Not probable cause, but gun evidence comes in

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A pair of police officers might have lacked reasonable suspicion to stop behind a parked pickup and activate the lights on their cruiser. But the gun that the driver tossed during the encounter was abandoned and could come into evidence, according to a split decision from the 4^th U.S. Circuit Court of Appeals.

If the Dec. 18 opinion in U.S. v. Stover stands, it could provide law enforcement with a tool to work around the protections of the Fourth Amendment, said Greenwood, S.C., criminal defense lawyer Charles Grose.

“The danger is that you’ll see more stops and seizures like this with the hope that something happens afterwards that the police are able to use,” said Grose, who reviewed the decision but was not involved in the case. “They never should have pulled up on this guy in the first place. There was no probable cause.”

Lavelle Stover, a convicted felon, was sitting in his truck about 1 a.m. outside an apartment building in a high crime area of Maryland when two officers parked behind his pickup and activated the lights on their cruiser.

Stover reacted by exiting the truck and moving to the front of the vehicle, where he tossed a loaded handgun before one of the officers confronted him, put a gun in his face and ordered him to get back into his pickup.

Stover argued that the gun was taken during an illegal seizure and was inadmissible as evidence at trial. The trial judge disagreed, finding that Stover was not seized until after he dropped the gun and complied with police. The gun, the judge found, was effectively abandoned prior to the seizure and was not the fruit of an illegal seizure.

Stover was convicted of being a felon in possession of a firearm and sentenced to nearly five years in prison.

Not a ‘polite request’

Judge Diana Motz, writing for the panel majority said the officers’ show of authority when they pulled in behind Stover’s pickup was sufficient to implicate the Fourth Amendment.

She rejected the government’s assertion that “a reasonable person would have felt free to leave” when the officers blocked Stover’s pickup.

“Indeed,” she wrote, “this is not a close question here, for this is not a case involving a police officer’s ‘polite request for an interview.’”

But Motz agreed that the seizure had occurred the moment that Stover acquiesced to police authority, which she said happened after he had discarded the gun. Judge Robert King concurred.

“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,” Motz added.

In dissent, Judge Roger Gregory said the gun should not have been admitted as evidence because the seizure occurred when the officers pulled behind Stover’s truck with the lights flashing on their cruiser.

Gregory added that Stover’s decision to get rid of the gun could prove that he was submitting 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,” he wrote.

Stover’s federal public defender in Baltimore has petitioned the 4^th Circuit for a rehearing en banc. His attorney did not respond to an interview request. The U.S. Attorney’s Office in Maryland declined to discuss the case.

Grose agreed with Gregory’s reasoning in the dissent. He said if Stover “had gotten out with the gun in his hand and gone toward the police officers they would not have considered that to be acquiescence.”

“I hope this gets more attention,” he said of the decision.

A ‘troubling precedent’

Other circuits have concluded that a seizure does not occur until a person obeys police orders. But Gregory argued that the majority in Stover misapplied that rule and “appears to be tacitly influenced by a more troubling precedent” from the 10^th Circuit’s decision in U.S. v. Salazar.

In Salazar, the 10^th Circuit adopted the so-called “reasonable officer” standard for analyzing submission. No other circuit has followed suit.

But the majority in Stover noted that one of the officers testified that he interpreted Stover’s movements outside the pickup as “flight.”

“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,” Gregory wrote. “I take only limited comfort from the majority’s statement that ‘we do not necessarily adopt the lower standards of submission recognized in some of these cases.’”

Gregory asserted that the “reasonable officer” standard “does not deserve the slightest credence,” and added that he hopes “no en banc panel ever drifts to such a standard in the future.”

– By Phillip Bantz