US v. Deshawn Holland

Filing

UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--denying Motion to file supplemental brief(s) [999036775-2] Originating case number: 3:11-cr-00208-JAG-1 Copies to all parties and the district court/agency. [999123997].. [12-4382]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 12-4382

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DESHAWN X. HOLLAND,
Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond.
John A. Gibney, Jr.,
District Judge. (3:11-cr-00208-JAG-1)

Submitted:

May 31, 2013

Decided:

June 6, 2013

Before WILKINSON and AGEE, Circuit Judges, and HAMILTON, Senior
Circuit Judge.

Affirmed by unpublished per curiam opinion.

Charles D. Lewis, Richmond, Virginia, for Appellant.
Neil H.
MacBride, United States Attorney, Michael A. Jagels, Special
Assistant United States Attorney, Richmond, Virginia, for
Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Deshawn X. Holland appeals his convictions following
his guilty plea to possession with intent to distribute cocaine
base,

in

violation

of

21

U.S.C.

§

841(a)(1)

(2006),

and

to

possession of a firearm by a felon, in violation of 18 U.S.C.
§ 922(g)(1) (2006), and his convictions following a bench trial
of

conspiracy

to

distribute

cocaine

and

cocaine

base,

in

violation of 21 U.S.C. § 846 (2006), and possession of a firearm
in furtherance of a drug trafficking crime, in violation of 18
U.S.C. § 924(c)(1) (2006).

On appeal, Holland argues that the

district court erred in denying his motion to suppress evidence
found subsequent to an allegedly illegal seizure.

Finding no

error, we affirm.
Holland

did

not

activity

when

Detective

Richmond

City

Police

appear

Bridges

Department

sidewalk of North 26th Street.
Holland,

known

questions.

to

them

as

a

to
and

be

engaged

Officer

observed

him

in

illegal

Custer

of

the

walking

on

the

The officers began following
felon,

on

foot

and

asked

him

Holland did not respond and continued to walk away

from the officers into an alley and eventually into the backyard
of 908 North 27th Street.
the

backyard,

Holland

began

Street,

but

and

Officer Custer followed Holland into

Detective

walking

returned

to
to

Bridges

remained

the

front

the

backyard
2

yard,
upon

in

towards
seeing

the

alley.

North

27th

two

other

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police officers pull their vehicle to the side on North 27th
Street and one of those officers walk into the backyard of 908
North 27th Street.
Holland next jumped a fence out of the backyard of 908
North 27th Street and fell to the ground.

As Holland pushed

himself off of the ground, Officer Custer observed in Holland’s
jacket a heavy object, which he believed to be a firearm based
on his training and experience.

Officer Custer yelled out “he

has got it,” and Holland began running.
toward

Detective

Holland”

or

direction.
firearm.

Bridges

“don’t,”

in

and

the

Holland

alley,
began

Holland initially ran
Bridges
running

yelled
in

the

“Mr.
other

Detective Bridges chased Holland and saw him drop a
Detective Bridges ultimately apprehended Holland, and

the officers retrieved the firearm and found approximately eight
grams of cocaine base and $188 in cash on Holland.
The

district

court

denied

Holland’s

motion

to

suppress, explaining that, while there were multiple officers
around Holland when he was in the backyard of 908 North 27th
Street, none of the officers told Holland that he had to stop or
that he was under arrest.

The district court concluded that

Holland was not seized until he was apprehended by Detective
Bridges,

which

occurred

after

Holland

dropped

the

firearm.

Following the denial of his motion to suppress, Holland pled

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guilty to, and was convicted of, the drug and firearms offenses
charged in the indictment.
On

appeal,

Holland

argues

that,

when

the

officers

followed him into the backyard of 908 North 27th Street while
continually

asking

him

questions

and

positioning

themselves

around him to prevent his escape, a reasonable person would not
have felt free to leave and that he was unlawfully seized in the
backyard.

When considering the denial of a motion to suppress,

we review the district court’s legal determinations de novo and
its factual determinations for clear error.
Black,

707

F.3d

531,

537

(4th

Cir.

United States v.

2013).

“[B]ecause

the

district court denied [the defendant’s] motion to suppress, we
construe

the

evidence

Government on appeal.”

in

the

light

most

favorable

to

the

United States v. Bumpers, 705 F.3d 168,

175 (4th Cir. 2013) (internal quotation marks omitted).
While “police may approach an individual on a public
street

and

ask

questions

without

implicating

the

Fourth

Amendment’s protections,” such an encounter “may, . . . at some
unspecified point, cross the line and become an unconstitutional
seizure.”

United States v. Weaver, 282 F.3d 302, 309 (4th Cir.

2002).

An

unconstitutional

“officer,

by

means

of

seizure

physical

force

occurs
or

when

show

of

a

police

authority,

terminates or restrains [an individual’s] freedom of movement.”
Brendlin

v.

California,

551

U.S.
4

249,

254

(2007)

(internal

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quotation marks omitted).

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Such a seizure occurs “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.”

