                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 14-4515


UNITED STATES OF AMERICA,

                Plaintiff - Appellant,

           v.

SKYLER JEVELLE HOLLEY,

                Defendant - Appellee.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Greenville.    W. Earl Britt,
Senior District Judge. (4:14-cr-00006-BR-1)


Argued:   January 27, 2015              Decided:   February 27, 2015


Before NIEMEYER, THACKER, and HARRIS, Circuit Judges.


Reversed and remanded by unpublished opinion.   Judge Harris
wrote the opinion, in which Judge Niemeyer and Judge Thacker
joined.


ARGUED: Jennifer P. May-Parker, OFFICE OF THE UNITED STATES
ATTORNEY, Raleigh, North Carolina, for Appellant.   Eric Joseph
Brignac, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh, North
Carolina, for Appellee.    ON BRIEF: Thomas G. Walker, United
States Attorney, J. Frank Bradsher, Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North
Carolina, for Appellant.    Thomas P. McNamara, Federal Public
Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.




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PAMELA HARRIS, Circuit Judge:

     Defendant-Appellee            Skyler    Jevelle       Holley       (“Holley”)       was

charged    with     being    a   felon      in    possession       of    a    firearm,    in

violation of 18 U.S.C. §§ 922(g)(1) and 924.                            Holley filed a

motion    to    suppress     evidence       seized    by    Deputy       John    McArthur

(“McArthur”) after an investigatory stop of a vehicle in which

Holley    was   a     passenger,      on   the    ground    that        McArthur   lacked

reasonable suspicion to justify the stop.                      The district court

granted the motion to suppress.                  The government appeals, arguing

that under the totality of the circumstances, McArthur did have

reasonable      suspicion        to   conduct      the     stop.         We    agree     and

therefore reverse the district court’s order.



                                            I.

                                            A.

     The parties agree that McArthur’s official written report

of the incident and the few factual proffers in the suppression

hearing provide the relevant facts.                      According to the report,

McArthur was in Edenton, North Carolina, when the police chief

radioed    a    “be     on   the      lookout”      (“BOLO”)       immediately         after

receiving a call from a confidential informant.                          The informant,

identifying Holley by name, stated that Holley had “just” pulled

a gun on someone near the Crown Mart on Oakum Street and then

left the scene in a white Cadillac.

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     When McArthur heard the BOLO, he was “across town” from the

Crown Mart on Virginia Avenue, where he saw a white Cadillac

with two black males inside, heading north.                      McArthur testified

that he had not met Holley previously but had seen a headshot of

him, and the district court inferred from that testimony that

McArthur knew Holley was a black man.                         McArthur judged that

enough   time    had     passed    for    the    Cadillac      to   make    it   to    his

location from the Crown Mart, and believed that he had found the

suspect vehicle.

     McArthur turned on his car’s blue lights and sped up to

catch    the    Cadillac.         When    he    was     behind      the    vehicle,    he

activated      his   siren   to   indicate       that    the    driver     should     pull

over, noting that the front-seat passenger was “leaned back” in

his seat and appeared to be “trying to hide his identity.”

     The Cadillac failed to stop and continued to travel north

before   making      a   right    turn.        Twice    the    vehicle     appeared     as

though it was about to pull over, but did not.                            The Cadillac

traveled at a “slow speed,” but based on the “erratic” driving

and failure to stop, McArthur believed that Holley was inside.

     The vehicle then turned left into a driveway and stopped,

and McArthur pulled in behind it.                  When he saw the front-seat

passenger move to exit the vehicle, McArthur drew his weapon and

ordered him back into the car.                 After a backup officer arrived,

McArthur ordered the passenger to exit, and heard something fall

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to the floor of the vehicle as the passenger stood up.                                            The

officers    searched           the    passenger,       found          a    loaded   .38     caliber

pistol in his pocket, and identified him as Holley.                                       They also

seized a second loaded .38 caliber pistol from the Cadillac,

along with other items taken from the vehicle and from Holley’s

person.

                                                B.

       Holley      was       indicted      on    charges          of       being    a     felon    in

possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1)

and 924.        He filed a motion to suppress the evidence, including

the pistols, obtained pursuant to the investigatory stop of the

Cadillac.

       The district court granted Holley’s motion, holding that

McArthur     did       not     have    “reasonable,              articulable”           grounds    to

believe that the Cadillac he pulled over was the subject of the

BOLO.     The court considered the fact that the informant said

that Holley was in a white Cadillac, and that McArthur would

have known that Holley was a black male.                              But for the court, the

combination       of     “a    white     Cadillac          and    a       black   male”    was    not

enough     to    give         rise    to   a     reasonable               suspicion       that    the

particular       white        Cadillac     observed         by    McArthur         was    the     same

white Cadillac wanted by the police.                             The district court noted

that    Cadillacs        are     common     in       the    black          community      in     rural

eastern North Carolina and determined that being “slumped down

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in a car seat a little bit” was not itself unusual enough to be

suspicious.

      The    district       court       did    not    consider       as    part    of    its

reasonable suspicion analysis anything that followed McArthur’s

activation of his siren – neither the Cadillac’s failure to stop

immediately nor the driving pattern that ensued.                            According to

the     district        court,     the      Fourth      Amendment         required      that

reasonable suspicion be present at the moment McArthur ordered

the Cadillac to stop, and so “the fact that this car took off

and didn’t stop is not a part of the equation.”

      The government filed a motion for an evidentiary hearing or

to reconsider the motion to suppress on the existing record,

which      the    district       court      denied.          The    government       timely

appealed.



                                              II.

