United States v. Deshawn Holland , 526 F. App'x 305 ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4382
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DESHAWN X. HOLLAND,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. John A. Gibney, Jr.,
District Judge. (3:11-cr-00208-JAG-1)
Submitted: May 31, 2013 Decided: June 6, 2013
Before WILKINSON and AGEE, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Charles D. Lewis, Richmond, Virginia, for Appellant. Neil H.
MacBride, United States Attorney, Michael A. Jagels, Special
Assistant United States Attorney, Richmond, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Deshawn X. Holland appeals his convictions following
his guilty plea to possession with intent to distribute cocaine
base, in violation of 21 U.S.C. § 841(a)(1) (2006), and to
possession of a firearm by a felon, in violation of 18 U.S.C.
§ 922(g)(1) (2006), and his convictions following a bench trial
of conspiracy to distribute cocaine and cocaine base, in
violation of 21 U.S.C. § 846 (2006), and possession of a firearm
in furtherance of a drug trafficking crime, in violation of 18
U.S.C. § 924(c)(1) (2006). On appeal, Holland argues that the
district court erred in denying his motion to suppress evidence
found subsequent to an allegedly illegal seizure. Finding no
error, we affirm.
Holland did not appear to be engaged in illegal
activity when Detective Bridges and Officer Custer of the
Richmond City Police Department observed him walking on the
sidewalk of North 26th Street. The officers began following
Holland, known to them as a felon, on foot and asked him
questions. Holland did not respond and continued to walk away
from the officers into an alley and eventually into the backyard
of 908 North 27th Street. Officer Custer followed Holland into
the backyard, and Detective Bridges remained in the alley.
Holland began walking to the front yard, towards North 27th
Street, but returned to the backyard upon seeing two other
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police officers pull their vehicle to the side on North 27th
Street and one of those officers walk into the backyard of 908
North 27th Street.
Holland next jumped a fence out of the backyard of 908
North 27th Street and fell to the ground. As Holland pushed
himself off of the ground, Officer Custer observed in Holland’s
jacket a heavy object, which he believed to be a firearm based
on his training and experience. Officer Custer yelled out “he
has got it,” and Holland began running. Holland initially ran
toward Detective Bridges in the alley, Bridges yelled “Mr.
Holland” or “don’t,” and Holland began running in the other
direction. Detective Bridges chased Holland and saw him drop a
firearm. Detective Bridges ultimately apprehended Holland, and
the officers retrieved the firearm and found approximately eight
grams of cocaine base and $188 in cash on Holland.
The district court denied Holland’s motion to
suppress, explaining that, while there were multiple officers
around Holland when he was in the backyard of 908 North 27th
Street, none of the officers told Holland that he had to stop or
that he was under arrest. The district court concluded that
Holland was not seized until he was apprehended by Detective
Bridges, which occurred after Holland dropped the firearm.
Following the denial of his motion to suppress, Holland pled
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guilty to, and was convicted of, the drug and firearms offenses
charged in the indictment.
On appeal, Holland argues that, when the officers
followed him into the backyard of 908 North 27th Street while
continually asking him questions and positioning themselves
around him to prevent his escape, a reasonable person would not
have felt free to leave and that he was unlawfully seized in the
backyard. When considering the denial of a motion to suppress,
we review the district court’s legal determinations de novo and
its factual determinations for clear error. United States v.
Black, 707 F.3d 531, 537 (4th Cir. 2013). “[B]ecause the
district court denied [the defendant’s] motion to suppress, we
construe the evidence in the light most favorable to the
Government on appeal.” United States v. Bumpers, 705 F.3d 168,
175 (4th Cir. 2013) (internal quotation marks omitted).
While “police may approach an individual on a public
street and ask questions without implicating the Fourth
Amendment’s protections,” such an encounter “may, . . . at some
unspecified point, cross the line and become an unconstitutional
seizure.” United States v. Weaver, 282 F.3d 302, 309 (4th Cir.
2002). An unconstitutional seizure occurs when a police
“officer, by means of physical force or show of authority,
terminates or restrains [an individual’s] freedom of movement.”
Brendlin v. California, 551 U.S. 249, 254 (2007) (internal
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quotation marks omitted). Such 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.” United States v. Mendenhall, 446 U.S. 544, 554 (1980). *
We consider the totality of the circumstances and look to the
specific following factors:
“(i) the number of police officers present at the
scene; (ii) whether the police officers were in
uniform; (iii) whether the police officers displayed
their weapons; (iv) whether they touched the defendant
or made any attempt to physically block his departure
or restrain his movement; (v) the use of language or
tone of voice indicating that compliance with the
officer’s request might be compelled; (vi) whether the
officers informed the defendant that they suspected
him of illegal activity rather than treating the
encounter as routine in nature; and (vii) whether, if
the officer requested from the defendant . . . some
form of official identification, the officer promptly
returned it.”
