                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 12-4382


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

DESHAWN X. HOLLAND,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond.     John A. Gibney, Jr.,
District Judge. (3:11-cr-00208-JAG-1)


Submitted:   May 31, 2013                     Decided:   June 6, 2013


Before WILKINSON and AGEE, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


Charles D. Lewis, Richmond, Virginia, for Appellant. Neil H.
MacBride, United States Attorney, Michael A. Jagels, Special
Assistant United States Attorney, Richmond, Virginia, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

              Deshawn X. Holland appeals his convictions following

his guilty plea to possession with intent to distribute cocaine

base,   in    violation       of    21       U.S.C.    §    841(a)(1)      (2006),      and    to

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

§ 922(g)(1) (2006), and his convictions following a bench trial

of    conspiracy      to     distribute            cocaine    and     cocaine     base,       in

violation of 21 U.S.C. § 846 (2006), and possession of a firearm

in furtherance of a drug trafficking crime, in violation of 18

U.S.C. § 924(c)(1) (2006).                   On appeal, Holland argues that the

district court erred in denying his motion to suppress evidence

found subsequent to an allegedly illegal seizure.                                Finding no

error, we affirm.

              Holland       did    not       appear     to    be    engaged      in    illegal

activity      when    Detective          Bridges       and    Officer      Custer      of     the

Richmond     City     Police       Department         observed      him    walking      on    the

sidewalk of North 26th Street.                        The officers began following

Holland,      known    to    them       as    a    felon,    on     foot   and    asked       him

questions.         Holland did not respond and continued to walk away

from the officers into an alley and eventually into the backyard

of 908 North 27th Street.                 Officer Custer followed Holland into

the   backyard,       and    Detective            Bridges    remained      in    the    alley.

Holland    began      walking      to    the      front     yard,    towards     North       27th

Street,      but   returned        to    the      backyard    upon    seeing      two    other

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police officers pull their vehicle to the side on North 27th

Street and one of those officers walk into the backyard of 908

North 27th Street.

             Holland next jumped a fence out of the backyard of 908

North 27th Street and fell to the ground.                     As Holland pushed

himself off of the ground, Officer Custer observed in Holland’s

jacket a heavy object, which he believed to be a firearm based

on his training and experience.                 Officer Custer yelled out “he

has got it,” and Holland began running.                   Holland initially ran

toward   Detective      Bridges    in     the    alley,    Bridges     yelled       “Mr.

Holland”   or    “don’t,”   and    Holland       began    running     in    the   other

direction.      Detective Bridges chased Holland and saw him drop a

firearm.     Detective Bridges ultimately apprehended Holland, and

the officers retrieved the firearm and found approximately eight

grams of cocaine base and $188 in cash on Holland.

           The       district     court       denied      Holland’s        motion    to

suppress, explaining that, while there were multiple officers

around Holland when he was in the backyard of 908 North 27th

Street, none of the officers told Holland that he had to stop or

that he was under arrest.               The district court concluded that

Holland was not seized until he was apprehended by Detective

Bridges,     which    occurred    after       Holland     dropped     the    firearm.

Following the denial of his motion to suppress, Holland pled



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guilty to, and was convicted of, the drug and firearms offenses

charged in the indictment.

            On    appeal,      Holland    argues          that,    when    the       officers

followed him into the backyard of 908 North 27th Street while

continually       asking    him    questions        and     positioning         themselves

around him to prevent his escape, a reasonable person would not

have felt free to leave and that he was unlawfully seized in the

backyard.      When considering the denial of a motion to suppress,

we review the district court’s legal determinations de novo and

its factual determinations for clear error.                          United States v.

Black,   707     F.3d   531,      537   (4th      Cir.     2013).        “[B]ecause        the

district court denied [the defendant’s] motion to suppress, we

construe    the     evidence      in    the       light    most     favorable         to   the

Government on appeal.”            United States v. Bumpers, 705 F.3d 168,

175 (4th Cir. 2013) (internal quotation marks omitted).

            While “police may approach an individual on a public

street     and    ask      questions      without         implicating          the     Fourth

Amendment’s protections,” such an encounter “may, . . . at some

unspecified point, cross the line and become an unconstitutional

seizure.”      United States v. Weaver, 282 F.3d 302, 309 (4th Cir.

2002).      An     unconstitutional           seizure       occurs       when    a    police

“officer,    by    means     of   physical        force     or    show    of    authority,

terminates or restrains [an individual’s] freedom of movement.”

Brendlin    v.    California,       551   U.S.       249,    254     (2007)      (internal

                                              4
quotation marks omitted).     Such a seizure occurs “only if, in

view of all of the circumstances surrounding the incident, a

reasonable person would have believed that he was not free to

leave.”   United States v. Mendenhall, 446 U.S. 544, 554 (1980). *

We consider the totality of the circumstances and look to the

specific following factors:

     “(i) the number of police officers present at the
     scene; (ii) whether the police officers were in
     uniform; (iii) whether the police officers displayed
     their weapons; (iv) whether they touched the defendant
     or made any attempt to physically block his departure
     or restrain his movement; (v) the use of language or
     tone of voice indicating that compliance with the
     officer’s request might be compelled; (vi) whether the
     officers informed the defendant that they suspected
     him of illegal activity rather than treating the
     encounter as routine in nature; and (vii) whether, if
     the officer requested from the defendant . . . some
     form of official identification, the officer promptly
     returned it.”

