                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 08-5235


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

RAYMOND LAVONNE CURETON,

                Defendant - Appellant.


Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte.     Robert J. Conrad,
Jr., Chief District Judge. (3:07-cr-00037-RJC-1)


Argued:   December 3, 2009                 Decided:   February 26, 2010


Before TRAXLER, Chief Judge, NIEMEYER, Circuit Judge, and John
Preston BAILEY, Chief United States District Judge for the
Northern District of West Virginia, sitting by designation.


Affirmed by unpublished per curiam opinion.


ARGUED: Ross Hall Richardson, FEDERAL DEFENDERS OF WESTERN NORTH
CAROLINA, INC., Charlotte, North Carolina, for Appellant.   Mark
Andrew Jones, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte,
North Carolina, for Appellee.     ON BRIEF: Claire J. Rauscher,
Executive Director, Cecilia Oseguera, FEDERAL DEFENDERS OF
WESTERN NORTH CAROLINA, INC., Charlotte, North Carolina, for
Appellant.    Edward R. Ryan, Acting United States Attorney,
Charlotte, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

      Raymond Lavonne Cureton pled guilty to possessing a firearm

in violation of 18 U.S.C. § 922(g)(1), preserving the right to

appeal the district court’s denial of his motion to suppress.

We affirm.


                                        I.

      The following evidence was developed during the suppression

hearing.     On August 10, 2006, around 4:30 p.m., Charlotte police

dispatch received a 911 call from Syd Neely of the Charlotte

Sanitation Department; Syd identified himself by his first name

and provided a phone number.            Syd stated that he was Cureton’s

supervisor and that Cureton’s co-workers reported that Cureton

was   carrying     a   .357   handgun        while    on    his    garbage       route.

Moreover,    Syd   provided    Cureton’s       date    of    birth,       full    name,

assigned truck number and his approximate location.                          Finally,

Syd asserted his belief that Cureton was a convicted felon.

      Officer Nesbitt received the call from dispatch relaying

the information supplied by Syd’s phone call.                      Officer Nesbitt

already    knew    Cureton,   who   had       been    working       for   local     law

enforcement as a confidential informant.                   Officer Nesbitt knew

that Cureton was a convicted felon and that his criminal history

included “several gun charges.”                J.A. 29.           Using the number

supplied by Syd, Officer Nesbitt called and requested Cureton’s


                                        2
current    location.        Syd     subsequently        notified     Officer      Nesbitt

that Cureton’s truck had returned from its route and was parked

at the Sanitation Department.

        After Officer Nesbitt arrived at the Sanitation Department

and   began      looking   for     Cureton’s       assigned      truck,     he    noticed

Cureton    in     the    distance    wearing       an    orange     work    shirt.        A

roadblock, however, prevented Officer Nesbitt from approaching

Cureton and thus he issued a radio call for any officers near

the     intersection       where     he     saw    Cureton.          Officer       George

Nickerson, who heard the original dispatch regarding a suspect

carrying a concealed weapon, responded to the call.                               Officer

Nesbitt    described       Cureton    and       Cureton’s       criminal    history      to

Officer Nickerson and informed him that Cureton was last seen

walking in Nickerson’s direction.

      Officer Nickerson parked his patrol vehicle in a parking

lot and waited for Cureton to approach on the sidewalk.                                 As

Cureton passed, Officer Nickerson asked him “to step over to the

car.”      J.A.    44.     Cureton        refused,      saying    that     he    had   done

nothing wrong.          When Officer Nickerson again asked him to stop

for brief questioning, Cureton began running.                      Officer Nickerson

pursued    him    on    foot,    yelling     for   him     to    stop.      During     the

pursuit, Officer Nickerson saw Cureton reach into the waistband

of his pants and grip an object as if he was “gripping the

handle of a pistol” and then try to pull the object out of his

                                            3
pants.    J.A. 45.      When he saw Cureton do this, Officer Nickerson

drew his service weapon and continued to follow Cureton around

the corner of a Salvation Army building.                   Eventually, Officer

Nickerson chased Cureton across a parking lot in front of a NAPA

auto parts store and toward a fenced-in lot behind the NAPA

store.      Officer Nickerson found Cureton hiding under a truck

parked on the side of the NAPA store and ordered him to come out

from under the vehicle.           Cureton obeyed, but he did not have the

purported handgun.

     Officer     Nesbitt     arrived    at    the   NAPA    store     as    Officer

Nickerson      was    arresting    Cureton    and   asked     about       the   gun.

Officer Nickerson then explained he saw Cureton reaching into

his waistband while they were running.                Officer Nesbitt began

walking toward where Officer Nickerson had chased Cureton.                       As

he walked through the parking lot in front of the NAPA store, a

NAPA employee directed him to look underneath a truck that was

parked there.         Officer Nesbitt found a .357 magnum under the

truck.    Cureton later gave a statement “that he had had the gun

all day, and when he ran, he ditched the gun under the truck in

front of the NAPA store.”          J.A. 36.

     Cureton moved to suppress the gun as well as all statements

made by Cureton after the arrest.             Relying mainly on Florida v.

J.L.,    529   U.S.   266   (2000),    Cureton   argued     that    the    officers

lacked reasonable suspicion to make an investigatory stop under

                                        4
Terry v. Ohio, 392 U.S. 1 (1968).             Cureton likened the 911 call

to an anonymous tip that was not supported by any indicia of

reliability.   And, Cureton argued that since it was a bad stop,

the subsequent statement admitting possession of the gun should

be excluded as “fruit of the poisonous tree.”                  Wong Sun v.

