United States v. Lavelle Stover

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4283
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
LAVELLE DEWAYNE STOVER,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Paul W. Grimm, District Judge. (8:13-
cr-00347-PWG-1)
Argued: September 17, 2015 Decided: December 18, 2015
Before MOTZ, KING, and GREGORY, Circuit Judges.
Affirmed by published opinion. Judge Motz wrote the majority
opinion, in which Judge King joined. Judge Gregory wrote a
dissenting opinion.
ARGUED: Maggie Teresa Grace, VENABLE, LLP, Baltimore, Maryland,
for Appellant. Aaron Simcha Jon Zelinsky, OFFICE OF THE UNITED
STATES ATTORNEY, Baltimore, Maryland, for Appellee. ON BRIEF:
James Wyda, Federal Public Defender, Baltimore, Maryland, Paresh
S. Patel, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Greenbelt,
Maryland, for Appellant. Rod J. Rosenstein, United States
Attorney, Baltimore, Maryland, Kelly O. Hayes, Assistant United
States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Greenbelt, Maryland, for Appellee.
DIANA GRIBBON MOTZ, Circuit Judge:
A jury found Lavelle Stover guilty of possession of a
firearm as a felon, in violation of 18 U.S.C. § 922(g)(1)
(2012). On appeal, Stover challenges the district court’s
denial of his motion to suppress the firearm as the fruit of an
illegal seizure. For the reasons that follow, we affirm.
I.
In the early morning hours of March 13, 2013, uniformed
Prince George’s County Police Officers Justice Halsey and Jesus
Yambot patrolled the “King Sector” of Temple Hills, Maryland, an
area where several violent robberies had recently occurred.
Around 1:00 a.m., the officers noticed a Chevy Silverado double-
parked in the small private parking lot of an apartment
building. The officers could see a man in the driver’s seat and
a woman in the front passenger seat.
Although Officer Halsey conceded that it was “not
suspicious for someone to be sitting in a parking lot,” the
officers nonetheless decided to return a few minutes later to
check on the car. When they did, they again saw the Silverado
parked and occupied as before. According to Officer Halsey, the
car’s Virginia license plates indicated that “the car d[idn]’t
belong.” Because of the out-of-state plates, the area’s “high-
crime” reputation, the late hour, and the double-parking, the
2
officers concluded that they had “the right to stop the occupant
of the car and see what’s going on.” Officer Yambot pulled the
marked police vehicle into the lot and parked at a 45-degree
angle about three feet behind the Silverado, blocking it in.
The officers activated their vehicle’s emergency lights “to
notify [the driver] that [they were] behind him because [they
didn’t] want to get ran [sic] over.” Then Officer Yambot
illuminated the driver’s side of the Silverado with a spotlight.
As the district court observed, the suppression hearing
testimony was “far from crystal clear” as to the exact sequence
and timing of the ensuing encounter. Officer Halsey testified
as follows. After Officer Yambot parked the police vehicle,
Stover, the individual sitting in the driver’s seat of the
Silverado, opened his door, emerged from the car, and opened the
driver’s side backseat door to the Silverado. Officer Halsey
left the police car and gave Stover “a verbal command to get
back inside of the vehicle.” Officer Halsey could not see
exactly what Stover was doing or if Stover had anything in his
hands because Stover was “standing in between both doors” of the
Silverado. Stover made no response to Officer Halsey; indeed,
he never “acknowledged” the officer. Instead, Stover quickly
walked about five or six feet to the Silverado’s front hood. To
Officer Halsey, this movement away from the police car looked
like “flight.” Officer Halsey then ran along the passenger side
3
of the Silverado to its hood, where he saw Stover “toss a gun in
front of the vehicle.” At that point, Officer Halsey pointed
his own gun at Stover and ordered him to get back inside the
Silverado, which Stover did without a word. The officers
retrieved a loaded nine-millimeter Glock from the grass in front
of the hood of the Silverado.
Stover did not testify at the suppression hearing. His
passenger testified that after the police officers parked and
exited their vehicle, Stover very briefly got out of his car but
was immediately met by Officer Yambot, who “made both [Stover
and his passenger] lay on the ground” before arresting them.
The entire incident happened in a very short period of time.
According to Officer Halsey, between two and five minutes;
according to the passenger, five seconds.
Upon consideration of these conflicting accounts, the
district court found the following facts by a preponderance of
the evidence. After the police vehicle pulled up, Stover “did,
at some point, get out of the car and did open [two] car
door[s],” and “did, at some point, beg[i]n to walk to the front
of the car.” “At some point,” Officer Halsey “said, get back in
the car and tried to stop the defendant from getting out of the
car.” When Officer Halsey saw Stover move to the front of the
Silverado, the officer “ran to the front of the car with his gun
out, and put the gun in the face of the defendant, meeting him
4
in the front of the car.” “[I]t was the presence of [Officer
Halsey’s] gun in the face of the defendant that caused him to
acquiesce” and “[t]hat was after [Stover] had dropped the gun.”
Only after Stover dropped his loaded gun did he comply with
police orders and get back in the Silverado.
A federal grand jury indicted Stover on a single count of
possessing a firearm as a felon, in violation of 18 U.S.C.
§ 922(g)(1) (2012). Stover moved to suppress the gun as the
fruit of an illegal seizure. In response, the Government did
not maintain that the officers had reasonable suspicion to stop
Stover. Instead, the Government argued that, under California
v. Hodari D., 499 U.S. 621 (1991), Stover did not submit to the
police -- and thus was not seized -- until after he dropped his
loaded gun, and so abandoned it, at the hood of his car. The
district court agreed, finding that Stover did not acquiesce to
the “show of authority that had attempted to put him in a
seizure” until Officer Halsey met him at the front of the
Silverado, gun drawn, and “actually exercised [] control over
the defendant.” Because Stover tossed his gun prior to
complying with the police orders, the district court found the
gun had been abandoned before the seizure and so was admissible
at trial.
