

of evidence voluntarily discarded by a fleeing defendant; and (2)

Dupree’s alleged assault of Mabry provided probable cause to

arrest and thereby purged the taint of the unlawful seizure.

Although the Government’s second argument was raised in its

motion for reconsideration in the District Court, its principal

argument was never raised prior to this appeal. Dupree asserts

that both arguments were waived. Alternatively, he argues that

both fail on the merits.

6

We examine the District Court’s factual findings for clear

error and review de novo the District Court’s legal conclusion

that Dupree’s firearm must be suppressed. See United States v.

Johnson, 592 F.3d 442, 447 (3d Cir. 2010).

III.

I begin with the well-established proposition that

arguments not raised in the district courts are waived on appeal.1

See Steagald v. United States, 451 U.S. 204, 209 (1981). This

general principle applies fully to criminal cases involving

1

Case law reflects some confusion as to how to

characterize suppression arguments that were never made to a

district court. Some decisions refer to unraised arguments as

“waived,” while others deem them “forfeited.” Compare, e.g.,

United States v. Stearn, 597 F.3d 540, 551 n.11 (3d Cir. 2010)

with, e.g., United States v. Amuny, 767 F.2d 1113, 1122 (5th Cir.

1985). As the Supreme Court has explained, “[w]aiver is

different from forfeiture. Whereas forfeiture is the failure to

make the timely assertion of a right, waiver is the ‘intentional

relinquishment or abandonment of a known right.’” United

States v. Olano, 507 U.S. 725, 733 (1993) (quoting Johnson v.

Zerbst, 304 U.S. 458, 464 (1938)). Under this definition, the

failure to raise a suppression argument in a district court would

seem to constitute a “forfeiture.” In United States v. Rose,

however, we acknowledged Olano’s teachings but nonetheless

characterized suppression arguments not raised below as

“waived” in light of Congress’s post-Olano revisions to Rule 12

of the Federal Rules of Criminal Procedure, which retained the

waiver language. 538 F.3d 175, 183-84 (3d Cir. 2008).

7

motions to suppress. See id.; United States v. Stearn, 597 F.3d

540, 551 n.11 (3d Cir. 2010). Thus, when a party seeks reversal

of a suppression ruling on appeal, any arguments not raised in

the district court are waived absent a showing of good cause,

and plain error review does not apply.2 United States v. Rose,

538 F.3d 175, 184 (3d Cir. 2008); see also Fed. R. Crim. P.

12(e). Just as a defendant may not introduce new “theories of

suppression” on appeal that were never argued below, United

States v. Lockett, 406 F.3d 207, 212 (3d Cir. 2005), the

Government is “subject to the ordinary rule that an argument not

raised in the district court is waived on appeal[,]” Stearn, 597

F.3d at 551 n.11 (citing Steagald, 415 U.S. at 209).

This raise-or-waive rule is essential to the proper

functioning of our adversary system because even the most

learned judges are not clairvoyant. See United States v. Nee,

261 F.3d 79, 86 (1st Cir. 2001). Thus, we do not require district

judges to anticipate and join arguments that are never raised by

the parties. See United States v. Griffiths, 47 F.3d 74, 77 (2d

Cir. 1995). Instead courts rely on the litigants not only to cite

relevant precedents, but also to frame the issues for decision.

See id. (“The government was required to offer some argument

or development of its theory. It failed to do so, and has therefore

waived the issue.”).

2

Of course, a different scenario is presented when a party

asks us to affirm a district court’s suppression ruling because we

may affirm for any reason supported by the record. See United

States v. Agnew, 407 F.3d 193, 196 (3d Cir. 2005).

8

Moreover, “[a] fleeting reference or vague allusion to an

issue will not suffice to preserve it for appeal[.]” In re Ins.

Brokerage Antitrust Litig., 579 F.3d 241, 262 (3d Cir. 2009).

Rather, a party “must unequivocally put its position before the

trial court at a point and in a manner that permits the court to

consider its merits.” Shell Petroleum, Inc. v. United States, 182

F.3d 212, 218 (3d Cir. 1999). Mindful of the important

purposes that animate our waiver jurisprudence, I turn now to

Dupree’s contention that the Government waived the two

arguments it presses on appeal.

A.

The Government’s principal argument is that the

exclusionary rule and the fruit-of-the-poisonous-tree doctrine do

not automatically apply following a Fourth Amendment

violation. According to the Government, application of the

exclusionary rule requires us to compare the substantial social

costs that attend the suppression of probative physical evidence

against the benefits in deterring Fourth Amendment violations.

Arguing that suppression of Dupree’s weapon would offer only

minimal deterrence while imposing considerable social costs,

the Government urges us to find the exclusionary rule

inapplicable where, as here, a defendant who has been illegally

seized subsequently breaks free from police and voluntarily

discards evidence while fleeing.

The Government’s reasoning relies heavily on recent

Supreme Court cases that, when read together, arguably suggest

as much. See, e.g., Herring v. United States, 129 S. Ct. 695,

700-03 (2009); Hudson v. Michigan, 547 U.S. 586, 591-93

9

(2006). As the Government argues, Herring cautions us to

apply the exclusionary rule only when its potential for deterring

future police misconduct outweighs the social costs incurred by

suppressing the evidence. See 129 S. Ct. at 700-03. Whether

the fruit-of-the-poisonous-tree doctrine requires suppression in

a given case can turn on similar variables. See Hudson, 547

U.S. at 593.

Irrespective of the merits of the Government’s argument,

it suffers from a fatal defect: it was never presented to the

District Court. It neither appears in the Government’s briefs,

nor was raised at the suppression hearing. Indeed, when initially

opposing Dupree’s suppression motion in the District Court, the

Government argued only that suppression was not required

because Mabry’s initial grab of Dupree did not constitute an

unlawful seizure. Whether for strategic reasons or through

inadvertence, the Government did not argue that even if

Mabry’s grab of Dupree was an unlawful seizure, the fruit-of-

the-poisonous-tree doctrine did not apply.

At oral argument, the Government attempted to finesse

its failure to raise this argument in the District Court by

conceding that its language “could have been more precise.”

The Government also conceded that although cases such as

Herring and Hudson are central to the legal argument it now

presses on appeal, neither case was cited to the District Court.

This omission is telling.

