Wake Forest Law Review


By Eric Jones

On December 18, 2015, the Fourth Circuit issued a published opinion in the criminal case United States v. Stover.  Lavelle Stover was convicted of possession of a firearm as a felon, in violation of 18 U.S.C. § 922(g)(1).  At trial, Stover motioned to suppress the firearm that he discarded in front of his vehicle, but the motion was denied.  On appeal Stover argued that the firearm should have been suppressed as the product of an illegal seizure under the Fourth Amendment.  The Fourth Circuit affirmed his conviction.

The Arrest and Trial

In the early morning hours of March 13, 2013, police noticed Stover sitting in a vehicle that was double-parked in a small private parking lot.  When they returned several minutes later and saw that Stover was still double-parked, the officers decided to approach the vehicle because there had recently been several violent robberies in the area.  The uniformed officers activated their emergency lights and aimed a spotlight on Stover’s vehicle as they pulled in to block the car in the parking lot.  As the officers exited the patrol car, Stover exited his vehicle and made his way to the front of his car.  He completely ignored the officers’ ordering him to stop and return to his vehicle.  Stover tossed a loaded nine millimeter handgun into the grass in front of his vehicle.  One officer proceeded along the right side of Stover’s vehicle and confronted him with his gun drawn, believing that Stover was preparing to run.  At that point Stover silently complied with the officers’ orders and returned to his vehicle.

At trial in the District Court for the District of Maryland, Stover motioned to suppress the handgun on the theory that it was the product of an illegal seizure under the Fourth Amendment.  The District Court found that Stover had not submitted to police authority until after abandoning the firearm, and thus the protections Fourth Amendment did not apply.  The firearm was entered into evidence, and Stover was convicted by a jury and sentenced to 57 months in prison.  Stover filed a timely appeal.

The Fourth Amendment’s Protections Against Illegal Seizure

As the Fourth Circuit explained, the moment that Stover was seized is vital to determine whether or not the firearm should have been suppressed.  If the officers had reasonable suspicion to stop Stover, the Fourth Amendment is not implicated and the weapon was properly entered.  If there was not reasonable suspicion to stop the defendant, however, the Circuit Court explained that the exact circumstances of the stop are important to determine whether an illegal seizure has occurred.  The Fourth Circuit applied a two-part test outlined in California v. Hodari D..

First, the Circuit Court asked whether the Fourth Amendment was implemented due to a show of authority by the officers.  In order to determine whether a show of authority had occurred, the Supreme Court has explained that you must consider whether “in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.”  As applied here, the Fourth Circuit held that blocking in Stover’s car with a marked police car, activating the emergency lights, using their spotlight, and approaching Stover’s vehicle in uniform all clearly indicated that a show of force had been made, and thus the Fourth Amendment protects against unreasonable seizures.

The second part of the two-part test in order to determine whether the firearm could be admitted into evidence asks precisely when the defendant was seized.  The Fourth Circuit explained that after submitting to police authority, the Fourth Amendment protects against unreasonable seizure.  If the defendant has not capitulated to the police’s orders, however, there has been at most an “attempted seizure,” and the protections of the Fourth Amendment are not applicable until after the defendant has submitted.  The Fourth Circuit explained that if a defendant is fleeing from the police, he has not submitted and thus anything he tosses to the side as he runs is not subject to the protections of the Fourth Amendment.  If, however, the defendant has submitted (by being tackled, by stopping voluntarily, or any other submission), the Fourth Amendment applies to anything found on his person.

Stover Did Not Submit to the Officers until After Abandoning His Firearm

In this case, the Fourth Circuit held that Stover had not submitted to the officers until after abandoning the firearm, and thus the Fourth Amendment was not applicable.  The Court relied on the fact that Stover exited his vehicle despite the flashing emergency lights and direct orders to remain in his vehicle.  He then proceeded toward the front of his car, directly away from the officers, and did not indicate that he heard them or intended to comply.  Only after abandoning his firearm and being confronted by the armed officer did Stover submit to their authority and follow their commands.  Thus, because Stover was not seized until after he threw the handgun into the grass, he simply abandoned it and it was not seized by the police.

One Circuit Judge dissented in this case, arguing that Stover acquiesced to the officers’ orders by remaining on the scene and simply attempted to abandon his firearm while remaining under police control.  If this were the case, the legality of the seizure would have been determined by whether or not the officers had reasonable suspicion to stop Stover.  The majority, however, held that ignoring verbal orders and proceeding away from officers is not consistent with submitting to the police, and thus no seizure had yet occurred.

