from the United States District Court No. 2:15-CR-20078-JAR-1
for the District of Kansas
A. Nichols, Assistant Federal Public Defender (Melody
Brannon, Federal Public Defender, with her on the briefs),
Kansas Federal Public Defender, Topeka, Kansas, for the
Stephen A. McAllister, United States Attorney (Carrie N.
Capwell, Assistant United States Attorney, with him on the
brief), Office of the United States Attorney, Kansas City,
Kansas, for the Plaintiff-Appellee.
TYMKOVICH, Chief Judge, BACHARACH, and McHUGH, Circuit
BACHARACH, CIRCUIT JUDGE.
appeal stems from a search, which took place after the police
spoke with the defendant, Mr. Desmond Gaines. After a brief
exchange, Mr. Gaines fled but was soon captured. The police
then found cocaine, marijuana, PCP, drug paraphernalia, over
$640, and a handgun. Mr. Gaines unsuccessfully moved to
suppress this evidence. He now appeals,  and we focus on
1. The existence of a seizure. Two uniformed police
officers approached Mr. Gaines with flashing roof lights and
confronted him about a report that he was selling PCP. Did
this confrontation entail a seizure? The answer turns on
whether a reasonable person would have felt free to leave or
terminate the encounter. We answer "no" and
characterize the encounter as a seizure.
2. The attenuation of a possible Fourth Amendment
violation. After effecting a seizure, the police
allegedly acquired probable cause and learned of an
outstanding arrest warrant. Did the development of probable
cause or the subsequent discovery of the arrest warrant
attenuate the connection between the seizure and the
evidence? We answer "no," so introduction of the
evidence can't be supported by attenuation of a Fourth
our conclusions on these two issues, we vacate the denial of
Mr. Gaines's motion to suppress.
The Kansas City police approach Mr. Gaines in marked police
cars and question him about a report that he is selling
morning, the police in Kansas City, Kansas, received a 911
call reporting that a man dressed in red had just sold drugs
in a parking lot. Based on this information, police officers
Carl Rowland and Shenee Davis responded.
police officers pulled into the parking lot in two separate
police cars and turned on their roof lights. They parked
behind a car in which a man in red clothing (Mr. Gaines) was
seated. Officer Rowland gestured for Mr. Gaines to get out of
the car. He did, and Officer Rowland confronted Mr. Gaines
with the report that he was selling drugs. The police
officers soon observed an open container of alcohol and
smelled PCP. When they said they were going to detain Mr.
Gaines, he grabbed a pouch from his car and fled. The police
caught Mr. Gaines and discovered the evidence that underlies
Was there a seizure?
threshold issue is applicability of the Fourth Amendment.
This amendment applies if the police had seized Mr. Gaines;
it doesn't if the encounter had been consensual.
United States v. Reeves, 524 F.3d 1161, 1166 (10th
Cir. 2008). The district court characterized the entire
encounter as consensual. To determine whether the encounter
was consensual or constituted a seizure, we apply a dual
standard of review, using the clear-error standard for the
district court's findings of historical fact and de novo
review for the court's legal conclusions. United
States v. Roberson, 864 F.3d 1118, 1121 (10th Cir.
existence of a seizure involves a matter of law. See
United States v. Salazar, 609 F.3d 1059, 1064 (10th Cir.
2010) (stating that determining "when the seizure
occurred . . . is a legal [question]"). On this matter
of law, we consider whether Mr. Gaines yielded to a police
officer's show of authority. California v. Hodari
D., 499 U.S. 621, 626-27 (1991). To answer this question
of law, we apply an objective test, considering whether a
reasonable person would have felt free to leave or terminate
the encounter. Florida v. Bostick, 501 U.S. 429, 436
(1991). We apply this objective test to the historical facts,
which are largely undisputed. Even if a reasonable person
would not have felt free to leave, a seizure would occur only
if the suspect yielded to a police officer's show of
authority. Hodari D., 499 U.S. at 626-27.
let's consider how a reasonable person would have felt,
facing the same circumstances that Mr. Gaines confronted. The
encounter began with Mr. Gaines sitting in his car in a
parking lot. Two uniformed police officers arrived in marked
police cars, both flashing their roof lights. Would a
reasonable person have felt free to leave? Perhaps. But the
flashing roof lights,  two marked police cars, and two uniformed
officerswould undoubtedly have cast at least some
doubt on a reasonable person's belief in his or her
freedom to leave.
doubt would likely have intensified in Kansas (where Mr.
