health the federal public defender of the district of maryland at one am two officers on routine patrol of a residential street observed a truck with virginia tags double parked in a small private parking lot of an apartment complex in temple hills maryland which is near the maryland virginia border the officer pulled into the parking lot and stopped directly behind mr stover's vehicle preventing him from leaving the officers use the emergency lights on their marked car and shine a spotlight on mr stover side of the vehicle mr stover exited and walk five to six steps to the front of the car mr stover was stopped at the moment officers pulled behind him he passively acquiesce remaining at the scene and the fact that he walked five to six steps to the hood of the car does not negate the seizure the district court misapplied the circuits precedent and found that the gun that was recovered from the front of the cart did not need to be suppressed because mr a reasonable person would not feel free to leave this case is fairly similar to united states v junes with which this panel's very familiar with a driver is seized at the moment officers pull up directly behind his car preventing him from leaving here as an jones the officers pulled up directly behind mr stover's parked car which was pulled headfirst into a parking lot preventing him from leaving here as in jones  even more egregious than in jones it was one am in the morning here the officers activated the emergency lights on their marked car shine the spotlight on his side of the vehicle their message could have been no more clear he was not free to leave reasonable person would not have felt free to get back in your car and try to prevent mr stover from getting out of the car with all due respect to the district court that's internally inconsistent and the officer testified at the suppression hearing that mr stover was not facing him when he said this and never acknowledge presence and even if he made the statement it does not change or alter the fact that this district court found as fact that he only walked five to six deaths to the to the front of the car it was not a long distance there was no requirement that he has to stay in the car steps or that was like after the four steps the teller was at the testimony was that he exited walked the five six six steps and the officer saw him drop the drop the gun but assuming he dropped the gun we didn't did it officer the same drop but but assuming that he dropped the gun respectfully that's your relevant to the question of whether or not there was a stop because the stop with her at the moment the officers pulled up behind him with their lights activated in and in the marked patrol car possibly with sirens and a shot and i spotlight shining on his side of the vehicle it was a point of the difficulty that i have with your argument i think you're you're you're right that earlier case john jones was right on point with respect to stop but there was no issue in general and so i went back and looked at it because and budget did you by chance have a chance to look at the briefs and jones and i did not have a chance to look at the procedure and well i'm very familiar you need a defendant conceded that he had to ferd and the government conceded that he had to furred to the show of authority and the whole argument here is that he hadn't exceeded to the show with already so when you were in your brief you seem to suggest that jones had an absolute rule and since it wasn't an issue there i i think that you are in a different situation here than the than the jones defendant was jones to me your honor seems on point the officers pulled up he exited got out of the car and then later he left the shirt though a later case united states v blackhole the whole thing shown was whether there had been a stop or not it wasn't any argument that there was no that he didn't exceed to authority clearly did here and there is that argument and so i think you have to address that acquiesces r l meaning it has to clean acquiesced by moot and i don't even dispute in my view anyway and it's only mine making for five or six steps even in the wrong direction because he was walking away from the policeman beat might might be ok but he had a gun in his hand but as united states black which is a leader case written by judge gregory gregory says where  jones gets out mr stover gets out with a gun the question is whether mr stone mr server passively acquiesced he personally acquiesced because when the officers come up to him he could have done a million things to try to evade the officers but he didn't he  well front of the car now think he didn't but at the time he gets out of the car and walks in the opposite direction with the gun possessing a gun i certainly haven't found a case that would go your way that with the defendant throws the evidence to the side and the only evidence is the thrown the gun out the window i might be with you but he didn't throw the gun out the window he has the gun in his hand but the but i don't see a difference between other way i mean even there are cases that even walking the other way is not cooperating walking away from the police officer and united states v jones this court cites united states be green which is a seventh circuit case that holds there's a seizure when the off when the individual gets out of the car and walks away from the officers that cited insight well i guess the media want to be put this in a little bit differently i think that you have to go to but he didn't do anything other than remain at the scene when he could have run away he exited and merely walked five six steps when the officers pulled up behind him directly behind him prevented him from leaving they had their emergency lights on they were in a mark patrol car shine a spotlight and they possibly activated the sirens no reasonable person would have felt free to leave and he didn't leave it's undisputed that he remained as a senior to authority it's not that i think i think you're right otherwise he would have bolted out of the car and run in up direction opposite the officers and tried to run along the road and get out of the way or he would have turned the ignition on and backed into