To understand the argument the Government actually

made to the District Court, I review what counsel for the

Government said at the suppression hearing. There, the

10

Government argued exclusively that suppression was not

required because Mabry’s grab of Dupree did not constitute a

seizure. In the words of the prosecutor:

But, now a question that we have before us . . . is

whether or not the defendant was seized [by

Mabry] on Marshall Street. If we can say that at

this point in time the defendant was arrested, the

case ends at that point in time . . . The problem

that we have here is that the arrest did not occur

on Marshall Street, but occurred [later].

...

If [Dupree] is grabbed and he flees you don’t

have, whatever term you want to use, custody,

seizure, or arrest, you don’t have it. If you don’t

have it, then you don’t have the suppression issue

that . . . is before us . . . .

Because the officers had probable cause to arrest Dupree after

seeing him discard the gun during the chase, argued the

Government, Shippen’s subsequent tackle and arrest of Dupree

was reasonable under the Fourth Amendment. At no point,

however, did the Government argue that the exclusionary rule

should not apply even if Dupree had been seized by Mabry

because the costs of suppression would outweigh any deterrent

benefit.3

3

Notably, the District Court’s memorandum opinion does

not mention the policy-based argument the Government presses

11

Nor did the Government raise its new argument when

seeking reconsideration in the District Court. Instead, the

Government’s motion for reconsideration essentially restated its

unsuccessful argument that Dupree was not seized until he was

tackled and arrested by Shippen. As the Government’s motion

for reconsideration straightforwardly asserted: “the suppression

issue in this case turns on a single question—was . . . Dupree

seized, within the meaning of the Fourth Amendment, when . .

. Mabry grabbed Dupree for a mere two seconds before Dupree

broke away and attempted to flee?” Though the Government

now concedes that Dupree was seized when Mabry initially

grabbed him, it no longer thinks that the “suppression issue in

this case turns on a single question”—or at least not the same

“single question” that it presented to the District Court. Having

framed the legal issue so squarely below, the Government may

not now paint a different picture on appeal.4

The Government responds to Dupree’s waiver argument

by noting that it cited Hodari D. repeatedly in the District Court.

But the Government ignores the fact that it cited Hodari D. only

on appeal. See United States v. Dupree, No. 08-280-1, 2009

WL 1475276 (E.D. Pa. May 27, 2009).

4

The Government’s concession on appeal that Mabry’s

grab was a seizure is understandable in light of the Supreme

Court’s statement in Hodari D. that the “laying on of hands or

application of physical force to restrain movement, even when

it is ultimately unsuccessful” constitutes a seizure. 499 U.S.

621, 626 (1991); see also United States v. Brown, 448 F.3d 239,

245 (3d Cir. 2006).

12

to support its argument that Dupree was not seized when

grabbed by Mabry. Now, by contrast, the Government admits

that Dupree was seized and instead relies on Hodari D. to argue

that the exclusionary rule should not apply.5

5

The language from Hodari D. on which the Government

now relies provides:

To say that an arrest is effected by the slightest

application of physical force, despite the

arrestee’s escape, is not to say that for Fourth

Amendment purposes there is a continuing arrest

during the period of fugitivity. If, for example,

[the police officer] had laid his hands upon

Hodari to arrest him, but Hodari had broken away

and had then cast away the cocaine, it would

hardly be realistic to say that that disclosure had

been made during the course of an arrest.

Hodari D., 499 U.S. at 625. Based on this passage, our

dissenting colleague would hold that “evidence discarded by a

fleeing defendant after an unlawful seizure does not make that

evidence per se inadmissible” because the evidence is not

recovered during the course of the illegal arrest.

Accepting the dicta from Hodari D. at face value,

additional analysis is still required to determine whether the

weapon discarded by Dupree must be suppressed. The fruit-of-

the-poisonous-tree doctrine applies to evidence recovered both

during and as a result of a Fourth Amendment violation. See

Murray v. United States, 487 U.S. 533, 536-37 (1988). Thus,

13

It is elementary that Fourth Amendment analysis

typically proceeds in three stages. First, we ask whether a

Fourth Amendment event, such as a search or a seizure, has

occurred. See United States v. Smith, 575 F.3d 308, 312-13 (3d

Cir. 2009). Next, we consider whether that search or seizure

was reasonable. Id. If it was not, we then determine whether

the circumstances warrant suppression of the evidence. See

Herring, 129 S. Ct. at 700.

Before the District Court, the Government cited Hodari

D. only at the first stage, when it argued that no seizure had

occurred before Dupree discarded the firearm. On appeal, the

Government now cites Hodari D. at the final stage, arguing that

the exclusionary rule should not apply despite Mabry’s

unreasonable seizure of Dupree. The Government thus cited

Hodari D. in the District Court at a wholly different stage of the

Fourth Amendment analysis.

As the Government recognized at oral argument, simply

citing a case in the District Court is not sufficient to raise all

arguments that might flow from it. See Nee, 261 F.3d at 86. To

assuming that the seizure of Dupree terminated once he fled, we

would still be required to determine whether the fruit-of-the-

poisonous-tree doctrine requires suppression in this case. Judge

Cowen would hold that it does not, based on the Government’s

argument that the social costs of suppression in such a scenario

would outweigh the exclusionary rule’s deterrent effect on

future Fourth Amendment violations. I express no view on the

merits of this argument because it was not raised in the District

Court.

14

preserve the argument that it now makes on appeal, the

Government had to do more than broadly reference Hodari D.6

Instead, it had to give the District Court the opportunity to

consider the argument it now makes, i.e., whether the policies

underlying the exclusionary rule demonstrate that it should

apply where, as here, an illegally seized defendant breaks free

6

It is unsurprising that the Government’s mere citation

to Hodari D. below did not prompt the District Court to consider

sua sponte the argument the Government makes on appeal. The

holding of Hodari D. involved whether the officers’ actions

constituted a seizure in the first instance. See Hodari D., 499

U.S. at 626 (“The narrow question before us is whether, with

respect to a show of authority . . . , a seizure occurs even though

the subject does not yield.”). Because the Supreme Court found

that no seizure had occurred ab initio, it had no occasion to

consider whether either the seizure was reasonable or whether

the exclusionary rule should apply. Thus, Hodari D. was

directly relevant to the argument that the Government made to

the District Court—i.e., that suppression was unwarranted

because Mabry had not seized Dupree. But Hodari D.’s holding

provides scant support for the Government’s broader, policy-

based argument that the exclusionary rule does not apply

notwithstanding Mabry’s illegal seizure. Though precedents

such as Herring and Hudson clearly bear on that argument, the

Government candidly admitted at oral argument that it cited

neither of those cases to the District Court. Thus, despite Judge

Cowen’s suggestion to the contrary, merely citing Hodari D.

was insufficient to put the District Court on notice of the novel

legal argument the Government has raised on appeal.

