United States v. Shawn Lowe , 791 F.3d 424 ( 2015 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 14-1108
_____________
UNITED STATES OF AMERICA
v.
SHAWN LOWE,
Appellant
_____________
Appeal from the United States District Court
for the Eastern District of Pennsylvania
(Crim. No. 2-11-cr-00111-001)
District Judge: Hon. J. Curtis Joyner
_____________
Argued: October 28, 2014
_____________
BEFORE: McKEE, Chief Judge, GREENAWAY, JR. and
KRAUSE, Circuit Judges
(Filed: July 02, 2015)
LEIGH M. SKIPPER, ESQ.
Chief Federal Defender
BRETT G. SWEITZER, ESQ.
Assistant Federal Defender
Chief of Appeals
ROBERT EPSTEIN, ESQ. [ARGUED]
Assistant Federal Defender
Federal Community Defender Office
for the Eastern District of Pennsylvania
Suite 540 West - Curtis Center
601 Walnut Street
Philadelphia, Pennsylvania 19106
Attorneys for Appellant
ZANE DAVID MEMEGER, ESQ.
United States Attorney
ROBERT A. ZAUZMER, ESQ. [ARGUED]
Assistant United States Attorney
Chief of Appeals
BERNADETTE McKEON, ESQ.
Assistant United States Attorney
United States Attorney’s Office
615 Chestnut Street, Suite 1250
Philadelphia, PA 19106
Attorneys for Appellee
_____________
OPINION
_____________
McKEE, Chief Judge
Shawn Lowe appeals the conviction for illegally
possessing a firearm as a convicted felon, in violation of 18
U.S.C. § 922(g)(1), that resulted from his conditional guilty
plea. The only issue raised is whether the District Court erred
in denying his suppression motion. The matter comes before
us after a different panel of this Court remanded Lowe’s
challenge to the suppression ruling back to the District Court
for fact-finding and resolution of the conflicting suppression
hearing testimony. See United States v. Lowe, 525 F. App’x
167 (3d Cir. 2013) (Lowe I). On remand, neither party
supplemented the record with additional evidence. The
District Court merely entered findings of fact and conclusions
2
of law and again denied Lowe’s motion to suppress. This
appeal followed.1
Lowe’s sole argument is that, because the police did
not have reasonable suspicion to conduct a Terry stop when
they seized him, the evidence discovered as a result of the
stop and corresponding frisk was obtained in violation of the
Fourth Amendment and should have been suppressed. We
agree. We now hold that the District Court erred in
identifying the moment of seizure, and that the officers did
not have reasonable suspicion when they actually seized
Lowe. Accordingly, we will reverse the District Court’s
denial of Lowe’s suppression motion.
I.
“We review the District Court’s denial of a motion to
suppress for clear error as to the underlying factual findings
and we exercise plenary review over questions of law.”
United States v. Brown, 448 F.3d 239, 245 (3d Cir. 2006).
Our review of the District Court’s determination of the
moment of seizure under the Fourth Amendment, as well as
whether a seizure is supported by reasonable suspicion, is de
novo. See Ornelas v. United States, 517 U.S. 690, 699
(1996); Johnson v. Campbell, 332 F.3d 199, 206 (3d Cir.
2003). A district court’s factual “finding is clearly erroneous
when although there is evidence to support it, the reviewing
court on the entire evidence is left with the definite and firm
conviction that a mistake has been committed. Accordingly,
‘[i]f the district court’s account of the evidence is plausible in
light of the record viewed in its entirety,’ we will not reverse
it even if, as the trier of fact, we would have weighed the
evidence differently.” United States v. Price, 558 F.3d 270,
276–77 (3d Cir. 2009) (internal citations omitted) (alteration
in original).
II.
In Lowe I, we were presented with conflicting versions
of the facts necessary to determine the moment of seizure.