the officers as well can i ask you i'm sorry i just want to ask you a factual question i thought you told me that jones had a gun jones had a gun hidden in his pan of this in this case when he got out of the out of the vehicle the police report says that one of the officers saw him with a gun the trial testimony is that one of the officer saw him with a gun the suppression hearing testimony again i'll go back and look to clarify but again to the question of whether or not he had a gun is irrelevant to the question of whether or not there was a stop the stop  where there was a stop occurs when they pulled in behind me there exactly and then he didn't acquiesce he got out of the car with a gun and went to the other direction but respectfully it in the shop and through the gun on the ground a defendant can be stopped the question then becomes how do you acquiesced respectfully disagree over to me had a defendant does not have to remain in the car to be stopped true a defendant can get out the only in there is one of the inference that should be taken is that again this occurred within a short period of time and the fact that he didn't do what he could have done and back into the officers or get out and put pull a gun on the officers is that he understood that he was seized and he remained at the scene merely exiting and walking five just except to the front of the car is passively acquiescing because he could have backed the car he could  florida you acquiesce to the show with already when you respond by remaining at the scene he the officers ok so let me just ask you this if he had stayed at the scene and brought his gun out and aimed it at the officers which would you still say that he had scene and acting cooperative police fully he didn't point the the gun at the i understand that but how was that actually cooperating he was he was throwing away a weapon he was cooperating because he didn't do the million other things he could have done to evade the officers he got out and he understood that he could not leave and he was not free to leave i don't the gun reference you got to worry yourself with him ok i see that my time is up i'll save the rest of my time reporter thank you this case is the second part of whole darrius test whether or not there was submission well maybe it wasn't argued in joe and i think that's correct it wasn't argue but how can you say that jones had made it if he had a gun on himself in that case jones didn't do any of the things that we saw the defendant do in this case he didn't move rapidly away from the officers after an express command to stay in the vehicle he didn't brandish the weapon  wasn't in this case we have evidence and brand but we have evidence that he had the weapon in his hand when the officer sees him when he comes around so mr stover has the weapon the weapon is is drawn and loaded in fact it's got a bullet in the drawing  one when i want in in an auxiliary and it has one in the chamber he comes around the car the reality is that the best thing that happened in this circumstance is that the officer had the presence of mind to pull out his gun and pointed at mr stover which was the only reason mr stover submitted to authority had that officer pulled the trigger had mr stover pulled the trigger we could be facing a national calamity here it was but for the officers restraint in successfully bringing mr stover under control when he came around the car as if there was is that the police one body there wasn't even knew there was a man or woman in the car in the light was off and there was i would think concern about the woman safety and they want to have ever been in a car with a woman with lights out i have your difficult hypothetical your honor i would say that disposing of evidence in that circumstance a judge could well find was not a submission to authority until the point after he had gotten rid of the gun if you commit another crime it's difficult to see that you're submitting to the police on him and he's trying to get rid of it that's not submission to police authority when you're submitting to police authority you do what the police would like you to do with their authority and one of those things is not attempting to dispose of evidence for instance if i were to do we how do we distinguish jones  because jones and got and then he had small bag of marijuana so jones did not attempt to dispose of any of the materials and he didn't walk away from the office a little bit i suppose he just kept the gun in the car with him submitted to authority yes and mr stover remained in the vehicle with the gun and had the police then search the vehicle they would have had no reason for searching he would have submitted to authority and under both necessary conditions would have been for filled and there would not have been a legal search and you think it a felony a felony practice he had your honor yes then he would be a felon in possession right he would be a felon in possession that's correct but you would be able to charge him that's correct as the gun would be you i want you on the other side of the street you may have to go over there know your honor in that case you would not have submitted to the police authority the only reason that he has to remain in the vehicles because of the second prong of ho dari d s test that is does he submit to the authority of the police you have the right when you're walking down the street not to submit to the police's authority undoubtedly but in this case the question is did he submit to the police's authority when the police say remain in your vehicle and he said gets out walks rapidly away with a loaded gun in his hands goes to the front of his truck that's putting the truck between himself and the officers and then discards the handgun only to be brought into submission by officer hall's he come around and pulling his gun out at mr stover it's a very different set of circumstances so you saying the acquiesce from the car away from the police officer if he had gotten out of the front of the car without the gun and walked away from the police officer he would still in the light most favorable to the government be getting up to run away when i think going to the car and put his hands up