                                                                     United States Court of Appeals
                                                                              Fifth Circuit
                                                                           F I L E D
                        UNITED STATES COURT OF APPEALS                       May 25, 2007
                                 FIFTH CIRCUIT
                                                                       Charles R. Fulbruge III
                                                                               Clerk
                                    No. 06-60293


                           UNITED STATES OF AMERICA,

                                                             Plaintiff-Appellant,

                                       versus

                                 CHARLES LAWSON,

                                                              Defendant-Appellee.


             Appeal from the United States District Court
               for the Southern District of Mississippi
                             (3:04-CR-89)


Before SMITH, BARKSDALE and DENNIS, Circuit Judges.

PER CURIAM:*

      Charles Lawson is charged, inter alia, with being a felon in

possession     of   a    firearm.     In    this     interlocutory    appeal,      the

Government challenges the district court’s pre-trial order granting

Lawson’s motion to suppress the firearm.                  VACATED AND REMANDED.

                                           I.

      On 20 November 2003, a Jackson, Mississippi, Police Officer

was   conducting        field   interviews      in    a    Jackson   neighborhood,

investigating a tip from his supervisors that an individual known



      *
       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this opinion should not be published and is not precedent except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.
as “G Dog” had been responsible for several armed robberies in the

area.    Interviewees told the Officer that “G Dog” was a tall,

large-built, black male named Jerome.

     Later that day, the Officer saw a man, later identified as

Lawson, who fit the description of “G Dog”. The Officer approached

Lawson to conduct a field interview.           The district court found the

Officer either crossed the street and walked up to Lawson, asking

to talk with him, or called to Lawson from across the street and

asked to do so.      According to the Officer, as soon as Lawson saw

him, he began to act nervous and started walking away quickly.

Although the district court noted the Officer testified Lawson was

acting nervous, it is not clear the court included this as a

finding of fact.         In any event, as the Officer got closer to

Lawson, Lawson began to run.

     The Officer pursued Lawson as he ran through lanes of traffic

and into a shopping-center parking lot.              Lawson then tripped and

fell, and the Officer saw what appeared to be the handle of a

firearm in Lawson’s waistband.              After a struggle, Lawson was

arrested and the firearm seized.

     Lawson    was   indicted   on    one    count    of    being   a   felon   in

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

as an Armed Career Criminal, under 18 U.S.C. § 924(e).               He moved to

suppress the firearm, claiming:           the Officer conducted an unlawful

search   and   seizure    because    he    sought    to    detain   him   without



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reasonable suspicion; and the Officer had no right to chase him

after he began to walk away.

     At the suppression hearing in February 2006, the Officer was

the only witness.   The Government maintained:   he had sufficient

reason to approach Lawson to try to talk to him; and his nervous

behavior and subsequent flight gave the Officer the requisite

reasonable suspicion that Lawson had asserted was lacking.     The

district court orally granted Lawson’s motion, holding the Officer

violated his Fourth Amendment rights because the Officer did not

even have reasonable suspicion to approach Lawson and detain him

prior to his running.    Along that line, the court ruled:      by

walking away, Lawson indicated he did not want to talk to the

Officer; Lawson’s running did not give the Officer reason to give

chase, especially because the Officer’s actions provoked Lawson

into doing so; and, as a result, seizing Lawson after he tripped

and fell was unlawful.

                               II.

     Before reaching the merits of the Government’s interlocutory

appeal, we must first consider Lawson’s jurisdictional challenge.

It fails.

                                A.

     In his brief, Lawson claimed jurisdiction is lacking because

the notice of appeal, although timely filed, did not certify, as

required by 18 U.S.C. § 3731, that the appeal “is not taken for


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purposes of delay and the evidence is a substantial proof of a fact

material in the proceeding”.   In response, the certification was

filed.   The Government admitted it erred in not timely making the

required certification but asserted this did not prejudice Lawson.

     The failure to timely file the § 3731 certification is not

jurisdictional; it may be excused at the discretion of the court.

E.g., United States v. Smith, 135 F.3d 963, 967-68 (5th Cir. 1998)

(holding § 3731’s timing requirement is not jurisdictional and is

“relevant only in considering the ‘equities’ of its appeal”);

United States v. Hanks, 24 F.3d 1235, 1239 (10th Cir. 1994)

(holding, because § 3731 is to be construed liberally, a delayed

filing of § 3731 certification is excused unless the appellee can

show “actual substantial prejudice”).

     At oral argument, Lawson admitted he suffered no prejudice due

to the untimely filing.   The tardy filing is excused.

                                B.

     In reviewing a suppression ruling, findings of fact are

reviewed only for clear error; conclusions of law, de novo.    E.g.,

United States v. Jordan, 232 F.3d 447, 448 (5th Cir. 2000).

Evidence introduced at a suppression hearing is viewed, of course,

in the light most favorable to the prevailing party.     Id.

     The Government does not contest the district court’s findings

of fact; instead, it challenges the resulting conclusions of law.

In that regard, it claims:   the facts found, when viewed in their


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totality, gave the Officer reasonable suspicion to conduct an

investigatory stop, pursuant to Terry v. Ohio, 392 U.S. 1 (1968).

