United States v. Brown ( 2005 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellant,
v.  No. 04-4353
EVERETT OSHAE BROWN,
Defendant-Appellee.

Appeal from the United States District Court
for the Eastern District of Virginia, at Newport News.
Raymond A. Jackson, District Judge.
(CR-04-003)
Argued: December 2, 2004
Decided: March 25, 2005
Before WILKINS, Chief Judge, and NIEMEYER
and DUNCAN, Circuit Judges.
Affirmed by published opinion. Chief Judge Wilkins wrote the major-
ity opinion, in which Judge Duncan joined. Judge Niemeyer wrote a
dissenting opinion.
COUNSEL
ARGUED: Michael James Elston, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Vir-
ginia, for Appellant. Larry W. Shelton, Supervisory Assistant Federal
Public Defender, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Norfolk, Virginia, for Appellee. ON BRIEF: Paul J.
2 UNITED STATES v. BROWN
McNulty, United States Attorney, Alexandria, Virginia, for Appellant.
Frank W. Dunham, Jr., Federal Public Defender, Frances H. Pratt,
Research and Writing Attorney, OFFICE OF THE FEDERAL PUB-
LIC DEFENDER, Norfolk, Virginia, for Appellee.
OPINION
WILKINS, Chief Judge:
Everett Oshae Brown was charged with possession of a firearm by
a convicted felon, see 18 U.S.C.A. § 922(g)(1) (West 2000). The
United States appeals a decision of the district court suppressing a
firearm discovered in Brown’s back pocket as well as statements
made by Brown following his arrest. Because the officers lacked suf-
ficient justification under the Fourth Amendment to arrest and search
Brown, we affirm.
I.
In September 2003, police in Newport News, Virginia, received an
anonymous telephone tip that a short, black male with glasses was
carrying a firearm outside the Roseman Court apartment complex.
Two officers approached the scene: Officer C.J. Lewis in a marked
patrol car and Officer Randall Petrosky on foot. Officer Petrosky was
accompanied by a K-9 police dog.
Officer Petrosky was the first to arrive at the scene. When he
arrived, Brown was standing on the sidewalk outside one of the apart-
ments. Brown generally matched the description provided in the
anonymous tip. As Officer Petrosky approached, Brown turned and
walked into the apartment. Through the open blinds of the apartment
window, Officer Petrosky could see people in the apartment telling
and motioning for Brown to leave.1 Brown left the apartment and
walked out onto the sidewalk.
1
It does not appear that Officer Petrosky could discern the words they
were saying—i.e., why they wanted Brown to leave the apartment. He
could only observe that they were telling and motioning for Brown to
leave.
UNITED STATES v. BROWN 3
By this point, Officer Lewis had arrived in a patrol car. She
approached Brown on the sidewalk and asked, "Excuse me, can we
talk to you a minute?" J.A. 103 (internal quotation marks omitted).2
Officer Petrosky and the police dog were standing just behind her.
Brown voluntarily and without prompting produced his Virginia iden-
tification card. Officer Lewis ran the identification through dispatch
and returned it to Brown. The officers then told Brown that he
matched the description of the anonymous tip. Brown responded that
he was not the person for whom they were looking. Officer Lewis
asked Brown if he would consent to a pat-down for weapons. Brown
refused.
According to Officer Lewis, throughout the conversation Brown
had "the strong odor of alcoholic beverage emitting from his breath,
[and] his eyes were bloodshot and glassy." Id. at 50. Officer Petrosky
agreed that Brown’s eyes were "bloodshot and glassy" and added that
he was "fidgety and nervous." Id. at 35. At one point, Officer Lewis
asked Brown if he had been drinking that evening and Brown
responded, "I’m going to be honest. Yes, I have." Id. at 51 (internal
quotation marks omitted). Brown exhibited no other physical impair-
ments, such as slurred speech or staggered movements.3
Based on the conversation with Brown and the impairments she
observed, Officer Lewis testified that she decided to place Brown
under arrest for public intoxication. Before she could do so, a fight
broke out inside the apartment from which Brown had exited. Officer
2
This was the district court interpretation of the inquiry, presumably
based upon its synthesis of the testimony at the suppression hearing.
Officer Petrosky described Officer Lewis’ inquiry as "‘May I speak with
you?’" J.A. 38, though he "[could not] recall her exact words," id. at 33.
Officer Lewis described her inquiry as, "I asked him if we could speak
to him, which he consented." Id. at 50.
3
At the suppression hearing, both officers testified that Brown’s speech
was slightly slurred. The district court refused to credit this testimony,
however, because the officers had not documented the slurred speech in
their contemporaneous arrest report. We find no clear error in this factual
determination and assume for purposes of this appeal that Brown’s
speech was not slurred. See United States v. Kitchens, 114 F.3d 29, 31
(4th Cir. 1997).
