TROY K. GREEN, PETITIONER V. UNITED STATES OF AMERICA No. 90-5729 In The Supreme Court Of The United States October Term, 1990 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The District Of Columbia Circuit Brief For The United States In Opposition OPINION BELOW The opinion of the court of appeals (Pet. App. 2a-7a) is not reported, but the judgment is noted at 901 F.2d 1131 (Table). JURISDICTION The judgment of the court of appeals was entered on May 3, 1990. A petition for rehearing was denied on June 18, 1990. The petition for a writ of certiorari was filed on September 14, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTIONS PRESENTED 1. Whether petitioner was seized within the meaning of the Fourth Amendment when plainclothes officers pulled up behind the parked car in which he was sitting, got out, and began to approach him with their badges out and hands on their holstered guns. 2. Whether evidence discarded by petitioner as the police pursued his speeding car, and evidence discovered subsequent to his arrest, should have been suppressed as the product of illegal police conduct. STATEMENT Following a jury trial in the United States District Court for the District of Columbia, petitioner was convicted on one count of possession of 50 grams or more of cocaine with the intent to distribute it, in violation of 21 U.S.C. 841(a)(1). /1/ He was sentenced to 151 months' imprisonment, to be followed by a five-year term of supervised release. The court of appeals affirmed. Pet. App. 2a-7a. 1. The evidence adduced at the suppression hearing established that on the evening of March 1, 1989, two plainclothes police officers on patrol in Washington, D.C., had stopped their unmarked car to speak with an acquaintance when they saw petitioner and Curtis Wilson emerge from a nearby apartment complex. Wilson was carrying an opaque plastic bag. When they were about 14 feet away from the police car, one of the two men bent down and looked into the car. Wilson stuffed the plastic bag tightly up under his arm, and both men turned around quickly and retreated into the building. Pet. App. 5a, 9a-12a; I Supp. Tr. 2-9. /2/ Shortly afterwards, Officer Reynolds saw the two men peeking around the corner of the apartment complex. The officers started driving down the street, and from his rear view mirror, Officer Reynolds saw the men leave the building, look toward the police car, and walk in the opposite direction. Wilson was still carrying the plastic bag. The men disappeared around the corner. Pet. App. 5a, 12a; I Supp. Tr. 9-10. Officer Reynolds then backed his car down the block and eventually pulled up behind a parked car in which petitioner and Wilson were seated. The lights of the parked car were off and the motor was running. The officers stopped their car and started to get out. Officer Reynolds, who had his badge in one hand and his other hand on his holstered gun, said "Police." Before the officers could approach the other car, however, the two men drove off at a high rate of speed, still with the car's lights off. Pet. App. 6a, 12a-13a; I Supp. Tr. 11-12. The officers pursued the car for several blocks, as it continued to drive very fast and on the wrong side of the street, running stop signs and a red light. Although it was dark, the car's lights were never turned on. During the chase, Officer Reynolds saw petitioner throw two plastic bags from the driver's side of the car. Pet. App. 13a; I Supp. Tr. 12-13, 56-57. Another police vehicle finally stopped petitioner's car, and petitioner and Wilson were ordered out of the car. Officer Reynolds returned to the area where he had seen the two bags discarded, found that they contained crack cocaine, and radioed to the officers who were detaining petitioner and Wilson to arrest them for possession of cocaine. Pet. App. 14a-15a; I Supp. Tr. 15-16, 57-58. Later analysis established that the bags contained more than 160 grams of cocaine base. A search of the car petitioner had been driving revealed a measuring cup, two walkie-talkies, and the plastic bag Wilson had been carrying. In addition, $420 was found in a search of petitioner's person. Pet. App. 15a-16a; I Supp. Tr. 16-18. The evidence at trial was substantially the same as that elicited at the suppression hearing. Gov't C.A. Brief 8-11. Petitioner called as his only witness his father, Kenneth Green, who testified that he had been playing cards on the afternoon of March, 1, 1989, when his son asked him for some money. The elder Green said he gave his son $15 to spend, and he said that in order to avoid losing too much money at the card game, he asked his son to take another $450 home with him. III Trial Tr. 28-29. 