United States of America v. THOMAS J. SMITH On Appeal from the United States District Court for the District of…

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 08-3642
UNITED STATES OF AMERICA,
Appellant
v.
THOMAS J. SMITH
On Appeal from the United States District Court
for the District of Delaware
D.C. Criminal No. 08-cr-00008
(Honorable Gregory M. Sleet)
Argued April 20, 2009
Before: SCIRICA, Chief Judge,
SLOVITER and FISHER, Circuit Judges.
(Filed: July 30, 2009)

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KEITH M. ROSEN, ESQUIRE (ARGUED)
JOHN C. SNYDER, ESQUIRE
Office of United States Attorney
1007 North Orange Street, Suite 700
P.O. Box 2046
Wilmington, Delaware 19899
Attorneys for Appellant
KEIR BRADFORD, ESQUIRE (ARGUED)
EDSON A. BOSTIC, ESQUIRE
TIEFFA N. HARPER, ESQUIRE
Office of Federal Public Defender
First Federal Plaza, Suite 110
704 King Street
Wilmington, Delaware 19801
Attorneys for Appellee
OPINION OF THE COURT
SCIRICA, Chief Judge.
In this appeal, arising under the Fourth Amendment, we
consider what constitutes submission to a police officer’s
authority. Defendant Thomas J. Smith was arrested and charged
with one count of possession of a firearm by a convicted felon,
in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2), and one

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count of possession of cocaine base, in violation of 21 U.S.C. §
844(a). Smith filed a motion to suppress evidence and
statements. After an evidentiary hearing, the District Court
granted the motion, finding the officers had “stopped” Smith
without the constitutionally required “reasonable cause.” See
Terry v. Ohio, 392 U.S. 1, 8 (1968). The Government appealed,
contending the District Court erred when it held Smith was
seized prior to his physical contact with the officers. We agree
and will accordingly reverse and remand.
I.
Neither party disputes the following facts as determined
by the District Court. On January 8, 2008, at approximately
3:15 a.m., Officers Rinehart and Muziol, in full uniform in a
fully marked police vehicle, were conducting a high-visibility
patrol in the 16th District of Wilmington, Delaware, an area of
recent high crime activity. The police officers were under
orders from their lieutenant to “stop and identify anyone that
was out walking in that area, and to just basically make . . .
[their] presence known.” The officers saw Smith walking down
the street, and pulled over about one foot away from him to
speak with him and ascertain his identity and where he was
going.
Officer Muziol leaned out the window of the patrol
vehicle and said to Smith, “Can I talk to you for a second?”
Smith stopped walking and turned at a 45 degree angle towards
the car, seemingly agreeing to speak with the officers. Officer

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Officer Rinehart explained at the suppression hearing that1
Officer Muziol asked Smith to place his hands on the hood “[t]o
ascertain his identification and conduct further identification
checks, to see where he was heading, because his answers to
what Officer Muziol was asking and his overall body language
. . . was enough to have him stopped and put his hands on the
hood of the car.”
4
Muziol asked if Smith had any identification, to which he
replied no. The officer asked Smith where he was heading and
he replied he was going to his girl’s house. Officer Muziol then
asked the location of his girl’s house and Smith responded, “I
am heading to my girl’s house.” Officer Muziol repeated the
question “where is your girl’s house?” several times, and Smith
always responded by saying he was going to his girl’s house.
Officer Muziol then asked Smith to place his hands on
the hood of the patrol vehicle so the officers could “speak with
him further.” Smith took two steps toward the vehicle, at1
which point one or both of the officers began to open their car
doors. At the sound of the car door opening, Smith turned and
ran. As both officers were still in the vehicle, they pursued
Smith by car. Smith attempted to evade the officers by crossing
a parking lot and began to scale a fence. Officer Rinehart exited
the vehicle and began pursuing Smith by foot. Smith abandoned
climbing the fence and began to run through the parking lot
again, at which point Officer Rinehart observed a firearm fall
from Smith’s waistband. Smith dropped to the ground a short

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distance later after one of the officers verbally commanded him
to stop. But Smith resisted arrest and Officer Rinehart gave him
a stun blow to the back of the head to gain control, after which
he took Smith into custody. Officer Rinehart returned to the
area where he had observed the firearm fall and retrieved a
semiautomatic handgun. Before he was processed, Smith
voluntarily admitted that he possessed approximately one gram
of crack cocaine.
The District Court found that Smith was seized when
Officer Muziol repeatedly asked him the same question, and in
the alternative, he was also seized when, responding to the
officer’s show of authority, Smith submitted and took two steps
towards the hood of the car, before fleeing. The District Court
found that the initial submission was “more than momentary,
and not undercut by his subsequent attempt to flee the officers.”
“Because the officers did not have reasonable suspicion that
criminal activity was afoot when they seized Smith,” the District
Court found, the firearm, cocaine, and subsequent statements
made by Smith were all fruits of the illegal seizure and must be
suppressed. See generally Wong Sun v. United States, 371 U.S.
471 (1963) (requiring the exclusion and suppression of evidence
gathered as a result of most unlawful searches or seizures). The
District Court granted Smith’s motion to suppress all physical

