UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-5235
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
RAYMOND LAVONNE CURETON,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Robert J. Conrad,
Jr., Chief District Judge. (3:07-cr-00037-RJC-1)
Argued: December 3, 2009 Decided: February 26, 2010
Before TRAXLER, Chief Judge, NIEMEYER, Circuit Judge, and John
Preston BAILEY, Chief United States District Judge for the
Northern District of West Virginia, sitting by designation.
Affirmed by unpublished per curiam opinion.
ARGUED: Ross Hall Richardson, FEDERAL DEFENDERS OF WESTERN NORTH
CAROLINA, INC., Charlotte, North Carolina, for Appellant. Mark
Andrew Jones, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte,
North Carolina, for Appellee. ON BRIEF: Claire J. Rauscher,
Executive Director, Cecilia Oseguera, FEDERAL DEFENDERS OF
WESTERN NORTH CAROLINA, INC., Charlotte, North Carolina, for
Appellant. Edward R. Ryan, Acting United States Attorney,
Charlotte, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Raymond Lavonne Cureton pled guilty to possessing a firearm
in violation of 18 U.S.C. § 922(g)(1), preserving the right to
appeal the district court’s denial of his motion to suppress.
We affirm.
I.
The following evidence was developed during the suppression
hearing. On August 10, 2006, around 4:30 p.m., Charlotte police
dispatch received a 911 call from Syd Neely of the Charlotte
Sanitation Department; Syd identified himself by his first name
and provided a phone number. Syd stated that he was Cureton’s
supervisor and that Cureton’s co-workers reported that Cureton
was carrying a .357 handgun while on his garbage route.
Moreover, Syd provided Cureton’s date of birth, full name,
assigned truck number and his approximate location. Finally,
Syd asserted his belief that Cureton was a convicted felon.
Officer Nesbitt received the call from dispatch relaying
the information supplied by Syd’s phone call. Officer Nesbitt
already knew Cureton, who had been working for local law
enforcement as a confidential informant. Officer Nesbitt knew
that Cureton was a convicted felon and that his criminal history
included “several gun charges.” J.A. 29. Using the number
supplied by Syd, Officer Nesbitt called and requested Cureton’s
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current location. Syd subsequently notified Officer Nesbitt
that Cureton’s truck had returned from its route and was parked
at the Sanitation Department.
After Officer Nesbitt arrived at the Sanitation Department
and began looking for Cureton’s assigned truck, he noticed
Cureton in the distance wearing an orange work shirt. A
roadblock, however, prevented Officer Nesbitt from approaching
Cureton and thus he issued a radio call for any officers near
the intersection where he saw Cureton. Officer George
Nickerson, who heard the original dispatch regarding a suspect
carrying a concealed weapon, responded to the call. Officer
Nesbitt described Cureton and Cureton’s criminal history to
Officer Nickerson and informed him that Cureton was last seen
walking in Nickerson’s direction.
Officer Nickerson parked his patrol vehicle in a parking
lot and waited for Cureton to approach on the sidewalk. As
Cureton passed, Officer Nickerson asked him “to step over to the
car.” J.A. 44. Cureton refused, saying that he had done
nothing wrong. When Officer Nickerson again asked him to stop
for brief questioning, Cureton began running. Officer Nickerson
pursued him on foot, yelling for him to stop. During the
pursuit, Officer Nickerson saw Cureton reach into the waistband
of his pants and grip an object as if he was “gripping the
handle of a pistol” and then try to pull the object out of his
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pants. J.A. 45. When he saw Cureton do this, Officer Nickerson
drew his service weapon and continued to follow Cureton around
the corner of a Salvation Army building. Eventually, Officer
Nickerson chased Cureton across a parking lot in front of a NAPA
auto parts store and toward a fenced-in lot behind the NAPA
store. Officer Nickerson found Cureton hiding under a truck
parked on the side of the NAPA store and ordered him to come out
from under the vehicle. Cureton obeyed, but he did not have the
purported handgun.
Officer Nesbitt arrived at the NAPA store as Officer
Nickerson was arresting Cureton and asked about the gun.
Officer Nickerson then explained he saw Cureton reaching into
his waistband while they were running. Officer Nesbitt began
walking toward where Officer Nickerson had chased Cureton. As
he walked through the parking lot in front of the NAPA store, a
NAPA employee directed him to look underneath a truck that was
parked there. Officer Nesbitt found a .357 magnum under the
truck. Cureton later gave a statement “that he had had the gun
all day, and when he ran, he ditched the gun under the truck in
front of the NAPA store.” J.A. 36.
Cureton moved to suppress the gun as well as all statements
made by Cureton after the arrest. Relying mainly on Florida v.
J.L., 529 U.S. 266 (2000), Cureton argued that the officers
lacked reasonable suspicion to make an investigatory stop under
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Terry v. Ohio, 392 U.S. 1 (1968). Cureton likened the 911 call
to an anonymous tip that was not supported by any indicia of
reliability. And, Cureton argued that since it was a bad stop,
the subsequent statement admitting possession of the gun should
be excluded as “fruit of the poisonous tree.” Wong Sun v.
