United States v. Allison

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4328
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ANTHONY JOSEPH ALLISON,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Lacy H. Thornburg,
District Judge. (1:08-cr-00085-LHT-1)
Argued: September 24, 2010 Decided: October 18, 2010
Before NIEMEYER, MOTZ, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
ARGUED: Matthew Segal, FEDERAL DEFENDERS OF WESTERN NORTH
CAROLINA, INC., Asheville, North Carolina, for Appellant. Mark
A. Jones, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North
Carolina, for Appellee. ON BRIEF: Claire J. Rauscher, Executive
Director, Fredilyn Sison, FEDERAL DEFENDERS OF WESTERN NORTH
CAROLINA, INC., Asheville, North Carolina, for Appellant.
Edward R. Ryan, Acting United States Attorney, Charlotte, North
Carolina, Amy E. Ray, Assistant United States Attorney, OFFICE
OF THE UNITED STATES ATTORNEY, Asheville, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Anthony Allison appeals from an order of the district court
denying his motion to suppress a gun found in a car in which he
had been a passenger. We affirm.
I.
On January 11, 2008, a police officer, Sgt. John Hamrick,
spotted two men in a Ford Explorer on a residential street in
Shelby, North Carolina. Victor Jerome Wade was driving the
Explorer and Allison was seated in the front seat beside him.
Sgt. Hamrick, however, mistakenly thought that he recognized the
driver as Zavious Wells, a man wanted for a probation violation.
Sgt. Hamrick and his partner, Officer Brandon Carpenter, made a
U-turn and began to follow the Explorer, with the intent to make
a traffic stop. Shortly thereafter, Wade drove the Explorer
into a driveway next to, and toward the rear of, a house. The
officers parked in the driveway behind the Explorer.
Allison and Wade emerged from the Explorer and then noticed
the police officers, who had also exited their vehicle. Allison
and Wade moved toward the front door of the house. The officers
approached them, and Sgt. Hamrick said to Wade, “You are not
Zavious, but you are Victor.” Sgt. Hamrick later testified at
the suppression hearing that he knew Wade because he had charged
him in 2005 with a “driving offense” and had reason to believe
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that Wade did not have a driver’s license. He asked Wade
whether he had a license, and Wade responded in the negative.
Sgt. Hamrick patted down Wade and Allison for weapons, but found
nothing. He requested Wade’s consent to search the Explorer,
but Wade refused on the ground that he did not own the vehicle.
Sgt. Hamrick testified that he knew that Allison had
recently been released from prison, where he had been
incarcerated for gun charges. Sgt. Hamrick also testified that
he “reasonably felt that there was something that was in the
vehicle that these two young men were trying to hide” because
the Explorer had turned quickly into the driveway and proceeded
to the back of the house. When three women emerged from the
house shortly after the Explorer arrived, Sgt. Hamrick testified
that he feared that someone might go into the Explorer and
retrieve a weapon. Accordingly, Sgt. Hamrick asked Officer
Carpenter and a third officer who arrived for backup support to
conduct a “Terry frisk” of the Explorer. One of the officers
discovered a handgun under the front passenger seat, where
Allison had been seated. The officers then arrested Allison and
obtained a search warrant to examine the contents of his cell
phone, which revealed photographs of him holding a gun that
resembled the gun seized from the vehicle.
Allison moved to suppress the gun as the product of an
unlawful search and seizure. He testified at the suppression
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hearing that he and Wade intended to visit Wade’s ex-girlfriend
at the house and stay for about 30 minutes. Allison claimed
that he did not feel free to leave when the police arrived
because he thought the officers would stop him and might try to
arrest him for resisting. He acknowledged, however, that on
this occasion, unlike his prior encounters with the police, the
officers did not specifically do or say anything to indicate
that he was not free to leave.
The district court denied Allison’s motion to suppress the
gun on the ground that the police did not stop the vehicle in
which Allison was a passenger and Allison had no right to
challenge the search of the vehicle in question. Allison then
entered a conditional guilty plea to being a felon in possession
of a firearm in violation of 18 U.S.C. § 922(g)(1), reserving
the right to appeal the denial of his suppression motion.
II.
