808 F.3d 991 (4th Cir. 2015), 14-4283, United States v. Stover

Docket Nº:14-4283
Citation:808 F.3d 991
Opinion Judge:DIANA GRIBBON MOTZ, Circuit Judge:
Party Name:UNITED STATES OF AMERICA, Plaintiff - Appellee, v. LAVELLE DEWAYNE STOVER, Defendant - Appellant
Attorney:Maggie Teresa Grace, VENABLE, LLP, Baltimore, Maryland, for Appellant. Aaron Simcha Jon Zelinsky, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee. James Wyda, Federal Public Defender, Baltimore, Maryland, Paresh S. Patel, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Greenbelt, M...
Judge Panel:Before MOTZ, KING, and GREGORY, Circuit Judges. Judge Motz wrote the majority opinion, in which Judge King joined. Judge Gregory wrote a dissenting opinion. GREGORY, Circuit Judge, dissenting:
Case Date:December 18, 2015
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
SUMMARY

Defendant was convicted of possession of a firearm as a felon and subsequently appealed the district court's denial of his motion to suppress the firearm. In this case, the officers activated their vehicle’s emergency lights, trained a spotlight on defendant, and drew their weapons. Considering the totality of the circumstances, no reasonable person in defendant's position would have felt free to ... (see full summary)

 
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Page 991

808 F.3d 991 (4th Cir. 2015)

UNITED STATES OF AMERICA, Plaintiff - Appellee,

v.

LAVELLE DEWAYNE STOVER, Defendant - Appellant

No. 14-4283

United States Court of Appeals, Fourth Circuit

December 18, 2015

Argued September 17, 2015.

Page 992

Appeal from the United States District Court for the District of Maryland, at Greenbelt. (8:13-cr-00347-PWG-1). Paul W. Grimm, District Judge.

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.

Before MOTZ, KING, and GREGORY, Circuit Judges. Judge Motz wrote the majority opinion, in which Judge King joined. Judge Gregory wrote a dissenting opinion.

OPINION

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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 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 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

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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 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, 111 S.Ct. 1547, 113 L.Ed.2d 690 (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 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

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that the officers seized him, without reasonable suspicion, at the moment the police vehicle pulled up 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, 122 S.Ct. 2105, 153 L.Ed.2d 242 (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, 88 S.Ct. 1868, 20 L.Ed.2d 889 (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, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991)(emphasis omitted).

To determine whether police have displayed a show of authority sufficient to implicate the Fourth Amendment, a court applies the objective test set forth in United States v. Mendenhall, 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497 (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....

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