United States v. Valentine ( 2000 )

Opinions of the United
2000 Decisions States Court of Appeals
for the Third Circuit
11-2-2000
United States v. Valentine
Precedential or Non-Precedential:
Docket 00-1425
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Filed November 2, 2000
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 00-1425
UNITED STATES OF AMERICA,
Appellant
v.
LARRY VALENTINE, a/k/a HASSAN DELOA TCH,
a/k/a HASSAN DELOACH, a/k/a SHAWN VALENTINE
On Appeal from the United States District Court
for the District of New Jersey
(D.C. Civil No. 99-cr-00345-1)
District Judge: Honorable Katharine S. Hayden
Argued October 6, 2000
Before: NYGAARD, GREENBERG and COWEN,
Circuit Judges
(Filed: November 2, 2000)
George S. Leone, Esq.
Michael F. Buchanan, Esq. (Argued)
Office of the United States Attorney
970 Broad Street, Rm. 700
Newark, NJ 07102
Counsel for Appellant
Kevin F. Carlucci, Esq. (Argued)
Office of the Federal Public Defender
972 Broad Street
Newark, NJ 07102
Counsel for Appellee
OPINION OF THE COURT
COWEN, Circuit Judge:
After receiving a tip from an infor mant, two officers
stopped Larry Valentine on a city str eet late at night and
discovered a gun. The gun was subsequently suppressed,
however, when the government pr osecuted Valentine for
being a felon in possession of a firear m in violation of 18
U.S.C. S 922(g)(1) and (2).
In suppressing the gun, the District Court r easoned that
under Florida v. J.L., 529 U.S. 266, 120 S. Ct. 1375 (2000)
the informant's tip about Valentine and the surrounding
circumstances did not provide reasonable suspicion that
Valentine was engaged in crime. The District Court also
concluded that Valentine's actions after the officers ordered
him to stop should not be considered, notwithstanding the
Supreme Court's analysis of seizures under the Fourth
Amendment in California v. Hodari D., 499 U.S. 621, 111
S. Ct. 1547 (1991).
We will reverse. We hold that the officers had reasonable
suspicion before ordering Valentine to stop. This case is
distinguishable from J.L. and our r ecent decision in United
States v. Ubiles, 224 F.3d 213 (3d Cir . 2000). We also
conclude that the District Court erred in interpreting
Hodari D. Valentine's acts after the officers ordered him to
stop should have been considered.
I
Around 1:00 a.m. on May 8, 1999, Officers W oodard and
Contreras were patrolling near the intersection of Columbia
and 18th Avenues in Irvington, New Jersey, an area that
the officers described in uncontradicted testimony as "very
2
bad" with "[a] lot of shootings." App. at 63. As the officers
approached the intersection, a young black man in his
early twenties flagged them down and explained that he
had just seen a man with a gun.
The informant said that the gunman was wearing a blue
sweat top, blue pants, and a gold chain around his neck.
He added that the suspect was dark skinned, had a beard,
and was accompanied by a young man. When asked to
identify himself, the informant refused, a response that
Officer Woodard testified is common, and one that is
understandable if the informant feared r etribution from the
armed man or entanglement with the police. The officers
did not question the informant further and immediately
went in search of the gunman.
About 50 to 100 feet north of the intersection wher e the
officers had met the informant, Woodard and Contreras saw
three men standing in a well-lit parking lot near a chicken
restaurant. One of the men matched the infor mant's
description of the armed suspect given moments ago, and
another was a young male in his twenties, also as the
informant described. The third was an older man who
appeared to be in his sixties.
The officers, who were in uniform and in a marked car,
stopped and stepped out of their vehicle. The thr ee men in
the parking lot reacted by walking away, northwards.
Contreras ordered the young male with Valentine to stop,
and he obeyed, putting his hands up and walking toward
the squad car. But when Woodar d told Valentine, who was
about ten feet away, to come over and place his hands on
the car, Valentine responded,"Who, me?" and charged
southwards toward Woodard. As Valentine ran, trying to
push aside Woodard's outstretched arms, the officer
grabbed his shirt and wrestled him to the gr ound. During
the scuffle, Woodard heard a ting as Valentine's silver, fully-
loaded handgun hit the ground. Neither officer had seen the
gun before that moment.
