United States v. Julius Hayden , 759 F.3d 842 ( 2014 )


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  •                   United States Court of Appeals
    For the Eighth Circuit
    ___________________________
    No. 13-2291
    ___________________________
    United States of America,
    lllllllllllllllllllll Plaintiff - Appellee,
    v.
    Julius Eric Hayden,
    lllllllllllllllllllll Defendant - Appellant.
    ____________
    Appeal from United States District Court
    for the Eastern District of Missouri - St. Louis
    ____________
    Submitted: January 17, 2014
    Filed: July 16, 2014
    ____________
    Before LOKEN, MURPHY, and COLLOTON, Circuit Judges.
    ____________
    COLLOTON, Circuit Judge.
    Julius Hayden was charged with unlawful possession of a firearm as a
    previously convicted felon. Hayden moved to suppress the firearm as the fruit of an
    illegal search. After an evidentiary hearing, a magistrate judge recommended that the
    motion to suppress be granted. The government moved for reconsideration and for
    a supplemental hearing to present additional testimony, and the magistrate granted the
    motion. After a second hearing, the magistrate judge recommended denial of
    Hayden’s motion to suppress. The district court1 adopted the magistrate’s second
    report and recommendation, and denied the motion. Thereafter, Hayden pleaded
    guilty, reserving his right to appeal the order on his motion to suppress. On appeal,
    Hayden challenges the magistrate’s decision to hold a supplemental suppression
    hearing and the district court’s conclusion that his Fourth Amendment rights were not
    violated. We affirm.
    I.
    On December 20, 2011, at approximately 9 p.m., St. Louis police officers
    Nicholas Martorano and Michael Kegel observed Hayden and James Crockett
    standing near a vacant house in a high-crime area. Although the officers had no
    information connecting Hayden or Crockett to any criminal activity, the officers were
    told, in preparation for their shift, that there had been a noticeable increase in
    burglaries and robberies involving weapons in the vicinity. Ultimately, the officers
    stopped and frisked Hayden and found a firearm in his pocket. The events preceding
    that stop are disputed and were the subject of two evidentiary hearings held by the
    magistrate judge.
    At the first hearing, Officer Martorano testified, but Officer Kegel did not.
    Martorano reported that, despite the dim lighting, he observed Hayden and Crockett
    wearing dark clothing and standing relatively close to a vacant home. He testified
    that both men appeared to be wandering around the residence, that the man closer to
    the sidewalk was looking up and down the street, and that the man closer to the home
    1
    The Honorable Jean C. Hamilton, United States District Judge for the Eastern
    District of Missouri, adopting the second report and recommendation of the
    Honorable Shirley Padmore Mensah, United States Magistrate Judge for the Eastern
    District of Missouri.
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    glanced in a window. Based upon these observations, Martorano believed that the
    two men were about to commit a burglary.
    According to Martorano, as the two men began walking down the sidewalk,
    Kegel pulled the vehicle alongside the men, and Martorano exited the car, shined a
    flashlight on the men, and yelled “Police!” Hayden turned away from the light and
    put his right hand into his right jacket pocket. Martorano ordered Hayden to remove
    his hand from his pocket. Hayden complied. Martorano then frisked Hayden, finding
    a loaded .22 caliber revolver in Hayden’s right jacket pocket.
    Based on Officer Martorano’s testimony, the magistrate judge found that the
    officers seized Hayden when Martorano exited the vehicle, shined his flashlight on
    the men, and yelled “Police!” At that point, the magistrate concluded, the officers did
    not have reasonable suspicion that Hayden was committing a burglary, so the seizure
    was unconstitutional. The court found aspects of Martorano’s testimony not credible,
    “given his description of the poor lighting and distance from the two men,” as well
    as his having “made no mention of having seen either subject glancing through a
    window [on direct examination].” The magistrate therefore recommended that
    Hayden’s motion to suppress be granted.
    The government moved for reconsideration of the magistrate’s report and for
    a supplemental suppression hearing. The government proffered additional evidence,
    namely, photographs demonstrating that there was a streetlight illuminating the street
    in front of the residence, a photograph showing the distance between the officers and
    the two men, and Officer Kegel’s testimony regarding the events in question. Over
    Hayden’s objection, the magistrate judge granted the government’s motion for
    reconsideration and for a supplemental hearing.