15

and discards evidence while fleeing. Because it did not do so,

the Government failed to preserve its argument for appeal.7

7

Contrary to Judge Fisher’s suggestion, this waiver

holding is not predicated on a finding that “the government has

forfeited its right to rely on Hodari D. by virtue of its concession

on appeal that Dupree, unlike Hodari, was seized at the outset of

his encounter with the police.” Concurring Op. at 5. Rather, the

Government forfeited its right to make a fruit-of-the-poisonous-

tree argument on appeal because it never raised that argument

below.

To illustrate this point, an analogy is helpful. Assume

that this case instead involved statements allegedly obtained in

violation of Miranda v. Arizona, 384 U.S. 436 (1966). The rule

of Miranda applies if two requirements are met: a defendant

must be (1) “in custody” and (2) subject to “interrogation” by

the Government. Id. at 444; see also United States v. Leese, 176

F.3d 740, 743 (3d Cir. 1999). If the Government were to cite

Miranda in the District Court solely for the proposition that

Dupree was not “in custody” while eschewing any argument that

he was not subject to an “interrogation,” one could not

persuasively contend that the Government preserved the latter

argument for appeal simply by citing Miranda in reference to

the former. And like Miranda, the Fourth Amendment analysis

has discrete components. Accordingly, I respectfully disagree

with Judge Fisher’s suggestion that “this case is not one in

which the government is . . . pursuing a legal theory it wholly

failed to raise below.” Concurring Op. at 5. That is precisely

what the Government seeks to do here when it cites Hodari D.

on appeal to argue that the exclusionary rule should not apply

16

In sum, the Government now presents a novel and

interesting legal argument. Regardless of the merits of this

argument, however, it was never raised in the District Court.

Accordingly, it was waived. See Fed. R. Crim. P. 12(e)

(providing that “a party waives any [motion to suppress]

defense, objection, or request not raised by the deadline” set by

the district court). In Rose, we held that waiver of a suppression

argument may be excused only for good cause shown. 538 F.3d

at 184-85. Because the Government has made no attempt to

show good cause, I would hold that it waived its policy

argument that the District Court should not have applied the

exclusionary rule to suppress Dupree’s firearm.

B.

The Government argues in the alternative that the firearm

need not be suppressed because Dupree’s “intervening and

volitional act of throwing his bicycle at Mabry after he was

seized created probable cause to arrest” Dupree for assault. The

Government does not argue that it presented this independent-

crime theory to the District Court when it initially opposed

Dupree’s suppression motion. Instead, the Government notes

that it raised this argument only in its motion for

reconsideration.

Dupree responds by citing United States v. Thompson,

where the Eleventh Circuit held that a suppression argument

made by the Government for the first time in a motion for

for policy reasons after citing the case below only to argue that

Dupree was not seized.

17

reconsideration was waived because the Government provided

no justification for its failure to raise the argument in a timely

fashion. 710 F.2d 1500, 1504 (11th Cir. 1983). As discussed

previously, we recognized a similar rule in Rose, holding that

under Federal Rule of Criminal Procedure 12(e), “a party waives

any [motion to suppress] defense, objection, or request not

raised by the deadline” set by the district court absent a showing

of good cause. 538 F.3d at 184-85.

Here, the Government waived its independent-crime

argument by failing to raise it before the District Court ruled on

Dupree’s motion to suppress—i.e., by the “deadline” set by Rule

12(e). There is no indication that the Government made any

attempt to demonstrate good cause for its failure to raise this

argument when it sought reconsideration in the District Court.

Nor has the Government argued good cause on appeal. Thus, to

the extent that the Government appeals the District Court’s order

granting Dupree’s motion to suppress, this independent-crime

argument was waived, and the Government has given us no

basis to excuse its waiver.

The Government has also appealed the District Court’s

order denying its motion for reconsideration, however.

Although the Government failed to raise its independent-crime

theory when initially opposing suppression, it preserved the

argument in the context of its appeal from the District Court’s

separate order denying its motion for reconsideration.

We review the denial of a motion for reconsideration for

abuse of discretion. See Max’s Seafood Café ex rel. Lou-Ann,

Inc. v. Quinteros, 176 F.3d 669, 673 (3d Cir. 1999). The

18

purpose of such a motion is to correct a clear error of law or to

prevent a manifest injustice in the District Court’s original

ruling. Id. at 677; see also Harsco Corp. v. Zlotnicki, 779 F.2d

906, 909 (3d Cir. 1985). Such motions “are granted for

‘compelling reasons,’ such as a change in the law which reveals

that an earlier ruling was erroneous, not for addressing

arguments that a party should have raised earlier.” Solis v.

Current Dev. Corp., 557 F.3d 772, 780 (7th Cir. 2009) (internal

citations omitted). Though “[m]otions to reconsider empower

the court to change course when a mistake has been made, they

do not empower litigants . . . to raise their arguments, piece by

piece.” Id.

As discussed herein, the District Court granted Dupree’s

motion to suppress after it found that he was seized without

reasonable suspicion when Officer Mabry grabbed him.

Nothing about the Government’s newly raised independent-

crime argument makes this initial ruling by the District Court

clearly erroneous as a matter of law. Nor has the Government

cited any new evidence. Rather, the District Court’s decision to

suppress Dupree’s weapon was legally correct in light of the

facts, law, and arguments raised by the parties at the time of the

original motion to suppress. That the Government belatedly

articulated an alternative basis for admitting the evidence does

not impugn the District Court’s original ruling. Accordingly,

the District Court’s denial of the Government’s motion for

reconsideration was not an abuse of discretion.

IV.