4 UNITED STATES v. BROWN
Petrosky called for backup to assist with the fight. Especially impor-
tant to this appeal is the chronology of events that took place after the
fight broke out. At the suppression hearing, Officer Petrosky
described the ensuing events as follows:
[Officer Lewis] told Mr. Brown to go ahead and place his
hands on [a nearby] car. He started to bend over to place his
hands on the car. When he bent over, I noticed in the pants
that he was wearing, on the left rear pocket of his pants I
noticed this bulge that was in the shape of a gun. So imme-
diately to me I knew he had a gun in his left rear pocket.
Id. at 34. Officer Lewis’ testimony supported this account: "For our
safety, I asked [Brown] to place his hands on the car that was directly
in front of him. . . . As he placed his hands on the car, I saw Officer
Petrosky immediately draw his weapon and order Mr. Brown to keep
his hands on the car." Id. at 51. At that point, Officer Lewis also drew
her weapon and pointed it at Brown. Brown became very nervous and
began to lift his hands up and down on the car. According to Officer
Lewis, Brown then said, "‘The weapon is in my back pocket. Just take
it, just take it.’" Id. at 52.4 Officer Lewis removed the firearm from
Brown’s pocket. Officer Petrosky ordered Brown to his knees, and
one of the backup officers who had arrived placed Brown in hand-
cuffs and into a patrol car.
According to Officer Lewis, during the car ride to the booking sta-
tion Brown "was speaking pretty freely and just stated that someone
in the apartment had told him to take this burn and bounce," which
meant to take the firearm and leave the apartment. Id. at 53. Brown
also stated that "the only reason he had taken the gun out of the apart-
ment was because there were children present in the apartment." Id.
at 54. At no point before Brown made these statements had the offi-
cers informed him of his Miranda rights, though Brown’s statements
in the patrol car were not in response to any police questioning.
4
Accord J.A. 35 (testimony of Officer Petrosky that Brown stated,
"‘Just take the gun out of my pocket, just take the gun out of my
pocket.’").
UNITED STATES v. BROWN 5
Brown moved to suppress evidence of the firearm and his state-
ments in the patrol car as having been obtained in violation of, inter
alia, the Fourth Amendment. The district court found that a reason-
able person in Brown’s position during his initial encounter with the
police—faced with two uniformed officers, a police dog, and infor-
mation about an anonymous tip—would not have considered himself
free to disregard the police and go about his business. The district
court concluded, therefore, that the initial encounter between the offi-
cers and Brown was a Terry stop, see Terry v. Ohio, 392 U.S. 1
(1968), not a consensual police-citizen encounter, and the officers
thus needed reasonable, articulable suspicion that Brown was armed
and dangerous to justify the stop. Citing Florida v. J.L., 529 U.S. 266
(2000), the district court explained that the anonymous tip alone did
not provide adequate suspicion because the tip contained no informa-
tion predicting future acts by which the officers could corroborate the
substance of the tip. Therefore, the district court ruled that the Terry
stop was illegal and suppressed the firearm and statements obtained
after the stop.
The district court ruled alternatively that even if the initial encoun-
ter between the officers and Brown was a consensual police-citizen
encounter, not a Terry stop, the officers did not have probable cause
to arrest Brown for public intoxication. Glassy, bloodshot eyes, the
smell of alcohol, and Brown’s admission that he had been drinking,
the district court explained, were not sufficient under Virginia law to
establish probable cause for the arrest. Evidence of the firearm and
Brown’s statements was therefore suppressed as fruit of the illegal
arrest. This appeal followed.
II.
Designed "to prevent arbitrary and oppressive interference by
enforcement officials with the privacy and personal security of indi-
viduals," INS v. Delgado, 466 U.S. 210, 215 (1984) (internal quota-
tion marks omitted), the Fourth Amendment provides that "[t]he right
of the people to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures, shall not be violated."
U.S. Const. amend. IV; see Mapp v. Ohio, 367 U.S. 643, 655 (1961)
(holding that the Fourth Amendment is incorporated and applied to
the states by the Due Process Clause of the Fourteenth Amendment).
6 UNITED STATES v. BROWN
The Supreme Court has identified three distinct types of police-citizen
encounters, each requiring a different level of suspicion to be deemed
reasonable under the Fourth Amendment: "(1) arrest, which must be
supported by probable cause; (2) brief investigatory stops, which must
be supported by reasonable articulable suspicion; and (3) brief
encounters between police and citizens, which require no objective
justification." United States v. Weaver, 282 F.3d 302, 309 (4th Cir.
2002) (citations omitted). Evidence gathered as fruit of an unreason-
able search or seizure is generally inadmissible against a defendant.
See Taylor v. Alabama, 457 U.S. 687, 694 (1982); Wong Sun v.
United States, 371 U.S. 471, 484-86 (1963); cf. Walder v. United
States, 347 U.S. 62, 64-65 (1954) (holding illegally obtained evidence
admissible for purposes of impeachment). In the context of a motion
to suppress evidence alleged to have been obtained illegally, "we
review the factual findings of the district court for clear error and its
legal conclusions de novo." United States v. Simons, 206 F.3d 392,
398 (4th Cir. 2000).
A.
