Citing Hodari D., the Third Circuit reverses District Court’s order suppressing evidence.

In United States v. Waterman, No. 08-2543, June 24, 2009, the Court of Appeals reversed the District Court’s suppression of evidence and remanded for further proceedings.

The facts of the case are as follows: Police officers responded to a dispatcher’s report of an anonymous caller’s observation of a "subject" with a gun at a specific location. Upon arrival at the location the officer’s observed five individuals standing on the front porch of a house. The officer’s exited their vehicle and without seeing any weapons, ordered the individuals to put their hands in the air. All individuals complied, except one - Waterman - who kept his hands in his jacket pockets. The officers, who still had not seen any weapons, removed their firearms and repeatedly ordered Waterman to show his hands. Waterman didn’t comply and, instead, entered the residence. Guns and drugs were subsequently discovered in the residence.

The district court suppressed the recovered evidence concluding that Waterman was "stopped" under Terry when the officers commanded everyone to put their hands in the air. That "stop" lacked reasonable suspicion and therefore was an unlawful seizure warranting suppression.

The Court of Appeals disagreed. Citing the Supreme Court’s decision in Hodari D., the Court noted that a "seizure"does not occur until one of two things takes place: either "physical force/contact" with the defendant or "submission to the assertion of authority." To establish "physical force" there has to be more than just of a "show of authority" - it requires the "application of force" or "laying on of hands." To establish "submission" there has to be more than just a "momentary pause or inaction," - it requires, at minimum, a suspect’s "manifest compliance with police orders."

The Court of Appeals concluded there was neither "physical force" nor "submission" and therefore there was no "seizure." While the Court held that officers drawing their firearms was a "display of force," it nonetheless fell short of the "physical force" required under Hodari D. Likewise, the Court held there was no "submission" because Waterman did not comply with the officer’s commands.

The irony was in the Court’s conclusion that, "had police officers effected a ‘seizure’ on the porch, Waterman’s rights would have been violated" under Hodari D. In other words, if he stayed on the porch and submitted to their authority, the recovered evidence would have been suppressed. But because he retreated, the recovery of evidence was lawful.