     Consistent with the Fourth Amendment’s proscription against

“unreasonable searches and seizures” (emphasis added), a police

officer may   conduct   a    brief,   investigatory   stop   when   he   has

reasonable, articulable suspicion of criminal activity. Terry, 392

U.S. at 30 (Terry stop).      “While ‘reasonable suspicion’ is a less

demanding standard than probable cause and requires a showing

considerably less than preponderance of the evidence, the Fourth

Amendment   requires    at   least    a   minimal   level    of   objective

justification for making the stop.”       Illinois v. Wardlaw, 528 U.S.

119, 123 (2000) (emphasis added).          Reasonable suspicion can be

determined only by looking to “the totality of the circumstances —

the whole picture”.      United States v. Sokolow, 490 U.S. 1, 8

(1989).

     On the other hand, an officer need not have such “minimal

level of objective justification” before asking an individual if he

is willing simply to talk to the officer.              United States v.

Williams, 365 F.3d 399, 404 (5th Cir. 2004) (“Under the consensual

encounter arm of Fourth Amendment jurisprudence, the police can

initiate contact with a person without having an objective level of

suspicion, during which time the police may ask questions of the

person, ask for identification, and request permission to search

baggage that the individual may have in his possession.”).               That

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individual, however, has a right to ignore the police and “go on

his way”.     Florida v. Royer, 460 U.S. 491, 498 (1983).          Pertinent

to the issue presented here, an individual’s “refusal to cooperate,

without more, does not furnish the minimal level of objective

justification needed for detention and seizure”.                  Florida v.

Bostick, 501 U.S. 429, 437 (1991) (emphasis added).

       In claiming the totality of the circumstances justified the

Officer’s detaining Lawson, the Government maintains he exhibited

behavior consistent with someone engaged in criminal activity:

when the Officer approached Lawson to try to talk to him, he began

to act nervous and quickly started walking away; as the Officer

moved closer, Lawson began running through busy streets in order to

avoid the Officer.      In countering that his running from the Officer

can not be considered suspicious behavior, Lawson maintains:               he

was merely exercising his rights to go about his business and not

cooperate with authorities; and, therefore, his conduct can not

serve as the basis for a Terry stop.

       Despite his assertions to the contrary, Lawson did not merely

ignore the Officer and go about his business.           Instead, as found by

the district court:      when approached, Lawson began to run away.         He

did so through a traffic-filled street.              His behavior approaches

that    in   Illinois   v.   Wardlaw.       There,    police   officers   were

patrolling a neighborhood known for heavy narcotics trafficking.

528 U.S. at 121.         They observed Wardlaw standing next to a


                                        6
building, holding an opaque bag; he “looked in the direction of the

officers and fled”.      Id. at 121-22.    Wardlaw was stopped and

frisked, and a loaded handgun was seized.

     The Supreme Court upheld the denial of Wardlaw’s suppression

motion, holding that, although neither his presence in a high-crime

area nor his flight alone was indicative of suspicious behavior,

his “unprovoked flight upon noticing the police” justified their

suspecting he was involved in criminal activity and, therefore,

investigating further. Id. at 124-25.     “Headlong flight ... is the

consummate act of evasion:    It is not necessarily indicative of

wrongdoing, but it is certainly suggestive of such.” Id. (emphasis

added); see also United States v. Jordan, 232 F.3d 447, 449 (5th

Cir. 2000) (upholding the denial of a suppression motion under

similar circumstances:    “The undisputed facts ... clearly do not

portray a recreational runner.       The defendant appeared to be

fleeing from something or someone”.).

     Lawson claims, however, and the district court held:        the

Officer had “no right to detain him and stop him” after Lawson

refused to talk to him; and, indeed, the Officer’s actions “caused”

Lawson’s flight.   An attempt to initiate a consensual encounter on

the street does not constitute provocation; to the contrary, “law

enforcement officers do not violate the Fourth Amendment by merely

approaching an individual on the street or in another public place




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[and] by asking him if he is willing to answer some questions”.

Royer, 460 U.S. at 497.

       Lawson’s “unprovoked flight” upon seeing the Officer was “not

going about one’s business; in fact, it [was] just the opposite”.

See Wardlaw, 528 U.S. at 125.           It, along with other factors,

discussed below, gave the Officer reasonable suspicion to conduct

a Terry stop.    Id.

       Lawson also contends the other factors cited by the Officer in

justifying the Terry stop do not establish reasonable suspicion:

for example, the general description of the robbery suspect as a

“tall,    large-built   black   male”    has   de   minimis   value   in   a

predominantly black neighborhood; and the Officer’s conclusion that

Lawson was in a high-crime neighborhood does not mean Lawson was

the suspect.    Each factor by itself may not justify a Terry stop;

but, the totality of these factors, along with Lawson’s unprovoked

flight, provided the Officer with reasonable suspicion to detain

him.    E.g., Sokolow, 490 U.S. at 7-8.

                                  III.

       For the foregoing reasons, the suppression order is VACATED;

this matter is REMANDED for further proceedings consistent with

this opinion.

                                                    VACATED AND REMANDED




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