In February 2021, the Midland Police Department dispatched several officers to an apartment complex to locate an individual named “Brooke” who was suspected of violating a drug court order. When officers arrived at Brooke’s apartment, they knocked on the door, and a man —later identified as Jeffrey Scott—approached the doorway.
The officers asked Scott to step outside and questioned whether he had any weapons on him. He responded “no.” One officer, Officer Fonseca, grabbed Scott by the sleeve of his sweatshirt to move him out of the way of the apartment door. Scott asked why he was being searched (even though no one was searching Scott at this moment). After this comment, however, Officer Fonseca ordered another officer to perform a pat down. Scott walked past the officers and then took off running.
The officers chased after Scott, quickly apprehending him in the stairwell of the apartment complex. Scott immediately informed the officers that he had a gun on him. The officers secured the firearm and placed Scott in handcuffs. One officer asked Scott if he was a felon, and he responded that he was.
Based on the foregoing events, the officers took Scott into custody, and the Government charged him with being a felon in possession of a firearm. Scott subsequently moved to suppress the firearm and the statements he made to the arresting officers. The District Court agreed with the Government that (1) the officers did not seize Scott until they apprehended him in the stairwell, (2) the officers had reasonable suspicion to seize Scott at that point, and (3) the officers had a reasonable basis to search Scott for weapons after he admitted he was armed. Scott subsequently proceeded to a bench trial, in which the district court found him guilty. The 5th affirms.
A. Seizure occurred in stairwell
The Fourth Amendment protects “against unreasonable searches and seizures,” and evidence obtained “in violation of the amendment may be excluded from introduction at trial. See Flowers. This case primarily concerns a “seizure,” which is “a temporary, warrantless detention of an individual.” A seizure takes the form of either (1) “physical force” or (2) a “show of authority” that in some way restrains the liberty of an individual. A seizure under the Fourth Amendment must be justified at its inception; therefore, our first task is ordinarily to determine when the seizure occurred.
After reviewing the officer testimony and body camera footage, the district court concluded that Scott was seized at the moment the officers apprehended him in the stairwell. Scott challenges this conclusion on two grounds: he maintains that he was seized prior to this moment (1) by a show of authority or, alternatively, (2) by force when Officer Fonseca grabbed his sweatshirt.
At the outset, we reject Scott’s argument that he was seized by a “show of authority.” To evaluate whether such a seizure occurred, we apply the objective test set forth in SCOTUS case U.S. v. Mendenhall, 446 U.S. 544 (1980), which states that a seizure by a show of authority occurs if the totality of the circumstances demonstrates that a reasonable person, measured objectively from an innocent person’s perspective, would have believed that he was not free to leave.
Importantly, under Supreme Court precedent, to constitute a seizure, submission to the assertion of authority is necessary. See SCOTUS California v. Hodari D., 499 U.S. 621 (1991). Here, Scott plainly did not yield to any authority. To the contrary, he ran away from the officers instead of obeying Officer Fonseca’s demands. As the Supreme Court has guided, a request that does not generate the desired order cannot possibly produce a seizure. Because compliance, a necessary prerequisite, is absent, we agree with the district court’s conclusion that this was not a seizure by “show of authority.”
We similarly reject Scott’s argument that a seizure by force occurred when Officer Fonseca tugged on Scott’s sweatshirt sleeve. Not every physical contact between an officer and an individual is a Fourth Amendment seizure; rather, a seizure requires the use of force with intent to restrain. The district court found that Officer Fonseca grabbed Scott’s sweatshirt sleeve with objective intent to move him out of the way of the apartment door—not to apprehend him. Because force intentionally applied for some other purpose does not amount to a Fourth Amendment seizure, we agree with the district court’s conclusion that Officer Fonseca’s grab of Scott’s sweatshirt sleeve was not a seizure.
Having rejected Scott’s arguments to the contrary, we hold that the district court did not err in its conclusion that the officers seized Scott at the moment they apprehended him in the stairwell.
B. Reasonable suspicion
A seizure comports with the Fourth Amendment if an officer has reasonable suspicion to believe that a crime has occurred or is about to occur. Reasonable suspicion is a low threshold; it is not probable cause. Instead, an officer has reasonable suspicion if, based on the totality of the circumstances, he has a particularized and objective basis for suspecting the particular person stopped of criminal activity.
The district court concluded that the officers had reasonable suspicion to detain Scott, and we agree—at the moment Scott was apprehended, the officers had specific and articulable facts upon which to form a reasonable suspicion that Scott was involved in criminal activity. First, Scott was inside Brooke’s apartment, whom officers suspected of criminal activity. Because of Scott’s close interaction with Brooke, he could be independently suspected of involvement in crime. Thus, his “propinquity” to Brooke supported the officers’ reasonable suspicion. See Thomas.
Second, Scott made combative and evasive statements to the officers, behavior which the Supreme Court has instructed can also support reasonable suspicion. See SCOTUS Illinois v. Wardlow, 528 U.S. 119 (2000) (concluding that “nervous, evasive behavior” supported reasonable suspicion).
Finally, the fact that Scott fled from the officers—particularly in light of the aforementioned facts—weighs in favor of reasonable suspicion. See United States v. Vasquez, 534 F.2d 1142 (5th Cir. 1976).
In sum, we conclude that the officers had reasonable suspicion to seize Scott in the stairwell. Scott’s immediate statement to the officers that he was armed then gave authority to the officers to perform a limited search of Scott’s person for firearms and, upon their determination that he was a felon, to retain the seized firearm.