Lead Opinion
McKEAGUE, J., delivered the opinion of the court, in which GUY, J., joined. RYAN, J. (p. 777), delivered a separate opinion concurring in the judgment.
OPINION
Charged with being a felon in possession of a firearm, defendant Tobias Jones made a pretrial motion to suppress key evidence against him. The district court granted the motion and the government now appeals. Jones also appeals the district court’s denial of his motion to revoke its pretrial detention order. For the reasons that follow, we conclude the district court erred in granting the motion to suppress and we therefore reverse that ruling. We affirm the district court’s decision to deny release pending appeal.
I
In the afternoon of November 29, 2006, Detective Jonathan Mattingly of the Louisville Metro Police Department was patrolling in his unmarked pickup truck in what was regarded as a drug-trafficking neighborhood in Louisville, near Seventh and Kentucky Streets. He noticed a maroon Nissan automobile traveling northbound on Seventh Street and watched as it came to a stop in front of a house at 1245 South Seventh Street. The car was occupied by a white female driver and two black male passengers. Mattingly saw one of the passengers, later identified as defendant Tobias Jones, exit the Nissan and enter the house. While Jones was in the house — his mother’s house, as it turned out — the driver and the other passenger remained in the car with the engine running. After a couple of minutes, Jones came out and returned to the waiting car.
Based on his seven years’ experience in law enforcement and his observation of these events, Mattingly suspected he could be witnessing an incident of “flagging.”
As the Nissan was thus hemmed in, Jones did not remain seated in the back seat of the Nissan. Rather, he opened the
Jones was arrested and eventually charged with being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). Before trial, Jones moved the district court to suppress the firearms the police seized during the stop and the statements he made during the incident. Jones contended the officers did not have reasonable suspicion when they initiated the stop, rendering the Terry stop and pat-down search unreasonable and violative of his Fourth Amendment rights. Following an evidentiary hearing, the district court agreed and granted the motion to suppress, but refused to release Jones from detention. Both parties appeal.
II
On appeal from an order granting a suppression motion, we review the district court’s factual findings for clear error and its legal conclusions de novo. United States v. McCauley,
The manner in which officers Mattingly and McKinney originally approached the Nissan is not suggestive of a consensual encounter. In any event, a consensual encounter becomes a seizure when “in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.” United States v. Mendenhall,
In Terry v. Ohio,
The district court concluded that, at the time the Nissan was initially blocked in, the officers’ observations of conduct in a drug-trafficking neighborhood consistent with flagging but otherwise innocent did not give rise to reasonable suspicion. On reconsideration, the government urged the court to consider also Mattingly’s observations of Jones’s frightened, “jumping out of the car” reaction as part of the totality of the circumstances. The district court adhered to its original ruling, stating that Jones’s reaction was reasonable, not suggestive of criminal activity. Although the question is a close one, we conclude the district court’s ruling is marked by two errors.
Ill
In its initial decision, the district court erred by limiting its consideration to the circumstances known to the officers as of the time when they initiated the seizure by hemming in the Nissan. Yes, at that point, the Nissan was seized, and so were its occupants — but only insofar as they can be deemed to have submitted to the officers’ show of authority.
The Brendlin Court acknowledged that it may sometimes be hard to determine whether a subject has actually submitted in response to a show of authority. For instance, when an individual’s submission “takes the form of passive acquiescence, there needs to be some test for telling when a seizure occurs in response to authority, and when it does not.” Brendlin,
Applying this test to the facts of this case, we would have to conclude that the driver and other passenger in the Nissan were, by virtue of their passive acquiescence, effectively seized when the police vehicles hemmed in the Nissan. But what of Jones? Jones undisputedly did not passively acquiesce; he did not remain seated in the Nissan; he did not submit to the show of authority. Rather, he opened the car door and “jumped out” as though he wanted to run. It was at this point that Mattingly, having already noticed the confused, nervous, “like a deer in the headlights” look on Jones’s face, also noticed a “lump” or a “bulge” on Jones’s person, “in the front,” and saw him “acting weird ... kind of holding his stomach.” Then Mat-tingly identified himself as a police officer and ordered Jones to stop. Jones immediately complied. It was then that Jones submitted to the show of authority. It was then that the seizure of Jones was effected. Up to that point, the officers’ actions, in relation to Jones, amounted to no more than an attempted seizure.
Brendlin recognizes that even though an occupant in a vehicle stopped by the police is generally deemed seized by virtue of the stopping of the vehicle, he is not thereby seized if he does not submit to the show of authority:
But what may amount to submission depends on what a person is 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. Here, Brendlin had no effective way to signal submission while the car was still moving on the roadway, but once it came to a stop he could, and apparently did, submit by staying inside.
Id. at 2409. Unlike Brendlin, Jones did not submit by staying inside the Nissan after the officers arrived; he jumped out of the car and submitted only when Mat-tingly identified himself as a police officer and ordered him to stop. Then, and only then, was Jones effectively seized. Because Jones’s initial response to the officers’ arrival cannot be construed as submission to authority, there is no need to invoke the Brendlin reasonable person test to determine when the seizure occurred. Irrespective of whether a reasonable person in Jones’s situation would have felt free to leave,
The instant facts are materially indistinguishable from those presented in McCauley,
McCauley represents a faithful application of Brendlin’s teaching. Applying the same analysis here, we find that Jones, like McCauley, a passenger in a vehicle that had been blocked in by the police, was not seized until he submitted to the officer’s show of authority. Jones, like McCauley, did not passively acquiesce, but exited the vehicle, in apparent defiance of the show of authority. Only when Jones stopped, in response to Mattingly’s command, like McCauley raising his hands in response to the officer’s show of force, was Jones effectively seized. Accordingly, and consistent with the holding in McCauley, we hold that the district court, in measuring reasonable suspicion, should have considered all of Mattingly’s observations up to the moment when Jones finally yielded to the unambiguous show of police authority-
To the extent, therefore, that the district court, in its initial ruling, limited its assessment of reasonable suspicion to the information available to the officers when the seizure was initiated, it erred.