We have jurisdiction under 18 U.S.C. S 3731, and
conduct plenary review of the District Court's determination
of whether the officers had reasonable suspicion to stop
and frisk Valentine. Ornelas v. United States, 517 U.S. 690,
3
116 S. Ct. 1657 (1996); United States v. Riddick , 156 F.3d
505, 509 (3d Cir. 1998).
II
Under Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868 (1968)
and subsequent cases, "an officer may, consistent with the
Fourth Amendment, conduct a brief, investigatory stop
when the officer has a reasonable, articulable suspicion
that criminal activity is afoot." Illinois v. Wardlaw, 528 U.S.
119, ___, 120 S. Ct. 673, 675 (2000). Reasonable suspicion
is "a less demanding standard than pr obable cause and
requires a showing considerably less than preponderance of
the evidence." 528 U.S. at ___, 120 S.Ct. at 675-76.
Elaborating on this point, the Supreme Court has said,
"Reasonable suspicion is a less demanding standar d than
probable cause not only in the sense that r easonable
suspicion can be established with information that is
different in quantity or content than that required to
establish probable cause, but also in the sense that
reasonable suspicion can arise from infor mation that is less
reliable than that required to show probable cause."
Alabama v. White, 496 U.S. 325, 330, 110 S. Ct. 2412, 2416
(1990). The question we must address is whether Officers
Woodard and Contreras had the "minimal level of objective
justification" necessary for a Terry stop. United States v.
Sokolow, 490 U.S. 1, 7, 109 S. Ct. 1581, 1585 (1989). And
in evaluating reasonable suspicion, "we must consider ``the
totality of the circumstances--the whole picture.' " Sokolow,
490 U.S. at 8, 109 S.Ct. at 1585 (quoting United States v.
Cortez, 499 U.S. 411, 417, 101 S. Ct. 690, 696 (1981)).
We begin our analysis with the Supreme Court's recent
opinion, J.L., the case that prompted the District Court to
reconsider its initial denial of Valentine's suppression
motion. In J.L. the Supreme Court held that police officers
lacked reasonable suspicion to make a T erry stop when an
anonymous caller reported that "a young black male
standing at a particular bus stop and wearing a plaid shirt
was carrying a gun." Florida v. J.L., 529 U.S. at ___, 120
S.Ct. at 1377. The Supreme Court explained that the
precise issue before the Court was "whether the tip pointing
to J.L. had [sufficient] indicia of r eliability." 529 U.S. at ___,
4
120 S. Ct. at 1378. Finding the tip unreliable, the Court did
not consider under what circumstances a r eliable tip that
someone was carrying a gun would provide the police with
reasonable suspicion. Instead, the Court concluded, "All the
police had to go on in this case was the bar e report of an
unknown, unaccountable informant who neither explained
how he knew about the gun nor supplied any basis for
believing he had inside information about J.L." 529 U.S. at
___, 120 S.Ct. at 1379.
Discussing the reliability of anonymous tips, the Court
explained, "Unlike a tip from a known infor mant whose
reputation can be assessed and who can be held
responsible if her allegations turn out to be fabricated, see
Adams v. Williams, 407 U.S. 143, 146-147, 92 S. Ct. 1921,
1923-24 (1972), ``an anonymous tip alone seldom
demonstrates the informant's basis of knowledge or
veracity.' " J.L., 529 U.S. at ___, 120 S.Ct. at 1378 (quoting
Alabama v. White, 496 U.S. at 329, 110 S.Ct. at 2415).
Nevertheless, even in the context of probable cause, the
Court has rejected its earlier, inflexible two-prong test for
tips set forth in Aguilar v. Texas, 378 U.S. 108, 84 S. Ct.
