                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 15-3651
                        ___________________________

                             United States of America

                        lllllllllllllllllllll Plaintiff - Appellee

                                           v.

                                 Cartez Lamar Cook

                      lllllllllllllllllllll Defendant - Appellant
                                      ____________

                    Appeal from United States District Court
                     for the District of Minnesota - St. Paul
                                 ____________

                           Submitted: October 21, 2016
                            Filed: November 22, 2016
                                 ____________

Before MURPHY, GRUENDER, and SHEPHERD, Circuit Judges.
                         ____________

MURPHY, Circuit Judge.

      Cartez Lamar Cook was convicted by a jury of one count of being a felon in
possession of a firearm in violation of 18 U.S.C. § 922(g)(1). The district court1
sentenced Cook to 120 months imprisonment. Cook appeals, and we affirm.

      1
       The Honorable Ann D. Montgomery, United States District Judge for the
District of Minnesota.
                                           I.

       In the early morning hours of November 25, 2013, police officers were on
routine patrol duty when they spotted an idling car in a high crime area of south
Minneapolis. The officers could not immediately determine whether the vehicle was
occupied. Worried that an idling vehicle could be taken by an opportunistic thief, the
officers decided to check on it by circling around the block. As the officers
approached the vehicle a second time, they could tell that it was occupied by two
people.

        The officers decided to make contact with the occupants of the idling car.
They parked behind it and then activated the "wig wag" setting for the patrol car's
emergency lights, which produces a distinctive pattern. As they approached the
idling car, appellant Cook rolled down the window next to the driver seat. The
officers were able to smell marijuana and decided to take Cook into custody, so he
was removed from the vehicle and handcuffed. While the officers attended to another
passenger, Cook fled. He was apprehended several blocks away and arrested.

       When officers looked in the vehicle Cook had been in at their first contact, they
saw marijuana and crack cocaine in the back seat. They towed and impounded the
car that night. Subsequently the officers obtained a warrant, searched the vehicle, and
uncovered a firearm hidden in the vehicle's center console. Analysis revealed that
DNA on that gun was consistent with Cook's DNA, but not that of 99.6% of the
general population including the other passenger. Ballistics testing also connected
the gun to the death of Derek Holt, a man killed three days before Cook's encounter
with the police. At the time of Cook's arrest, he had already been identified by police
as a person of interest in Holt's death.




                                          -2-
       Cook was indicted on one count of being a felon in possession of a firearm in
violation of 18 U.S.C. § 922(g)(1). Cook was convicted following a jury trial and
sentenced by the district court to 120 months imprisonment. Cook appeals.

                                          II.

       Cook argues that the district court2 erred by denying his pretrial motion to
suppress the firearm as the fruit of an illegal seizure. When reviewing the denial of
a suppression motion, a district court's findings of fact are examined for clear error
and its conclusions of law are reviewed de novo. United States v. Castellanos, 608
F.3d 1010, 1015 (8th Cir. 2010). Since there is no dispute about the relevant facts,
we give de novo consideration to Cook's arguments regarding the constitutionality
of the officers' actions.

       It is well settled that not all interactions between law enforcement officers and
citizens amount to seizures under the Fourth Amendment. See United States v. Barry,
394 F.3d 1070, 1074 (8th Cir. 2005). Even without a basis for suspecting a person
of committing a crime, officers may "generally ask questions of that individual" and
"ask to examine the individual's identification," so long as "the police do not convey
a message that compliance with their requests is required." Florida v. Bostick, 501
U.S. 429, 434–35 (1991). For an officer's behavior to rise to the level of a Fourth
Amendment seizure, the officer must use "physical force or [a] show of authority" to
restrain a citizen's liberty. See Terry v. Ohio, 392 U.S. 1, 19 n.16 (1968). The crucial
question is whether an officer's actions would "have communicated to a reasonable
person that he was not at liberty to ignore the police presence and go about his




      2
       The Honorable Jeffrey J. Keyes, United States Magistrate Judge for the
District of Minnesota, prepared a report and recommendation on Cook's motion to
suppress which was subsequently adopted by Judge Montgomery.

                                          -3-
business." Bostick, 501 U.S. at 437 (quoting Michigan v. Chesternut, 486 U.S. 567,
569 (1988)).

      In United States v. Barry, we held that a police officer approaching a parked
car does not necessarily effect a seizure for Fourth Amendment purposes. 394 F.3d
at 1075. In Barry, an officer on patrol late at night noticed a car parked in an alley
behind a shopping mall. Id. at 1072. The officer decided to investigate and parked
his vehicle in front of the car. Id. The officer then approached the vehicle while
shining his flashlight on his uniform and keeping a hand on his holstered gun. Id.
The officer knocked on the passenger side window twice without receiving a
response, but on the third knock a person inside the car rolled the window down. Id.
The officer smelled marijuana inside the car, which he determined was adequate
grounds to detain the car's occupants. Id.

