US v. Lavelle Stover

Filing

PUBLISHED AUTHORED OPINION filed. Originating case number: 8:13-cr-00347-PWG-1. [999720969]. [14-4283]

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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. (8:13cr-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.

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DIANA GRIBBON MOTZ, Circuit Judge:
A

jury

firearm

as

(2012).

found
a

On

Lavelle

felon,

in

appeal,

Stover

violation

Stover

guilty
of

of

18

challenges

possession

U.S.C.

the

§

of

a

922(g)(1)

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 doubleparked

in

building.

the

small

private

parking

lot

of

an

apartment

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
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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.
as follows.
Stover,

the

Officer Halsey testified

After Officer Yambot parked the police vehicle,
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
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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.
at

some

After the police vehicle pulled up, Stover “did,

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
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in the front of the car.”

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“[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

§ 922(g)(1) (2012).

as

a

felon,

in

violation

of

18

U.S.C.

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

seizure”

of

authority

that

until

Officer

had

Halsey

met

attempted
him

at

to
the

put

him

front

in

of

a

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
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challenging
motion.

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the

district

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court’s

denial

of

his

suppression

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

Weaver, 282 F.3d 302, 309 (4th Cir. 2002).
motion

to

presented

suppress
in

the

has

been

denied,

light

most

favorable

we

States

v.

“When, as here, a
view

to

the

the

evidence

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.

Stover

no

longer

contends

that

he

did

not

get

On appeal,
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.
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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.”
“does

not

U.S. Const. amend. IV.
extend

to

all

This guarantee, however,

police-citizen

encounters.”

United

States v. Jones, 678 F.3d 293, 298-99 (4th Cir. 2012).
general

matter,

law

enforcement

officers

do

As a

not

seize

individuals “merely by approaching [them] on the street or in
other

public

places

and

putting

questions

to

them.”

States v. Drayton, 536 U.S. 194, 200 (2002).

United

Rather, as the

Supreme Court has explained, “[o]nly when the officer, by means
of

physical

restrained

force

the

or

liberty

show
of

‘seizure’ has occurred.”

a

of

authority,

citizen

may

has

we

in

some

conclude

way

that

a

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
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applies

the

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objective

test

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set

forth

in

United

States

Mendenhall, 446 U.S. 544 (1980) (plurality opinion).

v.

The police

have done so “only if, in view of all of the circumstances
surrounding

the

incident,

a

reasonable

person

believed that he was not free to leave.”

would

have

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

Chesternut,

not
486

free
U.S.

to

567,

leave.
575-6

See,
(1988)

e.g.,

(listing

Michigan

v.

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.
8

In such cases,

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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.’”
U.S. at 628 (emphasis in original).

Hodari D., 499

When submission to police

authority is disputed, a court must also ascertain whether and
when

the

subject

authority.

of

the

seizure

actually

acquiesced

to

that

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.
U.S.

at

255.

But,

in

cases

where

the

Brendlin, 551

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

Rather,

if

submission

Hodari D.

Brendlin

simply

to

police

applies

the

authority

has

occurred.

analysis

set

forth

in

Brendlin, 551 U.S. at 254, 257-58, 261-62. See also
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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

teaches

to

that

authority

“passive

for

a

seizure

acquiescence”

is

to

occur;

one

form

Brendlin
of

that

submission. 2
As with the “show of authority” analysis, determining what
constitutes
inquiry.

“submission”

can

be

a

difficult,

fact-intensive

“[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.
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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

supported the seizure.

reasonable

suspicion

or

probable

cause

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

officers pulled up behind Stover’s car.
U.S.

at

554.

This

is

necessary

to

leave

after

the

See Mendenhall, 446

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

Appellee’s Br. at 18.
question

here,

for

to

leave”

when

We disagree.
this

is

not

the

police

arrived.

Indeed, this is not a close
a

case

officer’s “polite request for an interview.”

involving

a

police

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.”