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The District Court had jurisdiction under 18 U.S.C. § 32312
to hear this motion and we have jurisdiction pursuant to 18
U.S.C. § 3731. When reviewing a suppression order, we
exercise plenary review over the District Court’s legal
conclusions and evaluate its factual findings for clear error.
United States v. Torres, 534 F.3d 207, 209 (3d Cir. 2008).
6
evidence and statements stemming from his encounter with the
police.2
II.
The Fourth Amendment prohibits unreasonable searches
and seizures. U.S. Const. amend. IV. “The Fourth
Amendment’s requirement that searches and seizures be
founded upon an objective justification, governs all seizures of
the person, including seizures that involve only a brief detention
short of traditional arrest.” United States v. Mendenhall, 446
U.S. 544, 551 (1980) (internal quotation marks omitted). But
not every interaction between a police officer and a citizen is
protected by the Fourth Amendment. An encounter “will not
trigger Fourth Amendment scrutiny unless it loses its consensual
nature. . . . ‘Only when the officer, by means of physical force
or show of authority, has in some way restrained the liberty of
a citizen may we conclude that a “seizure” has occurred.’”
Florida v. Bostick, 501 U.S. 429, 434 (1991) (quoting Terry,
392 U.S. at 19 n.16); see also California v. Hodari D., 499 U.S.
621, 626 (1991). “Only when such restraint is imposed is there
any foundation whatever for invoking constitutional

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safeguards.” Mendenhall, 446 U.S. at 553. Yet “[l]aw
enforcement officers do not violate the Fourth Amendment’s
prohibition of unreasonable seizures merely by approaching
individuals on the street or in other public places and putting
questions to them if they are willing to listen.” United States v.
Drayton, 536 U.S. 194, 200 (2002). In fact, “[e]ven when law
enforcement officers have no basis for suspecting a particular
individual, they may pose questions, [and] ask for identification”
without running afoul of the Fourth Amendment’s prohibitions.
Id. at 201.
Whether an encounter with a police officer constitutes a
search and/or seizure under the Fourth Amendment requires
consideration of “all the circumstances surrounding the
encounter.” Bostick, 501 U.S. at 439. Any inquiry into an
alleged seizure must begin by determining when the seizure
occurred. See United States v. Torres, 534 F.3d 207, 210 (3d
Cir. 2008) (“The initial step of a Fourth Amendment
suppression analysis requires us to determine the timing of the
seizure.”). The timing of the seizure is significant—if the
seizure occurred after suspicious behavior such as flight, this
factors into our analysis of whether there was reasonable
suspicion to justify the seizure. But if the seizure occurred
before the flight, as the District Court found here, then the flight
“plays no role in the reasonable suspicion analysis.” United
States v. Brown, 448 F.3d 239, 245 (3d Cir. 2006). As such,
any seizure inquiry has two steps: Was there in fact a seizure?
If so, was that seizure reasonable?

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The Supreme Court provides us with guidance. In
Mendenhall, the Court listed several factors indicative of a
seizure: “the threatening presence of several officers, the display
of a weapon by an officer, some physical touching of the person
of the citizen, or the use of language or tone of voice indicating
that compliance with the officer’s request might be compelled.”
446 U.S. at 554. In Hodari D., the Court provided further
clarification, holding that the Mendenhall test was “a necessary,
but not a sufficient condition for seizure—or, more precisely, for
seizure effected through a ‘show of authority.’” 499 U.S. at 628
(emphases omitted). In Hodari D., the Court held that a seizure
does not occur when the subject does not yield to a show of
authority. 499 U.S. at 626. To be clear, a seizure “requires
either physical force . . . or, where that is absent, submission to
the assertion of authority.” Id. The simple act of an assertion of
authority by an officer is insufficient to transform an encounter
into a seizure without actual submission on the part of the
person allegedly seized.
Furthermore, “[w]hen the actions of the police do not
show an unambiguous intent to restrain or when an individual’s
submission to a show of governmental authority 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 v. California, 127 S. Ct. 2400, 2405 (2007)
(discussing the application of the Mendenhall test after Hodari
D.). “[T]he test for existence of a ‘show of authority’ is an
objective one: not whether the citizen perceived that he was

