United States v. Brown

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.