1509 (1964) and Spinelli v. United States, 393 U.S. 410, 89
S. Ct. 584 (1969). Under Aguilar and Spinelli, the
government could not rely on a tip unless the government
could demonstrate both the basis of the infor mant's
knowledge and the informant's reliability or veracity. The
Court now uses a flexible standard that assesses the
relative value and reliability of an infor mant's tip in light of
the totality of the circumstances. See, e.g., Illinois v. Gates,
462 U.S. 213, 230-35, 103 S. Ct. 2317, 2328-30 (1983);
Alabama v. White, 496 U.S. at 329, 110 S.Ct. at 2415.
The informant's tip in our case is dif ferent from the
telephone call in J.L. First, unlike J.L., the officers in our
case knew that the informant was reporting what he had
observed moments ago, not what he learned fr om stale or
second-hand sources. At the suppression hearing, Officer
Woodard was asked, "Did [the infor mant] say how long ago
that he saw the individual carrying a gun?" W oodard
replied, "About--maybe a second ago, two seconds ago."
App. at 68. So the officers could expect that the informant
had a reasonable basis for his beliefs. The Supreme Court
5
has recognized the greater weight carried by a witness's
recent report, such as when "the victim of a street crime
seeks immediate police aid and gives a description of the
assailant." Adams v. Williams, 407 U.S. at 147, 92 S.Ct. at
1924.
Second, the officers had more reason to believe that the
informant was credible than the officers did in J.L., for a tip
given face to face is more reliable than an anonymous
telephone call. As the Fourth Circuit r ecently explained,
when an informant relates information to the police face to
face, the officer has an opportunity to assess the
informant's credibility and demeanor . United States v.
Christmas, 222 F.3d 141, 144 (4th Cir . 2000). And when an
informant gives the police information about a neighbor (as
in Christmas) or someone nearby (as in our case), the
informant is exposed to a risk of retaliation from the person
named, making it less likely that the informant will lie. Id.
Similarly, as the Fourth Circuit noted, "citizens who
personally report crimes to the police ther eby make
themselves accountable for lodging false complaints." Id.
(citing Illinois v. Gates, 462 U.S. at 233-34, 103 S.Ct. at
2329-30 (1983); Adams v. Williams, 407 U.S. at 146-47, 92
S.Ct. at 1923).
Many cases have recognized the differ ence between in-
person informants and anonymous telephone calls. See,
e.g., Florida v. J.L., 529 U.S. at ___, 120 S.Ct. at 1381
(Kennedy, J., concurring) ("If an informant places his
anonymity at risk, a court can consider this factor in
weighing the reliability of the tip. An instance where a tip
might be considered anonymous but nevertheless
sufficiently reliable to justify a pr oportionate police
response may be when an unnamed person driving a car
the police officer later describes stops for a moment and,
face to face, informs the police that criminal activity is
occurring."); Davis v. United States, No. 97-CF-1882, 2000
WL 1358490 (D.C. Sept. 21 2000) (An officer had pr obable
cause for a search after an informant who declined to give
his name flagged down the officer and told him that a man
nearby in a wheelchair was selling crack out of his right
shoe.); United States v. Salazar, 945 F .2d 47, 50-51 (2d Cir.
1991) ("[A] face-to-face informant must, as a general
6
matter, be thought more reliable than an anonymous
telephone tipster, for the former runs the greater risk that
he may be held accountable if his information proves
false."); United States v. Sierra-Her nandez, 581 F.2d 760,
763 (9th Cir. 1978) ("[A]lthough the informant did not
identify himself by name, he would have been available for
further questioning if the agent had judged the pr ocedure
appropriate. Unlike a person who makes an anonymous
telephone call, this informant confronted the agent
directly."); United States v. Gorin, 564 F.2d 159, 161 (4th
Cir. 1977) (per curiam) ("[S]tandar ds of reliability should
not prevent appropriate action when a victim of a crime
immediately has contacted the police. That same analysis
applies [when a witness informs the police in person about
a crime].").
Valentine contends that the District Court made a finding
that the informant left the area after giving the officers the
tip, and therefore this informant could not have been easily
held accountable. He also complains that the officers could
have questioned the informant further. In response to the
latter objection, we are not going to second-guess the
officers' decision to pursue the suspect immediately. The
officers knew the suspect was still in the vicinity, and had
they stalled for more lengthy questioning of the informant,
the armed suspect could have escaped detection.