2. The district court denied petitioner's motion to suppress, finding that no Fourth Amendment seizure took place when the officers pulled up behind petitioner's car, got out, and identified themselves as police officers. Therefore, the court ruled, the officers needed neither probable cause nor reasonable suspicion to approach the two men. Pet. App. 19a. The court went on to hold that once petitioner and Wilson sped off, driving recklessly, the officers had probable cause to arrest them for the traffic violations. The discovery of the abandoned plastic bags of cocaine gave the officers probable cause to arrest the men for possession of drugs and to search them and their car. Pet. App. 20a-21a. Alternatively, the district court found that the officers had reasonable suspicion to stop the two men after they observed their furtive behavior. Pet. App. 21a-23a. 3. On appeal, petitioner argued that a reasonable person in his position would have believed that the men who pulled up behind his car were not police officers, but "street thugs lying in wait to rob (him and his companion)," so that he and Wilson did not feel free to stay. Pet. App. 7a. Therefore, he argued, the officers' conduct constituted a Fourth Amendment seizure. The court of appeals was unpersuaded, however. Affirming the district court's "no seizure" ruling, the court of appeals found that "Officer Reynolds' testimony at the suppression hearing establishes * * * that (petitioner) knew that the men approaching him were police officers." Thus, a reasonable person would not have felt threatened by the police officers; the officers' act of getting out of their car to approach petitioner's car therefore was not a "seizure" within the meaning of the Fourth Amendment. Ibid. ARGUMENT 1. Petitioner renews his claim (Pet. 17-48) that an unlawful seizure occurred when the plainclothes officers stopped their car behind his and began to approach his car. He argues, as he did in the court of appeals, that a reasonable person in his position would have feared that he was being aggressively confronted by armed street thugs, not by plainclothes police officers. The conduct of the officers, he argues, was so threatening that a reasonable person would not have believed he was free to stay. For that reason, petitioner argues, the police conduct in this case constituted a Fourth Amendment seizure. The court of appeals correctly found that there was no merit to this contention. A person is seized for purposes of the Fourth Amendment when an officer "has in some way restrained (his) liberty." Terry v. Ohio, 392 U.S. 1, 19 n.16 (1968). Accord Brower v. County of Inyo, 109 S. Ct. 1378, 1380 (1989); Tennessee v. Garner, 471 U.S. 1, 7 (1985) (there is no seizure unless the officer has "restrain(ed) the freedom of a person to walk away"). In making such determinations, courts employ an objective test: a seizure occurs "only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave." Michigan v. Chesternut, 486 U.S. 567, 573 (1988), quoting United States v. Mendenhall, 446 U.S. 544, 554 (1980) (opinion of Stewart, J.). Accord Florida v. Royer, 460 U.S. 491, 502 (1983) (plurality opinion). Applying that test to the facts of this case, the courts below correctly concluded that nothing about the officers' conduct was so objectively intimidating or coercive that petitioner and Wilson could reasonably have concluded that they were being seized, or, as petitioner puts it, not "free to stay." As the district court noted, the officers had not ordered the men to stop, to pull over, or to get out of their car. The officers had simply stopped behind petitioner's stationary car and had begun to get out and approach petitioner's car when petitioner and Wilson suddenly sped away. Pet. App. 19a. The police car did not block the path of petitioner's car, the officers did not use sirens or flashing lights to indicate that the car's occupants should stop and submit to police authority, nor did they display any weapons. In these circumstances, a reasonable person would not have concluded that his freedom of movement was being restrained. Michigan v. Chesternut, 486 U.S. at 575-576; United States v. Adegbite, 846 F.2d 834, 837-838 (2d Cir. 1988), cert. denied, 110 S. Ct. 370 (1989); United States v. Castellanos, 731 F.2d 979, 982-984 (D.C. Cir. 1984). The sole basis for petitioner's claim that the court of appeals erred in finding no seizure is his argument that the actions of the police officers would have led a reasonable person to mistake them for street thugs about to asault petitioner and his companion. Thus, he claims, the conduct of the police was sufficiently threatening to constitute