     Case: 14-60041      Document: 00513182179         Page: 1    Date Filed: 09/04/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                      No. 14-60041                       United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
UNITED STATES OF AMERICA,                                               September 4, 2015
                                                                           Lyle W. Cayce
              Plaintiff–Appellee                                                Clerk

v.

RICKEY LEE SCOTT,

              Defendant–Appellant




                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                             USDC No. 3:08-CR-134


Before PRADO, ELROD, and HAYNES, Circuit Judges.
PER CURIAM:*
       This appeal arises from the district court’s denial of Appellant Ricky Lee
Scott’s motion to suppress a pistol discovered on his person. Scott entered into
a conditional plea agreement for possession of a firearm by a felon. The district
court held that the weapon had been properly discovered pursuant to Terry v.
Ohio, 392 U.S. 1 (1968). In addition to arguing that there was reasonable
suspicion for the Terry stop, the Government contends that we need not reach


       * Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                     No. 14-60041
the Terry inquiry because the stop did not constitute a Fourth Amendment
seizure. Because we find that Scott was not seized before the gun was
discovered and therefore the officers did not act unlawfully, we affirm.
                                 I. BACKGROUND
      Scott was indicted for being a felon in possession of a firearm. Scott filed
a motion to suppress the revolver he was charged with carrying. 1 He argued
that the revolver was recovered after a warrantless stop that was not
supported by reasonable suspicion. The Government argued that Scott had not
been seized when the gun was discovered and, in the alternative, the detective
who recovered the revolver had grounds for reasonable suspicion that Scott
was participating in illegal narcotics trafficking.
      At the suppression hearing, the arresting detective, Corliss Harris,
testified that on the day of Scott’s arrest he had received from his sergeant an
anonymous tip through the mayor’s hotline. The tip advised that illegal drug
activity and other illegal activities were occurring at 213 Columbus Street in
Jackson, Mississippi. Detective Harris, who was patrolling the area with other
officers in unmarked vehicles, went to Columbus Street and saw individuals
standing in the street by a vehicle parked in front of 213 as well as “a
gentleman . . . working on[] the rear of the vehicle.” At this point, Detective
Harris testified, there was “[n]othing suspicious” about the men.
      Detective Harris testified that after he exited his vehicle and approached
wearing his tactical police gear, Scott “beg[a]n to act kind of fidgety when he
realized we were police[,] adjusting his [sic] self around his waistband and
began to walk off. I at that time advised him he didn’t have to leave, asked him
to step back over.” Scott then “raised his hands to state that he hadn’t done



      1 Scott originally pleaded guilty, but this plea was vacated because he had not been
properly informed of the mandatory minimum sentence.
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                                 No. 14-60041
anything,” at which point Detective Harris was able to see “what appeared to
be a butt of a handgun on the left waistband.” After Detective Harris searched
Scott and retrieved the firearm, Scott admitted that he was a convicted felon
and was taken into custody.
      Regarding the legality of the initial stop, Detective Harris testified that
he never commanded Scott to stay or told Scott that he could not leave.
Detective Harris said that that Scott voluntarily stopped and turned to engage
in conversation. The Government submitted, as an exhibit, the arrest report
that included Detective Harris’s statement that Scott “began to act very
nervous” when he was approached.
      On cross-examination, Detective Harris testified that the anonymous tip
specifically directed the officers to 213 Columbus Street and that it informed
them that individuals would “hang out around vehicles waiting for people to
come through in front of 213.” Detective Harris admitted that when the officers
initially stopped to investigate, the only suspicion he had was based on the
presence of the individuals in the street in front of 213, which was consistent
with the information he had received. He also testified that Scott had taken
only two or three steps away from the scene when he turned and raised his
hands. Detective Harris stated that Scott started to walk away only a few
seconds after Detective Harris exited the car and that Scott raised his hands
“not even a minute” later.
      Following this hearing, the district court denied Scott’s motion to
suppress the gun. The court first stated that there was “a question whether or
not there was a detention . . . [and] I think that in my mind there probably was
a detention at the point when the officer asked the defendant to step back
over.” The court noted that the officers had received an anonymous tip that
there was drug activity at the specific address and that the officers observed
individuals congregating in the street consistent with the information in the
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                                   No. 14-60041
tip. The court concluded that based on the information in the tip, the
observance of activity consistent with that information, Scott’s nervous
reaction to the police, and his attempt to walk away, reasonable suspicion
existed to justify a Terry stop.
      Scott then entered into a plea agreement wherein he reserved the right
to appeal the district court’s adverse ruling on his motion to suppress. The
district court accepted Scott’s guilty plea and imposed a sentence of 180 months
of imprisonment. Scott filed a timely notice of appeal. Because it was unclear
whether the district court held that Scott was seized, we remanded to the
district court for clarification. On remand the district court found that prior to
the discovery of the gun, a reasonable person would have felt free to leave, and
held that “Scott was not seized until the gun had been observed.”
            II. JURISDICTION AND STANDARD OF REVIEW
      We have jurisdiction over this appeal of a final judgment pursuant to 28
U.S.C. § 1291. We review the district court’s seizure determination for clear
error. United States v. Mask, 330 F.3d 330, 334–35 (5th Cir. 2003). But, “a
district court’s seizure determination is not entitled to deference if it is
influenced by an incorrect view of the law.” Id. at 335.
      We must “view the evidence in the light most favorable to the party
prevailing below.” Id. Thus, the denial of a motion to suppress will be upheld
so long as there is “any reasonable view of the evidence to support it.” United
States v. Michelletti, 13 F.3d 838, 841 (5th Cir. 1994) (en banc) (internal
quotation marks omitted). This Court “may affirm the district court’s decision
on any basis established by the record.” United States v. Powell, 732 F.3d 361,
369 (5th Cir. 2013) (internal quotation marks omitted).
                               III. DISCUSSION
      The Government argues that we need not perform a Terry analysis
because “Scott returned to the officer voluntarily, thus rendering his contact
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                                  No. 14-60041
with the police consensual.” The Government acknowledges that Detective
Harris asked Scott to come back but asserts that this alone does not constitute
a seizure. We agree.
      Not every law-enforcement encounter constitutes a seizure for Fourth
amendment purposes. Florida v. Bostick, 501 U.S. 429, 434 (1991). “A
voluntary encounter between an officer and a citizen may ripen into a seizure,
triggering the Fourth Amendment and requiring officers to be able to
articulate reasonable suspicion or probable cause, ‘only when the officer, by
means of physical force or show of authority, has in some way restrained the
liberty of [the] citizen.’” Mask, 330 F.3d at 334 (alteration in original) (quoting
Terry, 392 U.S. at 19). An individual has been seized “if, in view of all the
circumstances surrounding the incident, a reasonable person would have
believed that he was not free to leave.” INS v. Delgado, 466 U.S. 210, 215 (1984)
(internal quotation marks omitted). This is an objective test “concerned not
with the citizen’s subjective perception or the officers’ subjective intent, but
only with what the officers’ words and actions would have conveyed to a
reasonable and innocent person.” Mask, 330 F.3d at 336 (citing Bostick, 501
U.S. at 438; Michigan v. Chesternut, 486 U.S. 567, 574, 576 n.7 (1988)).
      Viewing the facts in the light most favorable to the Government, we
conclude that Scott had not been seized when the gun was discovered. The
events leading up to the discovery of the gun are as follows: The officers arrived
at the address in unmarked police cars. Detective Harris, upon seeing
individuals in front of the address, exited his vehicle wearing his tactical gear
marked “police” and approached. Scott started to walk away and Detective
Harris “advised him he didn’t have to leave[ and] asked him to step back over.”
Importantly, Detective Harris did not command Scott to return or tell him he
could not leave. At this point, Scott turned around and raised his arms,