The first issue presented is at what point during the exchange
between Brown and the officers was Brown seized, thereby triggering
the protections of the Fourth Amendment. "[A] seizure does not occur
simply because a police officer approaches an individual and asks a
few questions. So long as a reasonable person would feel free ‘to dis-
regard the police and go about his business,’ the encounter is consen-
sual and no reasonable suspicion is required." Florida v. Bostick, 501
U.S. 429, 434 (1991) (citation omitted) (quoting California v. Hodari
D., 499 U.S. 621, 628 (1991)). A number of circumstances inform the
inquiry of whether a reasonable person would feel free to disregard
the police, including "the threatening presence of several officers, the
display of a weapon by an officer, some physical touching of the per-
son of the citizen, or the use of language or tone of voice indicating
that compliance with the officer’s request might be compelled."
United States v. Mendenhall, 446 U.S. 544, 554 (1980) (opinion of
Stewart, J.); accord Weaver, 282 F.3d at 312.
The district court reached alternative conclusions as to when
Brown was seized. First, the court concluded that the initial encounter
between Brown and the officers—during which Officer Lewis asked
UNITED STATES v. BROWN 7
Brown if they could talk to him, informed him that he matched the
description of the anonymous tip, and asked if he would consent to
a pat-down search—constituted a seizure which triggered Brown’s
Fourth Amendment rights. Alternatively, the court concluded that
Brown was seized when Officer Lewis decided to arrest him for pub-
lic intoxication and ordered him to place his hands upon an adjacent
car. We examine each of these conclusions in turn.
1.
The district court first concluded that the initial encounter between
Brown and the officers "amounted to a Terry stop, and not a consen-
sual discussion between a citizen and police officers." J.A. 108. The
court noted that two uniformed officers were present during the initial
encounter, one of those officers had a K-9 police dog at his side, and
Brown had not acted in "an unusual fashion to raise any suspicion of
illegal activity," id. at 108-09. The court added that it was Officer
Lewis’ "resolute position that she intended to pat-down" Brown when
she first approached him, and she asked Brown to consent to the pat-
down "only because it is easier [to obtain] consent than to explain
. . . the contours of reasonable suspicion." Id. at 109. "[I]n view of all
the circumstances surrounding the incident," the court concluded, "a
reasonable person would not believe that he was free to leave the
premises." Id.
The Government argues that "[t]he facts found by the district court
establish nothing more than a consensual police-citizen encounter that
required no objective justification." Br. of United States at 8. It char-
acterizes Officer Lewis’ initial inquiry of Brown as a "friendly
request for a word with [him]." Id. at 9. Among other facts, the Gov-
ernment emphasizes that Brown refused to consent to the pat-down
search requested by Officer Lewis, which in the Government’s view
shows that Brown "believed he was free to refuse Officer Lewis’s
requests during the encounter." Id. The Government also asserts that
the "resolute position" of Officer Lewis to pat-down Brown upon
approaching him was irrelevant to the determination of whether
Brown considered himself free to disregard the officers, see Menden-
hall, 446 U.S. at 554 n.6 (explaining that officer’s subjective intention
to detain suspect is irrelevant in determining whether suspect believed
8 UNITED STATES v. BROWN
he was free to leave unless that intention was communicated to sus-
pect).
We need not resolve whether the initial encounter between Brown
and the officers was a Terry stop or a consensual police-citizen
encounter, for our ultimate disposition of this case would be the same
either way. Assuming that the initial encounter was a Terry stop, our
conclusion below that the officers lacked reasonable suspicion to jus-
tify the stop warrants affirming the district court decision to suppress
the firearm and statements. Alternatively, assuming that the initial
encounter was consensual, our conclusion below that subsequent
actions of the officers constituted an arrest without probable cause
also warrants affirming the district court decision to suppress the fire-
arm and statements. In either event, as detailed below, the firearm
recovered from Brown’s back pocket and his statements in the patrol
car were fruits of an illegal seizure and therefore properly suppressed.
2.
In the alternative, the district court concluded that even if the initial
encounter between Brown and the officers was a consensual police-
citizen encounter, Brown’s Fourth Amendment rights were triggered
when Officer Lewis decided to place Brown under arrest for public
intoxication and ordered him to place his hands on a nearby car. In
its opening brief, the Government conceded that Brown was seized
when "he was ordered to place his hands on the car, which is the point
at which Officer Lewis had decided to arrest [him]." Br. of United
States at 13. At oral argument, however, the issue was raised that
Brown’s actions after being ordered to place his hands on the car may
have affected the point at which his Fourth Amendment rights were
implicated. Specifically, rather than placing his hands on the nearby
car and leaving them there, Brown leaned toward the car, placed his
hands on the car, and then began "lifting his hands up and down,
[and] did not want to keep his hands on the car." J.A. 52. Indeed, the
officers, weapons drawn, had to order him repeatedly to place his
hands on the car.