In response to the former objection, we have reviewed the
record carefully and conclude that the District Court made
no factual finding about what the informant did. Indeed,
because no evidence was presented either way on the issue,
any factual finding that the informant did leave the area
would have been clearly erroneous. We simply do not know
what the informant did after the officers left.
What matters for our purposes is not that the officers
could guarantee that they could track down the infor mant
again. As the Supreme Court has said in cases like Gates,
the question is whether the tip should be deemed
sufficiently trustworthy in light of the total cir cumstances.
And in this case the circumstances support the reliability of
the tip: the informant was exposed to r etaliation from
Valentine and knew that the officers could quickly confirm
or disconfirm the tip; and the officers could assess the
7
informant's credibility as he spoke, knew what the
informant looked like, and had some opportunity to find
the informant if the tip did not pan out. Fr om the fact that
the officers acted, and acted quickly, after r eceiving the tip,
a court may deduce that the officers thought the tipster's
demeanor, voice, and perhaps a host of other factors
supported the reliability of the tip. Cf. Ornelas, 517 U.S. at
699, 116 S.Ct. at 1663 ("[A] police officer views the facts
through the lens of his police experience and expertise. The
background facts provide a context for the historical facts,
and when seen together yield inferences that deserve
deference.").
The reliability of a tip, of course, is not all that we must
consider in evaluating reasonable suspicion; the content of
the tip must also be taken into account, as well as other
surrounding circumstances. If we focus on the content of
the tip, Valentine can invoke our recent holding that, in
some contexts, even if police officers have a r eliable tip
saying that someone is carrying a gun, that infor mation
alone will not provide enough evidence to support a Terry
stop. See United States v. Ubiles, 224 F .3d 213 (3d Cir.
2000).
In Ubiles several officers were overseeing a festival in the
Virgin Islands when an elderly man appr oached them and
pointed out a man he had seen in the crowd with a gun.
We suppressed the gun recover ed from the officers' frisk of
the suspect, and explained, "For all the officers knew, even
assuming the reliability of the tip that Ubiles possessed a
gun, Ubiles was another celebrant lawfully exer cising his
right under Virgin Island law to possess a gun in public."
Id. at 218.
We also acknowledged, however, that r easonable
suspicion does not require that the suspect's acts must
always be themselves criminal. In many cases the Supreme
Court has found reasonable suspicion based on acts
capable of innocent explanation. Most recently, in Wardlaw
the Court held that headlong flight from the police in a
high-crime area provides reasonable suspicion, despite the
fact that flight is not by itself illegal and could have
completely lawful and rational explanations. The Court
explained:
8
Even in Terry, the conduct justifying the stop was
ambiguous and susceptible of an innocent explanation.
The officer observed two individuals pacing back and
forth in front of a store, peering into the window and
periodically conferring. Terry, 392 U.S., at 5-6, 88 S. Ct.
1868. All of this conduct was by itself lawful, but it
also suggested that the individuals were casing the
store for a planned robbery. T erry recognized that the
officers could detain the individuals to r esolve the
ambiguity. Id., at 30, 88 S. Ct. 1868.
Wardlaw, 528 U.S. at ___, 120 S.Ct. at 677.
Despite the obvious danger posed by an armed man in a
crowd, we concluded in Ubiles that the tip, standing alone,
did not provide reasonable suspicion because nothing in
"the defendant's behavior pointed to the pr esence of illegal
activity." 224 F.3d at 217. In particular , we said that under
the laws of the Virgin Islands, a citizen could lawfully
possess a gun during a festival, and there was no reason to
think Ubiles's gun was unregistered or had an altered serial
number, the two ways we mentioned that the gun
possession could have been illegal.