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                                          No. 14-60041
revealing the butt of the gun in his waistband. 2 Id. Less than a minute passed
between Detective Harris’s exit from the vehicle and the discovery of the
weapon.
          This Court has found that no seizure occurred even though an officer
requested that the individual come to his location. See United States v.
Valdiosera–Godinez, 932 F.2d 1093, 1099 (5th Cir. 1991). 3 In Valdiosera–
Godinez, federal customs agents, investigating a tip, drove up to a storage unit
and parked seven or eight feet from the entrance. Id. at 1094–95. One
“announced . . . that he was a federal agent and asked if he could speak with
the defendants.” Id. at 1095. While he did this he “motioned them outside the
unit.” Id. at 1099. The agents then obtained the defendants’ consent to search
the unit and discovered cocaine inside. Id. at 1095. Before trial, one defendant
unsuccessfully moved to suppress the fruits of the search, arguing his consent
was invalid because it was obtained after a seizure not justified by reasonable
suspicion. Id. at 1098. This Court affirmed on the ground that no seizure




          2   This testimony is inconsistent with Detective Harris’s description in the arrest
report:
          I asked Mr. Scott to stop and come over to me. He complied but was very
          reluctant to do so. For officer safety I asked the subject if he had anything on
          him that I as a law enforcement officer needed to know about. Mr. Scott replied
          no as he raised his hands. When his hands were raised I could see the butt of
          a small hand gun.
Were we not bound to view the facts in the light most favorable to the Government, these
discrepancies would change our seizure analysis.
        3 See also United States v. Falls, 533 F. App’x 505, 508 (6th Cir. 2013) (per curiam)

(“Officer Neumeyer’s use of the words ‘stop’ and ‘come here,’ without any other evidence of
coercion, did not convert the consensual encounter into a seizure.”); United States v. Smith,
423 F.3d 25, 27, 31–32 (1st Cir. 2005) (holding that no seizure occurred where uniformed
officers, after asking a man numerous questions from a police cruiser, exited the vehicle,
approached the man, and asked for his name and identification); United States v. Broomfield,
417 F.3d 654, 655–57 (7th Cir. 2005) (holding that a man who was told by an officer to stop
and remove his hands from his pockets was not seized).
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                                  No. 14-60041
occurred, noting that the agents had not displayed weapons, blocked the
individual’s exit, or otherwise behaved aggressively. Id. at 1099.
      In this case, “[t]here was no application of force, no intimidating
movement, no overwhelming show of force, no brandishing of weapons, no
blocking of exits, no threat, no command.” United States v. Jackson, 390 F.3d
393, 397–98 (5th Cir. 2004) (alteration in original) (quoting United States v.
Drayton, 536 U.S. 194, 204 (2002)) (internal quotation marks omitted). The
only action by Detective Harris that could be viewed as restraining Scott’s
liberty is his request that Scott “step back over.” This request is similar to that
of the customs agent in Valdiosera–Godinez, who motioned for the defendants
to come out of the storage unit to speak to him. See 932 F.2d at 1099. What is
more, Detective Harris’s behavior was less coercive than the agent’s in
Valdiosera–Godinez; the interaction here was briefer and Detective Harris did
not ask Scott to exit a private building to speak to him.
      We therefore agree with the district court that Scott was not seized for
Fourth Amendment purposes prior to the gun’s discovery and affirm the denial
of Scott’s motion to suppress on this ground. See Powell, 732 F.3d at 369 (“[This
Court] may affirm the district court’s decision on any basis established by the
record.” (internal quotation marks omitted)).
                              IV. CONCLUSION
      For the foregoing reasons, we AFFIRM the district court’s denial of the
motion to suppress.




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