The Fourth Circuit Affirmed Stover’s Conviction

Because the evidence indicated that Stover had not submitted to the police and may have been attempting to flee when he abandoned the handgun, the Fourth Circuit affirmed that he had not been seized and thus his firearm was not the product of an illegal search or seizure.  Because the handgun was properly admitted as evidence, therefore, the Circuit affirmed Stover’s conviction.

By: Michael Klotz

Today, in the unpublished opinion of Unites States v. Skyler Jovelle Holley, the Fourth Circuit reversed the decision of Senior District Judge W. Earl Britt of the District Court for the Eastern District of North Carolina. The court held that the district court erred in failing to consider conduct by the Defendant between the time that the police officer turned on his siren and when the Defendant was actually stopped in assessing “reasonable suspicion” under the Fourth Amendment.


Deputy John McArthur, who was on duty in Edenton, North Carolina, received a call from a confidential informant to be on the lookout for Mr. Holley, who had just pulled a gun on someone near the Crown Mart on Oakum Street and driven away in a white Cadillac. Deputy McArthur did not know Mr. Holley, but he had previously seen his headshot and knew that he was a black man. Shortly after receiving this call, Deputy McArthur saw a white Cadillac with two black male passengers on the other side of town. Deputy McArthur judged that enough time had passed that this could be the same vehicle referenced by the informant. Deputy McArthur turned on his lights and attempted to stop the vehicle. The driver of the white Cadillac, who was leaned back in his seat, did not pull over, but instead made a right turn and drove slowly and erratically. The vehicle eventually pulled into a driveway and stopped. When Duty McArthur searched the vehicle he discovered that Mr. Holley was one of the occupants. Mr. Holley had a .38 caliber pistol in his pocket, and another .38 caliber gun was discovered on the floor of the vehicle. Mr. Holley was charged with being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1) and 924.

District Court Grants Defendant’s Motion To Suppress

Mr. Holley filed a motion to the suppress the evidence discovered at the scene, including the guns, on the theory that Deputy McArthur did not have “reasonable suspicion” to stop his vehicle merely on the basis of a tip to be on the lookout for a black male driving a white Cadillac. Reasonable suspicion by a police officer is necessary to justify a stop under the Fourth Amendment of the U.S. Constitution.

The district court granted Defendant’s Motion to Suppress, holding that there was no “reasonable, articulable” grounds for the officer to believe that the vehicle stopped was the same vehicle referenced by the confidential informant. The court noted that Deputy McArthur did not recognize the driver as being Mr. Holley, and the fact that the driver was slumped in his seat—along with the fact that it was a white Cadillac with black occupants—was insufficient to justify the stop. The district court noted that Cadillacs are common in the black community in rural eastern North Carolina, and thus the vehicle stopped might have been uninvolved in the alleged incident. In rendering its decision, the district court did not consider Mr. Holley’s conduct between the time that Deputy McArthur initiated his siren and when the vehicle eventually pulled over. The government filed a motion for an evidentiary hearing or to reconsider the motion to suppress on the existing record, which was denied. The government timely appealed.

The Fourth Circuit Reverses Based Upon The “Totality Of The Circumstances”

The Fourth Circuit reversed the district court, denying the Defendant’s Motion to Suppress, and finding that based upon the “totality of the circumstances” Deputy McArthur did have reasonable suspicion to stop the suspect vehicle. The district court failed to consider the conduct by the Defendant while he was being followed by the police officer. However, under clear Fourth Circuit precedent a seizure requires either 1. the application of physical force; or 2. both an assertion of authority and submission or acquiescence to that show of authority. In this case, the second form of seizure is at issue. There was an “assertion of authority” by Deputy McArthur when he turned on his police siren. However, the Defendant did not acquiesce to this “show of authority” until the vehicle actually stopped. Thus, the district court erred as a matter of law in failing to consider the Defendant’s conduct between the time that the police siren was turned on and when the vehicle came to a halt. During this time, the Defendant failed to pull over and exhibited an “unusual driving pattern.” The Fourth Circuit concluded that this conduct, considered in light of the fact that the vehicle was a white Cadillac with black occupants as referenced by the informant, was sufficient to create “reasonable suspicion” to justify a Fourth Amendment seizure. Thus, the Fourth Circuit concluded that the district court erred in granting Defendant’s Motion to Suppress, and the decision was reversed and remanded.