United States of America v. CHRISTOPHER WATERMAN, Appeal from the United States District Court for the District…

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 08-2543
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UNITED STATES OF AMERICA,
Appellant
v.
CHRISTOPHER WATERMAN,
__________
Appeal from the United States District Court
for the District of Delaware
(D.C. Criminal No.07-cr-00073-1)
District Judge: Honorable Sue L. Robinson
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Argued March 24, 2009
Before: RENDELL, AMBRO, and JORDAN, Circuit Judges.
(Filed: May 12, 2009)
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Shawn A. Weede, Esq. [ARGUED]
Office of United States Attorney
1007 North Orange Street, Suite 700
P. O. Box 2046
Wilmington, DE 19899
Counsel for Plaintiff-Appellant
United States of America
Edson A. Bostic, Esq.
Brian Crockett, Esq. [ARGUED]
Fieffa N. Harper, Esq.
Office of Federal Public Defender
704 King Street
First Federal Plaza, Suite 110
Wilmington, DE 19801
Counsel for Defendant-Appellee
Christopher Waterman
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OPINION OF THE COURT
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RENDELL, Circuit Judge.
Although this case presents multiple Fourth Amendment issues – probable cause
for an arrest, consent to search, and the admissibility of unwarned inculpatory statements
– our inquiry is confined to the sole issue decided by the District Court: whether the
defendant was “stopped” under Terry v. Ohio, 392 U.S. 1 (1968).

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The District Court held that police effected a Terry stop, that reasonable suspicion
for the stop was lacking, and that contraband discovered thereafter must be suppressed.
The government urges that the District Court should have determined, based on
California v. Hodari D., 499 U.S. 621, 627 (1991), that Waterman was not “seized”
within the meaning of the Fourth Amendment. The government raised Hodari D. in its
opposition to the motion to suppress, but the District Court did not refer to it. We
conclude that we are required to reverse the District Court based upon Hodari D., and
will remand for further proceedings.
The scene is properly set by the District Court’s findings of fact, which are not
challenged by the parties on appeal. Officers Nowell and Ashe responded to a
dispatcher’s report that an anonymous informant had observed a “subject” with a gun at
1009 West Seventh Street in Wilmington, Delaware. The dispatcher did not indicate the
tip’s reliability. Officers Nowell and Ashe responded to the call in a marked police
vehicle. As the pair proceeded down West Seventh Street, they observed the silhouettes
of five people standing on the front porch of a house. Turning on a spotlight, Officer
Ashe confirmed that the address of the house was 1009, and that two females and three
males were on the porch. Waterman was standing in the middle of the group, near the
front door to the residence. Getting out of the police cruiser, Officer Ashe positioned
herself 8-10 feet from the residence, while Officer Nowell approached the house. Ashe
did not observe any weapons but ordered the individuals on the porch to place their hands

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in the air for safety reasons. All complied except Waterman, who kept his hands in his
jacket pockets. The District Court found the following events ensued:
7. From her vantage point, Ashe had an unobstructed view of
defendant. Ashe did not see a weapon in defendant’s hands; however,
based on her training, Ashe suspected that defendant might have been
armed because he had moved his hands toward his waistband. Ashe and
Nowell drew their firearms as Ashe repeatedly commanded defendant to put
his hands in the air. Defendant did not comply; he moved one of his hands
behind his back and turned the doorknob of the front door. The door didn’t
open. Ashe thought the door was locked. Ashe continued, unsuccessfully,
to order defendant to show his hands. Ashe and Nowell maintained their
weapons in a drawn position, aimed at the individuals standing on the
porch.
8. Just then, Deborah Waters opened the door and stepped onto the
porch. As Deborah Waters exited, defendant entered the residence.
Nowell, standing near the porch, thrust his leg into the doorway to prevent
the door from being shut.
A. 7 (internal citations omitted).
The District Court concluded that Waterman was effectively “stopped” when
Officer Ashe commanded everyone on the porch to put their hands in the air. Hence,
what transpired next – Waterman’s “failure to follow Ashe’s command,” the officers’
“drawing their weapons,” and Waterman’s “suspected conduct in the residence” – could
not “cure this initial unconstitutional violation.” A. 16. Based solely on the unlawful
“seizure” on the porch, the Court suppressed a gun and drugs subsequently discovered in
the residence.
In Hodari D., the Supreme Court held that an arrest “requires either physical force
. . . or, where that is absent, submission to the assertion of authority.” 499 U.S. at 626

