                                                                     NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 _____________

                                      No. 10-1983
                                     _____________

                            UNITED STATES OF AMERICA

                                             v.

                               DAVID TROY JOHNSON,
                                           Appellant.
                                   _____________

                     On Appeal from the United States District Court
                        For the Eastern District of Pennsylvania
                                  (Crim. No. 08-cr-297)
                     District Judge: Honorable Lawrence F. Stengel
                                     _____________

                      Submitted under Third Circuit L.A.R. 34.1(a)
                                    May 23, 2011

            BEFORE: FUENTES, FISHER and NYGAARD, Circuit Judges

                              (Opinion Filed: June 23, 2011)
                                     _____________

                               OPINION OF THE COURT
                                   _____________
FUENTES, Circuit Judge.

       David Troy Johnson appeals the District Court‟s decision to deny his motion to

suppress a firearm and a magazine as “fruits of a poisonous tree,” in this case, an

unlawful seizure. For the reasons set forth below, we will affirm.

                                             I.
       We write only for the parties and therefore discuss only the facts necessary to

explain our decision. While out on patrol in the late hours of December 3, 2008, police

officer Ron Miko (“Miko”) stopped several pedestrians and recovered drug

paraphernalia. He then approached a house he suspected was involved in the distribution

of crack cocaine.    Following a short conversation with a man in that house, Miko

observed him leave the residence, enter the passenger side of a gray Pontiac, and drive

off. The Pontiac was driven by appellant David Johnson.

       Suspecting that the passenger was involved in drug activity, Miko entered his

marked police car and followed the Pontiac. After a short trip around the block, the

passenger exited the vehicle, leaving Miko a car‟s length away. At this point, Miko

noticed that the Pontiac‟s license plate displayed an expired registration tag. Miko then

radioed nearby police officer Chris Dinger (“Dinger”) that he would be making a stop of

the Pontiac.

       After following the Pontiac for a block and a half, Miko activated his emergency

lights and siren. The Pontiac did not slow down but continued at a slightly higher speed.

Miko remained in pursuit as the Pontiac proceeded through stop signs and traffic lights,

at some points driving against the flow of traffic. The car chase culminated with Johnson

jumping out of the vehicle and running down a nearby alleyway. Miko left his police car

and chased Johnson on foot, yelling “stop, police, you are under arrest.” App. Br. at 31.

       During the chase, Miko saw Johnson remove a black handgun from underneath his

jacket and throw it to his side. Dinger, who along with other officers had joined the foot

race, was notified of the dropped gun and recovered it.

                                             2
        Meanwhile, the chase continued into the yard and onto the porch of a home in the

area. As Johnson struggled to enter the locked home, Miko took his gun out and ordered

Johnson several times to show his hands. Johnson was eventually arrested and a search

of his person revealed a magazine fitting the pistol recovered by Dinger.

        Johnson was charged with being a convicted felon in possession of a firearm in

violation of 18 U.S.C. § 922(g)(1). He moved to suppress both the pistol and the

magazine, claiming they were both the result of an unlawful seizure.                                Relying on

California v. Hodari D., 499 U.S. 621 (1991), the District Court held that the Fourth

Amendment did not require the exclusion of the handgun because Johnson voluntarily

abandoned the weapon without ever being the subject of a “seizure.” United States v.

Johnson, No. 08-297, 2009 WL 1578040, at *3 (E.D. Pa. 2009). Additionally, the

District Court concluded that the magazine was found pursuant to a constitutionally

reasonable search incident to a lawful arrest. Id. at *4. Johnson filed a timely appeal.

The District Court had jurisdiction pursuant to 18 U.S.C. § 3231 and we have jurisdiction

over the District Court‟s final order pursuant to 28 U.S.C. § 1291.

                                                       II.1
                                                        A.

        The Fourth Amendment protects the right to be free from “unreasonable searches

and seizures.” U.S. Const. amend. IV. A seizure occurs when a police officer uses


1
  In reviewing a district court‟s denial of a motion to suppress evidence, we exercise plenary review over questions
of law and accept a district court‟s findings of fact unless clearly erroneous. See United States v. Allen, 618 F.3d
404, 406 (3d Cir. 2010).



                                                         3
physical force to restrain a suspect or when a suspect submits to an assertion of authority.

Hodari, 499 U.S. at 626. A suspect submits to an assertion of authority when he

“manifests compliance with police orders.” United States v. Waterman, 569 F.3d 144,

146 n.3 (3d Cir. 2009) (citing Couden v. Duffy, 446 F.3d 483 (3d Cir. 2006). While a

traffic stop may constitute a seizure of the person it is justified when based on articulable

and reasonable suspicion that either the vehicle or occupant has violated the law. E.g.,

Delaware v. Prouse, 440 U.S. 648, 663 (1979); see also United Stated v. Delfin-Colina,

464 F.3d 392, 397 (3d Cir. 2006).

       When property is voluntarily abandoned before a seizure and retrieved by the

police, it has been lawfully recovered and there can be no claim that it was the subject of

an unconstitutional seizure.     Hodari, 499 U.S. at 624.        After a seizure, the well-

established exception for searches incident to a lawful arrest allows the police to search

an arrestee‟s person and the areas from which “he might gain possession of a weapon or

destructible evidence” without running afoul of the Fourth Amendment. Arizona v. Gant,

129 S. Ct. 1710, 1713, 1716 (2009) (internal Citations omitted).

                                              B.

