# United States v. Everett Oshae Brown

> Court of Appeals for the Fourth Circuit · March 25, 2005 · 401 F.3d 588

URL: https://www.frixlaw.com/law-library/cases/9497841

## Case

- **Full name:** UNITED STATES of America, Plaintiff-Appellant, v. Everett Oshae BROWN, Defendant-Appellee
- **Court:** Court of Appeals for the Fourth Circuit
- **Decided:** March 25, 2005
- **Citations:** 401 F.3d 588; 2005 U.S. App. LEXIS 4859; 2005 WL 678741
- **Precedential status:** Published
- **Opinion:** Dissent by Niemeyer
- **Judges:** Wilkins, Niemeyer, Duncan
- **Cited by:** 41 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9497841

## How later opinions describe it (automated extraction)

- holding that a “brief, general description” of the defendant, his whereabouts, and an allegation he was carrying a firearm was not enough for reasonable suspicion because the officers had not acquired additional information nor did they “observe any conduct by [the defendant] …
- noting that the court's "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"
- concluding that an arrest 9 for public intoxication “based solely on glassy, bloodshot eyes and the strong smell of alcohol” 10 was not supported by probable cause
- noting that there is “no published opinion of the Virginia appellate courts finding cause [to arrest a suspect] for public intoxication based solely on glassy, bloodshot eyes and the strong smell of alcohol”
- holding that the suspect remained seized despite repeatedly disobeying orders to place and keep his hands on the car

## Opinion text

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 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 wearing, 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 *599 that Brown was violating Virginia’s public intoxication law, Virginia Code Annotated, § 18.2-388. Under that law, a person is intoxicated 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 (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 probable cause to believe that Brown was violating Virginia’s public intoxication 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 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 decision in which the court found probable cause to arrest a person for public intoxication, there was evidence that the person had consumed enough alcohol to impair his physical movement or speech. 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.
Supra at-(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 probable cause.
I submit that the fact that no earlier ease 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 officers 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 conspicuously 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 demeanor. 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?
*600 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.
“[Pjrobable cause to justify an arrest means facts and circumstances 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 , 99 S.Ct. 2627 , 61 L.Ed.2d 343 (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 , 103 S.Ct. 2317 , 76 L.Ed.2d 527 (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 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 , 116 S.Ct. 1657 , 134 L.Ed.2d 911 (1996)).
It is readily apparent that the majority has not deferred to the expertise of the police officers at the scene in this case, who not only articulated 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 prescribed 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 testified 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 smarting 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 fleeing. Moreover, neither officer felt sure that Brown was accommo *601 dating 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 officer saw the gun and stated that he “ordered” Brown to place his hands on the vehicle. *
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 , 111 S.Ct. 1547 , 113 L.Ed.2d 690 (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 *602 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 officers 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 interferences 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 , 124 S.Ct. 795 , 157 L.Ed.2d 769 (2003) (quoting Brinegar v. United States, 338 U.S. 160, 176 , 69 S.Ct. 1302 , 93 L.Ed. 1879 (1949)) (internal quotation marks omitted) (emphasis added). The majority does not afford the officers this “leeway,” nor did the district court.
Accordingly, I would reverse.
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 Pe-trosky observed the handgun in Brown’s rear pocket. Officer Lewis, who was conducting the discussion with Brown before his arrest, testified, "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 Petro-sky 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 "ordered] " 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 Pe-trosky’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 nervous 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 continuing misapprehension of the analysis that must be undertaken in these circumstances. The majority argues that "the entire record demonstrates 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 , 111 S.Ct. 1547 , 113 L.Ed.2d 690 (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 , 111 S.Ct. 1547 . 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 , 111 S.Ct. 1547 . Likewise, while the officers in this case may have showed authority, the show of authority did not produce 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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9497841. Public record. Not legal advice.