United   States,   371   U.S.    471,   488    (1963)   (internal   quotation

marks omitted).

     The   district      court    denied      the   motion    to    suppress,

concluding that the tip was reliable and provided sufficient

justification for a Terry stop:

          I don’t think this is an anonymous tip at all. .
     . . The caller identifies himself in relation to the
     defendant, named himself as his supervisor. Indicated
     the defendant’s name, date of birth, other identifying
     information; [indicated his belief] that [Cureton] had
     a felony conviction, and left contact information. . .
     .

          I think it’s a very reliable tip.    This case is
     so different than the JL case because of the degree of
     detail provided by the known tipster; name, date of
     birth, employer, type of weapon, truck number, contact
     information, believed felony status –- very detailed
     information which was corroborated by Officer Nesbitt
     who had firsthand knowledge of the defendant.

           . . . .

          . . . It’s very reliable information that was
     provided, was corroborated in part by Officer Nesbitt,
     who had firsthand observations of a person meeting the
     description given by Syd, and who had knowledge both
     of the defendant himself and his criminal record.

           . . . .

          And it’s further confirmed by the action of the
     defendant who, although not under arrest and free to

                                        5
     go, flees in a manner that            adds   to   the   reasonable
     suspicion of the officers.

          Not only did he flee, but as he was fleeing, he
     reached into his waistband, and as Officer Nickerson
     described . . . it appeared that the defendant was
     pulling out a . . . weapon . . . . Officer Nickerson
     credibly feared for his safety, pulled his gun, . . .
     [a]nd then [found] the defendant hiding under a truck,
     all of this information when viewed together justifies
     a Terry stop of the defendant.

          And the testimony is that during the brief time
     of the Terry stop [Officer Nesbitt] . . . had the
     weapon pointed out to him . . . and reached under the
     truck and pulled out a .357 magnum which was clearly
     sufficient probable cause for an arrest.

          It is a future act, but the act occurred . . .
     within a reasonable time of the initiation of the
     Terry stop . . . .

          And I think [Cureton] was lawfully arrested on
     probable cause grounds, and, therefore, there really
     is not a fruit of the poisonous tree issue.

J.A. 65-68 (emphasis added).


                                    II.

     Cureton argues, as he did below, that this case is best

described   as   a   Terry   stop   case    where      law   enforcement   is

attempting to use an anonymous tip to establish the requisite

reasonably articulable suspicion.         See Florida v. J.L., 529 U.S.

266, 270 (2000).     The government accepts the premise that this

case involved a Terry stop but contends that the district court

correctly   concluded   that   there      was   sufficient     and   reliable

information to support reasonable suspicion.



                                    6
       Although we agree with the district court’s disposition of

Cureton’s     motion      to     suppress,      we    believe     that        Cureton’s

challenge founders on the threshold issue of whether a seizure

ever   occurred     to    “trigger[]      the     protections      of    the     Fourth

Amendment” in the first place.             United States v. Brown, 401 F.3d

588, 593 (4th Cir. 2005).               “[A] seizure does not occur simply

because a police officer approaches an individual and asks a few

questions.     So long as a reasonable person would feel free to

disregard the police and go about his business, the encounter is

consensual and no reasonable suspicion is required.”                         Florida v.

Bostick,    501   U.S.    429,    434    (1991)      (internal    quotation       marks

omitted).     The general rule is that a seizure “requires either

physical force ... or, where that is absent, submission to the

assertion of authority.”           California v. Hodari D., 499 U.S. 621,

626 (1991).       A defendant who flees the police in response to an

assertion of authority has not been seized, and thus his Fourth

Amendment    rights      are   not   implicated.         See     id.    at    626,   629

(concluding that “since Hodari did not comply” with the “show of

authority,” he was not seized “until he was tackled”).

       In Hodari D., the suspect fled when he saw the police and

threw down a small rock which later proved to be cocaine.                            See

id. at 622-23. The Court held that the suspect was not seized

until the police apprehended him, and the abandoned cocaine was

not the fruit of the suspect's seizure.                  See id. at 629.             Like

                                          7
the defendant in Hodari D., Cureton was not seized before or

during his flight.               Seizure for Fourth Amendment purposes did

not occur until he submitted to Officer Nickerson’s order to

come out from underneath the truck.                   Thus, Cureton had not been

seized at the time he abandoned the handgun; he essentially gave

up his expectation of privacy by abandoning his property during

flight. See id. at 629 (holding that cocaine abandoned while

defendant was running away from police was not the fruit of an

illegal seizure).

      Finally,        we    also     reject       Cureton’s    argument         that    the

district     court         ought    to   have       suppressed       his       post-arrest

statements as “fruit of the poisonous tree.”                     Wong Sun, 371 U.S.

at   488   (internal         quotation      marks    omitted).            As    explained,

Cureton was not seized for Fourth Amendment purposes until he

yielded    to    law       enforcement      and    emerged    from    underneath        the

truck.     We     have      no     difficulty      concluding,       in    view    of   the

totality of the circumstances, that the officers at that point

had probable cause to arrest Cureton.                  This conclusion, in turn,

forecloses      the    argument      that    Cureton’s    post-arrest           statements

were “‘fruits’ of the agents’ unlawful action.”                      Id. at 484.

      Accordingly, the district court correctly denied Cureton’s

motion to suppress.

                                                                                  AFFIRMED



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