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For example, the Supreme Court explained that a police command to “Stop, in the1
name of the law!” – unaccompanied by physical contact with the suspect – does not
constitute a “seizure.” Hodari, 499 U.S. at 626.
Hodari D. suggests that touching is required – “[t]here can be no arrest without either2
touching or submission” – but at least one other court has found it not to be “explicit.”
See Hodari D., 499 U.S. at 626-27; United States v. Holloway, 962 F.2d 451, 456 (5th
Cir. 1992). We need not decide whether contact is necessary in every instance to effect a
“seizure,” as we conclude that the police conduct here did not involve physical force or its
functional equivalent.
Although Hodari D. involved a suspect engaged in headlong flight, we have since3
examined acts of defiance that are less overt. Our precedents suggest that “submission”
under Hodari D. requires, at minimum, that a suspect manifest compliance with police
orders. See, e.g., Couden v. Duffy, 446 F.3d 483 (3d Cir. 2006) (identifying as dispositive
whether the suspect “manifests” a belief that he has not been seized (quoting United
States v. Smith, 423 F.3d 25, 31 (1st Cir. 2005))); United States v. Hernandez, 27 F.3d
1403, 1406-1407 (9th Cir. 1994) (no “submission” to police authority when suspect,
instructed by officer to “stop right there,” pauses momentarily and makes eye contact with
the officer but flees thereafter); see also United States v. Valentine, 232 F.3d 350, 358-59
(3d Cir. 2000) (citing United States v. Johnson, 232 F.3d 1313, 1315 (D.C. Cir. 2000))
(no submission to police authority when defendant disobeys police order to raise his
hands); United States v. Coggins, 986 F.2d 651, 654 (3d Cir. 1993) (suspect submits to
police authority when he obeys officer’s command to sit down). On the other hand, a
“stop” is effected when police wear down an uncooperative suspect by making clear the
need for compliance. Johnson v. Campbell, 332 F.3d 199, 206 (3d Cir. 2003).
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(emphasis in original). The Court explained that the concept of physical force necessary
for a “seizure” does not consist merely of the show of authority, but, rather, requires the1
application of force or “laying on of hands.”2
With respect to “submission,” the Court noted that compliance with police orders
to stop should be encouraged. This would seem to require something more than a
momentary pause or inaction. The Court did not differentiate between an “arrest” and a3

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See, e.g., United States v. Brown, 448 F.3d 239, 245-46 (3d Cir. 2006); Valentine, 2324
F.3d at 358; Coggins, 986 F.2d at 653-54. Whether the police action authorized by
Hodari D. represents something distinct from the traditional “Terry stop” is not a question
we need confront in this case. See Hodari D., 499 U.S. at 626 (Stevens, J. dissenting).
We need note only that, after Hodari D., the attributes of a “stop” as set forth therein must
be present in order for the Fourth Amendment to be implicated.
Couden, 446 F.3d at 493-94 (no “seizure” when defendant flees after police draw5
their weapons); Valentine, 232 F.3d at 358-59 (citing Johnson, 232 F.3d at 1315 for the
proposition that no “seizure” occurs when police, drawing their weapons, order a
defendant to raise his hands, but he refuses); Fontenot v. Cormier, 56 F.3d 669, 674 (5th
Cir. 1995) (no “seizure” when police, rushing the defendant’s car with their guns drawn,
order him out of the vehicle, but he flees); Edwards v. Giles, 51 F.3d 155, 156 (8th Cir.
1995) (no “seizure” when police point gun at defendant, but he refuses to submit to
officer’s authority).
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Terry stop, and we have universally looked to the requirements set forth in Hodari D. to
determine whether a police encounter with a citizen constitutes a “seizure” within the
meaning of the Fourth Amendment.4
Here, there was no application of physical force. The police drew their guns in a
“show of authority.” While this act definitely constituted a display of force, we conclude
that it fell short of the force or physical contact required under Hodari D.5
Similarly, there was no “submission” by Waterman. While the others on the
porch raised their hands in compliance with the officers’ directive, Waterman failed to do
so. Instead, he moved his hands toward his waistband, and ultimately retreated into the
house.
It will be of little comfort to Waterman that we agree with the District Court that,
had police effected a “seizure” on the porch, Waterman’s rights would have been violated

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because the anonymous tip did not provide officers with a reasonable suspicion that he
was armed. However, the absence of either element required for a “seizure” under
Hodari D. is fatal.
Accordingly, we will REVERSE the Order of the District Court suppressing the
evidence and REMAND for further proceedings.

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