Our case is distinguishable from Ubiles. First, there is
the broader context. Valentine was walking around at 1:00
a.m. in a high-crime area known for shootings. While an
individual's presence in a high-crime ar ea is not by itself
sufficient to warrant a Terry stop, Wardlaw, 528 U.S. at
___, 120 S.Ct. at 676 (citing Brown v. Texas, 443 U.S. 47,
99 S. Ct. 2637 (1979)), "the fact that the stop occurred in a
``high crime area' [is] among the r elevant contextual
considerations in a Terry analysis." Id. (citing Adams v.
Williams, 407 U.S. at 144 and 147-48, 92 S. Ct. at 1922
and 1924). The constellation of likely criminal acts in a
high-crime area at 1:00 a.m. goes well beyond simply
carrying a gun without registration or with altered serial
numbers. Indeed, given the large number of potential
crimes and the danger posed by an armed criminal, we
think that if the police officers had done nothing and
continued on their way after receiving the informant's tip,
the officers would have been remiss. People who live in
communities torn by gunfire and violence are entitled to be
free from fear of victimization and have police investigate
9
before shootings occur. As the Supr eme Court said in
Wardlaw, when the police lear n of potentially suspicious
conduct, officers can stop and question the suspects to
resolve ambiguity about the suspects' conduct.
Moreover, it is well established that officers are allowed to
ask questions of anyone--and gun owners ar e no exception
--without having any evidence creating suspicion. Florida v.
Bostick, 501 U.S. 429, 434, 111 S. Ct. 2382, 2386 (1991)
("Since Terry we have held r epeatedly that mere police
questioning does not constitute a seizure."). Given that the
original rationale in Terry for per mitting frisks was to
safeguard officers while they ask questions, see Terry, 392
U.S. at 23-24, 88 S.Ct. at 1881, a ruling in V alentine's
favor would produce inexplicable results. We would be
holding that while diligent officers would have questioned
Valentine after receiving the tip, the officers were not
permitted to frisk him, even though they encountered him
late at night in a high-crime area known for shootings, and
even though, unlike Terry, the officers had specific, reliable
reasons for believing that he was armed. We do not think
the Supreme Court's jurisprudence supports such a result.
As the Supreme Court noted in a case much like ours, an
officer has "ample reason to fear for his safety" while
investigating a person reported to have a concealed weapon
at 2:15 in the morning in a high-crime ar ea. Adams v.
Williams, 407 U.S. at 147-48, 92 S.Ct. at 1924. See also
Terry, 392 U.S. at 23-24, 88 S.Ct. at 1881 ("[E]very year in
this country many law enforcement officers ar e killed in the
line of duty, and thousands more are wounded. Virtually all
of these deaths and a substantial portion of the injuries are
inflicted with guns and knives.").
In evaluating the totality of the circumstances, we must
also take into account that Valentine and the two men with
him immediately began walking away from the patrol car
when it arrived. Walking away from the police hardly
amounts to the headlong flight considered in Wardlaw and
of course would not give rise to reasonable suspicion by
itself, even in a high-crime area, but it is a factor that can
be considered in the totality of the cir cumstances. As the
Supreme Court recently said, "nervous, evasive behavior is
a pertinent factor in determining reasonable suspicion."
10
Wardlaw, 528 U.S. at ___, 120 S.Ct. at 676. See also United
States v. Sokolow, 490 U.S. at 8-9, 109 S.Ct. at 1585-86;
United States v. Brignoni-Ponce, 422 U.S. 873, 885, 95 S. Ct.
2574 (1975); Florida v. Rodriguez, 469 U.S. 1, 6, 105 S. Ct.
308, 311 (1984) (per curiam). As the First Cir cuit recently
stated in the context of a search of a taxi,"slouching,
crouching, or any other arguably evasive movement, when
combined with other factors particular to the defendant or
his vehicle, can add up to reasonable suspicion." United
States v. Woodrum, 202 F.3d 1, 7 (1st Cir. 2000) (citing
United States v. Sharpe, 470 U.S. 675, 682 n.3, 105 S. Ct.
1568, 1573 n.3 (1985); United States v. Aldaco , 168 F.3d
148, 152 (5th Cir. 1999)). See also United States v. Brown,
159 F.3d 147 (3d Cir. 1998).
In summary, we conclude that the officers had
reasonable suspicion after they received the face-to-face tip,
were in a high-crime area at 1:00 a.m., and saw Valentine
and his two companions walk away as soon as they noticed
the police car.
