United States v. Lawson ( 2007 )

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS May 25, 2007
FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 06-60293
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
versus
CHARLES LAWSON,
Defendant-Appellee.
Appeal from the United States District Court
for the Southern District of Mississippi
(3:04-CR-89)
Before SMITH, BARKSDALE and DENNIS, Circuit Judges.
PER CURIAM:*
Charles Lawson is charged, inter alia, with being a felon in
possession of a firearm. In this interlocutory appeal, the
Government challenges the district court’s pre-trial order granting
Lawson’s motion to suppress the firearm. VACATED AND REMANDED.
I.
On 20 November 2003, a Jackson, Mississippi, Police Officer
was conducting field interviews in a Jackson neighborhood,
investigating a tip from his supervisors that an individual known
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
as “G Dog” had been responsible for several armed robberies in the
area. Interviewees told the Officer that “G Dog” was a tall,
large-built, black male named Jerome.
Later that day, the Officer saw a man, later identified as
Lawson, who fit the description of “G Dog”. The Officer approached
Lawson to conduct a field interview. The district court found the
Officer either crossed the street and walked up to Lawson, asking
to talk with him, or called to Lawson from across the street and
asked to do so. According to the Officer, as soon as Lawson saw
him, he began to act nervous and started walking away quickly.
Although the district court noted the Officer testified Lawson was
acting nervous, it is not clear the court included this as a
finding of fact. In any event, as the Officer got closer to
Lawson, Lawson began to run.
The Officer pursued Lawson as he ran through lanes of traffic
and into a shopping-center parking lot. Lawson then tripped and
fell, and the Officer saw what appeared to be the handle of a
firearm in Lawson’s waistband. After a struggle, Lawson was
arrested and the firearm seized.
Lawson was indicted on one count of being a felon in
possession of a firearm, in violation of 18 U.S.C. § 922(g)(1), and
as an Armed Career Criminal, under 18 U.S.C. § 924(e). He moved to
suppress the firearm, claiming: the Officer conducted an unlawful
search and seizure because he sought to detain him without
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reasonable suspicion; and the Officer had no right to chase him
after he began to walk away.
At the suppression hearing in February 2006, the Officer was
the only witness. The Government maintained: he had sufficient
reason to approach Lawson to try to talk to him; and his nervous
behavior and subsequent flight gave the Officer the requisite
reasonable suspicion that Lawson had asserted was lacking. The
district court orally granted Lawson’s motion, holding the Officer
violated his Fourth Amendment rights because the Officer did not
even have reasonable suspicion to approach Lawson and detain him
prior to his running. Along that line, the court ruled: by
walking away, Lawson indicated he did not want to talk to the
Officer; Lawson’s running did not give the Officer reason to give
chase, especially because the Officer’s actions provoked Lawson
into doing so; and, as a result, seizing Lawson after he tripped
and fell was unlawful.
II.
Before reaching the merits of the Government’s interlocutory
appeal, we must first consider Lawson’s jurisdictional challenge.
It fails.
A.
In his brief, Lawson claimed jurisdiction is lacking because
the notice of appeal, although timely filed, did not certify, as
required by 18 U.S.C. § 3731, that the appeal “is not taken for
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purposes of delay and the evidence is a substantial proof of a fact
material in the proceeding”. In response, the certification was
filed. The Government admitted it erred in not timely making the
required certification but asserted this did not prejudice Lawson.
The failure to timely file the § 3731 certification is not
jurisdictional; it may be excused at the discretion of the court.
E.g., United States v. Smith, 135 F.3d 963, 967-68 (5th Cir. 1998)
(holding § 3731’s timing requirement is not jurisdictional and is
“relevant only in considering the ‘equities’ of its appeal”);
United States v. Hanks, 24 F.3d 1235, 1239 (10th Cir. 1994)
(holding, because § 3731 is to be construed liberally, a delayed
filing of § 3731 certification is excused unless the appellee can
show “actual substantial prejudice”).
At oral argument, Lawson admitted he suffered no prejudice due
to the untimely filing. The tardy filing is excused.
B.
In reviewing a suppression ruling, findings of fact are
reviewed only for clear error; conclusions of law, de novo. E.g.,
United States v. Jordan, 232 F.3d 447, 448 (5th Cir. 2000).
Evidence introduced at a suppression hearing is viewed, of course,
in the light most favorable to the prevailing party. Id.The Government does not contest the district court’s findings
of fact; instead, it challenges the resulting conclusions of law.
In that regard, it claims: the facts found, when viewed in their
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totality, gave the Officer reasonable suspicion to conduct an
investigatory stop, pursuant to Terry v. Ohio, 392 U.S. 1 (1968).