United States v. Mendenhall, 446 U.S. 544, 554 (1980). *

We consider the totality of the circumstances and look to the
specific following factors:
“(i) the number of police officers present at the
scene; (ii) whether the police officers were in
uniform; (iii) whether the police officers displayed
their weapons; (iv) whether they touched the defendant
or made any attempt to physically block his departure
or restrain his movement; (v) the use of language or
tone of voice indicating that compliance with the
officer’s request might be compelled; (vi) whether the
officers informed the defendant that they suspected
him of illegal activity rather than treating the
encounter as routine in nature; and (vii) whether, if
the officer requested from the defendant . . . some
form of official identification, the officer promptly
returned it.”
Black, 707 F.3d at 537-38 (internal quotation marks omitted).
In considering the totality of the circumstances, we
conclude that, for purposes of the Fourth Amendment, Holland was
*

The Government argues that, in determining whether a
seizure occurred, we should apply the “force or submission”
standard set forth in Hodari D. v. California, 499 U.S. 621, 626
(1991) (holding that “[a]n arrest requires either physical force
. . . or, where that is absent, submission to the assertion of
authority”).
The Government contends that, because Holland
never submitted to a show of authority, there was no seizure.
However, because we conclude that the officers’ actions here did
not demonstrate an “unambiguous intent to restrain” Holland,
Mendenhall, as opposed to Hodari D., applies.
See Black, 707
F.3d at 537-38 n.3 (detailing standard for determining whether
to apply Mendenhall or Hodari D.).

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not seized in the backyard of 908 North 27th Street.
officers

did

not

physically

touch

Holland

and,

First, the
contrary

to

Holland’s assertions on appeal, did not physically restrain his
movement.

When the officers began following Holland on North

26th Street, they maintained a distance of ten to thirty feet,
and, when Holland entered the alley, they maintained a distance
of twenty to thirty feet.

Further, when Holland jumped the

fence out of the backyard of 908 North 27th Street, Officer
Custer was ten to twenty feet away from Holland.
United

States

v.

Gray,

883

F.2d

320,

323

See generally

(4th

Cir.

1989)

(finding no seizure when officers “made [no] attempt to restrain
[the

suspect’s]

movement,

but

instead

walked

with

moved through the airport towards the exit”).
there

was

no

restrained
vehicle

evidence

Holland’s

to

the

demonstrating

movement

side

of

when

North

that
they

27th

the

as

he

Additionally,
other

pulled

Street

him

officers

their

as

marked

Holland

approaching the front yard of 908 North 27th Street.

was

To the

contrary, the additional officers were there “to have eyes on
[Holland]”
generally

and

were

Michigan

v.

not

there

to

Chesternut,

“contain”
486

U.S.

Holland.
567,

575

See
(1988)

(finding no seizure of pedestrian when there was no evidence
that police “operated the car in an aggressive manner to block
respondent’s course or otherwise control the direction or speed
of his movement”).
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the

district

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court

noted,

the

officers

neither

directed Holland to stop nor stated that he was under arrest.
Rather, the officers asked Holland conversational questions, to
which Holland did not respond, such as whether they could speak
with him, how he was doing, where he had been, when he got back
to town, and whether he lived in the area.
that

indicated

the

officers

suspected

The only question

Holland

of

activity was whether he was carrying any firearms.

criminal
However,

there was nothing in the record demonstrating that the officers’
questions or tone of voice indicated that Holland had to stop
and respond to the officers.

While Detective Bridges testified

that he talked “somewhat loud[ly],” he also testified that he
did so “[i]n order to be heard” and that, at the time, he was
thirty feet away from Holland, who continued walking away from
the officers.

Cf. United States v. Wilson, 953 F.2d 116, 123

(4th Cir. 1991) (holding that seizure occurred when “officer’s
prolonged
conveyed

and
an

persistent

questioning
unwillingness

unequivocal

after
to

the

suspect

engage

in

had

further

conversation with the officer”).
Turning
officers

never

Additionally,
uniform

and

to

the

requested

Detective
in

a

remaining
any

identification

Bridges

marked

Mendenhall

and

vehicle,

Officer

and

two

factors,
from

Custer

the

Holland.
were

additional

in

police

officers later came to the scene on North 27th Street in a
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marked vehicle.
indicate

that

activated

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However, there is nothing in the record to
any

their

of

the

officers

sirens,

or

displayed

commanded

their

Holland

weapons,
to

stop.

Accordingly, looking to the totality of the circumstances, we
conclude

that

a

reasonable

continue

in

their

normal

person

course

would

of

have

felt

movement.

free

to

Further,

we

conclude that the district court properly determined that, once
Detective

Bridges

observed

Holland,

a

known

felon,

drop

the

firearm, the officers had probable cause to arrest Holland.

See

United States v. Humphries, 372 F.3d 653, 657-58 (4th Cir. 2004)
(stating that probable cause to arrest exists when officer has
“reasonable ground for belief of guilt that was particularized
with

respect

to

the

person

to

be

.

.

.

seized”)

(internal

quotation marks omitted).
Accordingly,

the

district

court

properly

denied

motion to suppress, and we affirm the court’s judgment.
Holland’s
dispense

motion
with

contentions

are

to

oral

file

a

argument

adequately

pro

se

supplemental

because

presented

in

the
the

facts

the

We deny

brief

and

and

legal

materials

before

this court and argument would not aid the decisional process.

AFFIRMED

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