United States, 371 U.S. 471, 488 (1963) (internal quotation
marks omitted).
The district court denied the motion to suppress,
concluding that the tip was reliable and provided sufficient
justification for a Terry stop:
I don’t think this is an anonymous tip at all. .
. . The caller identifies himself in relation to the
defendant, named himself as his supervisor. Indicated
the defendant’s name, date of birth, other identifying
information; [indicated his belief] that [Cureton] had
a felony conviction, and left contact information. . .
.
I think it’s a very reliable tip. This case is
so different than the JL case because of the degree of
detail provided by the known tipster; name, date of
birth, employer, type of weapon, truck number, contact
information, believed felony status –- very detailed
information which was corroborated by Officer Nesbitt
who had firsthand knowledge of the defendant.
. . . .
. . . It’s very reliable information that was
provided, was corroborated in part by Officer Nesbitt,
who had firsthand observations of a person meeting the
description given by Syd, and who had knowledge both
of the defendant himself and his criminal record.
. . . .
And it’s further confirmed by the action of the
defendant who, although not under arrest and free to
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go, flees in a manner that adds to the reasonable
suspicion of the officers.
Not only did he flee, but as he was fleeing, he
reached into his waistband, and as Officer Nickerson
described . . . it appeared that the defendant was
pulling out a . . . weapon . . . . Officer Nickerson
credibly feared for his safety, pulled his gun, . . .
[a]nd then [found] the defendant hiding under a truck,
all of this information when viewed together justifies
a Terry stop of the defendant.
And the testimony is that during the brief time
of the Terry stop [Officer Nesbitt] . . . had the
weapon pointed out to him . . . and reached under the
truck and pulled out a .357 magnum which was clearly
sufficient probable cause for an arrest.
It is a future act, but the act occurred . . .
within a reasonable time of the initiation of the
Terry stop . . . .
And I think [Cureton] was lawfully arrested on
probable cause grounds, and, therefore, there really
is not a fruit of the poisonous tree issue.
J.A. 65-68 (emphasis added).
II.
Cureton argues, as he did below, that this case is best
described as a Terry stop case where law enforcement is
attempting to use an anonymous tip to establish the requisite
reasonably articulable suspicion. See Florida v. J.L., 529 U.S.
266, 270 (2000). The government accepts the premise that this
case involved a Terry stop but contends that the district court
correctly concluded that there was sufficient and reliable
information to support reasonable suspicion.
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Although we agree with the district court’s disposition of
Cureton’s motion to suppress, we believe that Cureton’s
challenge founders on the threshold issue of whether a seizure
ever occurred to “trigger[] the protections of the Fourth
Amendment” in the first place. United States v. Brown, 401 F.3d
588, 593 (4th Cir. 2005). “[A] seizure does not occur simply
because a police officer approaches an individual and asks a few
questions. So long as a reasonable person would feel free to
disregard the police and go about his business, the encounter is
consensual and no reasonable suspicion is required.” Florida v.
Bostick, 501 U.S. 429, 434 (1991) (internal quotation marks
omitted). The general rule is that a seizure “requires either
physical force ... or, where that is absent, submission to the
assertion of authority.” California v. Hodari D., 499 U.S. 621,
626 (1991). A defendant who flees the police in response to an
assertion of authority has not been seized, and thus his Fourth
Amendment rights are not implicated. See id. at 626, 629
(concluding that “since Hodari did not comply” with the “show of
authority,” he was not seized “until he was tackled”).
In Hodari D., the suspect fled when he saw the police and
threw down a small rock which later proved to be cocaine. See
id. at 622-23. The Court held that the suspect was not seized
until the police apprehended him, and the abandoned cocaine was
not the fruit of the suspect's seizure. See id. at 629. Like
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the defendant in Hodari D., Cureton was not seized before or
during his flight. Seizure for Fourth Amendment purposes did
not occur until he submitted to Officer Nickerson’s order to
come out from underneath the truck. Thus, Cureton had not been
seized at the time he abandoned the handgun; he essentially gave
up his expectation of privacy by abandoning his property during
flight. See id. at 629 (holding that cocaine abandoned while
defendant was running away from police was not the fruit of an
illegal seizure).
Finally, we also reject Cureton’s argument that the
district court ought to have suppressed his post-arrest
statements as “fruit of the poisonous tree.” Wong Sun, 371 U.S.
at 488 (internal quotation marks omitted). As explained,
Cureton was not seized for Fourth Amendment purposes until he
yielded to law enforcement and emerged from underneath the
truck. We have no difficulty concluding, in view of the
totality of the circumstances, that the officers at that point
had probable cause to arrest Cureton. This conclusion, in turn,
forecloses the argument that Cureton’s post-arrest statements
were “‘fruits’ of the agents’ unlawful action.” Id. at 484.
Accordingly, the district court correctly denied Cureton’s
motion to suppress.
AFFIRMED
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