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being ordered to restrict his movement, but whether the officer’s
words and actions would have conveyed that to a reasonable
person.” Hodari D., 499 U.S. at 628.
III.
As noted, a law enforcement officer’s approaching a
person and asking him questions on the street does not, without
more, effectuate a seizure. United States v. Lockett, 406 F.3d
207, 211 (3d Cir. 2005). The District Court found that Smith
was seized the moment Officer Muziol “began to repeat the
question ‘Where is your girl’s house’ to Smith . . . [because]
neither Smith, nor a reasonable person[,] would feel free to
ignore Muziol’s question or terminate the encounter with the
officers.”
The District Court relied upon Johnson v. Campbell, 332
F.3d 199 (3d Cir. 2003). In Johnson, police officer Campbell,
after receiving a complaint from a nervous motel worker,
approached Johnson, who was sitting in the front seat of a van
in the motel parking lot and gestured for Johnson to roll down
his window. He then told Johnson he was being detained and
again asked him to roll down his window. Id. at 203. Johnson
refused to comply with the officer’s request. Only after being
asked a few times to roll down the window did he do so, rolling
it down a few inches. Id. Campbell then asked for
identification and again Johnson refused to comply. After more
discussion, and Johnson’s use of a profanity, he was arrested for

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There is no record evidence specifying the number of times3
Officer Muziol asked Smith the same question; at oral argument,
the lawyers referred to Officer Muziol asking the same question
“several times.”
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disorderly conduct and taken to the police station and detained
for less than an hour. He was released without being charged.
Johnson filed suit under 42 U.S.C. § 1983 alleging the
stop and arrest violated his Fourth Amendment rights. On
appeal, we agreed and found for Johnson as a matter of law.
332 F.3d at 215. We identified the officer’s persistent request
to roll down the window, which continued even after Johnson
made the choice not to acquiesce, as a defining feature which
turned the encounter into a seizure. Id. at 206. At that moment,
it was evident to a reasonable person “that Johnson was not free
to ignore him and would not be left alone until he complied.”
Id. Furthermore, the officer told Johnson he was being detained.
Although there are some similarities, Johnson is
distinguishable. A reasonable person, in Smith’s position,
would have felt free to terminate the encounter with the officers.
In contrast to Johnson, Smith’s initial and subsequent responses
were not clearly a refusal to consensually engage. As Officer
Rinehart testified, “we didn’t know what was going on, why he
kept giving us the same answer to different questions.” It was
reasonable for the police officers to re-state the question as they
had been given a nonsensical answer. There was no overt3
indication the questioning was not part of a consensual

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encounter between the officer and Smith as there was in
Johnson.
At this point in the encounter the police officers had not
made any show of authority while questioning Smith nor had
they told Smith he was being detained. In Johnson, the police
officer advised Johnson at the beginning of the encounter that he
was being detained, precisely the assertion of authority which
Hodari D. determined indicated an attempted seizure. Hodari
D., 499 U.S. at 628. By contrast, there is no indication that a
reasonable person, in Smith’s position, would not have felt free
to end the encounter.
To ensure that Smith’s participation in the questioning
was not “an individual’s submission to a show of governmental
authority tak[ing] the form of passive acquiescence,” Brendlin,
127 S. Ct. at 2405, we consider whether the factors outlined in
Mendenhall were present here: “the threatening presence of
several officers, the display of a weapon by an officer, some
physical touching of the person of the citizen, or the use of
language or tone of voice indicating that compliance with the
officer’s request might be compelled.” Mendenhall, 446 U.S. at
554. At this stage in the encounter, when the District Court
found the first seizure was made, the two officers were still in
their car, neither officer displayed his weapon, there was no
physical touching, and no indication as to the language or tone
of the officer’s voice that might have signaled a clear show of
authority. Under the totality of the circumstances, Smith was
not seized for Fourth Amendment purposes when Officer

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In Brown, police received a tip that two men who fit the4
description of robbery suspects were in a nearby convenience
store. The description was especially bare-bones; the police
were looking for two black males with dark clothing. 448 F.3d
at 242. As the two suspects left the convenience store, they
hailed a cab. Before they were able to enter the cab, an officer
approached them, dismissed the cab and “informed them that
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Muziol repeatedly asked the question, “Where is your girl’s
house?”
IV.
In the alternative, the District Court found there was a
show of authority when Officer Muziol “instructed Smith to
place his hands on the vehicle . . . [and] that Smith initially
submitted to this show of authority when he took two steps
toward the police vehicle in compliance.” Assuming the
officer’s instruction was a show of authority, the question is
whether, from an objective perspective, taking two steps
towards the car was in fact a submission.
The District Court relied upon United States v. Brown,
448 F.3d 239 (3d Cir. 2006). In Brown, we held a police
officer’s statement to Brown and his friend that “a robbery
victim was being brought over to identify them as possible
suspects and, if they were not identified, they would be free to
go—necessarily implying that they were not free to leave
[—was] . . . a clear show of authority.” Id. at 245. In addition,4