Gaines was stopped) because of Kansas's traffic laws.
See Berkemer v. McCarty, 468 U.S. 420, 436-37 (1984)
(considering the laws of most states, which criminalize the
failure to heed a police officer's signal to stop, as
informative on whether the defendant reasonably believed that
he wasn't free to leave). Under Kansas law, motorists
must stop whenever a police officer flashes his or her
emergency lights. Kan. Stat. Ann. § 8-1568(a)(1), (d).
district court minimized the impact of the flashing roof
lights, crediting testimony by the police officers that they
had activated their lights only because their cars were
blocking a lane of traffic. But the officers' subjective
intent had little bearing on whether a reasonable person
would have thought that he or she could leave. See
Brendlin v. California, 551 U.S. 249, 260-61 (2007)
("The intent that counts under the Fourth
Amendment" is the intent conveyed to the suspect, and
the court does not consider the officers'
"subjective intent when determining who is
seized."); see also United States v.
Mendenhall, 446 U.S. 544, 554 n.6 (1980) (concluding
that a law-enforcement agent's "subjective intention
. . . to detain the respondent, had she attempted to leave,
is irrelevant except insofar as that may have been conveyed
to the respondent").
let's assume that a reasonable person would have felt
free to drive away at this point. One of the police officers
then exited his car and gestured for Mr. Gaines to get out of
the car. Here is what our reasonable person would have seen:
minimum, the police officer's gesture would have cast
further doubt on a reasonable person's belief that he or
she was free to drive away. See Santos v. Frederick Cty.
Bd. of Comm'rs, 725 F.3d 451, 462 (4th Cir. 2013)
(holding that two deputy sheriffs' gestures to stay
seated constituted a seizure).
let's assume that a reasonable person would still have
felt free to leave. As Mr. Gaines exited the car, one police
officer stood just a few feet away and said that they had
come because of a report that Mr. Gaines was "up here
selling some dope." The police officer then asked Mr.
Gaines whether he had been selling "wet"
(street-language for PCP). Meanwhile, another uniformed
police officer circled the car, looking inside.
reasonable person have felt free to leave? At a minimum, the
accusatory question would have added to the reasonable
person's doubt about his or her freedom to return to the
car and drive away. See United States v. Glass, 128
F.3d 1398, 1407 (10th Cir. 1997) (stating that
"particularized focus" on an individual "is
certainly a factor" to consider when determining whether
a seizure took place).
were the five circumstances that confronted Mr. Gaines:
1. He was sitting in his car when two marked police cars
approached and stopped right behind him with their roof
2. Both police officers were uniformed.
3. One police officer gestured for Mr. Gaines to get out of
4. Mr. Gaines exited his car, and one of the police officers
said that they had come based on a report that he was selling
PCP in the parking lot.
5. While one police officer told Mr. Gaines that someone had
accused him of selling PCP, the other police officer circled
Mr. Gaines's car and looked inside.
these circumstances as a whole, we conclude that (1) the
police officers showed their authority and (2) no reasonable
person would have felt free to leave.
the encounter would constitute a seizure only if Mr. Gaines
had yielded to the show of authority. He ultimately fled, so
the government denies that Mr. Gaines yielded. We disagree.
One officer gestured for Mr. Gaines to get out of his car,
and he did. When Mr. Gaines was asked questions, he
responded. See United States v. Camacho, 661 F.3d
718, 726 (1st Cir. 2011) (stating that a suspect
"submitted" to a police officer's "show of
authority by responding to his questions"). And when Mr.
Gaines was asked for his identification, he opened his car
trunk to look for his identification.
Gaines then fled. But by that point, he had already yielded
to the show of authority. We addressed a similar issue in
United States v. Morgan, 936 F.2d 1561 (10th Cir.
1991). There the defendant exited his car and fled after
asking the officer: "What do you want?"
Morgan, 936 F.2d at 1566. We considered this single
question enough to conclude that the defendant had yielded to
authority. Id. at 1567. By comparison, Mr. Gaines