1
The District Court had jurisdiction pursuant to 18 U.S.C. §
3231. We have jurisdiction over this timely appeal from a
final decision of a district court under 28 U.S.C. § 1291.
3
Accordingly, as noted above, we remanded “to enable the
District Court to make specific written findings of fact and
conclusions of law.” 525 F. App’x at 168. In his concurring
opinion, Judge Ambro highlighted the gaps in the fact-finding
that the District Court needed to address on remand. He
explained that if Lowe “may have stepped backward initially
on the order to stop walking, this did not undermine his
submitting to that order.” Id. at 170 (Ambro, J., concurring)
(citing United States v. Johnson, 620 F.3d 685, 692 (6th Cir.
2010). In Judge Ambro’s view, “to any extent Lowe merely
‘looked like he was getting ready to run’ per officer
testimony” but did not actually run, he still would have
submitted, and if Lowe “effectively halted at the officers’
behest,” he “was seized at the outset of the encounter.” Id.
Thus, in Lowe I the panel concluded “vacate[d] and
remand[ed] the matter to enable the District Court to make
specific written findings of fact.” Id. at 168. On remand, the
District Court issued conclusions of law and factual findings
that described the encounter more fully.
A.
On September 19, 2010, at approximately 4:00 a.m.,
Philadelphia police officers McGinnis and Campbell received
a radio call reporting “flash information of a black male
wearing a gray hoodie with a gun in his waistband talking to a
female that was at . . . 914 North Markoe Street outside.”
United States v. Lowe, Crim. No. 11-111, 2014 WL 99452, at
*1 (E.D. Pa. Jan. 8, 2014). The tip was anonymous. The 900
block of North Markoe Street is located in “a violent, high
crime area known for drug crimes.” Id. Approximately 90
minutes before receiving the radio call, Officers Campbell
and McGinnis had received a call regarding an alleged gun
shot at the 900 block of 49th Street, which is “around the
corner” from 914 North Markoe Street. Id. The officers
testified that they knew that a shot had been fired at a house,
but that no one had been shot and no suspect had been
apprehended. 914 North Markoe Street was the home address
of Tamika Witherspoon, who is Lowe’s close friend.
Officers McGinnis and Campbell were near 914 North
Markoe Street when they received the radio call, and they
immediately drove to the address. They arrived within two
4
minutes of receiving the call. The officers initially turned
their police sirens and lights on, but they turned them off
when they were about a block and a half away from the
address. The officers parked their police car roughly 50 to 60
feet away from the house. Within seconds, two additional
police cars pulled in behind their car. Officer Pezzeca was in
one of the additional police cars. Officers McGinnis and
Campbell, followed shortly thereafter by Officer Pezzeca and
another officer, got out of their cars and quickly moved
towards Lowe. As the officers approached the house, they
saw Lowe speaking with Witherspoon in front of 914 North
Markoe Street. Lowe was wearing a gray hoodie; his hands
were in the hoodie pockets and were not visible to the
officers. However, the officers did not see a gun or anything
indicating that Lowe had a gun, nor did they see or hear any
argument or disturbance when they pulled up to the residence.
There was a construction fence on the sidewalk preventing
access to the north of Witherspoon’s house.
The District Court recounted the “varying versions”
provided by the officers of what happened next. Id. at 2.
Officer McGinnis testified that, as he and Officer Campbell
approached Lowe, he asked Lowe to remove his hands from
his pockets “five to ten times,” and Lowe instead “froze” and
looked both ways over his shoulders. Id. According to
Officer McGinnis, only after he gave five to ten commands
and drew his gun did Lowe take his hands out of his pockets
and start to move towards the wall, at which point the officers
pushed Lowe against the wall. In contrast, Officer Campbell
testified that Lowe did put up his hands in response to the
command to stop and do so, and he testified that Lowe
voluntarily placed his hands on the wall. Officer Pezzeca
testified that as Officers Campbell and McGinnis approached
Lowe and told him “several” times to put his hands up, Lowe
backed away from the officers and kept his hands in his
pockets until Officers Campbell and McGinnis grabbed Lowe
and placed him against the wall. Id. All of the officers
agreed that the frisk took place by the wall and that, following
a brief struggle that ensued when Lowe reached for his
waistband during the frisk, a firearm was recovered.