A jury found Stover guilty and the district court sentenced
him to 57 months in prison. Stover timely filed this appeal
5
challenging the district court’s denial of his suppression
motion. When considering a district court’s denial of a motion
to suppress, we review the court’s factual findings for clear
error and all legal conclusions de novo. United States v.
Weaver, 282 F.3d 302, 309 (4th Cir. 2002). “When, as here, a
motion to suppress has been denied, we view the evidence
presented in the light most favorable to the government.”
United States v. Watson, 703 F.3d 684, 689 (4th Cir. 2013).
II.
The parties do not dispute that Stover was at some point
seized during his interaction with the officers in the parking
lot. They do dispute when this seizure occurred. On appeal,
Stover no longer contends that he did not get out of his
Silverado, walk to the front of the vehicle, and drop his gun
there. 1 Rather, he argues that the officers seized him, without
reasonable suspicion, at the moment the police vehicle pulled up
1
At the suppression hearing, defense counsel introduced a
report of police radio traffic indicating that Officer Yambot
reported a suspicious vehicle on his radio only nine seconds
before he reported that he had two people in custody. The
defense argued that this report showed that “this whole event
occurred within nine seconds,” which was too short a time for
Officer Halsey’s version of events to play out. However, at
trial, Officer Yambot testified that he did not make the first
radio call until after the officers had secured both Stover and
the passenger. On appeal, Stover does not challenge that
testimony.
6
behind his Silverado, rendering his gun the fruit of an illegal
seizure. The Government maintains that the officers did not
seize Stover until after he abandoned his firearm in front of
his car, prior to submitting to police authority.
The Fourth Amendment protects “[t]he right of the people to
be secure in their persons . . . against unreasonable . . .
seizures.” U.S. Const. amend. IV. This guarantee, however,
“does not extend to all police-citizen encounters.” United
States v. Jones, 678 F.3d 293, 298-99 (4th Cir. 2012). As a
general matter, law enforcement officers do not seize
individuals “merely by approaching [them] on the street or in
other public places and putting questions to them.” United
States v. Drayton, 536 U.S. 194, 200 (2002). Rather, as the
Supreme Court has explained, “[o]nly when the officer, by means
of physical force or show of authority, has in some way
restrained the liberty of a citizen may we conclude that a
‘seizure’ has occurred.” Terry v. Ohio, 392 U.S. 1, 19 n.16
(1968). Where, as here, physical force is absent, a seizure
requires both a “show of authority” from law enforcement
officers and “submission to the assertion of authority” by the
defendant. California v. Hodari D., 499 U.S. 621, 626
(1991)(emphasis omitted).
To determine whether police have displayed a show of
authority sufficient to implicate the Fourth Amendment, a court
7
applies the objective test set forth in United States v.
Mendenhall, 446 U.S. 544 (1980) (plurality opinion). The police
have done so “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.” Mendenhall, 446 U.S.
at 554; United States v. Gray, 883 F.2d 320, 322 (4th Cir.
1989). A court considers a number of factors in resolving
whether an officer’s conduct would convey to a reasonable person
that he is not free to leave. See, e.g., Michigan v.
Chesternut, 486 U.S. 567, 575-6 (1988) (listing examples of
police behavior that “communicate[] to the reasonable person an
attempt to capture or otherwise intrude upon [his] freedom of
movement,” including “activat[ing] a siren or flashers,”
“command[ing a person] to halt,” or “operat[ing] the [police]
car in an aggressive manner to block [a person]’s course”);
Jones, 678 F.3d at 299-300 (listing various relevant factors).
Only if a reasonable person would feel free to terminate the
encounter does a court consider the interaction a consensual one
to which the Fourth Amendment protection against unreasonable
seizures does not apply. See Florida v. Bostick, 501 U.S. 429,
434 (1991).
If an interaction is not consensual, i.e., if a reasonable
person would not have felt free to terminate it, then the Fourth
Amendment guards against unreasonable seizures. In such cases,
8
however, the seizure inquiry does not end. The Mendenhall test
“states a necessary, but not a sufficient, condition for . . .
seizure effected through a ‘show of authority.’” Hodari D., 499
U.S. at 628 (emphasis in original). When submission to police
authority is disputed, a court must also ascertain whether and
when the subject of the seizure actually acquiesced to that
authority. Hodari D., 499 U.S. at 628-29; Brendlin, 551 U.S. at
254.
“[W]hen an individual’s submission to a show of
governmental authority takes the form of passive acquiescence,”
the relevant test “for telling when a seizure occurs in response
to authority” is that enunciated in Mendenhall. Brendlin, 551
U.S. at 255. But, in cases where the individual does not
clearly and immediately submit to police authority, courts must
determine when and how the submission occurred. See, e.g.,
United States v. Lender, 985 F.2d 151, 153-55 (4th Cir. 1993).
“[W]ithout actual submission” to the police, “there is at most
an attempted seizure,” which is not subject to Fourth Amendment
protection. Brendlin, 551 U.S. at 254; see also Hodari D., 499
U.S. at 626-27 & n.2.
Brendlin does not create a new analysis for determining
when and if submission to police authority has occurred.
Rather, Brendlin simply applies the analysis set forth in
Hodari D. Brendlin, 551 U.S. at 254, 257-58, 261-62. See also
9
Wayne R. LaFave, 4 Search & Seizure § 9.4(d) (5th ed. 2015)
(describing how Brendlin uneventfully applies Hodari D.). Thus,
Hodari D. established the broad principle that an individual
must submit to authority for a seizure to occur; Brendlin
teaches that “passive acquiescence” is one form of that
submission. 2
As with the “show of authority” analysis, determining what
constitutes “submission” can be a difficult, fact-intensive
inquiry. “[W]hat may amount to submission depends on what a
person was doing before the show of authority: a fleeing man is
not seized until he is physically overpowered, but one sitting
in a chair may submit to authority by not getting up to run
away.” Brendlin, 551 U.S. at 262; see also LaFave, 4 Search &
Seizure § 9.4(d) (observing that “lower courts will frequently
be confronted with difficult questions concerning precisely when
2
Hence, our friend in dissent errs in repeatedly stating
that Brendlin and Hodari D. set forth different “tests.”
