United States v. Flowers

• Decision Date: 30 July 2021
• Docket Number: No. 20-60056,20-60056
• Citation: 6 F.4th 651
• Parties: UNITED STATES of America, Plaintiff—Appellee, v. Otha Ray FLOWERS, Defendant—Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

6 F.4th 651

UNITED STATES of America, Plaintiff—Appellee,

v.Otha Ray FLOWERS, Defendant—Appellant.

No. 20-60056

United States Court of Appeals, Fifth Circuit.

FILED July 30, 2021

Gregory Layne Kennedy, Esq., Assistant U.S. Attorney, David Harrison Fulcher, U.S. Attorney's Office, Southern District of Mississippi, Jackson, MS, Gaines H. Cleveland, Assistant U.S. Attorney, U.S. Attorney's Office Southern, District of Mississippi, Gulfport, MS, for Plaintiff-Appellee.

Jason Scott Gilbert, Counsel, Watkins & Eager, P.L.L.C., Jackson, MS, for Defendant-Appellant.

Before Jones, Smith, and Elrod, Circuit Judges.

Edith H. Jones, Circuit Judge:

Otha Ray Flowers, convicted of a federal gun violation, appeals the denial of his motion to suppress evidence as a violation of his Fourth Amendment rights. The questions on appeal are whether Flowers and Jeremy Mayo were "seized" when five or six patrol cars parked behind and around Mayo's Cadillac with their patrol lights flashing, and if they were seized, whether Officer Stanton had reasonable suspicion to conduct a "Terry stop."¹ Under the circumstances of this case and viewing the facts in the light most favorable to the Government, assuming arguendo that these individuals were seized, there was reasonable suspicion to do so. We AFFIRM.

I.

On Saturday, February 18, 2017, around 8:30 p.m., Officer Eric Stanton of the Jackson Police Department was patrolling an area of Jackson, Mississippi. Officer Stanton was a member of the Direct Action Response Team (DART), a proactive unit tasked to "look[ ] for suspicious behavior, suspicious activities, traffic stops, [and] things of that nature ...." On that night, Officer Stanton's supervisor had directed the DART to an area of Jackson, around Capitol Street and Road of Remembrance, where "recent violent crime and burglaries" had occurred.

As Officer Stanton was turning from Capitol Street onto Road of Remembrance, he saw a silver Cadillac parked in the south end of a small parking lot connected to an open convenience store. It was dark outside, but Officer Stanton observed that the vehicle was occupied by two men, one in the driver's seat and one in the passenger's seat. Officer Stanton observed the vehicle "for approximately 10 to 15 seconds" and noticed the occupants "didn't appear to be exiting the vehicle, [and] didn't appear to be patronizing the establishment." Therefore, he decided to conduct what he characterized as a "field interview."

Officer Stanton testified that at this point, he and five to six other officers, all in separate patrol cars, converged upon the silver vehicle with their blue lights activated. The parking lot in front of the store was narrow, with very little space or room to maneuver. Officer Stanton later acknowledged that it would have been impossible for the silver vehicle to leave the parking lot because of the way the officers parked their cars around it.

Officer Stanton got out of his patrol car and approached the silver vehicle, as did other officers. He testified that the men in the vehicle were still free to leave at this point in the encounter, but he did not communicate that to them. Flowers, sitting in the driver's seat, did not attempt to flee. As Officer Stanton approached, Flowers lowered the driver's side window. With the window down, Officer Stanton reported smelling "what appeared to be the strong odor of marijuana coming from the vehicle." Officer Stanton asked Flowers for identification and Flowers provided his Mississippi driver's license. According to Officer Stanton, the passenger in the vehicle—Jeremy Mayo—then threw an object into his mouth. In response, Officer Stanton ordered both men to exit the Cadillac.

When Flowers stepped out of the vehicle, Officer Stanton saw in plain view a silver, .32-caliber revolver on the driver's seat where Flowers had been sitting.² A criminal history check revealed that Flowers had an outstanding arrest warrant, and Officer Stanton placed him under arrest. During a search incident to his arrest, Flowers stated that he had marijuana on him, and Officer Stanton recovered a small, clear plastic bag of marijuana from his front left pocket. Officer Stanton identified this marijuana as the source of the odor he smelled upon approaching Flowers's driver-side window.

Flowers was charged with one count of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). Before trial, Flowers moved to suppress evidence of the gun on the basis that the encounter with Flowers was a seizure that violated the Fourth Amendment. The district court explained orally on the record his reasons for rejecting the motion. The district court determined that there was "no evidence" that the "investigatory aspect of the initial approach of the officers ever evolved into a seizure." Flowers proceeded to trial, and a jury convicted him.

II.