We are mindful of the general rule that a seizure "requires either
physical force . . . or, where that is absent, submission to the assertion
of authority." California v. Hodari D., 499 U.S. 621, 626 (1991). A
UNITED STATES v. BROWN 9
defendant who flees the police in response to an assertion of authority
has not been seized, and thus his Fourth Amendment rights are not
implicated. See id. at 626, 629. Because no physical force was used
against Brown until after the firearm was discovered, the critical
inquiry here is at what point did Brown submit to the assertion of
authority by Officers Lewis and Petrosky. We conclude that Brown
submitted to the officers’ show of authority when, at the officers’
command, he first leaned over and placed his hands on the car.
Officer Lewis ordered Brown to place his hands on a car that was
directly in front of him. In response to that order, Brown leaned over
toward the car and placed his hands on it. When he leaned over,
Brown’s shirt (apparently a long, jersey-style shirt) lifted slightly and
exposed the upper portion of his pants. It was at this point that Officer
Petrosky first noticed the gun-shaped bulge in Brown’s back pocket.
Both officers then drew their weapons on Brown. Throughout the
exchange, Brown was nervous and fidgety. He lifted his hands up and
down, and he told the officers to take the firearm out of his back
pocket. To be sure, by lifting his hands up and down, Brown may
have suggested that he might stop submitting to the officers’ assertion
of authority and possibly attempt to flee the scene or confront the offi-
cers. However, that Brown lifted his hands up and down does not nul-
lify the fact that he initially submitted to Officer Lewis’ order by
leaning toward and placing his hands on the car, and that submission
led to the discovery of the firearm in his back pocket. Therefore, we
agree with the district court that Brown was seized, and his Fourth
Amendment rights triggered, at least as early as when he submitted
to Officer Lewis’ order by leaning toward and placing his hands on
the adjacent car.5
5
Our colleague in dissent asserts that when the gun was discovered,
"the officers had only made a request that Brown place his hands on the
vehicle for the officers’ safety," and this "request" then "changed to a
command only after one officer saw the gun and stated that he ‘ordered’
Brown to place his hands on the vehicle." Post, at 18-19 (emphasis
added). While it is true that Officer Lewis testified that she "asked
[Brown] to place his hands on the car," J.A. 51, 64, the entire record
demonstrates that Brown did not have the option of refusing Officer
Lewis’ "request." Officer Lewis later described the event as follows: "I
told Mr. Brown to please place his hands on the car because the fight was
10 UNITED STATES v. BROWN
B.
We now turn to whether Officers Lewis and Petrosky had sufficient
justification under the Fourth Amendment when they seized Brown.
There are two potential sources of authority for the seizure. Under
Terry, the officers would have been justified in stopping and frisking
Brown if they had a reasonable, articulable suspicion that criminal
activity was afoot and that Brown was armed and dangerous. See
Terry, 392 U.S. at 27.6 Alternatively, the officers could have properly
searched Brown if the search was incident to a valid arrest. See
United States v. Robinson, 414 U.S. 218, 235 (1973); Chimel v.
California, 395 U.S. 752, 762-63 (1969). We address each of these
sources of authority in turn.
1.
First, we address whether Brown’s seizure was proper under Terry.
As noted above, we decline to resolve whether the initial encounter
between Brown and the officers was a consensual encounter or a
Terry stop, for in our opinion the ultimate resolution of the case is the
same either way. This is in part because we conclude that at no point
before Brown was ordered by Officer Lewis to place his hands on the
car—i.e., at no point before Brown was unquestionably seized—did
breaking out." J.A. 65 (emphasis added). Similarly, Officer Petrosky tes-
tified that Officer Lewis "told Mr. Brown to go ahead and place his
hands on the car." J.A. 34 (emphasis added). And, Officer Petrosky’s tes-
timony demonstrates that he equates the word "told" with the word "or-
dered." See J.A. 35 ("I was still ordering him to place his hands on the
car. Mr. Brown was becoming very nervous, he was kind of fidgety. I
told him again to put his hands on the car." (emphasis added)). More-
over, both officers testified that Brown was under arrest when he bent
over toward the car. See J.A. 40-41, 61. Indeed, the Government argued
to the district court, in attempting to justify discovery of the firearm, that
"although [Officer Lewis] didn’t say the magic words ‘you are under
arrest,’" Brown "was under arrest; therefore, she had the authority to
search him incident to that arrest." J.A. 73-74.
6
Brown does not dispute that the officers would have been justified in
conducting a pat-down if they had already garnered reasonable suspicion
that he was in possession of a firearm.
UNITED STATES v. BROWN 11
the officers have reasonable suspicion to justify a Terry stop. See J.L.,
529 U.S. at 271 ("The reasonableness of official suspicion must be
measured by what the officers knew before they conducted their
search.").
"[A]n officer may, consistent with the Fourth Amendment, conduct
a brief, investigatory stop when the officer has a reasonable, articul-
able suspicion that criminal activity is afoot." Illinois v. Wardlow, 528
U.S. 119, 123 (2000) (citing Terry, 392 U.S. at 30). Though the quan-
tum of suspicion necessary for a Terry stop is "less demanding than
that for probable cause," an officer "must be able to articulate some-
thing more than an ‘inchoate and unparticularized suspicion or
"hunch."’" United States v. Sokolow, 490 U.S. 1, 7 (1989) (quoting
Terry, 392 U.S. at 27).
