United States v. Eric Brodie

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued January 17, 2014 Decided February 18, 2014

No. 11-3029

UNITED STATES OF AMERICA,

APPELLEE

v.

ERIC MAURICE BRODIE,

APPELLANT

Appeal from the United States District Court

for the District of Columbia

(No. 1:08-cr-00235-1)

Lisa B. Wright, Assistant Federal Public Defender, argued

the cause for appellant. With her on the briefs was A.J.

Kramer, Federal Public Defender.

Margaret E. Barr, Assistant U.S. Attorney, argued the

cause for appellee. With her on the briefs were Ronald C.

Machen Jr., U.S. Attorney, and Elizabeth Trosman and David

B. Kent, Assistant U.S. Attorneys.

Before: TATEL, Circuit Judge, and EDWARDS and

WILLIAMS, Senior Circuit Judges.

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Opinion for the Court filed by Senior Circuit Judge

WILLIAMS.

WILLIAMS, Senior Circuit Judge: While waiting to

execute a search warrant at the home of an arrested murder

suspect, police saw defendant Eric Brodie leave the house.

They pulled up to Brodie, who was by then on the sidewalk a

few houses away from the house to be searched; they ordered

him to put his hands on a nearby car. Brodie obeyed. A few

seconds later, he fled. Before being caught, he jettisoned

three weapons, and in a pat down the officers recovered crack

cocaine.

The government advances three alternative arguments as

to why the weapons and crack need not be suppressed under

the Fourth Amendment: (1) Brodie’s putting his hands on the

car for a few seconds did not amount to submission to the

police, so no seizure occurred; (2) any seizure was reasonable

because it was conducted in the execution of a valid search

warrant; and (3) Brodie’s flight and abandonment of the

weapons purged the taint of any illegal seizure. Controlling

authorities compel us to reject all three and therefore to

reverse the judgment of conviction.

* * *

We begin with a brief account of the facts before

exploring their relation to the government’s three arguments.

In anticipation of executing a search warrant at the townhouse

of Jerome Earles, a murder suspect in police custody, two

officers parked their car around the corner from the house,

waiting to be joined by homicide detectives. A few minutes

later, Deputy Marshal Clark saw Brodie leave the townhouse.

According to Clark, Brodie “looked . . . [h]inked up” when he

saw the officers but continued to walk down the sidewalk,

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away from the townhouse and toward the corner where the

officers were parked. Because Brodie had left the house they

planned to search, the officers (presumably suspecting he

might be in cahoots with Earles) decided to stop and identify

him. They pulled their car parallel to Brodie (who was now

two townhouses away from Earles’s); Clark got out of the car

and told Brodie to put his hands on a nearby car. Brodie

complied. But when Clark turned a few seconds later to give

an instruction to his partner, Brodie took off. As the officers

chased him he discarded three guns and finally dropped to the

ground when an officer threatened to tase him. He proved to

be in possession of crack cocaine.

The district court denied Brodie’s motion to suppress the

evidence of weapons and crack. In a plea agreement Brodie

acknowledged unlawful possession of a firearm in violation of

18 U.S.C. § 922(g)(1), but retained the right to appeal the

district court’s denial of the suppression motion. The district

court sentenced him to fifteen years in prison, the mandatory

minimum under the Armed Career Criminal Act, which the

government concedes does not apply to Brodie in light of

Descamps v. United States, 133 S. Ct. 2276 (2013). We now

consider whether the district court erred in denying the motion

to suppress.

* * *

For purposes of the Fourth Amendment a seizure occurs

when physical force is used to restrain movement or when a

person submits to an officer’s “show of authority.” California

v. Hodari D., 499 U.S. 621, 626 (1991). The government

concedes that the police made a show of authority when they

ordered Brodie to put his hands on the car. But they claim

that he didn’t submit, arguing that the compliance was too

“momentary” to constitute submission. Brodie says that he

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submitted by putting his hands on the car, and that therefore

he was seized for the brief period between compliance and

flight. We review de novo the question of when a seizure

occurs. United States v. Maragh, 894 F.2d 415, 417-18 (D.C.

Cir. 1990); see also Ornelas v. United States, 517 U.S. 690,

697-98 (1996) (holding that district court decisions on

ultimate questions of reasonable suspicion and probable cause

are to be reviewed de novo).