Black, 707 F.3d at 537-38 (internal quotation marks omitted).
In considering the totality of the circumstances, we
conclude that, for purposes of the Fourth Amendment, Holland was
*
The Government argues that, in determining whether a
seizure occurred, we should apply the “force or submission”
standard set forth in Hodari D. v. California, 499 U.S. 621, 626
(1991) (holding that “[a]n arrest requires either physical force
. . . or, where that is absent, submission to the assertion of
authority”). The Government contends that, because Holland
never submitted to a show of authority, there was no seizure.
However, because we conclude that the officers’ actions here did
not demonstrate an “unambiguous intent to restrain” Holland,
Mendenhall, as opposed to Hodari D., applies. See Black, 707
F.3d at 537-38 n.3 (detailing standard for determining whether
to apply Mendenhall or Hodari D.).
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not seized in the backyard of 908 North 27th Street. First, the
officers did not physically touch Holland and, contrary to
Holland’s assertions on appeal, did not physically restrain his
movement. When the officers began following Holland on North
26th Street, they maintained a distance of ten to thirty feet,
and, when Holland entered the alley, they maintained a distance
of twenty to thirty feet. Further, when Holland jumped the
fence out of the backyard of 908 North 27th Street, Officer
Custer was ten to twenty feet away from Holland. See generally
United States v. Gray, 883 F.2d 320, 323 (4th Cir. 1989)
(finding no seizure when officers “made [no] attempt to restrain
[the suspect’s] movement, but instead walked with him as he
moved through the airport towards the exit”). Additionally,
there was no evidence demonstrating that the other officers
restrained Holland’s movement when they pulled their marked
vehicle to the side of North 27th Street as Holland was
approaching the front yard of 908 North 27th Street. To the
contrary, the additional officers were there “to have eyes on
[Holland]” and were not there to “contain” Holland. See
generally Michigan v. Chesternut, 486 U.S. 567, 575 (1988)
(finding no seizure of pedestrian when there was no evidence
that police “operated the car in an aggressive manner to block
respondent’s course or otherwise control the direction or speed
of his movement”).
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As the district court noted, the officers neither
directed Holland to stop nor stated that he was under arrest.
Rather, the officers asked Holland conversational questions, to
which Holland did not respond, such as whether they could speak
with him, how he was doing, where he had been, when he got back
to town, and whether he lived in the area. The only question
that indicated the officers suspected Holland of criminal
activity was whether he was carrying any firearms. However,
there was nothing in the record demonstrating that the officers’
questions or tone of voice indicated that Holland had to stop
and respond to the officers. While Detective Bridges testified
that he talked “somewhat loud[ly],” he also testified that he
did so “[i]n order to be heard” and that, at the time, he was
thirty feet away from Holland, who continued walking away from
the officers. Cf. United States v. Wilson, 953 F.2d 116, 123
(4th Cir. 1991) (holding that seizure occurred when “officer’s
prolonged and persistent questioning after the suspect had
conveyed an unequivocal unwillingness to engage in further
conversation with the officer”).
Turning to the remaining Mendenhall factors, the
officers never requested any identification from Holland.
Additionally, Detective Bridges and Officer Custer were in
uniform and in a marked vehicle, and two additional police
officers later came to the scene on North 27th Street in a
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marked vehicle. However, there is nothing in the record to
indicate that any of the officers displayed their weapons,
activated their sirens, or commanded Holland to stop.
Accordingly, looking to the totality of the circumstances, we
conclude that a reasonable person would have felt free to
continue in their normal course of movement. Further, we
conclude that the district court properly determined that, once
Detective Bridges observed Holland, a known felon, drop the
firearm, the officers had probable cause to arrest Holland. See
United States v. Humphries, 372 F.3d 653, 657-58 (4th Cir. 2004)
(stating that probable cause to arrest exists when officer has
“reasonable ground for belief of guilt that was particularized
with respect to the person to be . . . seized”) (internal
quotation marks omitted).
Accordingly, the district court properly denied the
motion to suppress, and we affirm the court’s judgment. We deny
Holland’s motion to file a pro se supplemental brief and
dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
AFFIRMED
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