a Fourth Amendment seizure. The courts below, however, rejected the factual premise of petitioner's argument by concluding that the evidence supported a finding that petitioner knew the men who were approaching him were police officers. Pet. App. 7a, 23a. Officer Reynolds testified that he patrolled that area frequently, had stopped many cars and made numerous arrests, and that he was well known to be a police officer. I Supp. Tr. 25. He also testified that he thought he recognized petitioner as someone he had stopped on a previous occasion. Id. at 25-26. In addition, Reynolds testified that his presence in a car with a white man in that particular neighborhood, at night, would have made anyone in the area suspect them of being police officers. Id. at 43-44. Officer Reynolds was quite sure that petitioner recognized him as a police officer once the two men looked into the police car and then retreated quickly into the building they had just left. Id. at 44-45. There is thus ample support for the court of appeals' conclusion that a reasonable person in petitioner's position (and having petitioner's knowledge that the men approaching him were police officers) would not have felt threatened by the officers' actions. Petitioner's contention that the court of appeals erred in drawing that conclusion is a fact-bound question that is not appropriate for this Court's review. United States v. Reliable Transfer Co., Inc., 421 U.S. 397, 401 n.2 (1975); Berenyi v. Immigration Director, 385 U.S. 630, 635 (1967). Even if a seizure did occur when the officers pulled up behind petitioner's car and began to get out, the district court found that any seizure that occurred was supported by reasonable suspicion. First, the officers saw the men approach their car from an apartment building, bend down and look into their car from a few feet away, and then immediately turn and go back inside the building, while one of the men apparently tried to conceal a bag he was carrying. The officers then saw the same two men peering around the corner of the building, looking toward the officers' car, and then walking in the opposite direction from the officers' car. Finally, the officers found the men sitting in a parked car with the engine running but the lights turned off. These observations, taken together, provided the officers with an objective, articulable basis for suspecting that some criminal activity might be afoot. See United States v. Sokolow, 109 S. Ct. 1581, 1585 (1989); United States v. Cortez, 449 U.S. 411, 417-418 (1981). Contrary to petitioner's argument (Pet. 40-48), it is not significant that the two officers may have had different opinions about exactly what kind of criminal conduct was going on, nor does it matter that they did not actually observe criminal behavior. The concepts of probable cause and reasonable suspicion are based not on certainties, but on probabilities. United States v. Cortez, 449 U.S. at 418. It is precisely because reasonable suspicion connotes a substantial degree of uncertainty that a brief detention for futher investigation is deemed necessary and appropriate. Terry v. Ohio, 392 U.S. at 22-23, 26-27. 2. Petitioner further argues (Pet. 48-59) that his flight and abandonment of the drugs were caused by the unlawful actions of the police, so that the evidence discovered as a result of those actions should be suppressed as the fruits of an illegal detention. But because it is clear that the police did nothing unlawful, this claim is obviously without merit. As the district court observed, "(d)efendants were within their right to refuse * * * to talk to the police officers if they didn't want to, but what they did, instead, was to take off with reckless driving which certainly then gave the officers the right to pursue." Pet. App. 20a. Because the police committed no unlawfu action either in approaching petitioner in his car or in pursuing him when he sped off and drove recklessly through city streets, their discovery of both the evidence he abandoned and that found in searches incident to his subsequent arrest was entirely lawful and not the product of any illegal police conduct. See Michigan v. Chesternut, 486 U.S. at 569, 574-576; Abel v. United States, 362 U.S. 217, 241 (1960); Hester v. United States, 265 U.S. 57, 58 (1924). CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General ROBERT S. MUELLER, III Assistant Attorney General KATHLEEN A. FELTON Attorney DECEMBER 1990 /1/ Petitioner was tried jointly with Curtis Wilson. The district court granted Wilson's motion for a judgment of acquittal. /2/ "I Supp. Tr." refers to the transcript of the suppression hearing, held on April 25, 1989.