Here, Officers Lewis and Petrosky initially approached Brown in
response to an anonymous telephone tip that Brown was carrying a
firearm. An anonymous telephone tip that alleges illegal possession
of a firearm but that merely identifies a suspect and his location does
not itself provide reasonable suspicion for a Terry stop. See J.L., 529
U.S. at 271-72, 274. To justify a Terry stop, such a tip must contain
sufficient "indicia of reliability" to enable officers to evaluate the
veracity of the tip before stopping whomever the tip identifies. Ala-
bama v. White, 496 U.S. 325, 330 (1990). For example, an anony-
mous telephone tip sufficient to justify a Terry stop might predict a
suspect’s future actions, which can then be corroborated by police
surveillance of the suspect’s movement. Once the predictions are cor-
roborated, police may have reasonable suspicion to make a Terry
stop. See id. Or, police may be able to credit an anonymous telephone
tip based on their experience in having received reliable tips from the
same informant in the past (identified by the sound of the informant’s
voice), thereby justifying a Terry stop. See J.L., 529 U.S. at 275 (Ken-
nedy, J., concurring).
Here, the tip provided nothing more than a brief, general descrip-
tion of Brown, his whereabouts, and an allegation that he was carry-
ing a firearm. While the officers were able to corroborate immediately
the identification and location components of the tip, at no point
before Officer Lewis ordered Brown against the car did the officers
observe any conduct by Brown that would cause them to suspect that
12 UNITED STATES v. BROWN
he was carrying a firearm. See J.L., 529 U.S. at 272 ("The reasonable
suspicion here at issue requires that a tip be reliable in its assertion
of illegality, not just in its tendency to identify a determinate per-
son."). Moreover, nothing in the record indicates either a history of
reliable tips from the anonymous informant or a basis for the infor-
mant’s knowledge on this occasion. Therefore, regardless of whether
a seizure occurred during the initial encounter between Brown and the
officers, or whether a seizure did not occur until Brown submitted to
Officer Lewis’ order, the anonymous tip alone did not provide reason-
able suspicion to justify seizing Brown. Because the officers had
acquired no additional information that Brown was carrying a firearm
before Officer Lewis ordered him against the car, we agree with the
district court that the officers lacked authority under Terry to seize
Brown.
2.
Second, we consider whether the officers had probable cause to
arrest Brown for public intoxication, which would have authorized a
search incident to his arrest. Under Virginia law, "[i]f any person
. . . is intoxicated in public . . . he shall be deemed guilty of a Class
4 misdemeanor." Va. Code Ann. § 18.2-388 (2004). A person is "in-
toxicated" if he "has drunk enough alcoholic beverages to observably
affect his manner, disposition, speech, muscular movement, general
appearance or behavior." Va. Code Ann. § 4.1-100 (Supp. 2004).
During his conversation with Officers Lewis and Petrosky, Brown
exhibited some outward signs of having consumed alcohol. His eyes
were glassy and bloodshot, his breath smelled strongly of alcohol, and
he admitted that he had been drinking. The Government argues that
these signs were sufficient to give the officers probable cause to arrest
Brown for public intoxication. The district court disagreed, finding
that Brown "did not exhibit enough physical impairment to justify an
arrest for public intoxication." J.A. 111. The district court explained
that "[Virginia] courts interpret [§ 4.1-100] to require police officials
[to] find some form of mental or physical impairment beyond blood-
shot eyes to establish probable cause." Id. The Government contends
that the district court overstated what Virginia law requires for proba-
ble cause to arrest for public intoxication. The Government notes that
while the Virginia Supreme Court has held that the strong smell of
UNITED STATES v. BROWN 13
alcohol alone is not enough to show that someone is intoxicated, see
Hill v. Lee, 166 S.E.2d 274, 276 (Va. 1969), no Virginia case has held
that physical impairment is required to establish probable cause.
We agree with the Government that no Virginia case has held
expressly that physical impairment is required for probable cause
under Va. Code Ann. § 18.2-388. However, it is equally true that no
Virginia case has held that probable cause may be established without
evidence of physical impairment. Additionally, while we acknowl-
edge that § 4.1-100 is framed in the disjunctive, suggesting that a per-
son is intoxicated if he has consumed enough alcohol to affect only
his "general appearance" and not his physical movements or speech,
we find it significant that in every reported Virginia decision in which
the court found probable cause to arrest a person for public intoxica-
tion, there was evidence that the person had consumed enough alco-
hol to impair his physical movement or speech. See Clagett v.
Commonwealth, 472 S.E.2d 263, 268 (Va. 1996) (defendant was
unconscious outside apartment complex); Fierst v. Commonwealth,
173 S.E.2d 807, 809-10 (Va. 1970) (defendant was slumped in his
vehicle with his head leaning back on the seat); Clarke v. Common-
wealth, 527 S.E.2d 484, 489 (Va. Ct. App. 2000) (officer "detected
the odor of alcohol on [defendant], observed his bloodshot eyes, and
noted his erratic speech").7 Moreover, our research has uncovered,
and the Government has cited, no published opinion of the Virginia
appellate courts finding probable cause for public intoxication based
solely on glassy, bloodshot eyes and the strong smell of alcohol.