       We concluded in Barry that the occupants of the vehicle had not been seized
until they were asked to exit their vehicle. See id. at 1075. More specifically, we
determined that the officer's actions in approaching the parked car, shining a light on
his uniform, keeping a hand on his holstered gun, and knocking on the passenger side
window "did not amount to a show of authority such that a reasonable person would
believe he was not at liberty to ignore [the officer's] presence and go about his
business." Id.

      The facts in the present case are not meaningfully different from the facts in
Barry, and for substantially the same reasons we conclude there was no Fourth
Amendment seizure here until the officers removed Cook from the idling car. This
seizure permissibly came after the officers had detected the odor of marijuana coming
from Cook's voluntarily opened window. As in Barry, our conclusion that there was
no seizure before that point is informed by the fact that (1) the car Cook was in was
parked when the officers decided to investigate, (2) the interaction between Cook and



                                         -4-
the officers took place late at night in a high crime area, and (3) there is no indication
the officers ordered Cook to roll down his window or engage with them in any way.

       We also note that the wig wag lights activated by the officers are different from
the full light bar which is used to notify motorists in moving vehicles that they are
required to stop. See United States v. Dockter, 58 F.3d 1284, 1287 (8th Cir. 1995)
(no seizure where police officer pulled behind a parked car and "activated his amber
warning lights"); cf. Barry, 394 F.3d at 1075 (suggesting that activation of full
"emergency lights" could be a show of authority sufficient to be a seizure under the
Fourth Amendment). Here, officers activated the wig wag lights in order to identify
themselves as police for the safety of all parties involved. A reasonable person seeing
the wig wag lights under these circumstances would have thought that he was still "at
liberty to ignore the police presence and go about his business." Bostick, 501 U.S.
at 437 (citation omitted).

      Since Cook was not unlawfully seized, the district court did not err in denying
Cook's motion to suppress.

                                           III.

      Cook also argues that the district court erred by admitting circumstantial
evidence that connected him to the shooting death of Derek Holt. A district court's
evidentiary rulings are reviewed for abuse of discretion. United States v. Battle, 774
F.3d 504, 511 (8th Cir. 2014).

      The district court permitted the government to introduce circumstantial
evidence that tied Cook to the death of Derek Holt three days before Cook's arrest.
The government's evidence included: (1) a witness who identified the gun Cook was
charged with possessing as belonging to Holt; (2) cell phone records that indicated
Cook had traveled to the area in which Holt lived and called him shortly before his

                                           -5-
death; (3) evidence that Holt's pants pocket had been turned out and $80 he had
possessed the night before was missing; and (4) evidence that DNA consistent with
Cook's was found in Holt's pants pocket. In sum, the government's circumstantial
evidence was intended to paint a picture of Holt's death in which Cook met up with
Holt, shot him with his own gun, rifled through his pockets, and then fled. The
government reasoned that its ability to present this theory of Holt's death was
essential to establish how Cook had come to possess the gun found hidden in the
vehicle in which he was riding prior to his arrest.

       Cook argues that evidence of his involvement in Holt's death should have been
excluded by the district court. We disagree. Evidence of other crimes that "tends
logically to prove any element of the crime charged" is "admissible as an integral part
of the immediate context of the crime charged" and is therefore "not governed by
Rule 404(b)." Battle, 774 F.3d at 511 (quoting United States v. Bass, 794 F.2d 1305,
1312 (8th Cir. 1986)). Cook was charged with being a felon in possession of a
firearm in violation of 18 U.S.C. § 922(g)(1). An essential element of that crime is
knowing possession of a firearm. See Battle, 774 F.3d at 511. Evidence that tended
to show that Cook had used the gun to shoot Holt just three days earlier would
therefore be admissible and "highly probative of the defendant's possession of that
weapon." Id.

       Cook argues that his case is distinguishable from other cases in which we have
found evidence of prior gun possession admissible, see, e.g., Battle, 774 F.3d at 511,
because there was no direct evidence he shot Holt with the gun he was charged with
possessing. We do not find this distinction persuasive. Circumstantial evidence is
"intrinsically as probative as direct evidence." United States v. Tschacher, 687 F.3d
923, 934 (8th Cir. 2012) (quoting United States v. Brown, 634 F.3d 435, 439 (8th Cir.
2011)). Evidence that Cook shot Holt with his own gun is therefore not inadmissible
solely because that evidence did not take the form of testimony from an eyewitness
who saw Cook shoot Holt. Moreover, there is a strong temporal and logical

                                         -6-
connection between the evidence the government introduced of Cook's possible
involvement in Holt's death and its argument that Cook knowingly possessed the gun
found hidden in a car he occupied just three days later. Finally, both the government
and the court repeatedly told the jury that Cook was not on trial for Holt's death,
which mitigated any risk of unfair prejudice from admitting the evidence. See Battle,
774 F.3d at 512. The district court therefore did not abuse its discretion by admitting
the evidence Cook challenges.

                                         IV.

      Accordingly, we affirm the judgment of the district court.

                       ______________________________




                                         -7-
