Case: 15-51177 Document: 00513765643 Page: 1 Date Filed: 11/18/2016
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 15-51177 FILED
Summary Calendar November 18, 2016
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
MARQUETTE DESHAWN WILSON,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 6:14-CR-260-1
Before JONES, WIENER, and CLEMENT, Circuit Judges.
PER CURIAM: *
Marquette DeShawn Wilson pleaded guilty to possession with intent to
distribute cocaine and was sentenced to 168 months of imprisonment followed
by a three-year term of supervised release. Wilson reserved his right to appeal
the district court’s denial of his motion to suppress. On appeal, Wilson
contends that he has standing to contest the constitutionality of the
installation and monitoring of a tracking device on his vehicle and that
suppression of the cocaine is warranted because his Fourth Amendment rights
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
Case: 15-51177 Document: 00513765643 Page: 2 Date Filed: 11/18/2016
No. 15-51177
were violated since the tracking warrant was supported by a bare bones
affidavit. When reviewing the denial of a motion to suppress, we review factual
findings for clear error and conclusions of law de novo. United States v. Pack,
612 F.3d 341, 347 (5th Cir. 2010).
Where a suspect refuses to yield to a show of authority by the police, the
suspect is not seized by the police until such time as he submits or is forced to
submit to police authority. See California v. Hodari D., 499 U.S. 621, 626
(1991). Because a seizure does not occur when a mere show of authority occurs,
only when the suspect yields to a show of authority, the Fourth Amendment
does not apply to anything that the suspect abandons while fleeing the police
in an attempt to avoid a seizure. See id. at 629.
The undisputed facts in this case are that when law enforcement tried to
stop Wilson, Wilson attempted to evade police and disposed of the cocaine
during his flight. Even assuming, as Wilson contends, that the tracking
warrant was obtained in violation of the Fourth Amendment and that the
ensuing attempted traffic stop was somehow also illegal, the cocaine Wilson
disposed of during flight was abandoned prior to his seizure and, therefore,
“was not the fruit of a seizure.” Hodari D., 499 U.S. at 629. To the extent
Wilson’s argument can be read as contending that he did not voluntarily
abandon the cocaine but relinquished it as a result of police misconduct, the
existence of police pursuit or investigation at the time of abandonment does
not of itself render the abandonment involuntary. United States v. Colbert,
474 F.2d 174, 176 (5th Cir. 1973). Wilson does not actually argue police
misconduct, and the record does not indicate that the police did anything other
than attempt to conduct a traffic stop. As Wilson lacks standing, the district
court did not err by denying his motion to suppress.
AFFIRMED.
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