19

In this appeal, the Government proffers two alternative

bases for reversing the District Court’s suppression of Dupree’s

firearm. The Government’s principal argument reflects a

thoughtful consideration of the Supreme Court’s more recent

exclusionary rule jurisprudence. We undoubtedly will have

occasion to consider that argument in the future, but not in a

case, such as this one, where it was never presented to the

District Court. For the reasons stated herein and in Judge

Fisher’s concurring opinion, we will affirm the District Court’s

orders granting Dupree’s motion to suppress and denying the

Government’s motion for reconsideration.

20

United States v. Dupree, No. 09-3391

COWEN, Circuit Judge, dissenting

One of my colleagues has concluded that the

Government waived the argument that it seeks to raise on

appeal and has affirmed the District Court’s order suppressing

the firearm on that ground. My other colleague has concluded

that, while the Government has not waived its argument on

appeal, the argument lacks merit, and has joined in the decision

to affirm. I break from my colleagues on both grounds,

concluding that the Government did not waive its argument and

that the Government should prevail on appeal. I would reverse

the District Court.

I. BACKGROUND

The facts of this case are fairly straightforward as set

forth in Judge Hardiman’s opinion. The issues argued by the

parties before the District Court and on appeal; however, merit

additional elaboration. In the District Court, Dupree moved to

suppress evidence of the firearm, contending that the officers

lacked reasonable suspicion to stop him, that he was seized

within the Fourth Amendment when Officer Mabry grabbed his

arm, and that the firearm must be suppressed as fruit of the

poisonous tree. The Government argued that the police had

reasonable suspicion to stop Dupree and that the seizure did not

occur until the police arrested him after he fled. The

Government prominently discussed Hodari D. in its opposition

papers and during oral argument.

The District Court conducted a suppression hearing and

subsequently granted Dupree’s motion. It held that Officer

Mabry seized Dupree without reasonable suspicion when he

grabbed Dupree’s arm, that the “seizure directly precipitated

[Dupree’s] flight and abandonment of the firearm,” and that the

firearm was fruit of the poisonous tree. The Government moved

for reconsideration, arguing in depth that the District Court

should deny Dupree’s motion under the Supreme Court’s

instruction in Hodari D. The Government excerpted several

passages from Hodari D. to support its position. The District

Court denied the Government’s motion concluding that the court

did not commit an error of law when it found that Dupree was

seized when Officer Mabry grabbed Dupree’s arm, and that the

gun was the fruit of that seizure (even though Dupree freed

himself of that seizure and was no longer in custody when he

discarded the pistol).

On appeal, the Government concedes that a seizure

occurred, however momentarily, when Officer Mabry grabbed

Dupree’s arm and that Officer Mabry lacked reasonable

suspicion to seize Dupree. See Gov’t Br. at 14 (“The

government acknowledges that at the moment of Officer

Mabry’s action in grabbing Dupree and stopping his movement

on a bicycle, the police had an insufficient basis to stop and frisk

Dupree, and that any seizure of his person or possessions at that

time would be unlawful.”); Gov’t Br. at 31 (“[I]t is clear that

Officer Mabry’s two-second grasp of Dupree, although a seizure

for Fourth Amendment purposes, does not taint the admissibility

of the handgun recovered during Dupree’s flight.”). Thus, the

District Court’s determination that an unlawful seizure occurred

when Officer Mabry grabbed Dupree’s arm is not at issue on

appeal.

The Government’s position is that suppression is not

merited when evidence is abandoned by a suspect during flight

if the suspect fled after a momentary, unlawful physical seizure

because the Fourth Amendment does not protect the actions of

suspects under these circumstances. The Government relies on

the Supreme Court’s decision in Hodari D. to support its

2

position. Dupree counters that suppression is required under

this Court’s Fourth Amendment precedent.

II. DISCUSSION

A. Waiver

Before I address the merits of the Government’s

argument, it is necessary to address a procedural issue: whether

the Government waived or forfeited the argument that it seeks

to raise on appeal by its litigation positions below. Judge Fisher

has concluded, and I agree, that the Government did not waive

or forfeit its argument. Contrary to Judge Hardiman’s

conclusion, the Government’s argument is not new. The

Government discussed the primary case upon which it relies,

Hodari D., in its opposition to Dupree’s motion to suppress and

in its amended opposition. Those briefs focused on the

Government’s then primary argument—that a seizure did not

occur until the police arrested Dupree—however, the

Government’s earlier position does not preclude consideration

of the argument it now makes as the Government relied on

Hodari D quite broadly. A finding that the Government waived

its argument is improper particularly when one reviews the

Government’s motion for reconsideration of suppression, in

which the Government briefed suppression standards

extensively and excerpted the passages from Hodari D that are

at issue on appeal. Notably, Dupree did not raise any

preservation or waiver argument in his opposition to

reconsideration; rather, Dupree addressed the merits of the

Government’s position. Further, the District Court did not

foreclose consideration of those passages or make any findings

of waiver with respect to the Hodari D. argument when it ruled

on the Government’s reconsideration motion.

3

The Government made several arguments in the

proceedings before the District Court and cited and excerpted

numerous cases, including the portion of Hodari D. at issue on

appeal. This case does not present a situation in which a judge

was expected to anticipate an argument that was never raised.

The Supreme Court’s instruction in Hodari D. was adequately

and prominently before the District Court such that the

Government did not waive or fail to preserve its primary

argument on appeal.

B. Suppression

The issue before this Court, as I understand it, is whether

suppression is required when a suspect flees from an officer’s

momentary, unlawful physical seizure and the suspect discards

evidence during flight that is later recovered. As I will set forth

more clearly below, the Supreme Court’s instruction in Hodari

D. compels a reversal of the District Court’s order suppressing

the firearm.1 Therefore, I will dissent from my colleagues.

The Fourth Amendment prohibits “unreasonable searches

and seizures . . . .” U.S. Const. amend. IV. “Generally, for a

1

Unlike Judge Fisher, I am not troubled by the

Government’s reliance on a passage from Hodari D. that is

dicta. The Supreme Court grants certiorari in fewer than 85

cases annually, and thus, provides precedent on very few issues.

Accordingly, the Court’s dicta is highly persuasive and should

be treated as binding unless there are indications to the contrary,

which in this case, there are none. As I have set forth in my

dissent, the Court spoke on the precise factual setting presented

by this case and instructed that suppression would not be

appropriate. Under these circumstances, I do not believe that

adhering to the Supreme Court’s instruction is optional.