    At the second hearing, Kegel testified that the area where the officers observed
    the two men was high-crime and generally deserted late at night, that it was cold, that
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    there had been a recent spike in burglaries of vacant homes in the neighborhood, and
    that the two men appeared to be casing a vacant residence. Kegel stated that while
    the officers watched the men, a streetlight enabled the officers to see one man look
    into the window of the house and that the man had crossed a fence around the house
    so that he could peer inside.
    In light of their observations, Kegel testified that the officers decided to initiate
    a “civilian encounter,” that is, to obtain the names and identification of the two men,
    and to ascertain their motives for being on the street late at night. The officers drove
    toward the men and stopped at the curb without blocking their ability to continue
    walking down the sidewalk or cross the street. Kegel testified that Martorano did not
    exit the vehicle with “any kind of exigency.” Likewise, Kegel said that Martorano
    did not yell “Police!” Instead, Kegel testified that Martorano said the word “police”
    loudly enough for the men to hear him. Kegel also explained the photographs of the
    scene that the government had added to the record.
    Based on this additional testimony and evidence, the magistrate judge found
    that Hayden was not seized when Officer Martorano exited the vehicle and said
    “Police.” Rather, Hayden was seized only when he turned his body away from
    Martorano, reached his hand into his jacket pocket, and complied with Martorano’s
    command that he remove his hand from his pocket. The magistrate determined that
    the officers had reasonable suspicion to seize Hayden at that latter point. The stop,
    therefore, did not violate Hayden’s Fourth Amendment rights, so the magistrate judge
    recommended that his motion to suppress be denied.
    The district court adopted the magistrate judge’s second report and
    recommendation and denied Hayden’s motion to suppress. Hayden pleaded guilty to
    unlawful possession of a firearm as a previously convicted felon, in violation of
    18 U.S.C. §§ 922(g)(1) and 924(e), but reserved his right to appeal the suppression
    issue. On appeal, Hayden argues that the magistrate abused her discretion by holding
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    a second suppression hearing. Hayden also argues that the district court erred in
    denying his motion to suppress evidence of the firearm because the officers found the
    firearm during an unlawful stop.
    II.
    Hayden contends that the magistrate judge erred in holding a second
    suppression hearing. He complains that the government requested reopening to
    present previously available evidence without justifying its failure to proffer that
    evidence at the initial hearing. We review a court’s decision to reopen a suppression
    hearing for abuse of discretion. United States v. Chavez Loya, 
    528 F.3d 546
    , 555 (8th
    Cir. 2008); United States v. Johnson, 
    944 F.2d 396
    , 403 n.5 (8th Cir. 1991). We
    conclude that the magistrate judge did not abuse her discretion by holding an
    additional suppression hearing before the district court ruled on Hayden’s motion.
    Hayden argues that a suppression hearing may be reopened only if a party has
    acquired newly discovered evidence or challenges a newly relevant legal issue. He
    contends that under our decision in Chavez 
    Loya, 528 F.3d at 555
    , and in several
    other circuits, a party moving to reopen a suppression hearing must provide a
    reasonable and adequate explanation for its failure to provide newly proffered
    evidence at the initial hearing if the evidence was previously available. See United
    States v. Allen, 
    573 F.3d 42
    , 53 (1st Cir. 2009); United States v. Kithcart, 
    218 F.3d 213
    , 220 (3d Cir. 2000); United States v. Dickerson, 
    166 F.3d 667
    , 679 (4th Cir.
    1999), rev’d on other grounds, 
    530 U.S. 428
    (2000); McRae v. United States, 
    420 F.2d 1283
    , 1289 (D.C. Cir. 1969). Here, at the second hearing, the government
    proffered only evidence that was available at the initial hearing, acknowledging that
    “[i]n retrospect, perhaps [it] should have offered all of this additional information at
    the original hearing.” Hayden argues, therefore, that the magistrate judge abused her
    discretion by reopening the suppression issue because the government did not
    adequately explain its failure to offer the evidence at the first hearing.