      In    reviewing      the    district         court’s   grant    of    a   motion    to

suppress,        we    review    its     factual      findings      for    clear     error,

construing       the    evidence       in   the     light    most    favorable     to    the

prevailing party.           United States v. Laudermilt, 677 F.3d 605,

609 (4th Cir. 2012).             The district court’s legal conclusions are

subject to de novo review, id., and at the suppression hearing

in this case, the parties agreed with the district court that



                                               6
whether       there      was       reasonable       suspicion       for    Holley’s          stop    is

largely a question of law.

       We find that the district court erred as a matter of law

when    it    excluded          from    its       reasonable       suspicion       analysis         the

response to McArthur’s order to stop – that is, the failure to

stop    immediately            and     the    unusual          driving    pattern.           As     the

district court recognized, under the Fourth Amendment, a seizure

in the form of an investigatory stop is permissible only when it

is     supported         by     reasonable          and    articulable          suspicion         that

criminal activity “may be afoot.”                         United States v. Bumpers, 705

F.3d 168, 171 (4th Cir. 2013) (quoting Terry v. Ohio, 392 U.S.

1, 30 (1968)).                So if, as the district court seems to have

assumed, Holley was seized when McArthur activated his siren,

then     it    would          be     appropriate          to     require       that     reasonable

suspicion exist at that moment and to exclude from consideration

McArthur’s post-seizure observations.

       The     problem         is    that     Holley       was    not     seized       within       the

meaning       of    the       Fourth       Amendment       when        McArthur       ordered       the

Cadillac       to       stop.         It     is    well    established          that     a    Fourth

Amendment seizure requires either the application of physical

force or – as relevant here – both an assertion of authority and

submission or acquiescence to that show of authority.                                         United

States v. Watson, 703 F.3d 684, 689 (4th Cir. 2013) (citing

California         v.    Hodari        D.,    499    U.S.       621,     626   (1991)).           When

                                                    7
McArthur         turned    on    his    siren,       ordering      the      Cadillac   to   pull

over,       he    satisfied      the    “assertion         of    authority”     prong.      But

because the Cadillac did not in fact pull over, there was no

submission and hence no seizure at that time.                               See United States

v. Smith, 396 F.3d 579, 586 & n.5 (4th Cir. 2005) (no seizure

upon activation of police lights when car continued driving).

        As a result, it is entirely proper for McArthur to justify

his   ultimate        seizure      of    Holley       with      reference      to   facts   that

occurred         after     activation     of     the       siren    but      before    Holley’s

eventual submission to police authority, such as the Cadillac’s

initial          failure    to    stop    and        what       McArthur      viewed   as    its

subsequent “erratic” driving. *                      By failing to take account of

these       pre-seizure          observations         as     part      of     its   reasonable

suspicion analysis, the district court improperly truncated its

review.

        As we have said many times, in assessing the validity of a

Terry       stop,     a    court       must    evaluate          the     “totality     of   the

        *
        At oral argument, the government initially took the
position that acquiescence to authority, and hence a Fourth
Amendment seizure, occurred in this case when the Cadillac came
to a stop in the driveway. It also suggested, however, that the
seizure might not have occurred until moments later, when
McArthur, seeing signs that the passenger was preparing to exit
the vehicle, drew his gun and ordered Holley to remain in the
car. We need not address that issue here; under either account,
the Cadillac’s initial failure to stop and subsequent driving
pattern come before the seizure, and should have been included
in the district court’s analysis.



                                                 8
circumstances”          to    determine         whether       the        officer          “had    a

particularized         and   objective      basis       for    suspecting           the    person

stopped       of   criminal    activity.”          United      States       v.       Hernandez-

Mendez, 626 F.3d 203, 207 (4th Cir. 2010) (internal quotation

marks omitted).         Review of the facts and inferences supporting a

Terry stop is holistic.             United States v. Branch, 537 F.3d 328,

337    (4th    Cir.     2008).      Courts       must    look       to    the       “cumulative

information available to the officer,” id. (internal quotation

marks omitted), and may not rely on a “piecemeal refutation” of

each individual fact to find that the officer lacked reasonable

suspicion, United States v. George, 732 F.3d 296, 300 (4th Cir.

2013).

       We need not consider whether the district court properly

applied       this    standard     in    analyzing       the    facts       that       preceded

McArthur’s show of authority.               Nor must we determine whether the

facts     that       immediately        followed     activation           of     the       siren,

standing       alone,    would      have    been     sufficiently           suspicious           to

justify an investigative stop.                   It is enough in this case that

once we take all of the facts together, adding to the district

court’s “equation” the Cadillac’s initial failure to stop when

McArthur       activated      his       siren      and    McArthur’s            observations

regarding the Cadillac’s subsequent erratic driving, it is clear

that the reasonable suspicion standard is met.                             See Smith, 396

F.3d     at    586    (listing      cases       treating       failure         to    stop        and

                                             9
continued    driving              after     light     or     siren       activation       as

contributing to reasonable suspicion).                     Based on the totality of

the circumstances prior to Holley’s submission to authority, and

considering the cumulative import of the information available

to   McArthur     –    including          the    match    between     the     Cadillac    he

observed    and       the    details       and    timing    of    the    BOLO,   Holley’s

posture in the passenger seat, the failure to stop when the

siren was activated, and the erratic driving – we conclude that

McArthur    had       reasonable          suspicion      sufficient      to   justify     an

investigatory stop of the vehicle.                    The district court therefore

erred in granting Holley’s motion to suppress.



                                             III.

      We   reverse          the    district      court’s     order      and   remand     for

proceedings consistent with this opinion.

                                                                 REVERSED AND REMANDED




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