We can see no basis for classifying Brodie’s action—

putting his hands on the car when told to do so by the police—

as anything other than full compliance with the officer’s

request. Nothing suggests, for example, that the compliance

was feigned. Cf. United States v. Garcia, 516 F.2d 318, 320

(9th Cir. 1975). In fact, the district court found that “Mr.

Brodie put his hands on the car and then decided that he was

going to run.” Motions Hearing Tr. 75, July 26, 2010

(emphasis added). Nor does anything in the record suggest

that Brodie had some ulterior purpose in putting his hands on

the car, such as a belief that doing so would facilitate escape.

Contrary to the government’s position, the short duration of

Brodie’s submission means only that the seizure was brief, not

that no seizure occurred. Later acts of noncompliance do not

negate a defendant’s initial submission, so long as it was

authentic. See United States v. Brown, 401 F.3d 588, 595 (4th

Cir. 2005); see also United States v. Brown, 448 F.3d 239, 246

(3d Cir. 2006).

The government argues that our decision in United States

v. Washington, 12 F.3d 1128 (D.C. Cir. 1994), requires a

contrary outcome. There we found that a person’s briefly

pulling over in response to an officer’s flashing lights,

followed by the defendant’s driving off “before [the officer]

even reached the car,” did not amount to submission. Id. at

1132. But putting one’s hands on a car when ordered to do so

is quite different from stopping a car just until the moment

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that an officer’s almost inevitable exit provides an improved

chance of escape. Brodie’s gesture had no such advantage,

and would almost surely have culminated in a search but for

Clark’s momentary diversion to speak with his colleague.

Similarly, in the two Brown cases cited above, where

defendants on foot complied with orders to put their hands on

the roof of a car, the courts found the requisite submission.

* * *

Finding that a seizure occurred, we turn to whether that

seizure was reasonable within the meaning of the Fourth

Amendment. The government has not claimed either probable

cause or reasonable suspicion. Rather, it argues that the case

belongs in the set of seizures deemed reasonable only because

they are incident to the execution of a search warrant.

Michigan v. Summers, 452 U.S. 692, 704-05 (1981).

After the district court decided Brodie’s suppression

motion, the Supreme Court issued its opinion in Bailey v.

United States, 133 S. Ct. 1031 (2013), clarifying the limits of

the Summers doctrine. While confirming the existence of an

exception for seizures made during the execution of search

warrants, the Court emphasized its limits, saying it applies

only “to those who are present when and where the search is

being conducted.” Id. at 1040 (emphases added); see also id.

at 1038 (“In Summers and later cases the occupants detained

were found within or immediately outside a residence at the

moment the police officers executed the search warrant.”

(emphases added)); id. at 1038 (“When law enforcement

officers execute a search warrant, safety considerations

require that they secure the premises, which may include

detaining current occupants.” (emphasis added)).

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We need not determine whether Brodie’s seizure meets

the “where” requirement because we find that it doesn’t

satisfy the “when.” While the record does not indicate how

long the officers expected to wait, it makes clear that they

observed Brodie merely in anticipation of the search. They

parked around the corner from the house to wait for the

homicide detectives’ arrival and pulled around near the target

residence only in order to talk to Brodie. The officers did not

encounter Brodie “when” a search was underway, even if we

imagine a search to be in progress from the minute officers

start to advance from car or sidewalk to front door. Cf.

Summers, 452 U.S. at 693.

We note that because this conclusion hews closely to

Bailey, it doesn’t wholly address the issue of risk to officers in

the course of a search. Bailey expressly noted its limitations

on that point. It observed, for example, that the risk that

someone who left a dwelling about to be searched might

return, during the search execution proper, exists even if the

person left the place “five minutes or five hours earlier.” 133

S. Ct. at 1039. And it noted the chance that a departing

occupant might notice the surveillance and “alert others still

inside the residence,” but then discarded that risk as “an

insufficient safety rationale to justify expanding the existing

categorical authority to detain so that it extends beyond the

immediate vicinity of the premises to be searched.” Id. at

1039-40. In other words, the Court was emphatic that

Summers-Bailey was not to be subject to some sort of risk

creep. To the extent that the exception leaves risks beyond its

scope unaddressed, officers must depend either on other

doctrines (such as Terry) or on taking additional precautions

such as “erecting barricades” to fend off a departing occupant

who may return. Id. at 1039.

