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