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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.

stood

by

the

car

When Jones emerged from his car and

door,

the

police

officers

“proceeded

immediately to speak to Jones” and pat him down for weapons.
Id. at 297-98.
defendant’s

car

We reasoned that “when an officer blocks a
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

terminate the encounter.”

not

have

felt

“free

to

leave

or

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
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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.”
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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.”).
decision

on

approaching

For example, in the seminal Supreme Court

submission,
police

Hodari

officers,

D.,

tossing

the

defendant

away

cocaine just before an officer tackled him.

a

rock

ran

from

of

crack

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

through

a

traffic

“passive

subsequently

as

submitting

acquiescence,”

found

been suppressed.

stop

in

the

and

passenger’s

so

to

police

held

the

possession

Brendlin, 551 U.S. at 255, 262-63.
14

authority
contraband

should

have

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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

submission.

need
Stover

police

authority

court,

however,

established

to

that

by

bolt

argues

from
that

“remaining

found

that

Stover

a

did

the
he

at

scene

passively

the

signal

acquiesce

non-

acquiesced

scene.”

preponderance
not

to

to

The
the

of
to

district
evidence

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)
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and

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follow

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subsequent

police

Pg: 16 of 38

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

contraband.

police

authority

before

the

discovery

of

any

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.
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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.

submission

to

Rather,

police

Jones’

authority

passive

were

acquiescence
clear

so

and
the

that

Government’s only argument was that Jones’ submission evidenced
a

“consensual”

search.

encounter,

in

which

Jones

“consented”

to

the

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

being

officers

“extremely
officer

surrounded

cooperative,”

pinned

to

his

even

Black,

he

responded

volunteering

uniform.

5

Black,

his

707

ID,

F.3d

by

which
at

an

536-38.

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.
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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

Id. at 537 n.3, 542. 6

suppressed.

weapon

should

have

been

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

suppressed.
Stover
Silverado
Wilson.

is

coat,

we

held

that

the

drugs

should

have

been

Id. at 119-20, 127.
maintains
akin

to

that
the

his

walk

defendants’

to

the

movements

front
in

of

his

Black

and

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.
6

Stover’s initial action

Attempting 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.
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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.
“us

to

985 F.2d at 153-55.
characterize

as

There, as here, the defendant asked

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.
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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.
States

v.

(holding

Salazar,
driver

609

not

F.3d

seized

1059,
when

1066-68

he

backed

See United

(10th

Cir.

away

slowly

2010)
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

of

necessarily

recognized

in

adopt

some

of

the
these

lower

standards

cases,

they

do

submission

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,

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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

complied
United

F.3d

with

States

(finding

at

police
v.

594

request

Wood,

submission

(finding

981

when,

to

submission

place

his

536,

540

F.2d
upon

officer’s

when

hands
(D.C.
order

defendant

on

a

car);

Cir.

1992)

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.
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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

953 F.2d at 123.

seizure

may

nevertheless

have

occurred.”

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

admission of the firearm.

above,

we

find

no

error

in

the

We therefore affirm the judgment of

the district court.
AFFIRMED

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GREGORY, Circuit Judge, dissenting:
The majority has forthrightly stated the test that applies
to this case:
when

an

“[U]nder controlling Supreme Court precedent,

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.”
Op. 22 (emphasis added).

Maj.

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.
not

disagree

with

the

majority’s

Similarly, while I do

conclusion

that

under

California v. Hodari D., 499 U.S. 621, 623 (1991), a suspect
must

submit

to

an

officer’s
23

show

of

authority

for

a

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constitutional seizure to exist, it is important to note that
such submission can take either of two forms:
signal

of

California,

compliance
551

U.S.

or

passive

249,

255

an affirmative

acquiescence.
(2007).

A

Brendlin
more

v.

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.”

*To

Maj. Op. 10

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.
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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

Stover

was

submission.

him

with

already

their

parked

overhead

and

thus

lights
unable

flashing.
to

But

“signal”

his

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

submission.”
the

driver

therefore

“had

Id. at 262.
was,

id.

at

no

effective

way

to

signal

Brendlin was seized just as surely as
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
25

California

Supreme

Court’s

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holding that submission could not occur without an affirmative
signal of compliance.
845,

852

because

(Cal.
the

Id.; see People v. Brendlin, 136 P.3d

2006)

(finding

“defendant,

as

that

the

submission

passenger,

had

did
no

not

occur

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

analytically

off

when

the

stop

indistinguishable

began,

from

that

making

his

of

passenger

the

position
in

Brendlin.
I must also disagree with my colleagues’ conclusion that
the

verbal

Stover

back

commands
into

the

issued
truck,

authority for our analysis.

by

the

police

constitute

officers,

the

relevant

ordering
show

of

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.”
Cir. 2013).