Moreover, the dissent’s even more repeated suggestion that we
demand too much in looking to a “signal” of “submission” from
Stover seems very odd given the Supreme Court’s use of these
very terms in assessing submission in Brendlin. See Brendlin,
551 U.S. at 262 (explaining that Brendlin, who had “no effective
way to signal submission while the car was still moving . . .
once it came to a stop [] could, and apparently did, submit by
staying inside”)(emphasis added). Although the dissent places
great emphasis on the fact that Stover’s car was not moving when
the police arrived, Stover certainly was not “deprived of the
ability to signal submission,” as the dissent contends. Rather,
Stover could easily have signaled submission in the very way
Brendlin did -- or, as discussed below, any number of other
ways.
10
the requisite physical seizure or submission to authority . . .
occurs”). If an individual does submit to a show of police
authority, and police then discover evidence, the court must
assess whether either reasonable suspicion or probable cause
supported the seizure. See Terry, 392 U.S. at 20-21.
III.
With these principles in mind, we first consider whether,
under the totality of the circumstances in the instant case, a
reasonable person would have felt free to leave after the
officers pulled up behind Stover’s car. See Mendenhall, 446
U.S. at 554. This is necessary because, although in the
district court the Government did not contend that the encounter
was consensual, on appeal it argues that “a reasonable person
would have felt free to leave” when the police arrived.
Appellee’s Br. at 18. We disagree. Indeed, this is not a close
question here, for this is not a case involving a police
officer’s “polite request for an interview.” Gray, 883 F.2d at
322; see also United States v. Brown, 401 F.3d 588, 593 (4th
Cir. 2005). Rather, as the district court noted, the police
officers’ aggressive conduct from the start of their interaction
with Stover was “absolutely an effort [] to try to effect . . .
a seizure.”
11
In Jones, we recently considered whether similar officer
conduct would have left a reasonable person believing he was
free to leave. There, officers followed defendant Jones’ car
into an apartment driveway and parked so that the car could not
exit. 678 F.3d at 296-97. When Jones emerged from his car and
stood by the car door, the police officers “proceeded
immediately to speak to Jones” and pat him down for weapons.
Id. at 297-98. We reasoned that “when an officer blocks a
defendant’s car from leaving the scene . . . the officer
demonstrates a greater show of authority than does an officer
who just happens to be on the scene and engages a citizen in
conversation.” Id. at 302. In combination with this fact, the
officers were armed and in uniform; they proceeded immediately
to the driver’s side door; and they did not ask if they could
speak with Jones. Id. at 300, 303. Instead, they requested
that he lift his shirt and allow an officer to pat him down.
Id. Under the totality of the circumstances, we held that a
reasonable person would not have felt “free to leave or
terminate the encounter.” Id. at 304.
Jones squarely compels the conclusion that Stover too was
not free to leave. Although here the officers did not follow
Stover’s car into the parking lot, the rest of the Jones factors
are present: the officers, who blocked Stover’s vehicle, were
armed and uniformed and approached Stover immediately, without
12
asking if they could speak with him. Indeed, in this case, the
officers activated their vehicle’s emergency lights, trained a
spotlight on Stover, and drew their weapons, making this an even
clearer case of a police show of authority than Jones. 3 See,
e.g., Chesternut, 486 U.S. at 575-76 (including police use of
“flashers” and “display[] [of] weapons” as indications of a show
of authority). No reasonable person in Stover’s position would
have felt free to terminate the encounter.
3 Our dissenting colleague maintains that “the relevant show
of authority made by police consisted solely of turning on the
police vehicle’s overhead lights and blocking in Mr. Stover’s
truck.” He can do so only by making new findings of fact. In
his effort to place the moment of seizure earlier, the dissent
disaggregates what the district court found to be a continuous
series of events that happened rapidly prior to Stover’s
submission. In accord with the testimony at the suppression
hearing, the court found that in quick succession the officers
not only blocked Stover’s car, activated their emergency lights,
and turned a spotlight on Stover, but also immediately ordered
Stover to remain in his car and when Stover disobeyed, ordered
him to return to the car. The court further found that Stover
again disobeyed police orders, walked away from his car and the
officers with a loaded gun in his hand, which he discarded in
brush in front of the car, and then and only then when
confronted by an armed officer did Stover submit to police
authority. The dissent invokes Mendenhall to argue that we can
consider only the officers’ initial actions, but Mendenhall
instructs us to “view [] all of the circumstances surrounding
the incident.” 446 U.S. at 554. Thus, all of the officers’
conduct prior to Stover’s submission constitutes the “relevant
show of authority.”
13
IV.
Having concluded that the district court committed no error
in finding that the officers demonstrated a show of authority
sufficient to implicate the Fourth Amendment, we turn to the
question of whether the court erred in finding that Stover did
not submit to police authority prior to abandoning his gun.
Up and until Stover submitted, “there [was] at most an
attempted seizure, so far as the Fourth Amendment is concerned,”
and the Supreme Court has held that the Fourth Amendment does
not protect attempted seizures. Brendlin, 551 U.S. at 254; see
also Cty. of Sacramento v. Lewis, 523 U.S. 833, 845 n.7 (1998)
(“Attempted seizures of a person are beyond the scope of the
Fourth Amendment.”). For example, in the seminal Supreme Court
decision on submission, Hodari D., the defendant ran from
approaching police officers, tossing away a rock of crack
cocaine just before an officer tackled him. 499 U.S. at 623.