4

seizure to be reasonable under the Fourth Amendment, it must

be effectuated with a warrant based on probable cause.” United

States v. Robertson, 305 F.3d 164, 167 (3d Cir. 2002).

However, under the exception to the warrant requirement

established in Terry v. Ohio, 392 U.S. 1 (1968), “an 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). “Any evidence obtained pursuant to

an investigatory stop (also known as a ‘Terry stop’ or a ‘stop

and frisk’) that does not meet this exception must be suppressed

as ‘fruit of the poisonous tree.’” United States v. Brown, 448

F.3d 239, 244 (3d Cir. 2006) (citing Wong Sun v. United States,

371 U.S. 471, 487-88, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963);

United States v. Coggins, 986 F.2d 651, 653 (3d Cir. 1993)).

In Hodari D., the Supreme Court explained that a seizure

occurs within the meaning of the Fourth Amendment when there

is either the “laying on of hands or application of physical force

to restrain movement, even when it is ultimately unsuccessful,”

or “submission to the assertion of authority.” Hodari D., 499

U.S. at 626 (emphasis omitted). In elaborating on physical

seizures, the Court clarified that:

To say that an arrest is effected by the slightest application of

physical force, despite the arrestee’s escape, is not to say that for

Fourth Amendment purposes there is a continuing arrest during

the period of fugitivity. If, for example, [the law enforcement

officer] had laid his hands upon Hodari to arrest him, but Hodari

had broken away and had then cast away the cocaine, it would

hardly be realistic to say that that disclosure had been made

during the course of an arrest.

Id. at 625 (emphasis in original).

5

The Court further explained that with respect to the

principles underlying the Court’s Fourth Amendment precedent:

We do not think it desirable, even as a policy matter, to stretch

the Fourth Amendment beyond its words and beyond the

meaning of arrest . . . . Street pursuits always place the public

at some risk, and compliance with police orders to stop should

therefore be encouraged. Only a few of those orders, we must

presume, will be without adequate basis, and since the addressee

has no ready means of identifying the deficient ones it almost

invariably is the responsible course to comply. Unlawful orders

will not be deterred, moreover, by sanctioning through the

exclusionary rule those of them that are not obeyed. Since

policemen do not command “Stop!” expecting to be ignored, or

give chase hoping to be outrun, it fully suffices to apply the

deterrent to their genuine, successful seizures.

Id. at 627 (emphasis in original).

In Hodari D., police officers on patrol in a police vehicle

in a high crime area turned down a street where several

teenagers were huddled together. Id. at 623. The teenagers fled

as soon as they noticed the officers’ car. Hodari was one of

those individuals and during flight he discarded what was later

determined to be a moderate quantity of crack cocaine. Id. In

addressing Hodari’s argument for suppression, the Supreme

Court concluded that Hodari fled prior to any submission of

authority, and therefore, no seizure had occurred prior to his

flight. Under these circumstances, the Fourth Amendment is not

implicated, and any evidence discarded during flight is

admissible. Id. at 629 (“In sum, assuming that Pertoso’s pursuit

in the present case constituted a ‘show of authority’ enjoining

Hodari to halt, since Hodari did not comply with that injunction

he was not seized until he was tackled. The cocaine abandoned

while he was running was in this case not the fruit of a seizure,

6

and his motion to exclude evidence of it was properly denied.”).

Since Hodari D., courts have routinely held that evidence

abandoned during flight from an earlier encounter with the

police that did not constitute a seizure is admissible. See United

States v. Smith, 575 F.3d 308, 312-16 (3d Cir. 2009) (reversing

suppression of a firearm obtained from an individual who

discarded it during flight from law enforcement officers as the

suspect fled before a seizure had occurred and therefore, had not

triggered Fourth Amendment protections); United States v.

Martin, 399 F.3d 750, 752-53 (6th Cir. 2005) (affirming denial

of suppression under Hodari D. as the defendant “had not been

seized when he discarded his revolver”); United States v.

Hernandez, 27 F.3d 1403, 1407 (9th Cir. 1994) (“We hold that

Hernandez was not seized because he never submitted to

authority, nor was he physically subdued. Consequently, any

evidence obtained during [the law enforcement officers’]

encounter with Hernandez is admissible, including the discarded

gun.”).

Additionally, courts have addressed whether evidence

discarded by a defendant during flight from an encounter with

the police that constituted an unlawful show-of-authority seizure

is admissible. Most courts have suppressed such evidence as

fruit of the poisonous tree. See, e.g., Brown, 448 F.3d at 252

(concluding that Brown was seized prior to his “aborted escape

attempt” and evidence obtained after this seizure was

inadmissible). However, at least one circuit has held otherwise.

See United States v. Garcia, 516 F.2d 318, 319-20 (9th Cir.

1975) (holding that evidence discarded when a defendant fled

from an unlawful show-of-authority seizure is admissible as the

law enforcement officers did not exploit the unlawful stop and

the defendant’s flight was not tainted by the unlawful stop). The

rationale for this holding is relevant to our analysis regarding the

7

instant appeal. In Garcia, the court distinguished between two

scenarios, explaining that:

If there were evidence in the record that the checkpoint at San

Clemente was designed to lure suspected criminals into flight

from law enforcement officers, we might reach a different

conclusion. Where a suspect’s act is the intended result of illegal

police conduct, or ensuing police action, it is likely to prove

tainted. But where the illegal conduct of the police is only a

necessary condition leading up to the suspect’s act, no taint

attaches to his conduct; a “but-for” connection alone is

insufficient. In this case, the illegal stop was no more than part

of a series of facts leading up to the subsequent flight. By

ordering Martinez-Lopez to stop, the officer could hardly have

intended him to flee.

Id. (internal citations omitted). Thus, contrary to Dupree’s

contention, evidence discarded by a fleeing defendant after an

unlawful seizure does not make that evidence per se

inadmissible. Id. (holding that the discarded evidence was not

tainted by the earlier unlawful stop); cf. United States v. Dawdy,

46 F.3d 1427, 1431 (8th Cir. 1995) (“[W]e now hold that a

defendant’s response to even an invalid arrest or Terry stop may

constitute independent grounds for arrest.”).

