United States of America v. Christopher Waterman

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
v.
CHRISTOPHER WATERMAN,
Appellant
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Appeal from the United States District Court
for the District of Delaware
(D.C. Criminal No.1-07-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 : June 24, 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
Edson A. Bostic, Esq.
Brian Crockett, Esq. [ARGUED]
Tieffa N. Harper, Esq.
Office of Federal Public Defender
704 King Street
First Federal Plaza, Suite 110
Wilmington, DE 19801
Counsel for Defendant-Appellee
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).
The District Court held that police effected a Terry stop,
that reasonable suspicion for the stop was lacking, and that

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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. 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 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

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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 on

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For example, the Supreme Court explained that a police1
command to “Stop, in the name of the law!” – unaccompanied
by physical contact with the suspect – does not constitute a
“seizure.” Hodari D., 499 U.S. at 626.
Hodari D. suggests that touching is required – “[t]here can2
be no arrest without either touching or submission,” 499 U.S. at
626-27 – but at least one other court has found the Court in
Hodari D. not to be “explicit” on this point, believing the Court
may have “assumed” it. See United States v. Holloway, 962
F.2d 451, 456 (5th Cir. 1992). We need not decide whether
contact is necessary to effect a “seizure,” as our holding is
tailored to the facts presented: the police conduct here did not
involve physical force, as the police merely drew their guns.
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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
(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 the application of1
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

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Although Hodari D. involved a suspect engaged in headlong3
flight, we have since 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).
See, e.g., United States v. Brown, 448 F.3d 239, 245-46 (3d4
Cir. 2006); Valentine, 232 F.3d at 358; Coggins, 986 F.2d at
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pause or mere inaction. The Court did not differentiate3
between an “arrest” and a 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

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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 defendant5
flees after police draw 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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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 physical force 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.

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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 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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