This sequence of events unfolded quickly: Officer
McGinnis estimated that less than a minute elapsed between
5
the first command and when Lowe moved to the wall, and
Officer Campbell indicated that the whole incident, from his
arrival on the scene to the struggle with Lowe and the
recovery of the firearm, took less than two minutes.
In its “Findings of Fact,” the District Court described
these events as follows:
[W]hen the officers first arrived on the scene, Mr. Lowe was
standing in front of 914 North Markoe. As the officers
steadily moved toward Mr. Lowe, he took several steps
backing away from them. He was prevented from moving
back more than a few steps by the construction fence next to
914 North Markoe Street. [] The Court also finds that Officers
McGinnis and Campbell gave Mr. Lowe multiple commands
to raise his hands or take his hands out of his pockets while in
close proximity to Mr. Lowe. Mr. Lowe did not initially
comply.
Lowe, 2014 WL 99452, at *3. In reaching this conclusion,
the District Court explained that it “afford[ed] more weight to
the congruent testimony of Officers McGinnis and Pezzeca,
whose accounts provide a consistent story, and slightly less
weight to Officer Campbell’s recollection regarding Mr.
Lowe’s compliance with the order to raise his hands.” Id.
The District Court did not resolve some significant
conflicts in the police officers’ testimony. This includes
conflicting testimony regarding whether Lowe put his hands
on the wall voluntarily, or whether his hands were placed
there by the officers. The District Court also failed to resolve
the discrepancies in the police officers’ testimony about the
number of times they ordered Lowe to show his hands and
their distance from him when they issued those orders.
Though the District Court’s lack of precision fuels some of
the appellate arguments, the Findings of Fact that the court
did make are sufficient to allow us to determine the legality of
Lowe’s seizure.
B.
6
The District Court reached the following conclusion of
law regarding when the interaction became a stop for Fourth
Amendment purposes:
The encounter between the officers and Mr. Lowe did not
become a Terry stop at the officers’ first command that Lowe
remove his hands from his pockets; instead, “the interaction
became a stop” when the officers repeated their commands,
“ma[king] it clear that [the suspect] was not free to ignore
[the officers] and would not be left alone until he complied.”
Johnson v. Campbell, 332 F.3d 199, 206 (3d. Cir. 2003)
(finding that stop occurred after officer’s second command to
individual to roll down his car window).
Lowe, 2014 WL 99452, at *5. The District Court thus held
that “Lowe was seized within the meaning of the Fourth
Amendment at the point when the officers repeated their
commands to him, and he responded by not fleeing.” Id.
Accordingly, the District Court found that Lowe’s failure to
show his hands in response to the officers’ initial commands
could be considered in the totality of the circumstances in
evaluating reasonable suspicion. The court found that the
officers were aware of the following pieces of information at
the moment of seizure:
an anonymous tip that a male matching Mr. Lowe’s
description was engaged in criminal activity, the fact that 914
North Markoe Street was located in a high-crime
neighborhood in which a shooting had occurred over an hour
earlier, the late hour of the night, and the fact that, when Mr.
Lowe was approached and asked to show his hands, he
refused to remove his hands from his hoodie pockets.
Id. Based on its conclusion that these facts provided
reasonable suspicion to conduct the search of Lowe that
disclosed the firearm, the District Court denied Lowe’s
motion to suppress.
III.
The Fourth Amendment prohibits “unreasonable
searches and seizures.” U.S. Const. amend. IV. Though law
enforcement officers ordinarily must obtain a warrant based
7
on probable cause before conducting a seizure, in Terry v.