Black, 707 F.3d at 537-38 (internal quotation marks omitted).

          In considering the totality of the circumstances, we

conclude that, for purposes of the Fourth Amendment, Holland was

     *
       The Government argues that, in determining whether a
seizure occurred, we should apply the “force or submission”
standard set forth in Hodari D. v. California, 499 U.S. 621, 626
(1991) (holding that “[a]n arrest requires either physical force
. . . or, where that is absent, submission to the assertion of
authority”).    The Government contends that, because Holland
never submitted to a show of authority, there was no seizure.
However, because we conclude that the officers’ actions here did
not demonstrate an “unambiguous intent to restrain” Holland,
Mendenhall, as opposed to Hodari D., applies.    See Black, 707
F.3d at 537-38 n.3 (detailing standard for determining whether
to apply Mendenhall or Hodari D.).



                                 5
not seized in the backyard of 908 North 27th Street.                              First, the

officers       did    not    physically         touch    Holland        and,    contrary     to

Holland’s assertions on appeal, did not physically restrain his

movement.        When the officers began following Holland on North

26th Street, they maintained a distance of ten to thirty feet,

and, when Holland entered the alley, they maintained a distance

of twenty to thirty feet.                      Further, when Holland jumped the

fence out of the backyard of 908 North 27th Street, Officer

Custer was ten to twenty feet away from Holland.                               See generally

United    States       v.    Gray,       883    F.2d     320,    323    (4th     Cir.    1989)

(finding no seizure when officers “made [no] attempt to restrain

[the    suspect’s]         movement,      but    instead       walked    with    him    as    he

moved through the airport towards the exit”).                                  Additionally,

there    was     no    evidence      demonstrating         that    the     other    officers

restrained       Holland’s         movement      when     they    pulled       their    marked

vehicle     to       the    side    of    North     27th       Street    as     Holland      was

approaching the front yard of 908 North 27th Street.                                    To the

contrary, the additional officers were there “to have eyes on

[Holland]”       and       were    not    there     to    “contain”       Holland.           See

generally       Michigan      v.    Chesternut,          486    U.S.    567,     575    (1988)

(finding no seizure of pedestrian when there was no evidence

that police “operated the car in an aggressive manner to block

respondent’s course or otherwise control the direction or speed

of his movement”).

                                                6
            As   the       district    court       noted,    the    officers     neither

directed Holland to stop nor stated that he was under arrest.

Rather, the officers asked Holland conversational questions, to

which Holland did not respond, such as whether they could speak

with him, how he was doing, where he had been, when he got back

to town, and whether he lived in the area.                         The only question

that   indicated       the      officers      suspected      Holland       of    criminal

activity was whether he was carrying any firearms.                               However,

there was nothing in the record demonstrating that the officers’

questions or tone of voice indicated that Holland had to stop

and respond to the officers.               While Detective Bridges testified

that he talked “somewhat loud[ly],” he also testified that he

did so “[i]n order to be heard” and that, at the time, he was

thirty feet away from Holland, who continued walking away from

the officers.         Cf. United States v. Wilson, 953 F.2d 116, 123

(4th Cir. 1991) (holding that seizure occurred when “officer’s

prolonged    and      persistent       questioning         after    the    suspect      had

conveyed    an     unequivocal        unwillingness         to    engage    in    further

conversation with the officer”).

            Turning        to   the    remaining        Mendenhall        factors,      the

officers    never      requested        any       identification      from       Holland.

Additionally,      Detective       Bridges        and   Officer      Custer      were   in

uniform    and   in    a    marked    vehicle,       and    two    additional      police

officers later came to the scene on North 27th Street in a

                                              7
marked vehicle.              However, there is nothing in the record to

indicate    that       any     of    the     officers            displayed            their    weapons,

activated     their          sirens,         or       commanded                Holland        to     stop.

Accordingly, looking to the totality of the circumstances, we

conclude    that       a    reasonable           person       would            have    felt    free     to

continue    in    their        normal      course           of       movement.           Further,       we

conclude that the district court properly determined that, once

Detective   Bridges          observed        Holland,            a    known       felon,      drop     the

firearm, the officers had probable cause to arrest Holland.                                            See

United States v. Humphries, 372 F.3d 653, 657-58 (4th Cir. 2004)

(stating that probable cause to arrest exists when officer has

“reasonable ground for belief of guilt that was particularized

with   respect     to      the      person       to    be    .       .    .    seized”)       (internal

quotation marks omitted).

            Accordingly,            the    district          court            properly    denied       the

motion to suppress, and we affirm the court’s judgment.                                            We deny

Holland’s     motion         to     file     a    pro       se       supplemental          brief       and

dispense    with        oral        argument          because            the     facts     and       legal

contentions      are       adequately        presented           in       the    materials          before

this court and argument would not aid the decisional process.


                                                                                               AFFIRMED




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