United States v. Skyler Holley ( 2015 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4515
UNITED STATES OF AMERICA,
Plaintiff - Appellant,
v.
SKYLER JEVELLE HOLLEY,
Defendant - Appellee.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Greenville. W. Earl Britt,
Senior District Judge. (4:14-cr-00006-BR-1)
Argued: January 27, 2015 Decided: February 27, 2015
Before NIEMEYER, THACKER, and HARRIS, Circuit Judges.
Reversed and remanded by unpublished opinion. Judge Harris
wrote the opinion, in which Judge Niemeyer and Judge Thacker
joined.
ARGUED: Jennifer P. May-Parker, OFFICE OF THE UNITED STATES
ATTORNEY, Raleigh, North Carolina, for Appellant. Eric Joseph
Brignac, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh, North
Carolina, for Appellee. ON BRIEF: Thomas G. Walker, United
States Attorney, J. Frank Bradsher, Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North
Carolina, for Appellant. Thomas P. McNamara, Federal Public
Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PAMELA HARRIS, Circuit Judge:
Defendant-Appellee Skyler Jevelle Holley (“Holley”) was
charged with being a felon in possession of a firearm, in
violation of 18 U.S.C. §§ 922(g)(1) and 924. Holley filed a
motion to suppress evidence seized by Deputy John McArthur
(“McArthur”) after an investigatory stop of a vehicle in which
Holley was a passenger, on the ground that McArthur lacked
reasonable suspicion to justify the stop. The district court
granted the motion to suppress. The government appeals, arguing
that under the totality of the circumstances, McArthur did have
reasonable suspicion to conduct the stop. We agree and
therefore reverse the district court’s order.
I.
A.
The parties agree that McArthur’s official written report
of the incident and the few factual proffers in the suppression
hearing provide the relevant facts. According to the report,
McArthur was in Edenton, North Carolina, when the police chief
radioed a “be on the lookout” (“BOLO”) immediately after
receiving a call from a confidential informant. The informant,
identifying Holley by name, stated that Holley had “just” pulled
a gun on someone near the Crown Mart on Oakum Street and then
left the scene in a white Cadillac.
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When McArthur heard the BOLO, he was “across town” from the
Crown Mart on Virginia Avenue, where he saw a white Cadillac
with two black males inside, heading north. McArthur testified
that he had not met Holley previously but had seen a headshot of
him, and the district court inferred from that testimony that
McArthur knew Holley was a black man. McArthur judged that
enough time had passed for the Cadillac to make it to his
location from the Crown Mart, and believed that he had found the
suspect vehicle.
McArthur turned on his car’s blue lights and sped up to
catch the Cadillac. When he was behind the vehicle, he
activated his siren to indicate that the driver should pull
over, noting that the front-seat passenger was “leaned back” in
his seat and appeared to be “trying to hide his identity.”
The Cadillac failed to stop and continued to travel north
before making a right turn. Twice the vehicle appeared as
though it was about to pull over, but did not. The Cadillac
traveled at a “slow speed,” but based on the “erratic” driving
and failure to stop, McArthur believed that Holley was inside.
The vehicle then turned left into a driveway and stopped,
and McArthur pulled in behind it. When he saw the front-seat
passenger move to exit the vehicle, McArthur drew his weapon and
ordered him back into the car. After a backup officer arrived,
McArthur ordered the passenger to exit, and heard something fall
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to the floor of the vehicle as the passenger stood up. The
officers searched the passenger, found a loaded .38 caliber
pistol in his pocket, and identified him as Holley. They also
seized a second loaded .38 caliber pistol from the Cadillac,
along with other items taken from the vehicle and from Holley’s
person.
B.
Holley was indicted on charges of being a felon in
possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1)
and 924. He filed a motion to suppress the evidence, including
the pistols, obtained pursuant to the investigatory stop of the
Cadillac.
The district court granted Holley’s motion, holding that
McArthur did not have “reasonable, articulable” grounds to
believe that the Cadillac he pulled over was the subject of the
BOLO. The court considered the fact that the informant said
that Holley was in a white Cadillac, and that McArthur would
have known that Holley was a black male. But for the court, the
combination of “a white Cadillac and a black male” was not
enough to give rise to a reasonable suspicion that the
particular white Cadillac observed by McArthur was the same
white Cadillac wanted by the police. The district court noted
that Cadillacs are common in the black community in rural
eastern North Carolina and determined that being “slumped down
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in a car seat a little bit” was not itself unusual enough to be
suspicious.
The district court did not consider as part of its
reasonable suspicion analysis anything that followed McArthur’s
activation of his siren – neither the Cadillac’s failure to stop
immediately nor the driving pattern that ensued. According to
the district court, the Fourth Amendment required that
reasonable suspicion be present at the moment McArthur ordered
the Cadillac to stop, and so “the fact that this car took off
and didn’t stop is not a part of the equation.”
The government filed a motion for an evidentiary hearing or
to reconsider the motion to suppress on the existing record,
which the district court denied. The government timely
appealed.