During the exchange between Brown and the officers, Brown
showed no signs of physical impairment caused by alcohol consump-
tion. As no Virginia case has ruled that probable cause can be estab-
7
We emphasize that these cases were probable cause cases and not
those involving proof by a preponderance of the evidence or beyond a
reasonable doubt. Cf. Hill, 166 S.E.2d at 276 (finding evidence that
defendant smelled of alcohol and admitted to having consumed alcohol
insufficient to prove by a preponderance that defendant was intoxicated);
Farren v. Commonwealth, 516 S.E.2d 253, 256 (Va. Ct. App. 1999)
(finding evidence that defendant was driving erratically, smelled of alco-
hol, and had to lean on car for balance sufficient to sustain criminal con-
viction for driving under the influence).
14 UNITED STATES v. BROWN
lished without physical impairment, we decline to expand Virginia
law ourselves. We hold, therefore, that Officers Lewis and Petrosky
lacked probable cause to arrest Brown for public intoxication. The
arrest was illegal, and its fruits—including the firearm and statements
made in the patrol car—were properly suppressed. See Taylor, 457
U.S. at 694; Wong Sun, 371 U.S. at 484-86.
III.
For the reasons stated above, we find no error in the suppression
of the firearm and statements. We therefore affirm the decision of the
district court.
AFFIRMED
NIEMEYER, Circuit Judge, dissenting:
Because I conclude that the police in this case had probable cause
to arrest Everett Oshae Brown for both public intoxication and illegal
possession of a firearm, I would reverse the district court’s order
granting Brown’s suppression motion.
Newport News, Virginia police received an anonymous tip at about
9:30 p.m. on September 6, 2003, that a short, black male wearing
glasses was carrying a handgun outside Building 4 of the apartment
complex at 360 Roseman Court. When two police officers responded
to the call within a few minutes and investigated, they found Brown
outside of the designated location and fitting the description.
The officers, who acted cautiously and deliberately throughout the
entire encounter, told Brown of the tip and asked him if he would
consent to a pat-down for weapons. Brown refused. To the officers,
Brown appeared intoxicated. His breath carried a "strong odor" of
alcohol, his eyes were bloodshot and glassy, and he was "fidgety and
nervous." When the officers asked Brown if he had been drinking,
Brown admitted that he had been.
Believing that the anonymous tip revealed a public risk that Brown
was carrying a concealed weapon but recognizing that the tip alone
UNITED STATES v. BROWN 15
might not be a sufficient basis on which to arrest Brown, the officers
acted on what they perceived to be Brown’s public intoxication and
later acknowledged that they had an intent to arrest him on that basis.
While the officers did not tell Brown he was under arrest, the officers
testified that "for [their] safety, [they] asked him to place his hands
on the car that was directly in front of him." (Emphasis added). After
one officer told Brown to place his hands on the car, the other officer
observed a gun in Brown’s back pocket. As that officer testified:
[Brown] started to bend over to place his hands on the car.
When he bent over, I noticed in the pants that he was wear-
ing, on the left rear pocket of his pants I noticed this bulge
that was in the shape of a gun. So immediately to me I knew
he had a gun in his left rear pocket.
The officer then drew his weapon and "ordered [Brown] to place his
hands on the car." (Emphasis added). Both officers testified that they
had to tell Brown repeatedly to place his hands on the car. After the
officers removed the handgun from Brown’s pocket, they placed him
under arrest and handcuffed him. After arresting Brown, the officers
charged him with both public intoxication and illegal possession of a
firearm.
The majority finds fault with the officers’ conduct in arresting
Brown for public intoxication because, in their view, the officers did
not have probable cause to believe that Brown was violating Virgin-
ia’s public intoxication law, Virginia Code Annotated, § 18.2-388.
Under that law, a person is intoxicated if he "has drunk enough alco-
holic beverages to observably affect his manner, disposition, speech,
muscular movement, general appearance or behavior." Va. Code
Ann. § 4.1-100 (emphasis added). Although the majority agrees that
Brown’s general appearance was observably affected by his alcoholic
consumption because he smelled strongly of alcohol, his eyes were
bloodshot and glassy, and he was fidgety and nervous, the majority
declines to recognize that the officers’ observations gave them proba-
ble cause to believe that Brown was violating Virginia’s public intoxi-
cation statute. Rather, the majority concludes, illogically I submit,
that because it could find no case to support a holding that any officer
observing these conditions had probable cause, the officers in this
case did not have probable cause. Moreover, the majority concedes
16 UNITED STATES v. BROWN
that it could find no case holding that an officer observing a person
smelling strongly of alcohol, manifesting bloodshot and glassy eyes,
and fidgeting lacked probable cause to arrest the person for violating
Virginia’s public intoxication law. As the majority reasons:
[W]e find it significant that in every reported Virginia deci-
sion in which the court found probable cause to arrest a per-
son for public intoxication, there was evidence that the
person had consumed enough alcohol to impair his physical
movement or speech. Moreover, our research has uncov-
ered, and the Government has cited, no published opinion of
the Virginia appellate courts finding probable cause for pub-
lic intoxication based solely on glassy, bloodshot eyes and
the strong smell of alcohol.