Ohio the Supreme Court articulated an exception that allows
law enforcement to conduct a brief investigatory stop in
limited circumstances. 392 U.S. 1 (1968). Under Terry and
its progeny, “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. Wardlow, 528 U.S. 119, 123
(2000). The reasonable suspicion that justifies the Terry stop
of a suspect also justifies a subsequent protective frisk of that
suspect, where officers have reason to believe that the suspect
may pose a danger to the officers. Terry, 392 U.S. at 30.
In assessing the legality of a Terry stop, we must first
pinpoint the moment of the seizure and then determine
“whether that seizure was justified by reasonable, articulable
facts known to [the officer] as of that time that indicated that
[the suspect] was engaged in criminal activity.” Campbell,
332 F.3d at 205. “A seizure occurs when there is either (a) ‘a
laying on of hands or application of physical force to restrain
movement, even when it is ultimately unsuccessful,’ or (b)
submission to ‘a show of authority.’” Brown, 448 F.3d at 245
(quoting California v. Hodari D., 499 U.S. 621, 626 (1991)).
Where a seizure falls in the latter category, we determine if
there has been a “show of authority” using an objective test:
“whether the officer’s words and actions would have
conveyed . . . to a reasonable person” that he was not free to
leave. Hodari D., 499 U.S. at 628.2
Whether an individual has “submitted” to a show of
authority depends on both the nature of the show of authority
2
The Supreme Court has sometimes referenced this test in
describing a “seizure,” particularly in the context of traffic
stops. See, e.g., Brendlin v. California, 551 U.S. 249, 255
(2007) (quoting United States v. Mendenhall, 446 U.S. 544,
554 (1980) (opinion of Stewart, J.); see also Florida v.
Bostick, 501 U.S. 429, 435–36 (1991)). However, Hodari D.
makes clear that the “so-called Mendenhall test” pertains to
the “show of authority” component of a seizure, and that it
“states a necessary, but not a sufficient, condition for
seizure—or, more precisely, for seizure effected through a
‘show of authority.’” Hodari D., 499 U.S. at 627–28.
8
as well as the suspect’s conduct at the moment the officer
asserted his or her authority. When a suspect flees after a
show of authority, the moment of submission is often quite
clear: It is when the fleeing suspect stops, whether
voluntarily or as a result of the application of physical force.
See id. at 628–29. But different factors must be considered
when an individual is already stationary, or “when an
individual’s submission to a show of governmental authority
takes the form of passive acquiescence.” Brendlin v.
California, 551 U.S. 249, 255 (2007). Thus, while “a fleeing
man is not seized until he is physically overpowered, . . . one
sitting in a chair may submit to authority by not getting up to
run away.” Id. at 262. In either case, a show of authority
without actual submission is no more than an “attempted
seizure,” and a suspect’s conduct in the interval between the
show of authority and the submission can be considered in
determining the reasonableness of the eventual seizure. Id. at
254 (citing Hodari D., 499 U.S. at 626 n.2).
We therefore turn to the two questions presented in
this case: (1) When did Lowe actually submit to the show of
authority?, and (2) Did the facts known to the officers at that
moment of seizure give rise to reasonable suspicion?
A.
The District Court cited to Campbell, 332 F.3d at 206,
in finding that the seizure occurred the instant that the officers
repeated their commands to Lowe. Lowe, 2014 WL 99452, at
*5. It concluded that Lowe “submitted” at that moment by
“not fleeing.” Id. However, Campbell arose in a very
different context and is therefore of little assistance to our
inquiry. There, a single officer made a hand gesture to an
individual seated in a parked van indicating that the officer
wanted that individual to roll down his window. Campbell,
332 F.3d at 203. When the individual did not comply, the
officer persisted in making the same request. Id. We found
that, because an objective person in the individual’s situation
would have felt free to decline the officer’s first gesture, the
first request was not a show of authority for Fourth
Amendment purposes. Id. at 206. Rather, we held that an
objective person would only reasonably not have felt free to
decline the interaction after the officer repeated his motion,
9
and we thus concluded that that the repetition of the motion
was the “show of authority” component of the seizure under
the Fourth Amendment. Id. Since the individual submitted
immediately by remaining seated in the van, he was seized
when the officer repeated his request. Id. That case does not,
however, stand for a per se rule that an officer does not assert
his or her authority for Fourth Amendment purposes until he
or she repeats a command.