The government offers another gr ounds for distinguishing
this case from Ubiles. Unlike the V irgin Islands, New Jersey
not only makes it a crime when a person "knowingly has in
his possession any handgun, including any antique
handgun, without first having obtained a per mit to carry
the same," N.J.S.A. S 2C:39-5(b), but also New Jersey
presumes that someone carrying a handgun does not have
a permit to possess it until the person establishes
otherwise. See N.J.S.A. S 2C:39-2(b). New Jersey also has
strict permit requirements and a rigid investigation and
approval process that buttress the statutory presumption.
See N.J.S.A. S 2C:58-4.
Given the evidence supporting the informant's tip in this
case, we need not consider New Jersey's regulatory scheme
or determine under what circumstances New Jersey's
presumption would provide reasonable suspicion for a
Terry stop.
IV
The District Court expressly held that inquiry about
reasonable suspicion in this case should be confined to
11
events before Woodard order ed Valentine to stop. Because
the District Court reached this issue, we think it is
important to explain why that holding was err oneous.
While it is true that the "reasonableness of official
suspicion must be measured by what the officers knew
before they conducted their search," J.L., 529 U.S. at ___,
120 S.Ct. at 1379, the District Court's analysis did not take
into account that there can be no Fourth Amendment
violation until a seizure occurs. In Hodari D. the Supreme
Court held that for there to be a seizur e, the police must
apply physical force to the person being seized or, where
force is absent, have the person seized submit to a show of
police authority. Hodari D., 499 U.S. at 626-28, 111 S.Ct.
at 1550-51; Abraham v. Raso, 183 F.3d 279, 291 (3d Cir.
1999); United States v. Bradley, 196 F .3d 762, 768 (7th Cir.
1999). Thus, if the police make a show of authority and the
suspect does not submit, there is no seizur e. Hodari D.,
499 U.S. at 626, 111 S.Ct. at 1551; United States v.
$32,400 in United States Currency, 82 F .3d 135, 139 (7th
Cir. 1992). As the Supreme Court r ecently explained,
"Attempted seizures of a person are beyond the scope of the
Fourth Amendment." County of Sacramento v. Lewis, 523
U.S. 833, 845 n.7, 118 S. Ct. 1708, 1716 n.7 (1998). Cf.
Brower v. Inyo County, 489 U.S. 593, 596-97, 109 S. Ct.
1378, 1381 (1989) (A seizure did not occur during the 20
miles in which a police car, with flashing lights, chased a
suspect, and instead only occurred when the suspect's car
crashed into a police blockade.).
The facts of Hodari D. illustrate how the concept of a
seizure should be applied. When two police officers
approached a group of four or five youths gathered around
a car, the group immediately dispersed, prompting one
officer to pursue Hodari, the respondent. By taking a side
street, the officer was able to overtake Hodari. Surprised,
Hodari tossed away what appeared to be a small rock,
moments before the officer tackled him. The central
question before the Supreme Court was whether the small
rock, which turned out to be crack, should be suppressed.
The Court held that even assuming that the officers did
not have reasonable suspicion to stop Hodari when the
pursuit began, the crack should not have been suppr essed,
12
for Hodari never complied with the police officers' original
show of authority and therefore was not seized when he
threw the crack aside.
Other courts have applied Hodari D. and considered a
suspect's conduct after he failed to comply with an officer's
show of authority. See, e.g., United States v. Johnson, 212
F.3d 1313 (D.C. Cir. 2000); United States v. Smith, 217 F.3d
746 (9th Cir. 2000); United States v. Santamaria-
Hernandez, 968 F.2d 980 (9th Cir . 1992).
In Johnson, for example, two officers in an unmarked car
were patrolling a high-crime area and pulled into a parking
lot where two people were sitting in a parked car with a
young woman standing nearby. As the officers appr oached,
they saw the woman lean into the passenger's window and
hand the defendant, Johnson, an object. As the officers
drew closer, the woman walked away, and Johnson made
what the officers described as a "shoving down" motion.