Consistent with the Fourth Amendment’s proscription against
“unreasonable searches and seizures” (emphasis added), a police
officer may conduct a brief, investigatory stop when he has
reasonable, articulable suspicion of criminal activity. Terry, 392
U.S. at 30 (Terry stop). “While ‘reasonable suspicion’ is a less
demanding standard than probable cause and requires a showing
considerably less than preponderance of the evidence, the Fourth
Amendment requires at least a minimal level of objective
justification for making the stop.” Illinois v. Wardlaw, 528 U.S.
119, 123 (2000) (emphasis added). Reasonable suspicion can be
determined only by looking to “the totality of the circumstances —
the whole picture”. United States v. Sokolow, 490 U.S. 1, 8
(1989).
On the other hand, an officer need not have such “minimal
level of objective justification” before asking an individual if he
is willing simply to talk to the officer. United States v.
Williams, 365 F.3d 399, 404 (5th Cir. 2004) (“Under the consensual
encounter arm of Fourth Amendment jurisprudence, the police can
initiate contact with a person without having an objective level of
suspicion, during which time the police may ask questions of the
person, ask for identification, and request permission to search
baggage that the individual may have in his possession.”). That
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individual, however, has a right to ignore the police and “go on
his way”. Florida v. Royer, 460 U.S. 491, 498 (1983). Pertinent
to the issue presented here, an individual’s “refusal to cooperate,
without more, does not furnish the minimal level of objective
justification needed for detention and seizure”. Florida v.
Bostick, 501 U.S. 429, 437 (1991) (emphasis added).
In claiming the totality of the circumstances justified the
Officer’s detaining Lawson, the Government maintains he exhibited
behavior consistent with someone engaged in criminal activity:
when the Officer approached Lawson to try to talk to him, he began
to act nervous and quickly started walking away; as the Officer
moved closer, Lawson began running through busy streets in order to
avoid the Officer. In countering that his running from the Officer
can not be considered suspicious behavior, Lawson maintains: he
was merely exercising his rights to go about his business and not
cooperate with authorities; and, therefore, his conduct can not
serve as the basis for a Terry stop.
Despite his assertions to the contrary, Lawson did not merely
ignore the Officer and go about his business. Instead, as found by
the district court: when approached, Lawson began to run away. He
did so through a traffic-filled street. His behavior approaches
that in Illinois v. Wardlaw. There, police officers were
patrolling a neighborhood known for heavy narcotics trafficking.
528 U.S. at 121. They observed Wardlaw standing next to a
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building, holding an opaque bag; he “looked in the direction of the
officers and fled”. Id. at 121-22. Wardlaw was stopped and
frisked, and a loaded handgun was seized.
The Supreme Court upheld the denial of Wardlaw’s suppression
motion, holding that, although neither his presence in a high-crime
area nor his flight alone was indicative of suspicious behavior,
his “unprovoked flight upon noticing the police” justified their
suspecting he was involved in criminal activity and, therefore,
investigating further. Id. at 124-25. “Headlong flight ... is the
consummate act of evasion: It is not necessarily indicative of
wrongdoing, but it is certainly suggestive of such.” Id. (emphasis
added); see also United States v. Jordan, 232 F.3d 447, 449 (5th
Cir. 2000) (upholding the denial of a suppression motion under
similar circumstances: “The undisputed facts ... clearly do not
portray a recreational runner. The defendant appeared to be
fleeing from something or someone”.).
Lawson claims, however, and the district court held: the
Officer had “no right to detain him and stop him” after Lawson
refused to talk to him; and, indeed, the Officer’s actions “caused”
Lawson’s flight. An attempt to initiate a consensual encounter on
the street does not constitute provocation; to the contrary, “law
enforcement officers do not violate the Fourth Amendment by merely
approaching an individual on the street or in another public place
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[and] by asking him if he is willing to answer some questions”.
Royer, 460 U.S. at 497.
Lawson’s “unprovoked flight” upon seeing the Officer was “not
going about one’s business; in fact, it [was] just the opposite”.
See Wardlaw, 528 U.S. at 125. It, along with other factors,
discussed below, gave the Officer reasonable suspicion to conduct
a Terry stop. Id.Lawson also contends the other factors cited by the Officer in
justifying the Terry stop do not establish reasonable suspicion:
for example, the general description of the robbery suspect as a
“tall, large-built black male” has de minimis value in a
predominantly black neighborhood; and the Officer’s conclusion that
Lawson was in a high-crime neighborhood does not mean Lawson was
the suspect. Each factor by itself may not justify a Terry stop;
but, the totality of these factors, along with Lawson’s unprovoked
flight, provided the Officer with reasonable suspicion to detain
him. E.g., Sokolow, 490 U.S. at 7-8.
III.
For the foregoing reasons, the suppression order is VACATED;
this matter is REMANDED for further proceedings consistent with
this opinion.
VACATED AND REMANDED
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