To the contrary, in determining whether there has been
a show of authority, courts must examine all of the
surrounding circumstances to determine whether a reasonable
person would have felt free to decline the interaction with law
enforcement. See Brendlin, 551 U.S. at 255. In Mendenhall,
Justice Stewart identified such factors as “the threatening
presence of several officers, the display of a weapon by an
officer, some physical touching of the person of the citizen, or
the use of language or tone of voice indicating that
compliance with the officer’s request might be compelled.”
United States v. Mendenhall, 446 U.S. 544, 554 (1980)
(opinion of Stewart, J.). Here, three marked police cars
nearly simultaneously arrived at Ms. Witherspoon’s residence
at 4 o’clock in the morning. Four uniformed police officers
immediately got out of their patrol cars and approached Lowe
and Witherspoon, commanding them to show their hands.
Although the District Court did not make explicit findings
about the speed with which the officers approached Lowe, the
record indicates that they arrived in a hurried manner and at
least one drew his firearm at some point during the encounter.
A reasonable person in Lowe’s position would not have felt
free to decline this interaction, turn, and leave.
Indeed, the Government candidly conceded that the
officers made a show of authority from the moment they first
approached Lowe.3 See United States v. Waterman, 569 F.3d
144, 144–46 (3d Cir. 2009) (holding that a show of authority
occurred when two uniformed police officers approached a
house and commanded that people on the porch show their
3
At the oral argument in Lowe I, the Government made this
concession during an exchange with the Court. See Supp.
App. 37 (“[A.U.S.A.]: We are not disputing that there was a
show of authority, and I hope I’m clear on that.”).
10
hands); cf. United States v. Smith, 575 F.3d 308, 314 (3d Cir.
2009) (holding that there was no show of authority when two
officers repeatedly asked an individual “Where is your girl’s
house?”, but where “the two officers were still in their car,
neither officer displayed his weapon, there was no physical
touching, and no indication as to the language or tone of the
officer’s voice that might have signaled a clear show of
authority”).
On this record, the officers’ approach constituted a
show of authority, as a reasonable person in Lowe’s position
would not have felt free to decline the interaction or leave.
However, that does not end our inquiry. We must also
determine when Lowe submitted to that show of authority.
Because the order of events is critical here, we must address
the parties’ arguments regarding the District Court’s Findings
of Fact before inquiring into when Lowe submitted.
B.
When read chronologically, the findings indicate that
Lowe stepped backwards “[a]s the officers steadily moved
toward [him,]” and that the officers did not “g[i]ve Mr. Lowe
multiple commands to raise his hands or take his hands out of
his pockets” until they were “in close proximity.” Lowe,
2014 WL 99452, at *3; see also Westport Ins. Corp. v. Bayer,
284 F.3d 489, 498 (3d Cir. 2002) (according plain meaning to
the district court’s choice of language in affirming its
“implicit” findings of fact). These findings control because
they are not clearly erroneous. Rather, they are supported by
the record.4 See United States v. Roberson, 90 F.3d 75, 77
(3d Cir. 1996).
4
Many of Government’s arguments depend on reading the
District Court’s factual findings as ambiguous as to the order
of events, and on adopting the Government’s version of the
encounter. However, the Government bears the burden at a
suppression hearing where, as here, the search or seizure was
conducted without a warrant. See United States v. Johnson,
63 F.3d 242, 245 (3d Cir. 1995). It must establish by a
preponderance of the evidence when the seizure occurred and
that it was then supported by reasonable suspicion. See id.