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    We decline to adopt Hayden’s proposed justification requirement to limit
    strictly a magistrate judge’s discretion to reopen a suppression hearing before
    submitting a report and recommendation to the district court. The governing statute,
    28 U.S.C. § 636(b)(1), provides that a district court, in conducting de novo review of
    a magistrate judge’s report and recommendation, “may accept, reject, or modify, in
    whole or in part, the findings or recommendations made by the magistrate judge” and
    “may also receive further evidence or recommit the matter to the magistrate judge
    with instructions.” Because the district court has discretion to receive new evidence
    without any special justification while conducting de novo review of a magistrate
    judge’s report and recommendation, see Mathews v. Weber, 
    423 U.S. 261
    , 271
    (1976); United States v. Craft, 
    30 F.3d 1044
    , 1045 (8th Cir. 1994), we think it follows
    a fortiori that a magistrate judge likewise may receive new evidence before
    presenting a final report and recommendation to the district court. Hayden’s
    published authorities, including Chavez Loya, concern the authority of a district court
    to reopen a suppression hearing after that court has entered a decision on the motion.
    It is unnecessary here to address the scope of that authority. Cf. In re Terrorist
    Bombings of U.S. Embassies in E. Afr., 
    552 F.3d 177
    , 196 (2d Cir. 2008) (“[T]here
    is no bright-line rule that necessarily and invariably requires the government to
    provide a reasonable justification for its failure to offer relevant evidence at an earlier
    suppression proceeding.”).
    III.
    Hayden also argues that the district court erred in denying his motion to
    suppress on the merits. “We review the denial of a motion to suppress de novo but
    the underlying factual determinations for clear error, giving due weight to inferences
    drawn by law enforcement officials.” United States v. Clutter, 
    674 F.3d 980
    , 982 (8th
    Cir. 2012). Hayden contends that the district court clearly erred by accepting Officer
    Kegel’s testimony on certain points that arguably conflict with Officer Martorano’s
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    testimony, but these were largely credibility determinations that satisfy what is
    necessarily deferential review on appeal.
    On the key legal issue, we agree with the district court that Hayden was not
    seized when Officer Martorano shined the flashlight on him and said “Police.” “[A]
    seizure does not occur simply because a police officer approaches an individual and
    asks a few questions.” Florida v. Bostick, 
    501 U.S. 429
    , 434 (1991). “So long as a
    reasonable person would feel free ‘to disregard the police and go about his business,’
    the encounter is consensual and no reasonable suspicion is required.” 
    Id. (internal citation
    omitted) (quoting California v. Hodari D., 
    499 U.S. 621
    , 628 (1991)).
    The district court found that the officers pulled their vehicle alongside Hayden
    and Crockett, shined a flashlight on the subjects, clearly identified themselves as
    police, and approached the men. The officers did not block the ability of Hayden and
    Crockett to cross the street, did not touch the men, and did not display weapons.
    Merely identifying oneself as “Police” does not effect a seizure of a citizen who stops
    to listen or talk, because self-identification is not a command in the nature of “Police,
    halt!” or “Stop, in the name of the law!” See Florida v. Royer, 
    460 U.S. 491
    , 497
    (1983) (plurality opinion); United States v. Perdoma, 
    621 F.3d 745
    , 749 (8th Cir.
    2010). Likewise, shining a flashlight to illuminate a person in the darkness is not a
    coercive act that communicates an official order to stop or comply. See United States
    v. Mabery, 
    686 F.3d 591
    , 597 (8th Cir. 2012); United States v. Douglass, 
    467 F.3d 621
    , 624 (7th Cir. 2006). During the initial approach of the police officers, the
    encounter was consensual.
    Hayden eventually was seized when he turned his body away from Officer
    Martorano, reached his hand into his jacket pocket, and complied with Martorano’s
    command that he remove his hand from his pocket. That seizure, however, was
    justified under the Fourth Amendment by reasonable suspicion that criminal activity
    was afoot. See Terry v. Ohio, 
    392 U.S. 1
    , 30 (1968). The patrolling officers knew
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    that there had been an increase in burglaries in the area. It was late at night, and the
    officers knew from experience that it was unusual to find people on the street after
    dark in this high-crime area. Hayden and Crockett appeared to be casing a house for
    a burglary: They looked up and down the street; one of the men crossed a fence to
    get near the residence and looked into the window of the house; as officers
    approached, Hayden turned away from the officers and put his hand into his pocket
    as though reaching for a weapon. The totality of the circumstances gave the officers
    reasonable suspicion to conclude that a crime of burglary was in the offing. See
    United States v. Morgan, 
    729 F.3d 1086
    , 1090 (8th Cir. 2013). Consequently, the
    seizure of Hayden did not violate the Fourth Amendment, and the district court
    properly denied his motion to suppress the firearm obtained during the stop.
    *       *       *
    The judgment of the district court is affirmed.
    ______________________________
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