United States v. Baxter , 12 F. App'x 170 ( 2001 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 00-4778
RODNEY BAXTER,
Defendant-Appellant.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Catherine C. Blake, District Judge.
(CR-00-70-CCB)
Submitted: May 31, 2001
Decided: June 19, 2001
Before MOTZ, TRAXLER, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
James Wyda, Federal Public Defender, Beth Farber, Assistant Federal
Public Defender, Baltimore, Maryland, for Appellant. Stephen M.
Schenning, United States Attorney, Donna C. Sanger, Assistant
United States Attorney, Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. BAXTER
OPINION
PER CURIAM:
Rodney Baxter seeks to appeal his conviction and sentence,
imposed pursuant to his guilty plea, for being a felon in possession
of a firearm, in violation of 18 U.S.C.A. § 922(g) (West 2000).
Although Baxter pled guilty to the offense, he reserved the right to
appeal the district court’s denial of his motion to suppress the firearm.
On appeal, Baxter contends that the firearm was the fruit of an unlaw-
ful search and, therefore, should have been suppressed. We disagree.
Finding no error, we affirm Baxter’s conviction and sentence.
In evaluating Fourth Amendment claims, there is a threshold ques-
tion of whether a seizure even occurred. United States v. Wilson, 953
F.2d 116, 120 (4th Cir. 1991). "Only if a seizure took place does the
Fourth Amendment come into play." Id. Whether a seizure occurred
depends on the totality of the circumstances. Wilson, 953 F.2d at 121.
Two determinations must be made. The court must first determine
whether there was a sufficient show of authority from police that a
reasonable person would not have felt free to leave. Id. at 122. If the
court concludes that there was such a show of authority, the court
must then consider whether the defendant submitted to the authority.
Wilson, 953 F.2d at 122; United States v. Lender, 985 F.2d 151, 154
(4th Cir. 1993).
For purposes of this appeal, we assume, without deciding, that the
officers’ pursuit of Baxter constituted a sufficient show of authority
to satisfy the first inquiry. See California v. Hodari D., 499 U.S. 621,
625-26 (1991). We proceed, therefore, to consider whether Baxter
submitted to the show of authority.
In order to constitute submission, "the suspect must clearly acqui-
esce to the officer’s show of authority." United States v. Letsinger, 93
F.3d 140, 145 (4th Cir. 1996). And it must be the official show of
authority that produces the suspect’s acquiescence. See Hodari D.,
499 U.S. at 628 (discussing Broyer v. Inyo County, 489 U.S. 593, 596
(1989)); Lender, 985 F.2d at 154-55.
UNITED STATES v. BAXTER 3
In this case, Baxter did not clearly acquiesce to the official show
of authority. The facts indicate, and Baxter does not dispute, that dur-
ing the pursuit, Baxter slipped on a patch of ice and fell. Officer Woj-
cik then slipped and fell on top of Baxter. Thus, it was the ice, and
not the show of authority, that produced Baxter’s stop. Moreover,
what this court said of the defendant in Lender is equally applicable
to this case: "Under the circumstances it cannot be said that the defen-
dant had yielded, and therefore been seized, before the gun fell into
the plain view of the officers." Lender, 985 F.2d at 155.
Accordingly, we find meritless Baxter’s claim that the firearm was
the fruit of an unlawful search. We therefore affirm his conviction and
sentence. We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the court
and argument would not aid the decisional process.
AFFIRMED