                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                              F I L E D
                IN THE UNITED STATES COURT OF APPEALS        November 3, 2003
                        FOR THE FIFTH CIRCUIT
                       _______________________            Charles R. Fulbruge III
                                                                  Clerk
                              No. 03-30415
                            Summary Calendar
                        _______________________

UNITED STATES OF AMERICA,

                  Plaintiff - Appellant,

     v.

PERCY WILLIAMS,

                  Defendant - Appellee.


                          --------------------
             Appeal from the United States District Court
                 for the Middle District of Louisiana
                         USDC No. 02-CR-84-ALL
                          --------------------

Before HIGGINBOTHAM, DAVIS and PRADO, Circuit Judges.1

PRADO, Circuit Judge.

     The United States appeals the order of the district court

suppressing a firearm seized in connection with the arrest of

Percy Williams and post-arrest statements made by Williams.          The

firearm was seized subsequent to police pursuit of a fleeing

Williams, who was observed tossing the gun onto the ground during

flight.   Williams was charged with violating 18 U.S.C. §

922(g)(1).    The district court, in suppressing the firearm and

     1
     Pursuant to 5th Cir. R. 47.5, this 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that this opinion should not be published and is not precedent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.

                                   1
statements, found that the police pursuit of Williams was

improper, and that, as a result, Williams’s abandonment of the

gun was involuntary.   The United States argues that the officer’s

pursuit of Williams was based on a reasonable suspicion of

criminal activity and that the firearm and statements made by

Williams were lawfully obtained.       We agree.

                          Background Facts

     On the night of January 8, 2002, Baton Rouge police officer

Douglas Barron caught sight of Percy Williams walking down the

street.   Williams made eye contact with Officer Barron, then

immediately turned, jogged south away from the street and up the

driveway of a residence at 4112 Sycamore, and placed something in

his mouth.   Upon observing this behavior, Officer Barron stopped

his vehicle and gave chase on foot after Williams.   During that

pursuit, Officer Barron saw Williams toss an object onto the

ground, which, when recovered, police found to be a Taurus .357

revolver.    Williams was apprehended, given Miranda warnings, and

taken into custody.

     Williams was charged with one count of possession of a

firearm by a convicted felon, in violation of 18 U.S.C. §

922(g)(1).   During pretrial proceedings, Williams moved to

suppress the firearm along with any statements made in connection

with his arrest.   He argued that the police had no probable cause

or reasonable suspicion to justify their pursuit and detention of


                                   2
him, so that the pursuit itself constituted an unlawful seizure

of his person under the Fourth Amendment.      Thus, Williams

contended that the gun and any statements derived from his arrest

should be excluded as the “fruit” of an unconstitutional seizure.

     The district court found that Williams was not seized while

the officer chased him.    The court held, however, that the chase

was “improper,” because the officer did not have reasonable

suspicion to pursue Williams.    Thus, the trial judge held that

the gun and Williams’s statements made while in custody were

excludable.   The United States timely appealed.

                          Standard of Review

     In reviewing a suppression order based on live testimony at

a suppression hearing, we accept the trial court’s factual

findings unless they are clearly erroneous or influenced by an

incorrect analysis of the law.     See United States v. Alvarez, 6

F.3d 287, 289 (5th Cir. 1993); United States v. Maldonado, 735

F.2d 809, 814 (5th Cir. 1984).    We review the trial court’s

conclusions of law de novo.     See Alvarez, 6 F.3d at 289.

Finally, we “view the evidence in the light most favorable to the

prevailing party.”   United States v. Piaget, 915 F.2d 138, 140

(5th Cir. 1990).

                                Seizure

     On appeal, the United States argues that the district court

erred in excluding the gun and statements of Williams, because


                                   3
(1) Officer Barron had reasonable suspicion to investigate and

chase Williams; and, (2) therefore, Williams lacks standing to

challenge seizure of the firearm, because his abandonment of the

firearm was voluntary and not influenced by any improper police

conduct.

     Under California v. Hodari, seizure of a person by an

officer occurs only by application of physical force or by a show

of authority to which the subject yields.         See 499 U.S. 621, 626

(1991); see also United States v. Silva, 957 F.2d 157, 159 (1992)

(subject evading police officer in chase was seized only when

physically apprehended); c.f. Brower v. County of Inyo, 489 U.S.

593, 599 (1989) (driver of stolen car attempting to flee police

was not “seized” until he was stopped by police roadblock).        In

Hodari, the Supreme Court found that the fleeing subject, pursued

on foot by police, was not seized until he was physically tackled

by an officer.    499 U.S. at 626.       Thus, the Court held that the

cocaine dropped by Hodari while he was running from police was

not the fruit of his subsequent seizure.         Id.

