                                                             NOT PRECEDENTIAL

                    UNITED STATES COURT OF APPEALS
                         FOR THE THIRD CIRCUIT
                              _____________

                                    No. 12-3686
                                   _____________

                        UNITED STATES OF AMERICA

                                        v.

                            ANTHONY WHITE, JR.,
                                          Appellant
                               _____________

                  On Appeal from the United States District Court
                     for the Western District of Pennsylvania
                           (D.C. No. 2:11-CR-206-002)
                       District Judge: Hon. Alan N. Bloch
                                  _____________

                             Argued on June 10, 2013

   BEFORE: McKEE, Chief Judge, and AMBRO and NYGAARD, Circuit Judges.

                          (Opinion Filed: July 26, 2013)

Donovan J. Cocas, Esq. (ARGUED)
Rebecca R. Haywood, Esq.
Office of United States Attorney
700 Grant Street, Suite 4000
Pittsburgh, PA 15219-0000
       Attorneys for Appellee

Renee Pietropaolo, Esq. (ARGUED)
Office of Federal Public Defender
1001 Liberty Avenue
1500 Liberty Center
Pittsburgh, PA 15222
       Attorney for Appellant
                                  _____________

                                         1
                                        OPINION
                                      _____________

McKEE, Chief Judge.

       Anthony White, Jr. appeals the District Court‟s denial of his motion to suppress a

handgun found on his person. Though we differ in our reasoning, we will affirm the

District Court‟s judgment.1

                                              I.

       The District Court concluded that White was “seized” for Fourth Amendment

purposes upon the officers‟ initial approach, but that the officers had reasonable suspicion

to stop White based on Davis‟s conduct. To its credit, and in the best tradition of

government service,2 the government now concedes there was no reasonable suspicion to

stop White simply because he was walking next to Davis, whom officers reasonably

suspected was violating the law.3 Thus, the remaining issue is whether White was


       1
           The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We have
appellate jurisdiction pursuant to 18 U.S.C. § 1291 and 28 U.S.C. § 3742(a). We review
a district court‟s denial of a motion to suppress for clear error as to the underlying facts,
but exercise plenary review as to legal determinations in light of the court‟s properly
found facts. United States v. Lafferty, 503 F.3d 293, 298 (3d Cir. 2007). In reviewing the
denial of a motion to suppress, we construe the record in the light most favorable to the
government. United States v. Harrison, 689 F.3d 301, 306 (3d Cir. 2012).
       2
         See Berger v. United States, 295 U.S. 78, 88 (1935) (“The United States
Attorney is the representative not of an ordinary party to a controversy, but of a
sovereignty whose obligation to govern impartially is as compelling as its obligation to
govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall
win a case, but that justice shall be done.”).
       3
         “The reasonable suspicion required under Terry is specific to the person who is
detained. The circumstances „must raise a suspicion that the particular individual being
stopped is engaged in wrongdoing.‟” United States v. Navedo, 694 F.3d 463, 468 (3d
                                              2
“seized” for Fourth Amendment purposes when the officers initially approached the three

men. If that encounter did not amount to a seizure, then the gun need not be suppressed

even though the officers had no reason to suspect that White was engaging in unlawful

conduct when they initially approached the three men.

       In Terry v. Ohio, the Supreme Court explained that a seizure occurs “when the

officer, by means of physical force or show of authority, has in some way restrained the

liberty of a citizen.” 392 U.S. 1, 19 n.16 (1968). “Although a brief investigatory stop is

considered a „seizure,‟ not every encounter between the police and a citizen constitutes a

seizure within the meaning of the Fourth Amendment.” United States v. Williams, 413

F.3d 347, 352 (3d Cir. 2005). Where, as here, “the actions of the police do not show an

unambiguous intent to restrain or when an individual‟s submission to a show of

governmental authority takes the form of passive acquiescence,” we apply an objective

test: “a seizure occurs if „in view of all the circumstances surrounding the incident, a

reasonable person would have believed that he was not free to leave.‟” Brendlin v.

California, 551 U.S. 249, 255 (2007) (quoting United States v. Mendenhall, 446 U.S.

544, 554 (1980)).

       Here, after hearing testimony from Detectives Love and Gault, and defendants

White and Davis, the District Court credited the officers‟ testimonies and found the

defendants‟ testimonies not credible. Although the District Court‟s findings of fact were

not clearly erroneous, the District Court erred in concluding as a matter of law that White



Cir. 2012) (quoting United States v. Cortez, 449 U.S. 411, 418 (1981)).

                                             3
was seized when the officers initially approached the three men. Police “do not violate

the Fourth Amendment by merely approaching an individual on the street . . . [and]

asking him to answer some questions.” Florida v. Royer, 460 U.S. 491, 497 (1983); see

also Florida v. Bostick, 501 U.S. 429, 434 (1991); United States v. Crandell, 554 F.3d 79,

85 (3d Cir. 2009); Williams, 413 F.3d at 354. “Nor would the fact that the officer

identifies himself as a police officer, without more, convert the encounter into a seizure

requiring some level of objective justification.” Royer, 460 U.S. at 497 (citing

Mendenhall, 446 U.S. at 555).4 Accordingly, without more, the circumstances here do

not constitute a seizure.5

                                             II.

       Viewing the facts in the light most favorable to the government, it is clear under

the Supreme Court‟s precedent that the earliest White could have been seized was when


       4
          The government also argues that, pursuant to Brower v. County of Inyo, 489
U.S. 593 (1989), White was not seized because officers intended to stop only Davis, and
had no intention of stopping White, when they initially approached the three men. This
argument is meritless. As explained in Brower itself, “[a] seizure occurs even when an
unintended person or thing is the object of the detention or taking, but the detention or
taking itself must be willful.” Brower, 489 U.S. at 596 (emphasis added) (citation
omitted). Further, the Supreme Court has since made clear that an intent to detain the
defendant is not always necessary for there to be a seizure. See Brendlin, 551 U.S. at
259-60 (rejecting conclusion that passengers in a car were “not seized by the stop because
[the police] only intended to investigate [the driver] and did not direct a show of authority
toward [the passenger]”); Mendenhall, 446 U.S. at 554 n.6 (“[T]he subjective intention . .
. to detain the respondent . . . is irrelevant except insofar as that may have been conveyed
to the respondent.”); Michigan v. Chesternut, 486 U.S. 567, 575, n.7 (1988) (same).
       5
         As this Court has previously expressed, “[a]lthough we have our doubts whether
a reasonable person who is greeted by [law enforcement] agents . . . feels free to simply
ignore the agents, we are not free to substitute our judgment on this question for the
Supreme Court‟s.” United States v. Thame, 846 F.2d 200, 202 (3d Cir. 1988).

                                             4
Detective Love ordered him to remove his hands from his pocket. By then, however, for

the reasons stated by the District Court, Detective Love had reasonable suspicion to

believe White was armed. Detective Love therefore acted within the limits of Terry in

seizing the disputed gun from White.

                                             III.

         For the reasons we have explained, we will affirm the judgment of the District

Court.




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