United States v. Black, 707 F.3d 531, 538 (4th

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.
26

See Hodari D., 499

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at

629

Filed: 12/18/2015

(“Pertoso’s

Pg: 27 of 38

pursuit . . . constituted

a

‘show

of

authority’ enjoining Hodari to halt, [and] since Hodari did not
comply

with

tackled.”
view

the

that

injunction

(emphasis added)).
police

commands

as

he

was

not

seized

until

he

was

Although it might be tempting to
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.”
U.S. at 255.
pulled

behind

flashing.

551

Common sense says that occurred when the police
Stover’s

vehicle

with

their

overhead

lights

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.”).
Stover

should

Thus, when the police gave their commands that
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.
27

It incorporated irrelevant

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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
police

compliance

orders

“does

(or

even

noncompliance)

not

nullify

the

submitted” and was therefore seized.

fact

with

that

he

subsequent
initially

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

officers.”

attempt

Id.

to

flee

the

scene

or

confront

the

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
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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.
vehicle.

To be sure, he exited his

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

itself, break or nullify the seizure.

does

not,

by

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

quite

actions

incriminating evidence.

clear:

He

wanted

to

abandon

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
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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

evade the seizure.

must

still

find

that

Stover

attempted

to

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.

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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

terminated.
still

Amendment

seizure

is

not

automatically

Cf. Black, 707 F.3d at 538 (holding the suspect

seized

after

he

attempted to leave).

realized

he

would

be

searched

and

My colleagues in the majority appeared

rightly skeptical of the government’s argument, and the Supreme
Court

has

clearly

demonstrated

that

attempted seizure that matters.
(“Pertoso’s

it

is

submission

to

the

Hodari D., 499 U.S. at 629

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

suspect

gun,
was

abandonment

acquiescing

should

more

support

often

than

a
it

finding
impedes

that

the

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
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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).
in

which

he

moved

is

a

technical

detail

The direction

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
record.

avoided—a

proposition

in

no

way

supported

by

the

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
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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.
clear:

Stover moved out of view of the police and then tossed

his weapon on the ground.
ran

up

to

meet

Stover

Halsey

Officer Halsey testified that when he

in

already tossing the gun.
Officer

Second, the record here is

front

of

gun

he

truck

he

saw

Stover

Stover was not raising it to fire, and

specifically

testified

brandished the weapon at the officers.
the

the

unintentionally

dropped

that

Stover

never

Whereas Lender went for
on

the

ground,

clearly

demonstrating a violent intent, Stover intentionally tossed his
gun

to

clearly

the

ground

before

demonstrating

a

Officer
pacific

Halsey
intent.

rounded
The

the

truck,

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
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Perhaps

the

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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
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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

investigation without attempting to avoid being seized.

the
As a

result, Brendlin tells us, the correct test for determining when
he was seized comes not from Hodari D. but from Mendenhall.
U.S. at 255.
of

all

of

551

The seizure occurred at the point when, “in view
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

that

III

(“[O]n

appeal

[the

government]

argues

‘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

motion to suppress was in error and that we should reverse.

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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.”
F.3d at 433 (citing Hodari D., 499 U.S. at 626).

Lowe, 791

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.

first

focal

court

to

apply

Brendlin’s

We would also not be the
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
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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.
Salazar is among these.

Maj. Op. 19-20.

I take only limited comfort from the

majority’s statement that “we do not necessarily adopt the lower
standards

of

submission

recognized

Maj. Op. 20 (emphasis added).

in

some

of

these

cases.”

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

should not be the first.

adopted

the

test

explicitly.

We

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

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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 slightest credence.

The test does not deserve

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