The Court held that, because the defendant had not submitted to
police prior to being tackled, he was not seized when he tossed
the contraband. Id. at 629. In contrast, the Supreme Court
more recently described a car passenger who remained inside the
car during a traffic stop as submitting to police authority
through “passive acquiescence,” and so held the contraband
subsequently found in the passenger’s possession should have
been suppressed. Brendlin, 551 U.S. at 255, 262-63.
14
To be sure, a range of conduct exists between the “passive
acquiescence” in Brendlin and the headlong flight in Hodari D.
A defendant does not have to remain frozen in order to submit.
Nor does he need to bolt from the scene to signal non-
submission. Stover argues that he passively acquiesced to
police authority by “remaining at the scene.” The district
court, however, found that a preponderance of the evidence
established that Stover did not acquiesce to the police
officer’s show of authority until after he discarded his loaded
gun.
We must view the district court’s finding in the best light
for the Government, because it prevailed below. Viewed in that
light, the evidence shows that instead of remaining seated in
his car when the police vehicle approached, Stover exited his
car with a loaded gun in his hand. The district court found
that Officer Halsey “tried to keep [Stover] from getting out of
the car.” But Stover walked away from the officers to the hood
of his car, despite their orders to “get back in the car.” Only
after Stover dropped his firearm did he comply with the police
orders. For only then, upon seeing Officer Halsey in front of
him with a police weapon drawn, 4 did Stover get back in his car
4
In contending that “no reasonable assessment of the facts
can support the conclusion that Stover attempted to leave,” the
dissent refuses to consider the facts in the light most
(Continued)
15
and follow subsequent police orders. On the basis of this
evidence, the district court did not clearly err in finding that
Stover had not submitted until after he had discarded his loaded
gun.
On appeal, Stover relies heavily on three cases in which we
reversed the district court’s denial of a suppression motion.
Jones, 678 F.3d 293; United States v. Black, 707 F.3d 531 (4th
Cir. 2013); and United States v. Wilson, 953 F.2d 116 (4th Cir.
1991). Like the case at hand, these cases involve interactions
initiated by police without reasonable suspicion. But, unlike
the case at hand, in each of these cases the defendant did
submit to police authority before the discovery of any
contraband. Moreover, none of these cases involve the issue at
the crux of this case -- an individual’s ambiguous reaction at
the outset of a police show of authority.
favorable to the Government -- as we must. On one hand, Stover
never testified as to his intent or anything else. On the other
hand, Officer Halsey testified at the suppression hearing that
he believed Stover might have fled the scene had the officer not
confronted him at the hood of the car. Defense counsel
specifically asked Officer Halsey: “[D]id you do anything to
make [Stover] stop or did he stop on his own?” Officer Halsey
responded, “Yes, I did. . . . I ran up in front of him with the
gun in his face.” Thus the undisputed record evidence is that
Stover walked away from the officers with no indication that he
would stop of his own volition; indeed, he gave the officers no
information whatsoever about what he was doing. The dissent’s
generous inference clarifying Stover’s intentions views the
record, at the very least, in the light most favorable to
Stover.
16
In Jones, the defendant’s submission was undisputed. The
Government did not even suggest that the gun it ultimately found
on Jones should be admitted because Jones had not submitted to
police authority. Rather, Jones’ passive acquiescence and
submission to police authority were so clear that the
Government’s only argument was that Jones’ submission evidenced
a “consensual” encounter, in which Jones “consented” to the
search. Brief of the United States at 10-29, Jones, 678 F.3d
293 (No. 11-4268). Thus, whether in fact the encounter was
consensual was the only contested issue in Jones. 5 Jones argued
that he was not free to go; the Government maintained that he
was. As explained above, we agreed with Jones and so held that
the weapon the police found on him should have been suppressed.
Jones, 678 F.3d at 305.
Nor do Black or Wilson assist Stover. In both, the
defendants, unlike Stover, submitted to police authority. After
police officers surrounded Black, he responded by being
“extremely cooperative,” even volunteering his ID, which an
officer pinned to his uniform. Black, 707 F.3d at 536-38.
5
In its appellate brief in Jones, the Government cited
Hodari D. just once and then for the single proposition that an
encounter is consensual only if a reasonable person would feel
free “to disregard the police and go about his business.” Brief
of the United States at 12, Jones, 678 F.3d 293 (No. 11-4268)
(internal quotation marks omitted). Hence, Stover’s heavy
reliance on Jones is misplaced.
17
When, after this cooperation, Black attempted to walk away from
the suspicionless stop, police tackled him and then uncovered
his gun. Id. at 536. Because Black had submitted to police
authority by his “passive acquiescence” prior to the discovery
of his weapon, we held that the weapon should have been
suppressed. Id. at 537 n.3, 542. 6 Similarly, in Wilson, when
police identified themselves and asked to question Wilson in an
airport terminal, Wilson provided them with information as to
his flight, his identification, and his educational plans, and
submitted to a patdown search. 953 F.2d at 118. The officers
insisted on asking more questions, attempting to prolong the
encounter. Id. Wilson refused and walked away. Id. When the
officers nonetheless persisted, ultimately finding illegal drugs
in Wilson’s coat, we held that the drugs should have been
suppressed. Id. at 119-20, 127.
Stover maintains that his walk to the front of his
Silverado is akin to the defendants’ movements in Black and
Wilson. The problem for Stover is that, unlike the defendants
in Black and Wilson, he did not submit to police authority at
any point before he began that walk. Stover’s initial action
6Attempting to find some support for its preferred holding,
the dissent ignores the “extreme[] cooperat[ion] with,” and thus
submission to, police authority by the defendant in Black. That
cooperation stands in striking contrast to Stover’s repeated
active disobedience of police orders from the outset of the
encounter.
18
was not to cooperate with police and answer their questions, as
in Black and Wilson. Rather, as soon as the police blocked his
Silverado, he left the car, disobeyed a police order to return
to the car, and instead walked away from the police with a
loaded gun in his hand. Only after he discarded that gun and
was confronted by an armed police officer did Stover submit to
police authority.
