United States District Court, N.D. California
ORDER DENYING MOTION TO SUPPRESS EVIDENCE
WILLIAM ALSUP, District Judge.
In this Section 922(g)(1) prosecution, defendant moves to suppress evidence obtained by police. For the reasons stated below, defendant's motion is DENIED.
After an evidentiary hearing, in which four witnesses testified, several exhibits were received into evidence, and a video of the incident was shown, this order finds as follows: On March 25, 2015, at approximately ten at night, three San Francisco police officers, Matthew Ortega, David O'Keeffe, and Ian Glynn, approached a group of six to ten African-American males on the sidewalk at the corner of Rey Street and Garrison Avenue in San Francisco. Two cars sat illegally parked next to the group, blocking the roadway forward. Some of the people held money in their hands while others rolled dice. It had every appearance of a craps game. The immediate area was well lit and several people were milling about on the street. The corner of Rey and Garrison is in the Towerside neighborhood of San Francisco. The funeral of a documented gang member had taken place nearby that day.
The officers approached in a civil and non-threatening manner. They displayed their police identification. Officer Ortega asked the group members what they were doing. One person responded that they were rolling dice, and that no one was on probation so the officers could not search them. Seconds after this remark, defendant Jaquan Taylor sprinted away from the group, running south along Rey Street, a segment not well lit. All three officers chased after him, yelling "stop, " and ordered that defendant put his hands up. Officer Ortega caught up to defendant and tripped him. Defendant fell and Officer Ortega observed a black handgun fall from defendant's waistline and slide along the ground. (Defendant testified and casually admitted he had the gun.) The officers arrested defendant and took him into custody. At the police station, the officers examined the black handgun, which was loaded with ten rounds of ammunition and determined it had been stolen.
This order follows full briefing, an evidentiary hearing, and oral argument.
"A police officer may make a seizure by a show of authority and without the use of physical force, but there is no seizure without actual submission." Brendlin v. California, 551 U.S. 249, 254 (2007).
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 police man yelling "Stop, in the name of the law!" at a fleeing form that continues to flee. That is no seizure.
California v. Hodari D., 499 U.S. 621, 626-27 (1991).
Based on this standard, this order finds that the police did not seize defendant until Officer Ortega physically tripped him. The seizure did not occur when the officers approached the group or when the officers yelled "stop" at defendant while he fled.
A police officer may seize a person if the officer had a reasonable suspicion supported by articulable facts that criminal activity may be afoot, even if the officer lacks probable cause. "[R]easonable suspicion exists when an officer is aware of specific, articulable facts which, when considered with objective reasonable inferences, form a basis for particularized suspicion." United States v. Sokolow, 490 U.S. 1, 7 (1989); United States v. Montero-Camargo, 208 F.3d 1122, 1129 (9th Cir. 2000).
The Supreme Court has held that: "Headlong flight - wherever it occurs - is the consummate act of evasion: It is not necessarily indicative of wrongdoing, but it is certainly suggestive of such." ...