Here, not only did the Government initially fail to make a
clear showing as to the sequence of events, but it also failed
11
The Government’s central argument is that Lowe did
not submit to the initial show of authority because he failed to
show his hands in response to the officers’ commands. As
noted earlier, the Supreme Court has explained that “[an
individual] sitting in a chair may submit to authority by not
getting up to run away.” Brendlin, 551 U.S. at 262. The
Government’s argument invites us to add “unless the police
have instructed him to stand up” to the analysis. Neither
Supreme Court precedent nor the law of our Circuit supports
such a qualification. See id. (explaining that responding to a
show of authority by staying put is a means of passively
submitting to that authority); Campbell, 332 F.3d at 206
(holding that the defendant submitted to a show of authority
by remaining in place even though he declined the police
officer’s initial request to roll down his window and refused
to provide the officer with his identification).
Instead, failure to submit has been found where a
suspect takes action that clearly indicates that he “does not
yield” to the officers’ show of authority. Hodari D., 499 U.S.
at 626. Action—not passivity—has been the touchstone of
our analysis. The most obvious example is when a suspect
runs from the police. See Wardlow, 528 U.S. at 121; Hodari
D., 499 U.S. at 626; Brower v. Cnty. of Inyo, 489 U.S. 593,
596–97 (1989). However, headlong flight is not required if a
suspect otherwise takes action to evade or threaten a police
officer. For example, in United States v. Waterman, we
found no submission where a suspect responded to commands
to show his hands by reaching to his waistband and retreating
through a door behind him and out of the officers’ presence
entirely. 569 F.3d at 145. Other courts have found no
submission when a suspect already in motion refuses to stop
when approached by an officer, see United States v. Freeman,
735 F.3d 92, 95–97 (2d Cir. 2013) (holding that a suspect
who continued walking when approached by a police officer
to supplement the record after we remanded in Lowe I for
exactly this type of fact-finding. We will not, under these
circumstances, indulge in hypotheticals and interpret alleged
ambiguity in the District Court’s findings in favor of the party
with the burden of proof—the Government. See United
States v. Coward, 296 F.3d 176, 179–80 (3d Cir. 2002).
12
did not submit until physically restrained by the officer);
United States v. Johnson, 620 F.3d 685, 691 (6th Cir. 2010)
(noting that, “for a person who is moving, to ‘yield’ most
sensibly means to stop”), or when a suspect makes suspicious
motions consistent with reaching for a weapon, see United
States v. Johnson, 212 F.3d 1313, 1316–17 (D.C. Cir. 2000)
(holding that a suspect did not submit to a show of authority
when he made “continued furtive gestures” including
“shoving down” motions that were “suggestive of hiding (or
retrieving) a gun”).
Unlike the suspects in those cases, Lowe stayed put in
front of Witherspoon’s house when the officers converged
and shouted commands at him to show his hands. At that
point, the record does not reflect that he made any threatening
gesture or moved his hands or arms in any way, much less
that he reached for a weapon or otherwise acted to rebuff the
officers’ authority. Indeed, one responding officer described
him as “frozen” and another testified that Lowe looked
“shocked.” When an officer effectuates a Terry stop, his or
her “show of authority” is an implicit or explicit command
that the person stop. See Hodari D., 499 U.S. at 626
(discussing how the word “seizure,” in “[t]he language of the
Fourth Amendment,” necessarily implies an actual stop). We
thus reject the Government’s contention that, because Lowe
did not comply with the officers’ order to show his hands, he
failed to “submit” for Fourth Amendment purposes to the
officers’ show of authority—which was, of course, an entirely
different order. Indeed, “[i]t would be an unnatural reading
of the case law to hold that a defendant who is ordered to stop
is not seized until he stops and complies with a subsequent
order to raise his hands.” Johnson, 620 F.3d at 691. Rather,
we hold that when a stationary suspect reacts to a show of
authority by not fleeing, making no threatening movement or
gesture, and remaining stationary, he has submitted under the
Fourth Amendment and a seizure has been effectuated.