Jones, Black, and Wilson simply do not involve the critical
inquiry here: where to draw the line between submission and
non-submission in the face of an individual’s equivocal reaction
to police acts initiating a show of authority. In cases dealing
with this issue, we have found dispositive the same indicia of
noncompliance present here. For example, in Lender, we found
non-submission where the defendant walked away from approaching
officers, ignoring their orders, “fumbling with something” at
his waist, and halting just before his gun fell out of his
pants. 985 F.2d at 153-55. There, as here, the defendant asked
“us to characterize as capitulation conduct that is fully
consistent with preparation to whirl and shoot the officers.”
Id. at 155. Similarly, in United States v. Smith, 396 F.3d 579,
581-82 (4th Cir. 2005), we rejected the defendant’s argument
that he was seized when police activated their emergency lights
and blocked his car’s exit, because although his car had been
stationary, he “proceeded slowly” away when police approached.
19
We concluded that the defendant “was not seized until he finally
submitted to [the officer]’s show of authority by stopping at
the end of the driveway.” Id. at 586 n.5.
Other courts have reached similar conclusions. See United
States v. Salazar, 609 F.3d 1059, 1066-68 (10th Cir. 2010)
(holding driver not seized when he backed away slowly from
police vehicle before obeying trooper’s command to get out of
his truck); United States v. Jones, 562 F.3d 768, 772-75 (6th
Cir. 2009) (holding that, although seizure of seated passengers
occurred when police cars “block[ed] in” defendant’s car,
defendant himself was not seized because he immediately “‘jumped
out’ as though he wanted to run”); United States v. Johnson, 212
F.3d 1313, 1316-17 (D.C. Cir. 2000) (holding that defendant
sitting in parked car did not submit to police when he made
“continued furtive gestures” including “shoving down” motions
“suggestive of hiding (or retrieving) a gun”). Although we do
not necessarily adopt the lower standards of submission
recognized in some of these cases, they do demonstrate that
Stover’s contentions would not fare better in other circuits.
Indeed, Stover has not cited, and we have not found, a single
case where an individual who exits his car holding a loaded gun,
20
ignores police orders, and walks away from police officers was
found to have submitted to police authority. 7
Our holding might well be different if Stover had, for
example, remained in his car or dropped his gun and complied
with police orders immediately upon exiting his car. See, e.g.,
Brendlin, 551 U.S. at 262 (holding that passenger in car pulled
over during traffic stop submitted “by staying inside” the car);
Brown, 401 F.3d at 594 (finding submission when defendant
complied with police request to place his hands on a car);
United States v. Wood, 981 F.2d 536, 540 (D.C. Cir. 1992)
(finding submission when, upon officer’s order to stop,
defendant stopped and “immediately dropped the weapon between
his feet”). These are just a few of the ways an individual
might be able to signal compliance. But, under the totality of
the facts as found by the district court in this case, we cannot
hold that walking away from police with a loaded gun in hand, in
7 Nor does the dissent cite such a case. Instead, it relies
on two inapposite cases -- United States v. Lowe, 791 F.3d 424,
433 (3d Cir. 2015); Kansas v. Smith, 184 P.3d 890, 896 (Kan.
2008) -- for the proposition that “[t]o passively acquiesce,
Stover merely had to remain at the focal point of the police
investigation rather than attempting to flee, evade the seizure,
or jeopardize the safety of police.” We need not determine
whether the conduct described by the dissent constitutes passive
acquiescence, because Stover’s conduct -- ignoring police orders
and walking away with a loaded gun -- hardly establishes that he
did not attempt flight, seek to evade or place police safety in
jeopardy. Indeed, the Lowe court found that the defendant
submitted in part because he did not “reach[] for a weapon” or
“turn[] around in an attempt to walk.” 791 F.3d at 433-34.
21
contravention of police orders, constitutes submission to police
authority. Since Stover did not accede to police authority
until confronted by an armed officer in front of the Silverado,
the gun he discarded prior to that time was not the fruit of the
seizure, but rather, like the cocaine in Hodari D., was
abandoned.
With our holding today, we do not disturb our observation
in Wilson that “[p]hysical movement alone does not negate the
possibility that a seizure may nevertheless have occurred.”
953 F.2d at 123. Nor do we hold that an effort to conceal
evidence or contraband, by itself, constitutes non-submission.
Most importantly, we do not suggest that individuals must comply
with unfounded and illegal seizures or face arrest. We simply
recognize that, under controlling Supreme Court precedent, when
an individual attempts to evade a seizure and reveals evidence
or contraband prior to submission to police authority, the
Fourth Amendment’s exclusionary rule does not apply.
V.
For the reasons stated above, we find no error in the
admission of the firearm. We therefore affirm the judgment of
the district court.
AFFIRMED
22
GREGORY, Circuit Judge, dissenting:
The majority has forthrightly stated the test that applies
to this case: “[U]nder controlling Supreme Court precedent,
when an individual attempts to evade a seizure and reveals
evidence or contraband prior to submission to police authority,
the Fourth Amendment’s exclusionary rule does not apply.” Maj.
Op. 22 (emphasis added). Its application to the facts presented
by this case, however, should guide this Court to a different
conclusion than that reached by my colleagues in the majority.
Although I do not disagree with the majority’s recitation
of the facts as such, several significant factual elements
should particularly inform the analysis and therefore deserve
greater emphasis. These facts are: (1) that the relevant show
of authority made by police consisted only of turning on the
police vehicle’s overhead lights and blocking in Stover’s truck;
(2) that this was not a normal traffic stop case because
Stover’s vehicle was already parked when police made this show
of authority; (3) that Stover was, at all times, within one to
two feet of his vehicle; and (4) that Stover’s actions
demonstrated a clear intent to abandon his weapon and disarm
himself in response to police authority. Similarly, while I do
not disagree with the majority’s conclusion that under
California v. Hodari D., 499 U.S. 621, 623 (1991), a suspect
must submit to an officer’s show of authority for a
23
constitutional seizure to exist, it is important to note that
such submission can take either of two forms: an affirmative
signal of compliance or passive acquiescence. Brendlin v.
