©2011 Brian S. Batterton, Attorney, PATC Legal & Liability Risk Management Institute (www.llrmi.com) 2011 11th Circuit, United States v. Shepard

In 1991, the United States Supreme Court decided California v. Hodari [i] which involved the issue of when a seizure of a person takes place.  In Hodari, officers entered a high-crime neighborhood in unmarked police cars.  When Hodari observed the police car approach, he fled on foot.  An officer wearing a jacket that identified him as a police officer gave chase on foot.  Just as the officer was about to catch him, Hodari threw a rock of suspected crack cocaine.  The officer tackled Hodari and recovered the rock of crack cocaine.

The issue before the court was whether Hodari had been seized at the time he abandoned the rock of crack cocaine.  The Supreme Court said that there are two types of seizures of persons.  The first type occurs when the police apply physical force (however slight) and physically seize a person.  The second type of seizure occurs when a person submits to an officers “show of authority.”

The court then held that Hodari was not seized at the time he abandoned the rock of crack cocaine.  The court reasoned that up until he abandoned the drugs, Hodari had not been physically touched.  Therefore, the first type of seizure (physical) did not take place.  Further, when Hodari ran from the police as they chased him he certainly was not submitting to a show of authority.  Thus, while the pursuit by the police may have been a show of authority, Hodari did not submit.  As such, Hodari was not seized under the Fourth Amendment prior to abandoning the drugs.

On April 19, 2011, the Eleventh Circuit Court of Appeals decided the United States v. Shepard [ii] , a case that applied the principals from Hodari.  The facts of Shepard are as follows:

On December 9, 2005, officers observed Renaldo Shepard and a male companion exit a known drug-distribution location and walk toward them. Shepard contends they walked on the sidewalk; the officers testified they walked down the middle of the street, in violation of an Atlanta ordinance. The officers exited their vehicle, approached the men, and asked them to stop. Shepard fled. While the officers gave chase, they observed Shepard reach into his pocket and discard an item. Upon apprehending Shepard, the officers found a firearm and ammunition on his person, and they retrieved the discarded item—later identified as a bag of marijuana and crack cocaine. Shepard made incriminating statements during and after his arrest. [iii]

Shepard was convicted of drug and gun charges and he appealed to the Eleventh Circuit Court of Appeals.  On appeal, he argues that, since the district court denied his motion to suppress but assumed for the purpose of that motion that that he was on the sidewalk as opposed to the street, the officers discovered the drugs and gun as a result of an illegal stop; since the stop was illegal, the evidence and statements he made should be suppressed as “fruit of the poisonous tree.”

The court then examined Shepard’s argument.  Shepard opined that the officers articulated their attempted stop of him based upon a violation of an ordinance regarding pedestrian duties.  Since the district court, in its order denying the motion to suppress, accepted Shepard’s assertion that he had really been walking on the sidewalk, Shepard, on appeal, argues that the officer’s initial approach to him was not justified.  As such, he argues that the district court should have granted his motion to suppress all evidence and his statements.

In considering applicable precedent, the Eleventh Circuit stated

Fourth Amendment protections are triggered when a “seizure” occurs, that is, “when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen . . . .” See Terry v. Ohio, 392 U.S. 1, 19 n.16 (1968). But Fourth Amendment protections are not implicated when police officers merely approach an individual and ask questions. Florida v. Bostick, 501 U.S. 429, 434-35. [iv]

The court then found that the officer’s initial approach of Shepard did not physically restrain Shepard in any way or constitute a show of authority. [v]   Thus, there was no physical seizure.  Further the court found that even if the initial approach did constitute a “show of authority,” under California v. Hodari, since Shepard did not submit to the show of authority when he fled, there would still be no seizure.  Thus, there was no submission to a “show of authority” seizure.

Therefore, since Shepard abandoned the drugs before he was seized, suppression of the evidence and statements was not warranted.


NOTE:    Court holdings can vary significantly between jurisdictions.  As such, it is advisable to seek the advice of a local prosecutor or legal advisor regarding questions on specific cases.  This article is not intended to constitute legal advice on a specific case.



[i] 499 U.S. 621 (1991)

[ii] No. 09-11442, 2011 U.S. App. LEXIS 8143 (11th Cir. 2011 Unpub)

[iii] Id. at 1-2

[iv] Id. at 3

[v] Id.

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