     The facts in the instant case are similar to those in

Hodari.    Officer Barron chased Williams through the front yard of

4112 Sycamore and observed him discard something metallic from

his jacket pocket.    The officer testified that he then withdrew

his service weapon, ordered Williams to stop, and Williams

complied.    Relying on Hodari, the trial judge correctly


                                     4
determined that Williams was not seized during the initial chase

when he abandoned the firearm.   Indeed, Williams was not seized,

under Hodari, until Officer Barron made a show of authority by

ordering Williams to halt, and Williams yielded.

                       Reasonable Suspicion

     The trial court further held that, although Officer Barron

had not seized Williams during the initial chase, the officer’s

conduct was improper because it was not founded upon reasonable

suspicion.   In justifying an investigation or particular

intrusion upon the constitutionally protected interests of a

private citizen, an officer must be able to attest to “specific

and articulable facts which, taken together with rational

inferences from those facts, reasonably warrant that intrusion.”

Terry v. Ohio, 392 U.S. 1, 21 (1968).   The officer’s basis for

the intrusion must be more than an “‘inchoate and

unparticularized suspicion or hunch’ of criminal activity.”

Illinois v. Wardlow, 528 U.S. 119, 124 (2000) (quoting Terry, 392

U.S. at 27).   In measuring the reasonableness of police conduct,

the reviewing court should not assess factors at play

individually, see United States v. Cardona, 955 F.2d 976, 980

(5th Cir. 1992), but should take into account the totality of the

circumstances at issue in the particular case.     See United States

v. Sokolow, 490 U.S. 1, 8 (1989); United States v. Rideau, 969

F.2d 1572, 1574 (5th Cir. 1992).


                                   5
     For instance, in Illinois v. Wardlow, the defendant fled

upon seeing police vehicles converge in an area known for heavy

drug activity.   In determining whether the police had reasonable

suspicion to pursue Defendant Wardlow, the Supreme Court noted

that, while an individual’s presence in a high crime area is not

enough, standing alone, it is among the relevant contextual

factors the court may consider.        See 528 U.S. at 124.    The Court

explained that “nervous, evasive behavior” is likewise germane to

a reasonable suspicion analysis.        Id.   “Headlong flight–wherever

it occurs–is the consummate act of evasion: it is not necessarily

indicative of wrongdoing, but it is certainly suggestive of

such.”   Id.; see also United States v. Jordan, 232 F.3d 447, 449

(5th Cir. 2000).

     Like the defendant in Wardlow, Williams saw the police in a

high crime area, and then fled.    Officer Barron testified that at

approximately 10:00 on the night of January 8, 2003, he was

traveling eastbound on Sycamore Street and noticed Williams

walking westbound along the street.       According to the officer,

Williams saw his marked police car, made eye contact with him,

then immediately changed directions and jogged up the driveway of

a residence at 4112 Sycamore.   As Williams jogged away from the

street, Officer Barron stated that he saw Williams remove

something from his pocket and place it in his mouth.          Upon

observing this behavior, Officer Barron sped up to the driveway,


                                   6
parked and exited his vehicle, and pursued Williams on foot.

Officer Barron was 15 to 30 feet behind Williams as Williams ran

around the back of the house.   As Officer Barron chased Williams

into the backyard, he saw Williams remove a metallic object from

his jacket pocket and throw it under the rear steps of the house.

The officer then drew his service weapon and commanded Williams

to move away from the steps and place his hands in the air.

Williams acquiesced, and at this point Officer Carl Mayo arrived

on the scene.   Williams was handcuffed and mirandized, and

Officer Mayo recovered a silver Taurus .357 firearm from under

the back stairs.

     Officer Barron testified that Williams’s flight upon seeing

him and the act of placing something in his mouth as he quickly

moved away raised his concerns.   He also noted that it was night

time, and that the neighborhood in which the incident took place

was known for criminal activity, including three armed robberies

in the previous two days.   The Government argues that all of

these considerations, taken together, established a reasonable

and particularized suspicion in Officer Barron that criminal

activity was afoot.

     Williams argues, however, and the trial judge held, that

Officer Barron did not have reasonable suspicion to commence his

chase of Williams.    The trial judge emphasized that there could

have been an innocent explanation for Williams’s behavior–that

Officer Barron could have just as easily concluded that 4112

                                  7
Sycamore was Williams’s own residence, which he was quickly

returning to.    While this assertion may be true, it does not

negate the ability of an officer to have sufficient cause to

investigate an individual.    The Court in Wardlow noted that,

“even in Terry, the conduct justifying the stop was ambiguous and

susceptible of an innocent explanation . . . .     Terry recognized

that the officers could detain the individual[] to resolve the

ambiguity.”    528 U.S. at 125.   The Court concluded that, “in

allowing such detentions, Terry accepts the risk that officers

may stop innocent people.” Id. at 126.