California, 551 U.S. 249, 255 (2007). A more thorough
application of this bifurcated legal test, * especially in light
of the particular facts I have highlighted, produces a different
result and I therefore respectfully dissent.
I.
A.
This case turns on whether the appellant, Stover, failed to
submit to the officers’ show of authority. The first point of
departure between my view and the majority’s with respect to
this inquiry is, as noted above, that the majority treats this
case as it would a run-of-the-mill traffic stop. Doing so
results in the application of the submission test from Hodari
D., and accordingly the majority places great significance on
the fact that Stover did not “signal compliance.” Maj. Op. 10
*To
keep the analysis clear, I will refer to these as
different “tests” under the submission inquiry. But I agree
with my colleagues in the majority that passive acquiescence is
a form of submission and that Brendlin therefore applies Hodari
D. rather than articulating a new rule. Maj. Op. 9-10 & n.2.
However, passive acquiescence and signaling compliance are
sufficiently different forms of submission, requiring us to
answer sufficiently different questions, that I do not think
calling them different “tests” is inappropriate.
24
n.2, 15, 21. This, of course, would have been easy had Stover
been driving: Just as the suspect in Hodari D. would have been
seized if he had stopped running when police gave chase, Stover
would have been seized if he had pulled his car over when police
pulled behind him with their overhead lights flashing. But
Stover was already parked and thus unable to “signal” his
submission. Accordingly, the test from Brendlin, not that from
Hodari D., must govern.
In Brendlin, police stopped a moving vehicle occupied by a
driver and a passenger. While the driver clearly submitted by
pulling the car over, the passenger, Brendlin, did nothing to
signal submission. Brendlin, 551 U.S. at 252, 255-56. Just
like Stover, Brendlin was merely in a car already stopped by the
police and therefore “had no effective way to signal
submission.” Id. at 262. Brendlin was seized just as surely as
the driver was, id. at 256-58, but since there was no
opportunity for him to signal submission (or any expectation for
him to do so), the Court could not use Hodari D. to determine
when the seizure began. Id. at 255. The Court therefore
recognized that different tests had to be applied to the driver
who could signal submission and the passenger who could not.
The correct test for the passenger, the Court said, was whether
his “submission . . . [took] the form of passive acquiescence,”
thereby unanimously reversing the California Supreme Court’s
25
holding that submission could not occur without an affirmative
signal of compliance. Id.; see People v. Brendlin, 136 P.3d
845, 852 (Cal. 2006) (finding that submission did not occur
because the “defendant, as the passenger, had no ability to
submit to the deputy’s show of authority”), vacated sub nom.
Brendlin, 551 U.S. 249. The passive acquiescence test clearly
applies to Stover under the facts of this case because, although
he owned and most likely drove the truck, the vehicle was parked
and turned off when the stop began, making his position
analytically indistinguishable from that of the passenger in
Brendlin.
I must also disagree with my colleagues’ conclusion that
the verbal commands issued by the police officers, ordering
Stover back into the truck, constitute the relevant show of
authority for our analysis. The majority repeatedly emphasizes
that Stover did not comply with police commands to return to his
vehicle. Maj. Op. 13 n.3, 15, 18, 20. However, “[t]he verbal
directive from the officers not to leave was not the initiation
of the seizure, but rather an affirmation that [Stover] was not
free to leave.” United States v. Black, 707 F.3d 531, 538 (4th
Cir. 2013). The initial show of authority occurred when police
pulled their vehicle in behind Stover’s with the overhead lights
flashing and blocked his vehicle in—and submission to this show
of authority would complete the seizure. See Hodari D., 499
26
U.S. at 629 (“Pertoso’s pursuit . . . constituted a ‘show of
authority’ enjoining Hodari to halt, [and] since Hodari did not
comply with that injunction he was not seized until he was
tackled.” (emphasis added)). Although it might be tempting to
view the police commands as relevant, see Maj. Op. 13 n.3,
controlling Supreme Court precedent does not allow us to do so.
Brendlin states unequivocally that in a passive acquiescence
case, the “test for telling when a seizure occurs in response to
authority” comes from United States v. Mendenhall, 446 U.S. 544,
554 (1980), which states that a seizure occurs when, “in view of
all of the circumstances surrounding the incident, a reasonable
person would have believed that he was not free to leave.” 551
U.S. at 255. Common sense says that occurred when the police
pulled behind Stover’s vehicle with their overhead lights
flashing. United States v. Duty, 204 F. App’x 236, 239 (4th
Cir. 2006) (unpublished) (“Winston seized Duty for purposes of
the Fourth Amendment when she activated the emergency lights on
top of her car and pulled behind the parked car in which Duty
was sitting.”). Thus, when the police gave their commands that
Stover should return to his vehicle, he was already seized
(provided Stover acquiesced, which, I will demonstrate, he did
according to the majority’s own test).
The district court made the same error, and this alone is
sufficient to reverse its decision. It incorporated irrelevant
27
facts into its analysis of the submission question by relying on
Stover’s failure to return to his vehicle as ordered. Moreover,
where an individual submits to the initial show of authority,
imperfect compliance (or even noncompliance) with subsequent
police orders “does not nullify the fact that he initially
submitted” and was therefore seized. United States v. Brown,
401 F.3d 588, 595 (4th Cir. 2005) (holding that the suspect
remained seized despite repeatedly disobeying orders to place
and keep his hands on the car). It is therefore irrelevant that
Stover’s response to the police orders “may have suggested that
he might stop submitting to the officers’ assertion of authority
and possibly attempt to flee the scene or confront the
officers.” Id. If the record shows that Stover submitted to
the initial vehicular show of authority, it will be established
“that when Officer [Halsey] expressly told [Stover] he could not
leave, [Stover] was already seized for purposes of the Fourth
Amendment.” Black, 707 F.3d at 538.
