NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
__________
C.A. No. 20-1016
__________
UNITED STATES OF AMERICA,
Appellant
v.
IMAN SEARS
__________
On Appeal from the District Court
for the District of New Jersey
(D.C. No. 2-19-cr-00224-001)
Honorable William J. Martini, U.S. District Judge
__________
Argued September 15, 2020
Before: KRAUSE, RESTREPO, and BIBAS, Circuit Judges
(Opinion filed: November 24, 2020)
Mark E. Coyne
Office of United States Attorney
970 Broad Street
Room 700
Newark, NJ 07102
John F. Romano [ARGUED]
Office of United States Attorney
970 Broad Street
Room 700
Newark, NJ 07102
Counsel for Appellant
Anita Aboagye-Agyeman [ARGUED]
Office of Federal Public Defender
1002 Broad Street
Newark, NJ 07102
Peter M. Carter
Office of Federal Public Defender
1002 Broad Street
Newark, NJ 07102
Counsel for Appellee
__________
OPINION*
__________
KRAUSE, Circuit Judge.
The District Court granted Defendant-Appellee Iman Sears’s motion to suppress
evidence. In this appeal, the Government urges us to reverse the District Court’s suppres-
sion of the evidence seized from Sears on two alternative grounds: (1) that the officers did
not seize Sears until he began to flee, at which point they had reasonable suspicion to seize
him, or (2) that if the officers did seize Sears before his attempted flight, they had reason-
able suspicion at that earlier point in time. For the reasons set forth below, these arguments
are unavailing and we will affirm.
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
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I. Discussion
The Fourth Amendment allows police officers to “conduct a brief, investigatory
stop” when they have “a reasonable, articulable suspicion that criminal activity is afoot.”
Illinois v. Wardlow, 528 U.S. 119, 123 (2000). To evaluate the constitutionality of a stop,
we first identify the moment when the suspect was seized and then determine whether the
officers had reasonable suspicion at that time. United States v. Lowe, 791 F.3d 424, 430
(3d Cir. 2015). We address these questions in turn.1
A. The Moment of Seizure
A seizure occurs once there is either “(a) ‘a laying on of hands or application of
physical force’” or “(b) submission to ‘a show of authority.’” United States v. Brown, 448
F.3d 239, 245 (3d Cir. 2006) (quoting California v. Hodari D., 499 U.S. 621, 626 (1991)).
We are concerned here with the second category, and because the Government concedes
that the officers made a show of authority when they ran towards Sears and yelled “stop,”2
App. 5; see Appellant’s Br. 10, the question before us is whether Sears submitted to that
1
The District Court had jurisdiction under 18 U.S.C. § 3231 and we have jurisdic-
tion under 18 U.S.C. § 3731. “[W]e exercise plenary review over the District Court’s legal
conclusions, and we review the underlying factual findings for clear error.” United States
v. Laville, 480 F.3d 187, 190 (3d Cir. 2007) (citation omitted). We will not reverse those
factual findings so long as “the district court’s account of the evidence is plausible in light
of the record,” Lowe, 791 F.3d at 427 (quotation marks omitted), and we view the evidence
in the light most favorable to the District Court’s ruling, “draw[ing] reasonable inferences
in [the prevailing party’s] favor,” United States v. Clark, 902 F.3d 404, 409 (3d Cir. 2018)
(citation omitted).
2
There has been a show of authority if “the officer’s words and actions would
have conveyed . . . to a reasonable person” that he was being ordered to restrict his move-
ments. Hodari D., 499 U.S. at 628 (citing United States v. Mendenhall, 446 U.S. 544,
554 (1980)).
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show of authority, i.e., whether he “manifest[ed] compliance with police orders,” United
States v. Waterman, 569 F.3d 144, 146 n.3 (3d Cir. 2009). This requires more than “mo-
mentary compliance,” United States v. Valentine, 232 F.3d 350, 359 (3d Cir. 2000) (inter-
nal quotation marks omitted), but once a suspect has submitted, his submission is not ne-
gated just because he later tries to flee, United States v. Coggins, 986 F.2d 651, 653–54 (3d
Cir. 1993).
Our cases clarify the degree of compliance required. In Valentine, the suspect was
ordered “to come over and place his hands on the [police] car,” 232 F.3d at 353, and we
found no submission where he at most “paused for a few moments and gave his name”
before taking flight, id. at 359. In Brown, by contrast, where the suspect was also ordered
to place his “hands on the [police] vehicle,” we found that he had submitted because he
“demonstrated more than ‘momentary compliance’ with the arresting officers’ demands”
by “turning to face the police car and placing (or moving to place) his hands on the vehi-
cle,” even though he later fled. 448 F.3d at 244, 246 (quoting Valentine, 232 F.3d at 359).