Thinking Johnson might be armed, one officer drew his
gun, advised his partner to do the same, and shouted, "Let
me see your hands." 212 F.3d at 1315. But Johnson did
not comply and continued to shove down with his ar ms
several more times. In response, the officer quickly strode
up to the car, reached in, and discover ed crack.
The D.C. Circuit reasoned that if the seizure had taken
place when the officers drew their guns and ordered
Johnson to show his hands, the court "doubt[ed] very
much" whether the officers would have had r easonable
suspicion to make a stop. Id. at 1316. Johnson did not
comply, however, with the officers' show of authority. "On
the contrary, he continued to make ``shoving down' motions,
gestures that were the very opposite of complying with
Fulton's order, and which a reasonable officer could have
thought were actually suggestive of hiding (or retrieving) a
gun." Id. at 1316-17. Those actions, the court held, gave
the officers reasonable suspicion for the search that
revealed the crack. Cf. Watkins v. City of Southfield, 221
F.3d 883 (6th Cir. 2000) (A suspect's refusal to comply with
an officer's order to stop contributed to the officer's
suspicion.); United States v. Moorefield, 111 F.3d 10, 14 (3d
Cir. 1997) (When officers stopped the defendant's car, his
"furtive hand movements and refusal to obey the officers'
13
orders" helped provide the officers with reasonable
suspicion.).
We conclude that as in Johnson and Moorefield, what
Valentine did after he failed to comply with the police
officers' orders can be considered in evaluating reasonable
suspicion. Valentine hopes to distinguish cases like
Johnson and Smith by claiming that in fact he had already
been seized before he charged towar d Officer Woodard. He
says that when Woodard order ed him to come over and
place his hands on the car, he momentarily"complied" with
the order, stopped, and gave his name. This "compliance,"
he protests, was enough to trigger a seizur e.
We have reviewed the record carefully and find no
evidence in support of Valentine's theory that he even
momentarily complied, and some evidence, such as
Woodard's police report, appears to rebut the theory. But
regardless, no factual determination is necessary, for even
if we accept Valentine's version, it would not show that he
was seized before he charged Woodard.
Under some circumstances we have held that a
defendant was seized despite his subsequent flight. In
United States v. Coggins, 986 F.2d 651, 653-54 (3d Cir.
1993) police officers stopped the defendant in a stairwell at
an airport and asked him a number of questions, which he
answered. After the defendant later asked per mission to go
to the bathroom and was allowed to leave, hefled. On
appeal we rejected the government's ar gument that the
defendant had not been seized.
But Valentine's case is easily distinguishable, for his
momentary "compliance" is a far cry fr om the lengthy
detention in Coggins. Cf. United States v. Hernandez, 27
F.3d 1403, 1407 (9th Cir. 1994) (The defendant's
momentary hesitation and direct eye contact with officer
prior to his flight did not constitute a seizur e.); United
States v. Sealey, 30 F.3d 7, 10 (1st Cir . 1994) (A defendant
was not seized when an officer approached him and called
out, "Hey Stephen, what's up?"); United States v.
Washington, 12 F.3d 1128, 1132 (D.C. Cir. 1994) (The
defendant was not seized when he stopped his car at the
curb in response to police commands, but then sped away
14
when the officer approached on foot.). Even if Valentine
paused for a few moments and gave his name, he did not
submit in any realistic sense to the officers' show of
authority, and therefore there was no seizure until Officer
Woodard grabbed him.
And once we consider Valentine's actions after Woodard's
order, it is clear that we have an independent ground for
finding that the officers had reasonable suspicion. For if
headlong flight in a high-crime area pr ovides reasonable
suspicion under Wardlaw, then charging toward a police
officer in a high-crime area also by itself provides
reasonable suspicion.
For the foregoing reasons, the District Court's order of
April 27, 2000, will be reversed. The case will be remanded
to the District Court for further proceedings consistent with
this opinion.
A True Copy:
Teste:
Clerk of the United States Court of Appeals
for the Third Circuit
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