B.
Therefore, the relevant question in this case becomes: Did
Stover passively acquiesce to the vehicular show of authority?
Supreme Court precedent makes it clear that he did.
In Brendlin, the Court said that when police make a
vehicular stop “a sensible person would not expect [the] police
officer to allow people to come and go freely from the physical
28
focal point of [the] investigation.” 551 U.S. at 257. In other
words, controlling precedent says that what the police did in
this case—pulling behind a stopped vehicle with overhead lights
flashing—amounted to a command not to leave the scene. And no
reasonable assessment of the facts can support the conclusion
that Stover attempted to leave. To be sure, he exited his
vehicle. But the majority acknowledges, as did counsel for the
government at oral argument, that a person exiting a vehicle
after police have made this show of authority does not, by
itself, break or nullify the seizure. To passively acquiesce,
Stover merely had to remain at the focal point of the police
investigation rather than attempting to flee, evade the seizure,
or jeopardize the safety of police. See United States v. Lowe,
791 F.3d 424, 433 (3d Cir. 2015); Kansas v. Smith, 184 P.3d 890,
896 (Kan. 2008).
The majority concludes that Stover was attempting to evade
the police seizure. But the factual record makes the purpose of
Stover’s actions quite clear: He wanted to abandon
incriminating evidence. Stover knew he was not supposed to be
in possession of a handgun, and he clearly sought to hide that
evidence before it was discovered by the police. But abandoning
contraband is not inconsistent with passive acquiescence, as the
majority itself ably demonstrates. Maj. Op. 21. Stover’s
conduct may be accurately described as “evasive,” but only with
29
respect to the search Stover no doubt anticipated would follow
the seizure, and not with respect to the seizure itself.
Evasion with respect to a seizure must necessarily involve
an attempt not to be seized, that is, to get away. See
Brendlin, 551 U.S. at 262 (“[O]ne sitting in a chair may submit
to authority by not getting up to run away.” (emphasis added));
see also Wayne R. LaFave, 4 Search & Seizure § 9.4(d) (5th ed.
2015) (“Thus it would appear that if a passenger were to exit
the vehicle as soon as it stopped and then fled the scene, the
seizure would not ‘take’ as to him.” (emphasis added)). Even
if the government’s success below prevents us from finding that
abandoning contraband was Stover’s only motivation for leaving
his vehicle, see Maj. Op. 15 n.4, we still lack any evidence
that his motivation was to get away. Although I agree with the
majority that outright flight is not always required to show
non-submission, we must still find that Stover attempted to
evade the seizure. According to the majority, we must infer
that Stover thought taking a few quick steps towards the front
of his vehicle and abandoning his gun would prevent the police
from seizing him. That conclusion defies logic. As such, I
depart from my colleagues and would find there is no record
support for the contention that Stover attempted or intended to
flee, evade the seizure, or jeopardize the safety of police.
30
The government’s assertion at oral argument that attempting
to hide evidence is “another crime” and that committing such a
crime precludes our finding submission, Oral Argument 20:20, is
also incorrect. The argument depends on conflating evasion of a
search with evasion of a seizure, an analytical step that is
clearly flawed. After all, if a person is constitutionally
seized and then balks at a police request to search his or her
person the Fourth Amendment seizure is not automatically
terminated. Cf. Black, 707 F.3d at 538 (holding the suspect
still seized after he realized he would be searched and
attempted to leave). My colleagues in the majority appeared
rightly skeptical of the government’s argument, and the Supreme
Court has clearly demonstrated that it is submission to the
attempted seizure that matters. Hodari D., 499 U.S. at 629(“Pertoso’s pursuit . . . constituted a ‘show of authority’
enjoining Hodari to halt, [and] since Hodari did not comply with
that injunction he was not seized until he was tackled.”).
Furthermore, I contend that when the contraband at issue is
a loaded gun, abandonment should support a finding that the
suspect was acquiescing more often than it impedes such a
finding, because the suspect has disarmed himself in response to
police authority. It would be odd if disarming oneself was
taken as evidence of resistance, while remaining armed was taken
as evidence of submission. But the majority, like counsel for
31
the government, focuses on the fact that Stover walked away from
police with his weapon either in hand or on his person. Would
they find it more submissive if Stover had walked toward police
armed with a loaded gun? Cf. United States v. Jones, 678 F.3d
293, 298 (4th Cir. 2012) (finding a seizure where the suspect
was armed throughout his encounter with police). The direction
in which he moved is a technical detail that is clearly
irrelevant so long as he remained at the focal point of the
investigation without attempting to avoid or resist the seizure
itself. The factual record demonstrates that Stover was never
more than a couple of feet from the stopped vehicle, that he had
no intention of leaving the scene, that he was submitting to
being (illegally) seized, and that his evasive conduct was an
attempt to thwart the looming police search by hiding evidence
that could turn the seizure into an arrest.
Rather than allowing these facts to tell the story of what
happened that evening, the majority relies on a strained
comparison to our opinion in United States v. Lender, 985 F.2d
151 (4th Cir. 1993), to suggest that a shootout with police was
narrowly avoided—a proposition in no way supported by the
record. In Lender, the initial (and therefore relevant) show of
authority was a police command that the suspect, Lender, stop
walking. He did not, instead continuing to walk while reaching
for a gun held in his pants. Lender apparently fumbled the
32
weapon, dropping it to the ground, and he then lunged for it as
did the officers who were quickly approaching. Id. at 153-55.
We correctly found Lender’s “conduct . . . fully consistent with
preparation to whirl and shoot the officers,” id. at 155, but
that is not the case here.