     The trial court also noted the many factors that were not

present during Officer Barron’s encounter with Williams, which

could have led him to suspect Williams of criminal activity.

Among other things, the court stressed that Williams did not fit

the description of the recent armed robbery suspects; no crimes

had recently been reported in the area, so that Williams could be

considered a suspect or a witness; and Williams did not furtively

glance over his shoulder at Officer Barron.     This Court has held

that under a "totality of the circumstances" analysis, the

absence of a particular factor will not control a court's

conclusions.    See Cardona, 955 F.2d at 980.   Therefore, we do not

weigh all of the factors that did not contribute to the officer’s

suspicions in this case.    We instead assess the factors

considered by the officer, in their totality, in order to


                                   8
determine whether his suspicion was objectively reasonable.

       The trial court was correct in noting that Officer Barron

was on the lookout for two armed robbery suspects on the night in

question.    Nonetheless, Officer Barron was also conducting a

routine patrol of his assigned district, per his regular duties.

While on the patrol, in an area known for its criminal activity,

Officer Barron spotted Williams, who apparently fled, unprovoked,

upon seeing the officer.    Under Wardlow, Williams’s unprovoked

flight upon seeing police in an area known for heavy criminal

activity is enough to support reasonable suspicion.    See 528 U.S.

at 124-125.    Indeed, Officer Barron’s reason to believe that

Williams might be engaged in criminal conduct was even greater

than those of the police in Wardlow, because he saw Williams take

something from his pocket and place it in his mouth as he fled.

Officer Barron testified that this behavior appeared suspicious

to him, and surmised that Williams may have been placing

narcotics in his mouth.    C.f. Rener v. Beto, 447 F.2d 20, 22 (5th

Cir. 1971) (police had probable cause to arrest suspect who

appeared to be about to destroy a marijuana cigarette by eating

it).

       We do not dispute the trial court’s factual finding that

Williams did not immediately appear to be one of the robbery

suspects the police were searching for, in particular.    However,

we agree with the Government that the specific observations


                                  9
considered by Officer Barron, taken as a whole, were sufficient

to give rise to a reasonable suspicion in Officer Barron that

criminal activity was afoot and, therefore, justify his

investigation and pursuit of Williams.    Based on that reasonable

suspicion alone, Officer Barron’s subsequent seizure of Williams

was warranted.    See, e.g., United States v. Sharpe, 470 U.S. 675

(1985) (where officer drew his gun, ordered driver out of his

truck, and detained him while truck was searched, the detention

required only reasonable suspicion of criminal activity).

However, we find that once Officer Barron chased the fleeing

Williams into the backyard of the residence and saw him discard

an object, his suspicions increased to probable cause to seize

him.    See United States v. Wadley, 59 F.3d 510 (5th Cir. 1995)

(officers had probable cause for warrantless arrest where suspect

persistently evaded police in high crime area and attempted to

discard an object while fleeing).     Thus, we hold that Officer

Barron’s pursuit and detention of Williams were not improper.

                              Standing

       Finally, we look to the issue of whether Williams had

standing to challenge the seizure of the firearm.    It is well-

established law that a defendant who has voluntarily abandoned

property lacks standing to challenge the seizure of that

property.    See, e.g., Abel v. United States, 362 U.S. 217, 240-

241 (1960); United States v. Colbert, 474 F.2d 174, 176 (5th Cir.


                                 10
1973).    However, to preclude standing, the abandonment must have

been “voluntary and not influenced by improper police conduct.”

Alvarez, 6 F.3d at 289.    When determining whether police conduct

was improper, legal presence of police for pursuit or for

investigation does not, of itself, render the abandonment

involuntary.    See Colbert, 474 F.2d at 176; accord United States

v. Quiroz-Hernandez, 48 F.3d 858 (5th Cir. 1995); Alvarez, 6 F.3d

287.    Having held that Officer Barron properly acted on a

reasonable suspicion of criminal activity and with probable

cause, we conclude that Williams voluntarily abandoned the

firearm, and that he did not have standing to challenge seizure

of the weapon and the statements he made incident to his arrest.

                             Conclusion

       We find that the trial court erred in granting Williams’s

motion to suppress.    The police officer’s conduct in pursuing and

detaining Williams was based on lawful reasonable suspicion of

criminal activity and on probable cause, and was not improper.

Therefore, Williams’s abandonment of the firearm was voluntary

and he did not have proper standing to complain of its seizure.

Finally, lacking any unconstitutional seizure of either his

person or property under the Fourth Amendment, Williams’s

statements, made after he was given Miranda warnings, were

lawfully obtained.    Consequently, we REVERSE the district court’s

order granting Williams’s motion to suppress and REMAND the case


                                 11
to the district court for further proceedings.

REVERSED AND REMANDED.




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