We also reject the Government’s argument that Lowe
did not immediately submit to the show of authority because
the District Court found that Lowe “took several steps
backing away” as the officers approached. Lowe, 2014 WL
99452, at *3. The Government analogizes those steps back to
the fleeing suspect in Hodari D., arguing that since Lowe did
13
not remain in place, he had not yet submitted before refusing
to raise his hands. Therefore, the Government argues, his
steps can be considered in the reasonable suspicion analysis.
We decline to equate Lowe’s few backward steps upon seeing
several uniformed officers rush toward him with headlong
flight—particularly where the District Court’s findings are to
the contrary. The District Court expressly found that “Mr.
Lowe submitted to the officers’ show of authority by not
fleeing from them when the commands to take his hands out
of his pockets were repeated.” Lowe, 2014 WL 99452, at *5
(emphasis added).5 Indeed, the District Court found Lowe’s
steps so innocuous that it did not even identify them as a
factor contributing to reasonable suspicion in its discussion of
relevant facts known to the officers at the time of seizure. See
id. Therefore, we agree with the determination, implicit in
the District Court’s findings, that a few startled steps back in
the face of onrushing, armed police officers is entirely
consistent with a surprised reaction and even acquiescence.6
Without Lowe ever having turned around in an attempt to
walk, much less run, these few steps backward hardly could
transform his limited movement in response to the onrushing
officers into flight. See Hodari D., 499 U.S. at 626.
5
As noted, the District Court erred by finding that the
officers’ show of authority did not occur until they repeated
their commands. However, the finding that Lowe did not flee
remains instructive as to how the District Court viewed
Lowe’s steps backwards as the officers approached. It did not
characterize them as flight.
6
While the Government would have us interpret the District
Court’s statement that Lowe “was prevented from moving
back more than a few steps by the construction fence” to
mean that Lowe intended to flee or was attempting to flee,
that argument disregards the District Court’s explicit finding
that Lowe was “not fleeing” and is not supported by
authority. Courts have not considered a suspect’s subjective
intent in this situation. Indeed, “a person who has actually
stopped in response to officers’ commands but who looks like
he might run” still has submitted to an order to stop. Johnson,
620 F.3d at 692.
14
In sum, we hold that Lowe submitted to the officers’
authority by staying put in front of 914 North Markoe Street.
Neither his action, in taking a few steps backwards before
stopping, nor his inaction, in keeping his hands immobile
despite commands to move them, negated that submission.
C.
Police may only seize a person consistent with the
Fourth Amendment if they have reasonable, articulable, and
individualized suspicion that a suspect is engaged in criminal
activity. See Wardlow, 528 U.S. at 123; Terry, 392 U.S. 1.
Here, the facts known to the officers when they first
approached Lowe included “an anonymous tip that a male
matching Mr. Lowe’s description was [in possession of a
gun], the fact that 914 North Markoe Street was located in a
high-crime neighborhood in which a shooting had occurred
over an hour earlier, [and] the late hour of the night.” Lowe,
2014 WL 99452, at *5. The Government conceded in its
Appellee Brief and at oral argument in Lowe I, as it must, that
these facts alone did not give rise to reasonable suspicion to
stop Lowe. Gov. Br. 19; Supp. App. 46–47; see Florida v.
J.L., 529 U.S. 266, 270–72 (2000); Roberson, 90 F.3d at 80;
cf. United States v. Valentine, 232 F.3d 350, 357 (3d. Cir
2000) (“[W]e 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 officers made a show of authority to which Lowe
submitted as they approached. No additional facts developed
before the stop would have supported a reasonable suspicion
that Lowe was engaged in criminal activity. Thus, contrary to
the Government’s arguments, we have no occasion to
consider Lowe’s failure to comply with the order to show his
hands, as that noncompliance happened after the moment of
seizure. Additionally, we need not resolve whether Lowe’s
steps backwards were taken a moment before or after the
seizure, as even if Lowe had stepped back before he was
seized, that extra fact in these circumstances would not have
given the officers reasonable suspicion. See Lowe, 2014 WL
99452, at *3. As explained above, we concur with the
15
District Court that the steps were not suspicious and were
more suggestive of simple surprise than criminality.