First of all, Lender was a Hodari D. case (it is hard to
imagine a case closer to the heartland of that precedent), and
this case falls under Brendlin. Second, the record here is
clear: Stover moved out of view of the police and then tossed
his weapon on the ground. Officer Halsey testified that when he
ran up to meet Stover in front of the truck he saw Stover
already tossing the gun. Stover was not raising it to fire, and
Officer Halsey specifically testified that Stover never
brandished the weapon at the officers. Whereas Lender went for
the gun he unintentionally dropped on the ground, clearly
demonstrating a violent intent, Stover intentionally tossed his
gun to the ground before Officer Halsey rounded the truck,
clearly demonstrating a pacific intent. The cases are
practically opposites.
If this were not enough, it is worth noting that for this
Court to decide that Stover was preparing for a shootout, we
would need to find that he was a particularly heartless and
cowardly individual. Stover’s movements placed Ms. Chinn, a
woman with whom he was on a first date, between himself and the
33
police. Perhaps the majority believes the government has
demonstrated that Stover was ready to use his date as a human
shield, but to me that seems to go beyond our duty to make all
reasonable inferences in favor of the government. I believe
looking at the evidence objectively forecloses the possibility
that Stover was “prepar[ing] to whirl and shoot the officers”
and that Lender neither assists the majority nor supports the
district court’s decision.
Without evidence of flight, evasion, or resistance, on what
basis can we conclude that Stover did not submit? The
majority’s statement that “we do not disturb our observation in
Wilson that ‘[p]hysical movement alone does not negate the
possibility that a seizure may nevertheless have occurred’” runs
contrary to its analysis. Maj. Op. 22 (quoting United States v.
Wilson, 953 F.2d 116, 123 (4th Cir. 1991)). The officers used
their vehicle and overhead lights to command Stover to stay in
or near the car and await the further intrusions accompanying an
illegal investigatory stop. He did so. Officers then demanded
he get back in his car, and he did so after walking a short
distance around his truck (remaining at the scene and within a
foot or two of the vehicle at all times) to abandon a weapon
that he anticipated would get him arrested or killed. The
majority believes the Fourth Amendment ceased to operate because
of these several steps. I cannot agree, and I believe our own
34
precedent and that of the Supreme Court requires a different
outcome.
II.
Once it is established that the case falls under Brendlin,
the remainder of the analysis becomes quite easy. Stover
passively acquiesced by doing exactly what the Supreme Court
said he must do: He remained at the focal point of the
investigation without attempting to avoid being seized. As a
result, Brendlin tells us, the correct test for determining when
he was seized comes not from Hodari D. but from Mendenhall. 551
U.S. at 255. The seizure occurred at the point when, “in view
of all of the circumstances surrounding the incident, a
reasonable person would have believed that he was not free to
leave.” Mendenhall, 446 U.S. at 554. I agree with my
colleagues that that line was crossed when the police pulled in
behind Stover with their overhead lights flashing. Maj. Op.
Part III (“[O]n appeal [the government] argues that ‘a
reasonable person would have felt free to leave’ when the police
arrived. We disagree.” (internal citation omitted)). Because
the weapon was both abandoned and discovered after the seizure
was complete, I believe the district court’s denial of the
motion to suppress was in error and that we should reverse.
35
III.
To reiterate, the majority has stated the proper rule for
this case, it simply has not applied it in light of all of the
relevant facts. Having stated my reasons for dissenting, I now
address the position the majority’s decision places our Circuit
in with respect to other courts. We are not the first circuit
to adopt the rule—or perhaps I should say, to articulate the
rule—that in light of Brendlin a seizure is accomplished when
police make a show of authority that goes unresisted. The Third
Circuit has said that “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. Action—not
passivity—has been the touchstone of our analysis.” Lowe, 791
F.3d at 433 (citing Hodari D., 499 U.S. at 626). The court went
on to note that flight is not the only action that would show
resistance and that evasion or threatening behavior would also
demonstrate a lack of submission. Id. We would also not be the
first court to apply Brendlin’s focal point test—the Kansas
Supreme Court did so just one year after Brendlin was decided.
Smith, 184 P.3d at 896.
Instead of following these well-reasoned opinions, the
majority appears to be tacitly influenced by a more troubling
precedent from the Tenth Circuit, which in United States v.
Salazar, 609 F.3d 1059 (10th Cir. 2010), adopted a “reasonable
36
officer” standard for analyzing submission. 609 F.3d at 1065(“[W]e consider whether a citizen has submitted to authority by
examining the view of a reasonable law enforcement officer under
the circumstances.”). The majority notes that “[t]o Officer
Halsey, [Stover’s] movement away from the police car looked like
‘flight.’” Maj. Op. 3 (emphasis added); see also Maj. Op. 15
n.4 (“Officer Halsey testified at the suppression hearing that
he believed Stover might have fled the scene had the officer not
confronted him at the hood of the car.”). The majority goes on
to cite several inapposite cases from our sister circuits, each
of which employs the perspective of the officers or conflates
evasion of a search with evasion of a seizure. Maj. Op. 19-20.
Salazar is among these. I take only limited comfort from the
majority’s statement that “we do not necessarily adopt the lower
standards of submission recognized in some of these cases.”
Maj. Op. 20 (emphasis added). The Tenth Circuit has offered no
analytical basis for its “reasonable officer” rule (aside from
an assertion that objective rules are preferred for Fourth
Amendment questions, Salazar, 609 F.3d at 1064), and I can find
no other circuit that has adopted the test explicitly. We
should not be the first. Indeed, we must not be, as the Tenth
Circuit’s test flies in the face of our own precedent in Brown
which, as discussed above, found it irrelevant that a suspect’s
37
behavior “may have suggested that he might stop submitting to
the officers’ assertion of authority.” 401 F.3d at 595.
Fortunately the majority’s opinion does not, and cannot,
adopt the “reasonable officer” test. The test does not deserve
the slightest credence. I hope my words of caution will keep us
tightly moored to our precedent in Brown, and that no en banc
panel ever drifts to such a standard in the future.
38