Submitted: January 18, 2019
from United States District Court for the Southern District
of Iowa - Davenport
GRUENDER, WOLLMAN, and SHEPHERD, Circuit Judges.
GRUENDER, CIRCUIT JUDGE.
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 courtapplied 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.
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.
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.
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.
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
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.
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).
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 ...