The parties did not provide any authority from this Court

or any of our sister circuits that addresses the precise issue in

this appeal; namely, whether suppression is required when

evidence is discarded by a defendant during flight after a

momentary physical seizure occurs that is later deemed to be an

unlawful seizure. In contrast to the absence of authority from

the circuits, the Supreme Court gave the answer in Hodari D.

when it hypothesized that if the law enforcement officer “had

8

laid his hands upon Hodari to arrest him, but Hodari had broken

away and had then cast away the cocaine, it would hardly be

realistic to say that that disclosure had been made during the

course of an arrest.” Hodari D., 499 U.S. at 625. As the Court

explained, there is no “continuing arrest” during a period of

fugitivity. Id. It further elaborated that “[u]nlawful orders will

not be deterred, moreover, by sanctioning through the

exclusionary rule those of them that are not obeyed.” Id. at 627.

To hold as Dupree suggests would create unacceptable

incentives. It would encourage suspects to disobey orders from

law enforcement officers, thereby placing the public at risk,

while at the same time allowing suspects to retain Fourth

Amendment protections. Cf. Hernandez, 27 F.3d at 1407

(expressing concern for any application of the exclusionary rule

that would permit suspects to flee from law enforcement officers

yet still qualify for the protections of the Fourth Amendment).

Moreover, a decision to deny suppression under these

circumstances is reinforced by the Supreme Court’s recent

pronouncements regarding the exclusionary rule:

[T]he exclusionary rule is not an individual right and applies

only where it result[s] in appreciable deterrence. We have

repeatedly rejected the argument that exclusion is a necessary

consequence of a Fourth Amendment violation. Instead we

have focused on the efficacy of the rule in deterring Fourth

Amendment violations in the future.

Herring v. United States, 129 S. Ct. 695, 700 (2009) (internal

citations and quotation marks omitted). The Supreme Court has

suggested that deterrence would be minimal under these

circumstances thereby negating any value to exclusion.

9

III. CONCLUSION

Contrary to my colleagues, I have concluded that the

Government did not waive its argument on appeal and that its

argument should prevail. I would reverse the District Court’s

order suppressing the firearm.

10

FISHER, Circuit Judge, concurring in part and concurring in the

judgment.

Judge Hardiman has persuasively explained why the

government is foreclosed from pursuing most of its arguments

on appeal, and I join his opinion in most respects. I write

separately to clarify why I would not enforce the waiver

doctrine against the government with respect to its reliance on

California v. Hodari D., 499 U.S. 621 (1991), but would

nevertheless affirm the District Court’s suppression order both

because the government has failed to satisfy its burden of proof

and because the government’s reliance on Hodari D. is

misplaced.

The basic facts of this case are straightforward enough.

Officers Mabry and Shippen were on the lookout for a suspect

in a shooting, spotted Dupree in the vicinity, and thought he

matched the suspect’s description. Officer Mabry approached

Dupree and grabbed him. Dupree almost immediately broke

free, gave chase, and moments later threw a gun into a flowerpot

while still on the run. Although the government persisted in

telling the District Court otherwise, it now wisely concedes that

Officer Mabry’s act of grabbing Dupree, no matter how short in

duration, effected a seizure within the meaning of the Fourth

Amendment. See United States v. Brown, 448 F.3d 239, 245 (3d

Cir. 2006) (seizure may occur with “a laying on of hands or

application of physical force to restrain movement, even when

it is ultimately unsuccessful” (quoting Hodari D., 499 U.S. at

626)) (quotation marks omitted); see also id. (“seizure is

effected by even ‘the slightest application of physical force’”

(quoting Hodari D., 499 U.S. at 625-26)). And as the

government likewise acknowledges, because that seizure was

unsupported by reasonable suspicion, much less probable cause,

it was unlawful. See Illinois v. Wardlow, 528 U.S. 119, 123-24

(2000); see also, e.g., Brown, 448 F.3d at 246-52; United States

v. Ubiles, 224 F.3d 213 (3d Cir. 2000); United States v. Baker,

221 F.3d 438 (3d Cir. 2000).

It is axiomatic that evidence obtained as a result of a

Fourth Amendment violation ordinarily must be suppressed as

“fruit of the poisonous tree.” See Wong Sun v. United States,

371 U.S. 471, 487-88 (1963); see also United States v. Johnson,

592 F.3d 442, 447 (3d Cir. 2010); United States v. Mosley, 454

F.3d 249, 254 (3d Cir. 2006). That axiom is not absolute;

although evidence obtained as a result of a Fourth Amendment

violation may be subject to the exclusionary rule as a general

matter, the Supreme Court has carved out several exceptions to

that rule. See United States v. Pelullo, 173 F.3d 131, 136 (3d

Cir. 1999); see also Mosley, 454 F.3d at 269; United States v.

Goodrich, 450 F.3d 552, 557 (3d Cir. 2006). These exceptions

reflect the Court’s disavowal of a wooden test for determining

whether there exists a causal connection between unlawful

police conduct and the recovery of incriminating evidence. See,

e.g., Brown v. Illinois, 422 U.S. 590, 603-04 (1975); Nardone v.

United States, 308 U.S. 338, 341 (1939). Instead, the Court has

taught that “the scope of the exclusionary rule is determined by

‘whether, granting establishment of the primary illegality, the

evidence to which objection is made has been come at by

exploitation of that illegality or instead by means sufficiently

distinguishable to be purged of the primary taint.’” United

States v. Burton, 288 F.3d 91, 99 (3d Cir. 2002) (quoting Wong

Sun, 371 U.S. at 488) (ellipsis omitted); see also United States

v. Perez, 280 F.3d 318, 338 (3d Cir. 2002) (“[E]vidence is not

to be excluded if the connection between the illegal police

2

conduct and the discovery and seizure of the evidence is so

attenuated as to dissipate the taint.” (quoting Segura v. United

States, 468 U.S. 796, 797 (1984)) (quotation marks omitted));

Pelullo, 173 F.3d at 136. To determine whether the taint of the

initial illegality has been purged, the Supreme Court has

instructed us to focus on three non-dispositive factors: (1) the

temporal proximity between the unlawful conduct and the

recovery of the evidence; (2) “the presence of intervening

circumstances”; and (3) “the purpose and flagrancy” of the

unlawfulness. Brown, 422 U.S. at 603-04; see Burton, 288 F.3d

at 99-100; see also, e.g., United States v. Butts, 704 F.2d 701,

704-05 (3d Cir. 1983). The government shoulders the burden of

establishing that suppression is unwarranted in light of these

factors. See Taylor v. Alabama, 457 U.S. 687, 690 (1982).