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they looked like two persons who had attempted to commit a
robbery and that he wanted to talk to them.” Id. at 243. The
officer informed them that the victim of the robbery was coming
to the convenience store to see whether she could identify the
two men as her robbers and if she did not, they were free to go.
The officer also decided to pat them down for his safety. Id.
Imminent physical contact by a police officer with a suspect5
can be indicative of a seizure. See Mendenhall, 446 U.S. at 554.
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the officer also made a show of authority when he demanded to
pat down Brown and his companion. This “would have
conveyed to a reasonable person that he was being ordered to
restrict his movement.” Id. (quoting Hodari D., 499 U.S. at 628)
(internal quotation marks omitted).
We found Brown “clearly submitted to this show of
authority” as he stayed by the officer and turned to face the
police car when prompted to do so by the officer’s demand. Id.
at 246. There was some dispute whether Brown had fully placed
his hands on the car or was in the process of doing so when he
attempted to flee (after which a firearm was discovered on his
person). But, we determined this dispute was not relevant5
because either way, Brown demonstrated more than momentary
compliance by “turning to face the police car and placing (or
moving to place) his hands on the vehicle.” Id. We determined
that Brown’s movement to face the car and movement of his

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hands to the car hood was a submission to the officer’s show of
authority and effectuated a seizure.
Brown is distinguishable. The officer told Brown he was
not free to go until the robbery victim arrived. Brown had
already submitted to this show of authority (the officer’s
demand for him to stay) when the officer asked him to face the
car and place his hands on the hood. While the moment that
Brown turned to face the car was the first physical contact
between the officer and the defendant, Brown already had
submitted by following the officer’s order to stay put. In other
words, his submission by that point was manifest.
In United States v. Valentine, decided six years before
Brown, we found momentary compliance was not enough to
trigger a seizure under Hodari D. 232 F.3d 350, 359 (3d Cir.
2000). In Valentine, two uniformed officers in a marked car
responding to an anonymous tip approached Valentine and two
others in a parking lot. The three men began walking away from
the police immediately. Id. at 353. An officer ordered
Valentine to come over and place his hands on the car.
Valentine responded, “Who me?” and then charged towards one
of the officers in an attempt to flee. Id. Even accepting
Valentine’s version of events in which he claims to have
momentarily complied with the officer’s orders because he
stopped and “gave his name,” we found “he did not submit in
any realistic sense to the officer’s show of authority.” Id. at 359.

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In United States v. Coggins, we determined a suspect had
been seized (i.e., submitted to the officer’s show of authority)
despite a subsequent flight. 986 F.2d 651 (3d Cir. 1993). In
Coggins, the suspect “made a clear request to leave while under
questioning by an officer. Coggins was ordered to remain and
complied by sitting back down in the stairwell with his
companions . . . [e]ven though he fled soon after.” Id. at 654. In
Brown, we analogized Brown’s compliance to that of Coggins,
noting that Brown first yielded to the officer’s show of authority
by staying put and turning to face the car, in distinction from
Valentine who only paused momentarily before attempting to
flee. 448 F.3d at 246. In Coggins, as well as in Brown and
Johnson, the police officer clearly stated the suspect was not
free to leave and the suspect complied. No similar submission
occurred here. There is no indication that Smith’s two steps
were more than “momentary compliance.” Recently, in United
States v. Waterman, we suggested that submission to authority
under Hodari D., “requires at minimum, that a suspect manifest
compliance with police orders.” No. 08-2543, slip op. at 6, n.3
(3d Cir. June 24, 2009). Two steps towards the hood of a car
does not manifest submission to the police officers’ show of
authority.
V.
In sum, the evidence here does not support either of the
two seizures found by the District Court. In the first instance,
there was no show of authority by the police officers. Smith
was not told he was detained. He was never physically touched

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by either officer, nor was his movement impeded by their
presence. In the second instance, his two steps towards the
officers’ vehicle did not indicate submission to the officers’
show of authority. Given the totality of the circumstances, there
is nothing to suggest Smith’s two steps or his non-responsive
answers represented manifest compliance with the officer’s
orders.
For the foregoing reasons, we will reverse the order of
the District Court suppressing the evidence and remand for
further proceedings consistent with this opinion.

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