Moreover, both the tip and its level of corroboration here are
very similar to the circumstances in Florida v. J.L.7 The J.L.
Court not only held that the officers did not have reasonable
suspicion for the stop, it emphasized that it was not even a
“close case.” Id. at 271.
As we have stated, our reasonable suspicion analysis
must be limited to the facts known to the officers when they
effected a Terry stop. Thus, because we conclude that Lowe
was seized when the officers approached him and he stayed
put outside Witherspoon’s house, the Government lacked
reasonable suspicion at the moment of seizure.
IV.
We realize that it is in the interest of public safety and
the safety of police for officers to be able to ascertain whether
people are armed, and that one of the most efficient ways to
do this is for officers to stop and frisk individuals who have
7
In J.L., police received a tip that a “young black male
standing at a particular bus stop and wearing a plaid shirt was
carrying a gun[,]” and they subsequently stopped, frisked, and
recovered a gun from a man at that bus stop who met the
description. 529 U.S. at 268. Even considering the
neighborhood and hour of the night, the officers had less
reason to be suspicious when they approached than in a case
the Court has called “borderline.” Id. at 271 (referring to
Alabama v. White, 496 U.S. 325, 329 (1990), where police
received a tip that a woman would carry cocaine as she left a
specific apartment, entered a specific car, and drove to a
specific hotel, and where officers conducted surveillance and
confirmed that the tipster had accurately predicted the
woman’s movements). Almost none of the aspects of a tip
that indicate reliability are present here, see Brown, 448 F.3d
at 249–50 (3d Cir. 2006), and the contents of the tip
corroborated by the officers at the scene were the basic
descriptions of Lowe’s location and appearance. See J.L.,
529 U.S. at 272 (“[A] tip [must] be reliable in its assertion of
illegality, not just in its tendency to identify a determinate
person.”).
16
aroused suspicion. However, the Fourth Amendment limits
law enforcement’s power to seize individuals to situations
where their suspicion of criminal activity is specific,
individualized, and reasonable. Terry, 392 U.S. at 27.
Officers proceeding on the basis of an anonymous tip that
does not itself give rise to reasonable suspicion have many
tools at their disposal to gather additional evidence that could
satisfy the requirements of Terry and therefore allow police to
stop the individual under appropriate circumstances. See
Adams v. Williams, 407 U.S. 143, 147 (1972) (“Some tips,
completely lacking in indicia of reliability, . . . require further
investigation before a forcible stop of a suspect would be
authorized.”). These include investigation, surveillance, and
even approaching the suspect without a show of authority to
pose questions and to make observations about the suspect’s
conduct and demeanor. See White, 496 U.S. at 331
(describing how officers conducted surveillance to
corroborate details in a tip and developed reasonable
suspicion); Mendenhall, 446 U.S. at 554 (explaining that
conversations between individuals and law enforcement
officers do not necessarily implicate the Fourth Amendment).
Officers’ observations during such an inquiry or investigation
could create reasonable suspicion necessary to conduct a
Terry stop. However, reasonable suspicion is always
evaluated as of the moment of seizure, and we cannot
consider facts that develop after that moment. See Campbell,
332 F.3d at 205.
Because this record does not establish that the police
had reasonable suspicion to justify stopping Lowe, the
evidence recovered as a result of the ensuing search is the
“fruit of the poisonous tree” and must be suppressed. See
Brown, 448 F.3d at 244 (citing Wong Sun v. United States,
371 U.S. 471, 487–88 (1963)).
17