In its brief, the government advances a short disquisition

on recent Supreme Court case law reenforcing the Court’s

practice of suppressing evidence as a “last resort, not [as a] first

impulse[.]” Herring v. United States, 129 S. Ct. 695, 700 (2009)

(quoting Hudson v. Michigan, 547 U.S. 586, 591 (2006)). But

absent from the government’s brief is any serious attempt to

explain why the factors listed above favor its position.

Considering that the foundation of the District Court’s

suppression order was its determination that the recovery of the

gun was a direct product of Dupree’s encounter with the police,

one would think the government would have sought to directly

impugn that determination in order to win a reversal of that

order. The government’s pleadings in this Court reflect almost

no effort to that end and fall well short of the mark, as the

government has failed to tell us in even circumspect terms how

3

or why the causal connection between Dupree’s concededly

unlawful seizure and the recovery of the gun was severed.

Rather than place its arguments within any accepted

Fourth Amendment rubric, the government pins its hopes almost

entirely on a passage from the Supreme Court’s decision in

California v. Hodari D., 499 U.S. 621. There, police officers on

patrol in a high-crime neighborhood observed several young

individuals on the curb flee when they saw the officers’ car.

The officers chased the individuals, one of whom, Hodari,

tossed aside what turned out to be crack cocaine before being

tackled and handcuffed. The question presented was “whether,

at the time he dropped the drugs, Hodari had been ‘seized’

within the meaning of the Fourth Amendment.” Id. at 623

(footnote omitted). The Court posited that although a defendant

is “seized” through “the mere grasping or application of physical

force[,]” id. at 624, there is not a “continuing arrest” if the

defendant flees or escapes after the initial seizure, id. at 625. To

illustrate, the Court explained hypothetically that if the officer

“had laid his hands upon Hodari to arrest him, but Hodari had

broken away and had then cast away the cocaine, it would

hardly be realistic to say that that disclosure had been made

during the course of an arrest.” Id. (emphasis added and

citation omitted). The Court framed the “narrow question”

presented as “whether, with respect to a show of authority as

with respect to application of physical force, a seizure occurs

even though the subject does not yield.” Id. at 626. The Court

answered that question in the negative. See id. The Court

reasoned that public policy supported its conclusion because

“[s]treet pursuits always place the public at some risk, and

compliance with police orders to stop should therefore be

4

encouraged.” Id. at 627. “In sum,” the Court wrote, “assuming

that [the officer]’s pursuit in the present case constituted a ‘show

of authority’ enjoining Hodari to halt, since Hodari did not

comply with that injunction he was not seized until he was

tackled. The cocaine abandoned while he was running was in

this case not the fruit of a seizure[.]” Id. at 629.

Judge Hardiman concludes that the government has

forfeited its right to rely on Hodari D. by virtue of its concession

on appeal that Dupree, unlike Hodari, was seized at the outset of

his encounter with the police. That conclusion is not without

some force. The government undoubtedly could have been

more articulate, not to mention consistent, in these proceedings,

and there is no doubt that the government’s argument before the

District Court does not mirror the one it presses on appeal. But

legal arguments and pleadings need not be literary gems, and

this case is not one in which the government is seeking to

introduce into the record on appeal a factual circumstance it

never developed in the District Court or is pursuing a legal

theory it wholly failed to raise in the District Court. Cf. United

States v. Lockett, 406 F.3d 207, 212 (3d Cir. 2005); United

States v. Martinez-Hidalgo, 993 F.2d 1052, 1057-58 (3d Cir.

1993); United States v. Frank, 864 F.2d 992, 1006 (3d Cir.

1988). The overarching question throughout these proceedings

has been whether the Fourth Amendment’s protections reached

Dupree at the pivotal moment at which he discarded the gun. In

my view, the government adequately brought that question to

the District Court’s attention notwithstanding its erroneous

assertion before that court that Dupree was never seized. And

importantly, the District Court ruled on that very question,

concluding that “Dupree was seized notwithstanding the fact

5

that he subsequently broke free of Officer Mabry’s two-handed

grip,” and that “[t]he unlawful seizure of Dupree precipitated

Dupree’s flight, Officer Mabry’s and Officer Shippen’s pursuit

. . ., and the forced abandonment by Dupree of the firearm . . . .”

(App. 62-63.) Under these circumstances, I am not convinced

that we should enforce the waiver doctrine against the

government to the extent it relies on Hodari D. to make its case.

See Bagot v. Ashcroft, 398 F.3d 252, 256 (3d Cir. 2005) (“The

crucial question regarding waiver is whether [the plaintiff]

presented the argument with sufficient specificity to alert the

district court[.]” (quotation marks, other alteration and citation

omitted)). I nevertheless agree with Judge Hardiman that

affirmance is in order because, even if the government may

invoke Hodari D. on appeal, that case does not carry the day for

the government.

The passage in Hodari D. (italicized above) on which the

government relies is dicta. The government fleetingly – and

unconvincingly – disputes that characterization, but dicta it

surely is. Dicta are “judicial comment[s] made while delivering

a judicial opinion, but one[s] that [are] unnecessary to the

decision in the case and therefore not precedential . . . .”

Black’s Law Dictionary 1177 (9th ed. 2009); see also

Connecticut v. Doehr, 501 U.S. 1, 30 (1991) (Rehnquist, C.J.,

concurring) (dicta are discussions of “abstract and hypothetical

situations not before [the court]” (emphasis added)). The

question in Hodari D. was whether the suppression of Hodari’s

drugs was proper where Hodari was never seized before

abandoning them. The absence of a seizure at any point was a

key factual component driving the Court’s analysis and

underpinning its conclusion that the Fourth Amendment was not

6

implicated. The Court’s speculation on how it might have ruled

had Hodari been seized and then terminated the seizure on his

own initiative – in other words, a factual circumstance other

than the precise one presented – falls comfortably within the

quintessential definition of dicta. See State Auto Prop. & Cas.