In the suppression hearing, Mat-tingly testified that he had almost seven years’ experience in law enforcement with the Louisville Metro Police Department, most of it devoted to drug-related crime investigations. Based on this experience, Mattingly recognized the indicia of flagging (i.e., drug trafficking) when he observed the Nissan and the conduct of its occupants, as he patrolled in a known drug-trafficking neighborhood. These observations, Mattingly believed, justified further inquiry. We have recognized the importance of allowing police officers to draw reasonable inferences from their observations in light of their specialized training and experience. See McCauley,
Indeed, the district court paid lip service to this consideration in its initial ruling, but deemed the indicia of flagging insufficient to establish reasonable suspicion where, in fact, flagging was not going on. Yet, the fact that the Nissan’s occupants were not engaged in flagging does not negate the fact that their conduct was consistent with flagging. Nor does it undermine the reasonableness of Mattingly’s deduction that flagging may have been afoot. Mattingly’s observation and deduction, though perhaps not sufficient in themselves to establish reasonable suspicion, certainly represented a relevant part of the totality of the circumstances.
On reconsideration, the district court concluded that Jones’s frightened reaction to the sudden arrival of the unmarked vehicles added little to the totality of the circumstances. The court treated Jones’s frightened reaction dismissively, finding it was not an unexpected or unreasonable reaction and therefore not suspicious. Yet, circumstances comprising a particularized and objective basis for reasonable suspicion need not be uncommon or especially unique. McCauley,
Although the district court purported to consider the totality of the circumstances, it gave no weight to Mattingly’s observations (1) of a bulge in the front of Jones’s hooded sweatshirt, (2) of Jones weirdly holding his stomach, and (3) of Jones appearing to want to run. In our opinion, these are critical observations, suggesting the possible presence of a firearm in a confrontational setting, and calling for an immediate show of authority to neutralize potential danger and conduct further investigation. See Pearce,
The totality of relevant circumstances included the facts that: Mattingly had substantial experience in law enforcement, much of it spent investigating drug-related crimes; he was patrolling in a known drug-trafficking area when he observed conduct undisputedly consistent with flagging; when Mattingly confronted the occupants of the Nissan, Jones reacted in a nervous and frightened manner, in apparent defiance; and that, as Jones jumped out of the car as though to run, he was seen to have a bulge in the front of his sweatshirt which he was holding in a weird way. These circumstances, viewed together, not individually, comprise a particularized and objective basis for suspecting wrongdoing.
Accordingly, when Jones’s seizure was effected, it was supported by reasonable suspicion. It follows that Jones’s Fourth Amendment rights were not violated and that the district court’s suppression of the evidence seized was erroneous. The suppression order must therefore be reversed.
V
Jones has also appealed the district court’s denial of his motion to revoke his detention order pending the government’s appeal of the suppression order. The motion to revoke the pretrial detention order was based largely on issuance of the suppression order, the government’s appeal of which postponed further trial proceedings. By reversing the suppression order, we have thus removed the primary impetus for the motion to revoke detention order. Moreover, on due consideration of the governing factors, prescribed at 18 U.S.C. § 3142(g), we remain unpersuaded that the district court erred in deciding not to release Jones from detention pending appeal. Nor do we find, under the circumstances of this case, that Jones’s continued detention resulted in a due process violation. Accordingly, the district court’s denial of defendant’s motion to revoke detention order will be affirmed.
VI
For the foregoing reasons, the district court’s suppression order is REVERSED, the district court’s order denying revocation of detention order is AFFIRMED, and the case is REMANDED to the district court for further proceedings.
Notes
. In the suppression hearing, Mattingly testified that the residents of the neighborhood were predominantly African-American. He described "flagging” as a common practice whereby a person unfamiliar with a neighborhood but interested in buying drugs drives around the neighborhood until flagged-down by someone waiting on a corner. That person will then enter the vehicle, direct the driver to a house where drugs can be purchased, enter the house to negotiate the deal, and then return to the vehicle to consummate the transaction. Mattingly described the actions of the Nissan's occupants as consistent with flagging, but admitted he had no other reason to suspect criminal activity was afoot.
. While, at this point, the officers’ conduct communicated to a reasonable occupant of the Nissan that he or she was not free to drive away, the record includes no grounds for finding that a reasonable occupant would have understood that his or her freedom of movement was being restrained by law enforcement officers. Both officers drove unmarked vehicles. While there is evidence that McKinney activated his emergency lights just as he pulled up behind the Nissan, it is likely that the occupants’ attention had been drawn forward by Mattingly’s prior sudden arrival in front of the Nissan. Indeed, McKinney believed that Jones was looking forward when he pulled in. In other words, at the instant when Jones "immediately” jumped out of the car, the occupants' reasonable apprehension that their freedom of movement was restrained was based ostensibly on the manifest physical obstruction of the Nissan, not on an unambiguous show of law enforcement authority.
. Considering that Jones had suffered a gunshot wound to the chest a mere two to three
. In defense of the district court, we acknowledge that the clarity afforded by the Supreme Court in Brendlin was hardly available when the district court made its initial ruling, as Brendlin had been decided a mere two days earlier and was not cited to the court by either of the parties.
Concurrence Opinion
concurring in the judgment.
I agree that Brendlin v. California, 551 U.S. 249,
Therefore, I concur in the judgment to reverse and remand.