The Fourth Amendment prohibits "unreasonable searches and seizures." U.S. Const. amend. IV. Evidence seized in violation of the amendment may be excluded from introduction at trial. A temporary, warrantless detention of an individual constitutes a seizure for Fourth Amendment purposes and may only be undertaken if the law enforcement officer has reasonable suspicion to believe that a crime has occurred or is in the offing. Terry v. Ohio , 392 U.S. 1, 30–31, 88 S. Ct. 1868, 1884–85, 20 L.Ed.2d 889 (1968) ). Importantly, however, "law enforcement officers do not violate the Fourth Amendment by merely approaching an individual on the street or in another public place, by asking him if he is willing to answer some questions, [or] by putting questions to him if the person is willing to listen...." Florida v. Royer , 460 U.S. 491, 497, 103 S. Ct. 1319, 1324, 75 L.Ed.2d 229 (1983).

This court reviews the constitutionality of the Terry stop de novo . United States v. Cervantes , 797 F.3d 326, 328 (5th Cir. 2015). We review the findings of fact by the trial court for clear error, id. , and are bound by the court's credibility determinations. Moreover, we construe the evidence presented at the suppression hearing "in the light most favorable to the prevailing party"—here, the Government. United States v. Santiago , 310 F.3d 336, 340 (5th Cir. 2002).

Because a seizure under the Fourth Amendment must be "justified at its inception," our first task is ordinarily to determine when the seizure occurred. See United States v. Hill , 752 F.3d 1029, 1033 (5th Cir. 2014) (quotation marks and citation omitted). Flowers contends that he was seized at the outset of the police encounter, when the patrol cars surrounded the vehicle in which he was sitting. The government contends that the police encounter with Flowers was consensual, and a seizure did not occur until after Officer Stanton smelled marijuana from Flowers's open window, giving rise to probable cause for arrest.

A seizure occurs when, under the totality of the circumstances, a law enforcement officer, by means of physical force or show of authority, terminates or restrains a person's freedom of movement. Florida v. Bostick , 501 U.S. 429, 434, 111 S. Ct. 2382, 2386, 115 L.Ed.2d 389 (1991). The test that applies in the absence of an unambiguous intent to restrain or upon a suspect's passive acquiescence is whether "in view of all of the circumstances..., a reasonable person would have believed that he was not free to leave." United States v. Mendenhall , 446 U.S. 544, 554, 100 S. Ct. 1870, 1877, 64 L.Ed.2d 497 (1980). And the Court added to this test that when a person " ‘has no desire to leave’ for reasons unrelated to the police presence, the ‘coercive effect of the encounter’ can be measured better by asking whether ‘a reasonable person would feel free to decline the officers’ requests or otherwise terminate the encounter." Brendlin v. California , 551 U.S. 249, 255, 127 S. Ct. 2400, 2405–06, 168 L.Ed.2d 132 (2007) (citing Bostick , 501 U.S. at 435–36, 111 S. Ct. at 2387 ).

The parties debate the existence of a "seizure" under the circumstances present here, and there appears to be no Fifth Circuit case where a law enforcement seizure occurred by the mere surrounding presence of police cars and Officer Stanton's non-threatening approach to Mayo's auto. We need not resolve that debate and will assume arguendo that the police cars’ surrounding of the Cadillac, under the totality of circumstances, "seized" Flowers and Mayo. The district court principally viewed this incident as analogous to a stop-and-frisk situation, for which the court found reasonable suspicion under Terry . This conclusion, based on credibility determinations to which we are bound to defer, was sufficient to vindicate the officers’ actions.

The following facts are determinative. The police were patrolling on Capitol and Remembrance, the exact streets where this arrest occurred, because of the prevalence of "violent crime and burglaries." The Supreme Court has noted, "the fact that [a] stop occurred in a ‘high crime area’ [is] among the relevant contextual considerations in a Terry analysis." Illinois v. Wardlow , 528 U.S. 119, 124, 120 S. Ct. 673, 676, 145 L.Ed.2d 570 (2000) (citing Adams v. Williams , 407 U.S. 143, 147–48, 92 S. Ct. 1921, 1924, 32 L.Ed.2d 612 (1972). In addition, Officer Stanton was no novice. He possessed an undergraduate degree in justice administration and a masters degree in criminology and had ten years of law enforcement experience. In determining reasonable suspicion, courts must consider the facts in light of the officer's experience. Terry , 392 U.S. at 27, 88 S. Ct. at 1883.

The officer saw a car parked in the convenience store lot as far as possible from the storefront, facing its brick wall rather than the glass door, so its occupants could not easily be viewed from within the store. Two males were in the car, and Officer Stanton observed that neither of them stepped out of the Cadillac heading toward the store for 10–15 seconds. The district court found the officer's testimony credible....