Appeal from Mobile Circuit Court. CC-93-859. Ferrill McRae, TRIAL JUDGE.
Application for Rehearing Overruled December 29, 1994; . Rule 39(k) Motion Denied December 29, 1994. Certiorari Denied May 5, 1995. Released for Publication October 17, 1995.
The opinion of the court was delivered by: Bowen
Ricky Hopkins, the appellant, pleaded guilty to, and was convicted of, the unlawful possession of cocaine. He was sentenced to five years' imprisonment. This sentence was "split" and he was ordered to serve six months' in incarceration and the balance of the sentence on probation. In pleading guilty, the appellant reserved the right to appeal the issue of the trial court's denial of his motion to suppress, in which he asserted that the cocaine was illegally seized. We conclude that the appellant's motion to suppress was due to be granted.
The record on appeal does not contain a transcript of the guilty plea proceedings, which were had in circuit court. Although a written motion to suppress was filed in circuit court, there is no indication that an evidentiary hearing was held on that motion. A copy of the transcript of a suppression hearing held in district court was filed as an exhibit to the motion to suppress filed in circuit court.
The testimony adduced at the hearing on the appellant's motion to suppress held in district court is as follows. Mobile County Deputy Sheriff Lawrence Battiste IV was the only witness to testify. He related the following information. On the evening of December 23, 1992, Battiste and a number of other deputies were working in the Orange Grove housing projects. He observed the appellant and Michael Thomas "standing near a vehicle in the parking lot" in an area "considered a high drug area in the housing project." R. 65.
"We pulled in; we were in an unmarked vehicle. Mr. Thomas and Mr. Hopkins began to walk off at a very rapid rate. Myself and Deputy Dinkins were in a vehicle together. We pulled our vehicle up, we stopped, we began to exit our vehicle. As we exited our vehicle Deputy Dinkins shouted and asked the two subjects to stop. They continued to move on. As we exited the vehicle they had got up to the top step at a residence in the area; they were knocking on the door.
"Deputy Dinkins asked them again to stop and [we] identified ourselves as deputy sheriffs. Myself and Deputy Dinkins had on black-gray jackets with 'sheriff' [written] across the back and a sheriff's emblem on the front pocket.
"Just as we got to the top step of the apartment that they were knocking on the door, the door opened and Mr. Hopkins and Mr. Thomas entered the apartment. Myself and Deputy Dinkins were behind them. Again, we shouted, 'Deputy sheriff.' They went into the apartment. We followed behind. Both myself and Deputy Dinkins' weapons were drawn at that time.
"Mr. Hopkins broke away, ran towards the bathroom. I followed Mr. Hopkins. Mr. Thomas went towards the kitchen. Deputy Dinkins followed Mr. Thomas. Mr. Hopkins went to the bathroom. He had a clear plastic bag of beige rock-like objects, which he dropped into the commode and then attempted to flush down the toilet.
"I stuck my hand in the toilet and attempted to retrieve the substance. As my weapon was drawn Mr. Hopkins grabbed me, we began to struggle. He reached for my weapon and during the struggle my weapon discharged striking Mr. Hopkins in the leg on the inner thigh just above the knee. I retrieved the plastic bag of beige rock-like substance and maintained possession until I turned it into the lab."
"After Mr. Hopkins was wounded he continued to struggle. The door was locked behind us by a third subject by the name of Mr. Geil. After Deputy Dinkins got Mr. Thomas under control he went and unlocked the door. Myself and Mr. Hopkins were still struggling until Corporal McCaskill came to the residence and he had a shotgun which kind of made Mr. Hopkins lay down and comply to what I was asking him to do. Mr. Hopkins and Mr. Thomas both were placed under arrest for possession of a controlled substance; both subjects were also placed under arrest for resisting arrest." R. 65-67.
Battiste testified that he "didn't know what [the appellant] had tried to flush . . . until after [he] retrieved it out of the toilet." R. 74. The bag retrieved from the toilet contained 13 grams of cocaine. A plastic bag containing a small amount of beige rock-like substance was retrieved at the entrance to the residence. Battiste testified that "Deputy Dinkins advised me that he observed Mr. Thomas drop that substance at the door as he attempted to enter the door." R. 67. That bag contained 1.7 grams of cocaine.
Battiste testified that "all we were going to do is ask them for some identification and ask them what they were doing in the area." R. 68. He said that he did not have any knowledge that they were doing anything illegal. R. 68. Battiste testified that his authority for entering the private dwelling was that the officers were in "hot pursuit" because "we advised him to stop; he did not comply." R. 71. Battiste stated that he "was pursuing [the appellant] to get some identification from him" and that he "followed [the appellant] into the house because he did not comply with me asking him to stop and identify himself at the time." R. 71, 72.
The prosecution's only argument in its written response to the appellant's motion to suppress filed in circuit court was that the motion was due to be denied on the authority of California v. Hodari D., 499 U.S. 621, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991). In that case, the United States Supreme Court held that a seizure does not occur when, without more, a police officer makes a "show of authority" to an individual and the individual fails to yield to the officer's authority. "Thus, a seizure requires either physical control over the suspect, or the suspect must in some form submit to the officer's show of authority." 2 W. Ringel, Searches and Seizures, Arrests and Confessions § 13.2(a)(1) at 13-13 (2d ed. 1994). " police officer who chases a fleeing suspect unsuccessfully has not seized that person." Id. § 13-2(a)(1) at 13-14. Thus, "even if [the officer's] various decisions to question and follow [the suspect] were unjustified, they did not constitute a 'seizure' and, as a result, are not subject to any Fourth Amendment scrutiny." Tom v. Voida, 963 F.2d 952, 956 (7th Cir. 1992).
"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, [Officer] Pertoso 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. Cf. Thompson v. Whitman, 85 U.S. 457, 18 Wall. 457, 471, 21 L.Ed. 897 (1874) ('A seizure is a single act, and not a continuous fact'). The present case, however, is even one step further removed. It does not involve the application of any physical force; Hodari was untouched by Officer Pertoso at the time he discarded the cocaine. His defense relies instead upon the proposition that a seizure occurs 'when the officer,by means of physical force or show of authority, has in some way restrained the liberty of a citizen.' Terry v. Ohio, 392 U.S. 1, 19, n. 16. 88 S.Ct. 1868, 1879, n. 16, 20 L.Ed.2d 889 (1968) (emphasis added). Hodari contends (and we accept as true for purposes of this decision) that Pertoso's pursuit qualified as a 'show of authority' calling upon Hodari to halt. The narrow question before us is 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. We hold that it does not.
"The language of the Fourth Amendment, of course, cannot sustain respondent's contention. The word 'seizure' readily bears the meaning of a laying on of hands or application of physical force to restrain movement, even when it is ultimately unsuccessful. ('She seized the purse-snatcher, but he broke out of her grasp.') It does not remotely apply, however, to the prospect of a policeman yelling 'Stop, in the name of the law!' at a fleeing form that continues to flee. That is no seizure. Nor can the result respondent wishes to achieve be produced - indirectly as it were - by suggesting that Pertoso's uncomplied-with show of authority was a common-law arrest, and then appealing to the principle that all common-law arrests are seizures. An arrest requires either physical force (as described above) or, where that is absent, submission to the assertion of authority.
"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 ...