Ins. Co. v. Pro Design, P.C., 566 F.3d 86, 92 (3d Cir. 2009)

(defining dicta as “statements of law in the opinion which could

not logically be a major premise of the selected facts of the

decision” (quotation marks, alteration, and citation omitted));

see also, e.g., IMO Indus. v. Kiekert AG, 155 F.3d 254, 261 n.4

(3d Cir. 1998). As such, it does not bind this Court. See N.J.

Media Group v. Ashcroft, 308 F.3d 198, 201 (3d Cir. 2002);

Town Sound & Custom Tops, Inc. v. Chrysler Motors Corp., 959

F.2d 468, 495 n.41 (3d Cir. 1992) (en banc).

To be sure, Supreme Court dicta, even while non-

binding, are still highly persuasive. See Official Comm. of

Unsecured Creditors of Cybergenics Corp. v. Chinery, 330 F.3d

548, 561 (3d Cir. 2003); In re McDonald, 205 F.3d 606, 612-13

(3d Cir. 2000). Nevertheless, this Court gives dicta as much

weight as it sees fit under the circumstances of a particular case.

See, e.g., Galli v. N.J. Meadowlands Comm’n, 490 F.3d 265,

274 (3d Cir. 2007). For two primary reasons, I do not believe

that we should, or even can, elevate Hodari D.’s dicta into

controlling authority in deciding this case, as the government in

effect requests and as our dissenting colleague evidently

believes we should do.

7

First, the government has cited precious few federal cases

that accord with its understanding of Hodari D.1 A shortage of

cases from other courts embracing that understanding does not,

of course, preclude us from charting new territory. That said, it

seems to me that we should proceed with great caution before

ascribing especial significance to dicta from a case that, despite

approximately twenty years on the books, has almost never

occasioned the result the government urges here, at least as far

as both my research and the government’s brief reflect. A

cautious approach is all the more appropriate given what I

perceive to be a manifest tension between the government’s

reading of Hodari D. and other strains of Fourth Amendment

jurisprudence.

Second, and maybe even more important, the

government’s interpretation of Hodari D. runs practically

headlong into this Court’s precedents. In United States v.

Coggins, 986 F.2d 651 (3d Cir. 1993), Coggins took a flight

from St. Thomas to St. Croix, U.S. Virgin Islands.

Unbeknownst to Coggins, a Drug Enforcement Administration

agent also onboard recognized Coggins as a drug trafficker.

1

The cases the government spotlights do it little good.

United States v. Williams, 608 F. Supp. 2d 325 (E.D.N.Y. 2008),

may be the government’s best hope, but it in no way binds our

Court. And in any event, I find both its reasoning and its result

unpersuasive as applied here. Passages from United States v.

Sprinkle, 106 F.3d 613 (4th Cir. 1997), arguably serve the

government’s cause in the abstract, but importantly, that case

makes no mention of Hodari D. The same goes for United

States v. Dawdy, 46 F.3d 1427 (8th Cir. 1995).

8

Later that night, as Coggins was waiting for a return flight to St.

Thomas, the agent approached and began questioning Coggins

and his traveling companions. When Coggins stood up and said

he needed to go to the bathroom, the agent told him to sit back

down. Coggins at first complied but soon thereafter ran away,

throwing plastic bags from his pockets while the agent chased

him. Coggins was arrested and the bags were discovered to

contain crack cocaine. Coggins was convicted of a drug offense

and appealed. The main issue before this Court was whether

Coggins was unlawfully seized when the agent was questioning

him. As we explained, “If Coggins was unlawfully seized, the

district court should have suppressed the evidence of the crack

cocaine that Coggins discarded while fleeing with [the agent] in

hot pursuit.” Id. at 653. We held that Coggins was seized by

the agent within the meaning of the Fourth Amendment because

he had submitted to the agent’s show of authority by sitting

down after having asked for permission to go to the bathroom.

Id. We rejected the government’s reliance on Hodari D. to

show that Coggins was no longer seized after he had run away.

Id. at 653-54. We distinguished Hodari D. on the ground that

while Coggins initially yielded to the agent’s authority, Hodari

never did so at any time.2 Id. at 654.

Coggins and this case are separated by several degrees in

pure factual terms, but they are analytically indistinguishable as

2

We did not vacate Coggins’ conviction, however,

because we found that reasonable suspicion supported the

seizure. As noted, there is no dispute here that the officers’

seizure of Dupree was not supported by reasonable suspicion

and hence was unlawful.

9

far as Hodari D. is concerned. In both cases, the defendants

were seized, Dupree via the application of physical force and

Coggins via his submission to the agent’s show of authority. In

both cases, the defendants unilaterally terminated the seizure,

Dupree by breaking free from Officer Mabry’s grip and Coggins

by no longer submitting to the agent’s command. And in

Coggins, as here, the government argued that that unilateral act

on the defendant’s part removed the case from the Fourth

Amendment’s purview based on Hodari D.’s dicta. We rejected

that argument in Coggins. In my view, the same conclusion

must obtain here.

Like our dissenting colleague, I certainly see the logical

allure of the government’s position. A superficial study of the

facts of this case might well lead one to question why a court

would permit a criminal suspect to reap the exclusionary rule’s

benefits when he flees from law enforcement, even if he was

seized unlawfully. Add to the mix Hodari D.’s musings on

whether such a suspect is in fact still seized for Fourth

Amendment purposes while in flight, and the answer to that

question seems plain: the court should permit no such thing.

The critical problem with that framework and the result it yields

is that it both completely sidesteps the more sophisticated

inquiry our Fourth Amendment jurisprudence mandates and

effectively relieves the government of its burden on a

suppression motion.

There may come a day when the Supreme Court extends

the principle it articulated hypothetically in Hodari D.

Significantly, that day has not yet come. Until it does, I am

convinced that the police officers in this case recovered the gun

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in violation of Dupree’s Fourth Amendment rights and,

moreover, that the government has not shouldered its burden of

proving why the gun should not be suppressed as a consequence

of that violation. See, e.g., Mosley, 454 F.3d at 269.

In sum, I would hold that the government loses this

appeal both because it has not met its burden of demonstrating

the constitutionality of the recovery of the gun and because its

novel reliance on Hodari D., while not foreclosed, is unavailing.

Accordingly, while I concur in Judge Hardiman’s opinion in

most respects, I would also affirm the District Court’s

suppression order for the foregoing reasons.

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