Supra at 13 (citations omitted). At bottom, because the majority could
find no Virginia case that authorized a finding of probable cause
based on the observations made by the two officers in this case, it
somehow feels compelled to conclude that the officers lacked proba-
ble cause.
I submit that the fact that no earlier case has decided the issue
before us does not mean that the officers lacked probable cause to
arrest Brown for public intoxication. To determine whether the offi-
cers in this case had probable cause to arrest Brown for violation of
the statute, requires an analysis that compares what the officers
observed with what the statute prohibits. Such an analysis is conspic-
uously absent from the majority’s opinion, which can only lead to the
conclusion that its reasoning is founded on abstraction and not on the
law enforcement realities presented to the officers.
The Virginia public intoxication statute makes public intoxication
a misdemeanor. See Va. Code Ann. § 18.2-388. And for purposes of
that statute, a person is intoxicated when he has consumed a sufficient
amount of alcohol "to observably affect his manner, disposition . . .
[or] general appearance," among other things. Id. § 4.1-100.
It is undisputed that Brown consumed alcohol and that the officers
personally witnessed a strong odor of alcohol coming from his breath
and observed his bloodshot and glassy eyes, and his fidgety demea-
UNITED STATES v. BROWN 17
nor. Rather than simply believing that he was intoxicated, the officers
actually concluded from their personal observations that Brown was
intoxicated. As one officer testified:
Q. Okay. You didn’t ask what he had been drinking in
what quantities, did you?
A. No, I did not.
Q. Would that have been important to you to determine
whether he was drunk?
A. Not necessarily for a drunk in public, no.
Q. Well, you indicated that there was no unsteadiness on
his feet and just a slight slur in his speech, and you
made a determination he was drunk on that basis?
A. With the bloodshot and glassy eyes as strong as the
odor was coming from his breath, yes, I did.
As the officer properly observed, she did not have to determine that
Brown was actually intoxicated; she only had to have a reasonable
belief that he was intoxicated. Yet, in this case, the officer believed
that Brown was in fact intoxicated.
"[P]robable cause to justify an arrest means facts and circum-
stances within the officer’s knowledge that are sufficient to warrant
a prudent person, or one of reasonable caution, in believing, in the
circumstances shown, that the suspect has committed, is committing,
or is about to commit an offense." Michigan v. DeFillippo, 443 U.S.
31, 37 (1979) (internal quotation marks omitted) (emphasis added).
But as the Supreme Court has observed, probable cause is judged "not
in terms of library analysis by scholars, but as understood by those
versed in the field of law enforcement." Illinois v. Gates, 462 U.S.
213, 232 (1983). It is a "fluid concept" that turns on "the assessment
of probabilities in particular factual contexts," not on any formula
such as is applied to proof at trial. Id. And in reviewing the officer’s
finding of probable cause, "we defer to the expertise and experience
18 UNITED STATES v. BROWN
of law enforcement officers at the scene." United States v. Dickey-
Bey, 393 F.3d 449, 453 (4th Cir. 2004) (citing Ornelas v. United
States, 517 U.S. 690, 699 (1996)).
It is readily apparent that the majority has not deferred to the exper-
tise of the police officers at the scene in this case, who not only artic-
ulated the necessary statutory manifestations of intoxication to find
one guilty under Virginia’s public intoxication law, but also gave
their opinion that Brown was actually intoxicated. Applying the pre-
scribed and straightforward analysis for determining probable cause,
I would conclude as a matter of law that the officers had probable
cause to arrest Brown for public intoxication.
The majority also rejects the discovery of a gun in Brown’s pocket
as an additional reason for his arrest because, it concludes — contrary
to the officers’ testimony — that the gun was observed after Brown
had already been arrested. Again, I disagree.
While the events did occur quickly, both officers agreed that they
observed the gun before Brown was ever touched by them; before
Brown was handcuffed; and before Brown was told he was under
arrest. As the officer who discovered the gun testified, Brown had
"started to bend over to place his hands on the car" when "I noticed
this bulge that was in the shape of a gun." (Emphasis added). He testi-
fied further, "So immediately to me I knew he had a gun." At this
point, the officers had only made a request that Brown place his hands
on the vehicle for the officers’ safety, and Brown was only starting
to comply with that request. The events that then occurred, however,
suggest that Brown had not yet been secured and that the officers
could not conclude that Brown was going to comply with their
request.
