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United States v. Houston

United States Court of Appeals, Eighth Circuit

April 10, 2019

United States of America Plaintiff- Appellee
v.
Alvin Antonio Houston Defendant-Appellant

          Submitted: January 18, 2019

          Appeal from United States District Court for the Southern District of Iowa - Davenport

          Before GRUENDER, WOLLMAN, and SHEPHERD, Circuit Judges.

          GRUENDER, CIRCUIT JUDGE.

         Alvin Antonio Houston pleaded guilty to being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). The district court[1]applied a four-level enhancement for possession of a firearm in connection with another felony and sentenced Houston to thirty-six months' imprisonment. Houston appeals the denial of his motion to suppress evidence and the application of the sentencing guidelines' enhancement. We affirm.

         I.

         Shortly after 1:00 a.m. on February 8, 2017, the Davenport Police Department dispatched three officers in response to a neighborhood disturbance call. The Davenport Police Department had recently responded to other neighborhood disturbance calls and shots-fired calls in the area. The neighborhood to which they were called was within a 20-block-by-6-block area that accounted for nearly one third of confirmed shots-fired calls for the Davenport Police Department between January 2017 and September 2017.

         When the officers arrived, they spotted Houston with their flashlights. He looked at them and then ran. One officer commanded him to "wait," but Houston kept running. Another officer observed a black pistol in Houston's hand and told the others. The officers chased Houston to the backyard of his home, drew their weapons, and again commanded him to stop. He eventually complied and was detained. One officer patted down Houston and felt something metallic in his pants pocket. Unsure what it was, the officer reached into the pocket and removed a set of brass knuckles. At that point, the officers planned to arrest Houston for possession of brass knuckles in violation of Iowa Code section 724.4(1), which makes "go[ing] armed with a dangerous weapon concealed on or about the person" an aggravated misdemeanor. The officers then removed other things from Houston's pockets such as a "relatively small knife," a bottle of alcohol, and a cell phone.

         After Houston was detained and searched, the officers found a black pistol in a ravine just beyond the property line of Houston's residence. The pistol was the same size and color as the one the officer had observed in Houston's hand. The officers placed Houston in a patrol car, checked his criminal history, and discovered that he had a prior felony conviction. Houston was indicted for being a felon in possession of a firearm.

         Houston moved to suppress the pistol as well as the brass knuckles and other items taken from his pocket, claiming violations of the Fourth Amendment. The district court denied the motion. Houston pleaded guilty but reserved the right to appeal the denial of his motion to suppress. See Fed. R. Crim. P. 11(a)(2). At sentencing, the district court applied U.S.S.G. § 2K2.1(b)(6)(B) and imposed a four-level enhancement because Houston "[u]sed or possessed any firearm or ammunition in connection with another felony offense." The district court reasoned that Houston committed both the crime of being a felon in possession of a firearm under 18 U.S.C. §§ 922(g)(1) and 924(a)(2) and the qualifying aggravated misdemeanor of carrying a dangerous weapon-the pistol-under Iowa Code section 724.4(1).[2]

         II.

         "On appeal from the denial of a motion to suppress, we review the district court's factual findings for clear error and its conclusions of law de novo." United States v. Bearden, 780 F.3d 887, 892 (8th Cir. 2015). "We affirm unless the denial of the motion is unsupported by substantial evidence, based on an erroneous interpretation of the law, or, based on the entire record, it is clear that a mistake was made." Id.

         Houston first contends that he was seized under the Fourth Amendment when an officer commanded him to "wait." This alleged seizure, he claims, violated the Fourth Amendment because it was not supported by a reasonable suspicion of criminal activity. But it is well established that "police pursuit in attempting to seize a person does not amount to a 'seizure' within the meaning of the Fourth Amendment." United States v. Taylor, 462 F.3d 1023, 1026 (8th Cir. 2006); see also California v. Hodari D., 499 U.S. 621, 626 (1991) ("[The Fourth Amendment] does not remotely apply ... to the prospect of a policeman yelling' Stop, in the name of the law!' at a fleeing form that continues to flee. That is no seizure."). Thus, because Houston did not submit when the officer commanded him to "wait," there was no seizure, and the Fourth Amendment does not apply. See Hodari D., 499 U.S. at 629 (concluding that a defendant was seized when an officer tackled him after a pursuit, not when the officer first instructed him to halt); Taylor, 462 F.3d at 1026 (concluding that a defendant was not seized when he stopped his car and fled from officers on foot).

         Houston next argues that the seizure of items from his pockets after he was detained was unconstitutional. Under Terry v. Ohio, an officer may stop an individual if the officer has reasonable suspicion that "criminal activity may be afoot." 392 U.S. 1, 30 (1968). A Terry stop is justified when a police officer is "able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion." Id. at 21. "We determine whether reasonable suspicion exists based on the totality of the circumstances, in ...


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