II.
In reviewing the district court’s grant of a motion to
suppress, we review its factual findings for clear error,
construing the evidence in the light most favorable to the
prevailing party. United States v. Laudermilt, 677 F.3d 605,
609 (4th Cir. 2012). The district court’s legal conclusions are
subject to de novo review, id., and at the suppression hearing
in this case, the parties agreed with the district court that
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whether there was reasonable suspicion for Holley’s stop is
largely a question of law.
We find that the district court erred as a matter of law
when it excluded from its reasonable suspicion analysis the
response to McArthur’s order to stop – that is, the failure to
stop immediately and the unusual driving pattern. As the
district court recognized, under the Fourth Amendment, a seizure
in the form of an investigatory stop is permissible only when it
is supported by reasonable and articulable suspicion that
criminal activity “may be afoot.” United States v. Bumpers, 705
F.3d 168, 171 (4th Cir. 2013) (quoting Terry v. Ohio, 392 U.S.
1, 30 (1968)). So if, as the district court seems to have
assumed, Holley was seized when McArthur activated his siren,
then it would be appropriate to require that reasonable
suspicion exist at that moment and to exclude from consideration
McArthur’s post-seizure observations.
The problem is that Holley was not seized within the
meaning of the Fourth Amendment when McArthur ordered the
Cadillac to stop. It is well established that a Fourth
Amendment seizure requires either the application of physical
force or – as relevant here – both an assertion of authority and
submission or acquiescence to that show of authority. United
States v. Watson, 703 F.3d 684, 689 (4th Cir. 2013) (citing
California v. Hodari D., 499 U.S. 621, 626 (1991)). When
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McArthur turned on his siren, ordering the Cadillac to pull
over, he satisfied the “assertion of authority” prong. But
because the Cadillac did not in fact pull over, there was no
submission and hence no seizure at that time. See United States
v. Smith, 396 F.3d 579, 586 & n.5 (4th Cir. 2005) (no seizure
upon activation of police lights when car continued driving).
As a result, it is entirely proper for McArthur to justify
his ultimate seizure of Holley with reference to facts that
occurred after activation of the siren but before Holley’s
eventual submission to police authority, such as the Cadillac’s
initial failure to stop and what McArthur viewed as its
subsequent “erratic” driving. * By failing to take account of
these pre-seizure observations as part of its reasonable
suspicion analysis, the district court improperly truncated its
review.
As we have said many times, in assessing the validity of a
Terry stop, a court must evaluate the “totality of the
*
At oral argument, the government initially took the
position that acquiescence to authority, and hence a Fourth
Amendment seizure, occurred in this case when the Cadillac came
to a stop in the driveway. It also suggested, however, that the
seizure might not have occurred until moments later, when
McArthur, seeing signs that the passenger was preparing to exit
the vehicle, drew his gun and ordered Holley to remain in the
car. We need not address that issue here; under either account,
the Cadillac’s initial failure to stop and subsequent driving
pattern come before the seizure, and should have been included
in the district court’s analysis.
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circumstances” to determine whether the officer “had a
particularized and objective basis for suspecting the person
stopped of criminal activity.” United States v. Hernandez-
Mendez, 626 F.3d 203, 207 (4th Cir. 2010) (internal quotation
marks omitted). Review of the facts and inferences supporting a
Terry stop is holistic. United States v. Branch, 537 F.3d 328,
337 (4th Cir. 2008). Courts must look to the “cumulative
information available to the officer,” id. (internal quotation
marks omitted), and may not rely on a “piecemeal refutation” of
each individual fact to find that the officer lacked reasonable
suspicion, United States v. George, 732 F.3d 296, 300 (4th Cir.
2013).
We need not consider whether the district court properly
applied this standard in analyzing the facts that preceded
McArthur’s show of authority. Nor must we determine whether the
facts that immediately followed activation of the siren,
standing alone, would have been sufficiently suspicious to
justify an investigative stop. It is enough in this case that
once we take all of the facts together, adding to the district
court’s “equation” the Cadillac’s initial failure to stop when
McArthur activated his siren and McArthur’s observations
regarding the Cadillac’s subsequent erratic driving, it is clear
that the reasonable suspicion standard is met. See Smith, 396
F.3d at 586 (listing cases treating failure to stop and
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continued driving after light or siren activation as
contributing to reasonable suspicion). Based on the totality of
the circumstances prior to Holley’s submission to authority, and
considering the cumulative import of the information available
to McArthur – including the match between the Cadillac he
observed and the details and timing of the BOLO, Holley’s
posture in the passenger seat, the failure to stop when the
siren was activated, and the erratic driving – we conclude that
McArthur had reasonable suspicion sufficient to justify an
investigatory stop of the vehicle. The district court therefore
erred in granting Holley’s motion to suppress.
III.
We reverse the district court’s order and remand for
proceedings consistent with this opinion.
REVERSED AND REMANDED
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