The majority argues that because (1) Brown was requested to place
his hands on the car for the officers’ safety and (2) he was "starting"
to submit to the officers’ requests, he was already under arrest when
the gun was observed. Yet the majority does not suggest that either
officer had touched Brown, or that Brown was precluded from flee-
ing. Moreover, neither officer felt sure that Brown was accommodat-
ing their request, as he repeatedly had to be told to place his hands
on the car. Indeed, the request changed to a command only after one
UNITED STATES v. BROWN 19
officer saw the gun and stated that he "ordered" Brown to place his
hands on the vehicle.*
*Disagreeing with the majority’s summary of the record in footnote 5
of its opinion, I respectfully suggest that the record consistently reveals
that no "commands" or "orders" were made of Brown before Officer
Petrosky observed the handgun in Brown’s rear pocket. Officer Lewis,
who was conducting the discussion with Brown before his arrest, testi-
fied, "For our safety, I asked him to place his hands on the car." J.A. 51
(emphasis added). She, however, was not the one who first observed the
handgun in Brown’s pocket, and she did not understand why, as she was
making the request of Brown, Officer Petrosky drew his gun and began
ordering Brown to put his hands on the car. Officer Lewis testified that
as she made the request to Brown to place his hands on the car, Petrosky
"immediately" drew his weapon and "order[ed]" Brown to keep his
hands on the car. Id. (emphasis added). According to Lewis, therefore,
the order (given by Officer Petrosky) to Brown followed Officer
Petrosky’s drawing his weapon on observing the handgun in Brown’s
rear pocket. Id.
Testifying to the same moment, Officer Petrosky stated, Officer Lewis
"told Mr. Brown to go ahead and place his hands on the car." J.A. 34
(emphasis added). Officer Petrosky testified further that as Brown
"started to bend over," he observed the handgun in Brown’s pocket. Id.
(emphasis added). At that point, according to Officer Petrosky, "I drew
my weapon. I pointed it at Brown, and I ordered him to place his hands
on the car." Id. (emphasis added).
According to the majority, the statement that Lewis "told [Brown] to
go ahead" was the equivalent of giving Brown an order. This is shown,
the majority contends, by Officer Petrosky’s testimony, "I was still
ordering him to place his hands on the car." J.A. 35. Officer Petrosky
testified, however, that when he stated he was still ordering Brown to
place his hands on the car, he had already seen Brown’s handgun; he had
drawn his gun; and he had already once ordered Brown to place his
hands on the car. J.A. 34-35. It was after Officer Petrosky’s show of
authority by drawing his gun and issuing orders that Brown became ner-
vous and failed to comply with the orders, requiring the officers to seize
him physically and to secure him in handcuffs.
Apart from my disagreement with the majority’s characterization of
the record, the more important aspect of footnote 5 is the majority’s con-
tinuing misapprehension of the analysis that must be undertaken in these
circumstances. The majority argues that "the entire record demonstrates
20 UNITED STATES v. BROWN
In these circumstances, I respectfully submit, Brown was not
arrested until the officers had secured him. See California v. Hodari
D., 499 U.S. 621, 626, 629 (1991) (noting that a defendant who does
not submit to the show of authority or who flees the police in
response to a show of authority has not been seized in a constitutional
sense). Thus, before the officers seized Brown, they discovered the
gun about which they had received the tip, giving them an additional
ground to arrest Brown.
From any objective analysis of the record, the conduct of the offi-
cers in this case was careful, nuanced, and legal, and they complied
in every sense with the restrictions imposed by the Constitution, while
fully recognizing their need to protect the community. As the
Supreme Court has observed, while the Fourth Amendment is
designed to protect "citizens from rash and unreasonable interfer-
ences with privacy and from unfounded charges of crime," it is also
designed to give "fair leeway [to officers] for enforcing the law in the
community’s protection." Maryland v. Pringle, 540 U.S. 366, 370
(2003) (quoting Brinegar v. United States, 338 U.S. 160, 176 (1949))
that Brown did not have the option of refusing Officer Lewis’ ‘request,’"
supra, at n.5. This statement betrays the majority’s reliance on the "show
of authority" test that the Supreme Court has held is not "sufficient" to
decide whether a seizure has occurred in circumstances such as those
before this court. See California v. Hodari D., 499 U.S. 621, 628 (1991).
In Hodari D., the Court explained that the "show of authority" test —
applied by the majority to facts before us —"states a necessary, but not
a sufficient, condition for seizure — or, more precisely, for seizure
effected through a ‘show of authority.’" 499 U.S. at 628. The Court
stated that the show of authority must produce the seizure. Thus, when
Hodari fled on the show of authority, the Court held that Hodari "was not
seized until he was tackled." Id. at 629. Likewise, while the officers in
this case may have showed authority, the show of authority did not pro-
duce the seizure, especially when Brown failed to comply with the
orders. Thus, they never seized Brown for Fourth Amendment purposes
until they secured him physically.
By not recognizing the difference between a show of authority and a
seizure, the majority reaches a result inconsistent with the analysis
demanded by Hodari D.
UNITED STATES v. BROWN 21
(internal quotation marks omitted) (emphasis added). The majority
does not afford the officers this "leeway," nor did the district court.
Accordingly, I would reverse.