To challenge the search of a vehicle, a passenger must have
a reasonable expectation of privacy in the vehicle and its
contents. When, as here, he does not own the vehicle and does
not claim ownership of its contents, he typically does not have
such an expectation. See Rakas v. Illinois, 439 U.S. 128, 148-
49 (1978); United States v. Rusher, 966 F.2d 868, 874-75 (4th
Cir. 1992). However, the Supreme Court has held that passengers
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are seized in traffic stops, and thus may challenge the legality
of such stops. Brendlin v. California, 551 U.S. 249, 258
(2007). In Brendlin, the defendant challenged only the legality
of the stop, and not the subsequent search, but the Court has
held that searches that are the “fruits” of seizures are subject
to challenge as well. See Wong Sun v. United States, 371 U.S.
471, 484 (1963).
The parties agree that Wade drove the Explorer to its
destination, parked it, and that he and Allison exited the
vehicle before either of them noticed the officers.
Nonetheless, Allison contends that the officers’ actions
amounted to a traffic stop because when the police car parked
behind the Explorer in the driveway, it prevented the Explorer
from leaving. Allison seeks to challenge the stop and the
ensuing search as the “fruit” of the stop.
He heavily relies on the Brendlin holding that “[a] person
is seized by the police and thus entitled to challenge the
government's action under the Fourth Amendment when the officer,
by means of physical force or show of authority, terminates or
restrains his freedom of movement, through means intentionally
applied.” 551 U.S. at 254 (internal citations and quotation
marks omitted, emphasis removed). This holding, however,
provides little assistance to Allison. This is so because by
the time the officers pulled into the driveway, blocking the
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Explorer, the Explorer had come to a stop, and Allison and Wade
had exited it with the admitted intent to enter a house for
thirty minutes. Given these facts, the inquiry must focus on
Allison’s rights as a pedestrian, not as a passenger.
Both the Supreme Court and this court have distinguished
pedestrian stops from automotive stops, reasoning that
questioning a pedestrian is significantly less intrusive than
arresting the progress of an automobile. See United States v.
Mendenhall, 446 U.S. 544, 556-57 (1980); United States v.
Weaver, 282 F.3d 302, 312 (4th Cir. 2002) (“pedestrian
encounters are much less restrictive of an individual’s
movements”).
Indeed, Brendlin, the very case on which Allison relies to
claim standing as a passenger, draws a stark contrast between
individuals within a vehicle and those outside its confines:
pedestrians possess a degree of physical and environmental
freedom that automotive occupants lack. See Brendlin, 551 U.S.
at 257 (2007) (noting that a stop of persons inside a vehicle
triggers a “societal expectation of ‘unquestioned police
command’” (internal citations omitted)). The holding in
Brendlin -- that a traffic stop seizes a passenger as well as
the driver -- rests on the physical confinement of the
automobile. As the Brendlin Court explained, “[a]n officer who
orders one particular car to pull over acts with an implicit
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claim of right . . ., and a sensible person would not expect a
police officer to allow people to come and go freely from the
physical focal point of the investigation . . . .” Id. The
walls of the car -- and the passenger’s dependence on the driver
while within those walls –- bind the car’s occupants; a seizure
of one is a seizure of all.
Here, by contrast, confinement in the Explorer did not
limit Allison’s freedom of movement at the time the officers
pulled into the driveway and blocked the vehicle. Police effect
a seizure only if they “terminate[] or restrain[] [an
individual’s] freedom of movement” “by means of physical force
or show of authority.” Id. at 254 (internal quotation omitted).
Because the car did not limit Allison’s movement at the time of
the police encounter, the blocking of that car did not restrain
his freedom of movement. Cf. INS v. Delgado, 466 U.S. 210, 218
(1984) (finding no seizure when INS agents obstructed exits to
large factory while interrogating workers, because “workers were
not prevented by the agents from moving about the factories”).
III.
In summary, Allison does not have standing to contest the
search of the Explorer that led to the recovery of the
challenged weapon. Because Allison did not have standing to
challenge the search of the Explorer and the search was not the
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fruit of an illegal seizure of Allison, we reject Allison’s
contention that the district court erred in refusing to suppress
the gun. Therefore, the judgment of the district court is
AFFIRMED.
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