Finding Summers-Bailey inapplicable, and noting that the

government does not attempt to justify this as a Terry stop, we

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conclude that Brodie’s seizure was unreasonable, in violation

of the Fourth Amendment.

* * *

An illegal search or seizure calls for suppression of

evidence only if the seizure is a but-for cause of the discovery

of the evidence (a necessary condition), and if the causal chain

has not become “too attenuated to justify exclusion,” Hudson

v. Michigan, 547 U.S. 586, 592 (2006), or, to put the same

point with another metaphor, if circumstances have not

“purged [the evidence] of the primary taint,” Wong Sun v.

United States, 371 U.S. 471, 488 (1963) (internal quotation

marks omitted).

The presence of but-for causation is quite plain. The

government does not contend, and no evidence suggests, that

anything like the scene of flight and weapon-discarding would

have occurred if the officers had stayed in their car to wait for

back-up as originally intended. In fact, though Brodie looked

“hinked up” when he first saw the officers, he continued to

walk toward the police car, making no effort to flee or to shed

his concealed weapons. This is quite unlike cases such as

United States v. McClendon, 713 F.3d 1211, 1217-18 (9th Cir.

2013), where the court found ample evidence that the fruitful

search would have occurred even in the absence of the

antecedent illegal search.

In resolving whether the causal chain has become “too

attenuated,” the Court has identified three factors of special

relevance: (1) the amount of time between the illegality and

the discovery of the evidence, (2) the presence of intervening

circumstances, and (3) the purpose and flagrancy of the illegal

conduct. Brown v. Illinois, 422 U.S. 590, 603-04 (1975). For

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this inquiry, the government bears the burden of

demonstrating admissibility. Id. at 604.

The first and third factors cancel out, at most. The

evidence was discovered mere seconds after the illegal

seizure, so time obviously did not purge the taint. And while

the police conduct may not have been especially flagrant,

neither was it a case of an innocent mistake, such that

exclusion would not materially advance the deterrent purpose

of the rule, as in Herring v. United States, 555 U.S. 135, 144-

46 (2009), where officers reasonably but mistakenly believed

there was an outstanding arrest warrant. Thus, the outcome of

the attenuation analysis turns on assessment of the intervening

circumstances.

The government contends that Brodie’s flight and

abandonment of evidence were intervening circumstances that

purged the taint. As those events flowed directly from the

seizure, however, it is hard to spot any attenuation. See

United States v. Wilson, 953 F.2d 116, 127 (4th Cir. 1991).

There are indeed a number of cases where courts have found

attenuation in a defendant’s response to illegal police conduct.

But in those decisions the court found that the defendant had

committed a new crime, e.g., United States v. Bailey, 691 F.2d

1009, 1015-18 (11th Cir. 1982), or had at least fled in a

manner posing serious risks to the public safety—typically a

vehicular flight leading to a high-speed car chase, e.g., United

States v. Boone, 62 F.3d 323, 324 (10th Cir. 1995).

Bailey contains perhaps the most analysis. The defendant

engaged in forcible resistance to the seizing officers, which

the court regarded as a violation of 18 U.S.C. § 111, making it

a crime to forcibly resist officers of the United States going

about the execution of their duties. The conclusion depended

on the court’s reading § 111 as withholding any defense based

on the illegality of the officers’ prior conduct. Bailey, 691

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F.2d at 1018. Plainly we need not get into the soundness of

these cases: Brodie fled on foot, and the manner of his flight

in itself posed no incremental threat to anyone.

As to Brodie’s discard of his weapons, the Bailey court’s

treatment of a similar case is persuasive. The court noted that

a defendant’s tossing marijuana out a car window during an

illegal stop did not constitute a new, attenuating crime: the

tossing “only revealed [the] extant crime and did not itself

constitute a crime.” Id. at 1017. So here.

In short, the government has not met its burden to show

attenuation between the illegal seizure and the discovery of

the guns and drugs.

* * *

The judgment of conviction is reversed because of error

in denial of the motion to suppress. We remand the case to

the district court for further proceedings consistent with this

opinion.

So ordered.