The circumstances here more closely resemble Brown. The District Court found
that the officers ordered Sears to “stop,” App. 5, and that Sears “stopped” at the door to his
building, App. 5, “elected not to enter” it, App. 7 n.2, “turned around to face the approach-
ing officers,” App. 7 n.3, and said a few words to them. These acts are functionally equiv-
alent to “turning to face the police car and placing (or moving to place) [one’s] hands on
the vehicle.” Brown, 448 F.3d at 246. For its part, the Government would liken this case
to Valentine, contending that Sears only “paused” briefly, 232 F.3d at 359, and therefore
never “manifest[ed] compliance” with the officers’ order, Waterman, 569 F.3d at 146 n.3.
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But we conclude that by stopping at the door and allowing the officers to approach him,
Sears, like the suspect in Brown, yielded his freedom of movement and materially increased
the officers’ control over him, thus “demonstrat[ing] more than ‘momentary compliance.’”
Brown, 448 F.3d at 246. The attempted flight that soon followed did not negate that initial
submission. See id.
Sears was therefore seized when he stopped at the door, turned to face the officers
and speak with them, and allowed them to approach. The dispositive question, then, is
whether the officers had reasonable suspicion to stop Sears at that time.
B. Reasonable Suspicion
Reasonable suspicion requires “a reasonable, articulable suspicion that criminal ac-
tivity is afoot,” United States v. Hester, 910 F.3d 78, 84 (3d Cir. 2018) (quoting Wardlow,
528 U.S. at 123), meaning less than “probable cause” but more than a “hunch,” Navarette
v. California, 572 U.S. 393, 397 (2014) (quoting Terry v. Ohio, 392 U.S. 1, 27 (1968); and
citing United States v. Sokolow, 490 U.S. 1, 7 (1989)). To evaluate reasonable suspicion,
we consider “the totality of the circumstances,” United States v. Navedo, 694 F.3d 463,
468 (3d Cir. 2012) (quotation marks omitted), including, as relevant here, (1) a high crime
rate in the area, (2) a late hour at night, (3) nervous or evasive behavior by the suspect, and
(4) other behavior by the suspect that indicates criminal activity to a police officer’s expert
eye, see Brown, 448 F.3d at 251.
Here, it is uncontested that the incident occurred late at night in a high-crime area.
But those two factors, standing alone, are insufficient for reasonable suspicion. See United
States v. Goodrich, 450 F.3d 552, 561–62 (3d Cir. 2006). This case therefore hinges on
5
whether Sears acted “nervous[ly]” or “evasive[ly]” or behaved in a way that “conform[ed]
to [the] officers’ specialized knowledge of criminal activity.” Brown, 448 F.3d at 251
(quotation marks omitted). If he did, then the officers likely had reasonable suspicion, but
if he did not, then the officers did not have reasonable suspicion at the moment when they
seized him. Id.
The District Court found that he did not, and we cannot say on this record that this
finding was clearly erroneous. The one officer who testified stated that Sears acted “star-
tled” when he saw the officers and then walked away nervously, making a “very subtle”
adjustment to his waistband, which the officer interpreted to mean that Sears had a gun.
App. 4. The District Court found the officer’s testimony generally credible. After review-
ing the videotapes of the officers’ approach and the encounter, though, the Court found that
“in light of the various obstacles . . . and subtlety of the movement,” the officer could not
have “observe[d] the reported indicia of suspicious behavior with sufficient reliability.”
App. 10. Thus, even recognizing that it must defer to the officer’s ability “to make infer-
ences from and deductions about the cumulative information available to [him] that might
well elude an untrained person,” United States v. Green, 897 F.3d 173, 183 (3d Cir. 2018)
(quoting United States v. Arvizu, 534 U.S. 266, 273 (2002)), and that officers are allowed
to make reasonable mistakes of fact, Heien v. North Carolina, 574 U.S. 54, 61 (2014), the
District Court found reasonable suspicion lacking.
Having reviewed the testimony and videotapes, and considering our deferential
standard of review, we conclude that “the district court’s account of the evidence is plau-
sible in light of the record.” Lowe, 791 F.3d at 427. And based on that account, at the
6
moment of seizure, the officers had reliably observed little more than Sears walking away
from them in a high-crime area at night, which does not rise to the level of reasonable
suspicion. See Valentine, 232 F.3d at 357 (“Walking away from the police hardly amounts
to the headlong flight considered in Wardlow and of course would not give rise to reason-
able suspicion by itself, even in a high-crime area . . . .”).
In sum, the District Court did not err in ruling that Sears was seized without reason-
able suspicion.
II. Conclusion
For the foregoing reasons, we will affirm the District Court’s order granting Sears’s
motion to suppress.
7