       Johnson‟s sole argument on appeal is that the police lacked reasonable suspicion

to initiate a traffic stop.   As such, “[e]verything that happened after Officer Miko

activated his lights and siren is causally connected to the initial invalid attempt to pull the

vehicle over” and should be suppressed as the fruit of an unlawful seizure. App. Br. at 9;

see Wong Sun v. United States, 371 U.S. 471, 484 (1963) (stating that if evidence is



                                              4
obtained as a result of an unlawful seizure, it is to be excluded as “the „fruits‟ of the

[police officer‟s] unlawful action.”).

       Johnson‟s argument is flawed because Miko‟s initiation of the traffic stop did not

constitute a seizure for purposes of the Fourth Amendment. After Miko activated his

lights and siren, Johnson increased his speed commencing a dangerous police chase. At

no point did Johnson “manifest compliance with police orders.” See Waterman, 569 F.3d

at 146 n.3. We agree with the District Court that although there was an attempted traffic

stop, Johnson never actually submitted to Miko‟s show of authority. See County of

Sacramento v. Lewis, 523 U.S. 833, 845 n.7 (1998) (“Attempted seizures of a person are

beyond the scope of the Fourth Amendment.”).

       Even as the chase transitioned from car to foot, Miko had still not seized Johnson.

When Miko shouted “stop, police, you are under arrest,” Johnson kept running down the

alleyway. As the Supreme Court stated in Hodari, the Fourth Amendment term seizure

does not apply to “the prospect of a policeman yelling „stop, in the name of the law.‟”

499 U.S. at 626. Due to Johnson‟s failure to submit to Miko‟s show of authority, we

agree with the District Court that Johnson was not seized while fleeing from Miko down

the alley. Because there was no seizure, Johnson‟s voluntary decision to abandon the

pistol was not the product of a Fourth Amendment violation and, therefore, was not fruit

of the poisonous tree. Id.

       The District Court correctly concluded that the first and only seizure occurred on

the porch of the home, and as such, we agree with the decision to allow the magazine into

evidence as it was the product of a search incident to a lawful arrest. See Gant, 129 S. Ct.

                                             5
at 1716. The scuffle on the porch was the first time physical force was used to subdue

and arrest Johnson. See Hodari, 499 U.S. at 626. This seizure was well within the

confines of the Fourth Amendment as Johnson‟s flight from police and subsequent

actions provided Miko with the requisite probable cause to arrest Johnson without a

warrant. See Atwater v. City of Lago Vista, 532 U.S. 318, 354 (2001) (“If an officer has

probable cause to believe that an individual has committed even a very minor criminal

offense in his presence, he may, without violating the Fourth Amendment, arrest the

offender.”). After making a valid arrest, the Fourth Amendment did not prohibit Miko

from conducting a reasonable search of Johnson‟s person because this was an area from

which Johnson “might gain possession of a weapon or destructible evidence.” Gant, 129

S. Ct. at 1713. Accordingly, the District Court properly denied Johnson‟s motion to

suppress the magazine.2




2
 The District Court held in the alternative that “[e]ven if there was a prior illegal seizure,
evidence of the magazine will not be suppressed because the crimes Johnson committed
while fleeing from the police constituted independent grounds for a second, legitimate
arrest.” United States v. Johnson, No. 08-297, 2009 WL 1578040, at *4 n.2 (E.D. Pa.
2009). As the District Court points out, the Third Circuit has not directly ruled on this
issue. Id. It is worth noting that several circuits have come to the same conclusion. See,
e.g., United States v. Mattiex, 2006 WL 2741645 (S.D.N.Y. Sept. 21, 2006); Marshall v.
White, 2006 WL 1791383 (E.D. Mich. June 27, 2006); United States v. Sprinkle, 106
F.3d 613 (4th Cir. 1997); United States v. Dawdy, 46 F.3d 1427, (8th Cir. 1995); United
States v. Waupekenay, 973 F.2d 1533, (10th Cir. 1992); United States v. King, 724 F.2d
253 (1st Cir. 1984); United States v. Bailey, 691 F.2d 1009 (11th Cir. 1982); United
States v. Garcia, 516 F.2d 318 (9th Cir. 1975); United States v. Nooks, 446 F.2d 1283
(5th Cir. 1971). However, because we have already decided that there was no seizure, and
that the motion to suppress was correctly denied, there is no reason for us to visit this
issue in the current case.
                                              6
                                           III.

      For the foregoing reasons, we will affirm the District Court‟s decision to deny a

motion to suppress both the handgun and the magazine.




                                            7