then he would not be getting it's great that there was a submission to authority yes that's right and jones is very very different your honor from what happened here jones acquiesces to the police authority and he submits to what's going on talks to them or what he says yeah he engages an ongoing i'm i'm the only person up here who was was not involved in the jones case i believe i don't think of those standing now and and sitting in robes but i i do think it's important that brendan talks about that a person may acquiesce to seating person seated person by remaining seated and then brendan further says and a person may also submit by not getting up to run away brendon doesn't say that you have to let the person get two blocks three blocks four blocks down up and jones says that and the government conceded the point that it's admitted yes and jones is very different this is a fact bound and intensively as wilson points out a fact intensive question that is was whether or not different views that very different what is the very different the very difference are that in this case there was a rapid any point more than two feet away from his cot any point because he said he got out and he walked to the front and never said he walked away he and all and then nothing to him about you know you can't have it both ways in america second amendment right so why can't you even act if you have a host or a host there would a gun and police officers that hate come over here and you walk toward the officer with a questions in syria and i'm the first issue that is whether and he walked away from the officers he clearly did as the record shows the car was parked they pulled up behind the car right at the point they were behind the water on board them walking to the back of the says five or six steps one point the judge says i believe judge graham that it looks more like fifteen to twenty feet depends how big are the depths are that would be five or six that i think that's right judge judge just rely on the evidence can't just come up with a new  out that's right your honor and i'm not sure how far the car wants me to go outside the record but as chevy silverado of which there's a picture of in the joint appendix is is not a mini cooper it's not a small vehicle to get t front of the chevy silverado you have to get out and then you have to walk around the hood of the car which is not a insubstantial distance so there's no question that it was at least five or six steps i don't think the record was uncontroverted in fact if the report of the radio traffic with the police and i don't want me to go into that or not that that cuts to how long the entire interaction took but there is no question that the distance that he walked was no further than from where i'm standing to where you are in all likelihood but he did so with a gun with a loaded firearm in express ignore it or i'm sorry an express contradiction to the order that he'd been given to remain in the vehicle he then walked away from the officers placing the cab of the truck between himself and the officers and discarded the handgun he was only and it was only that he acquiesced when officer hall's he took out his gun and pointed it at mr stover well this was all order to remain inside the vehicle he gets out and it is uncontroverted that he walks to the front of his truck that's placing the truck between himself and the officer's car is uncontroverted that he i should say of course mischief offers testimony that's found to be unreliable but as far as judge grim finds he deposits the handgun in the front of the car he has only brought under submission an officer hauls the points the firearm at him now and j a three eighteen officer hauls he says  trial testimony that he in fact does see a firearm there when he gets to in his hand when he gets to the front of the car so and jay three eighteen officer hauls he says in fact that can you explain to me he says how much time had elapsed and then it up point do you call how many steps you took and he says that hauls you takes a levon steps but i think it's important to understand that what happened here was all he says from the time that i'm sorry the government has in the time you execute your cruiser to the time you first saw the firearm in the defendant's hand at the front of the vehicle how much time had elapsed and off for hall's he says a few seconds i think that's an accurate assessment this was a fast moving circumstance the police a man getting out of a truck with a firearm moving rapidly away from them they came around the truck they pointed a gun at him because he had a loaded firearm we now know in his hand and he then dropped the firearm and then submitted to their authority that's a classical indication of submission once he at the end he clearly class but he clearly falls under the second condition of ho dari d but the first part when he gets out of the vehicle when he walks away it appears in the light was favorable to the government at a rapid pace but even i would submit if you just walks away with a loaded firearm he moves away to the other side of the truck placing the truck between himself and the officers and at that point he only the weapon after an officer has had to on holster his firearm pointed at him shows none of the indications of submission in jones it shows none of the indications of submission that are present in black and certainly it is not the sort of sustained police interaction that this court found would qualify or may qualify as the equivalent of physical force in wilson and i think it's important to look at what the supreme court said in brenly when they said that a fleeing man is in seized until he is physically overpowered the one sitting in a chair may submit to authority by not getting up to run away in this case mr stover went well beyond getting up to run away he got up he got out of the vehicle he walked rapidly away from the vehicle where he got to the front and eventually it easiest to think on the driver's side officer hall's he is on the passenger side officer yambo season with a gun which would make sense because he sees him get out he sees him moving officer hauls he gets out of the passenger side sees him with something in his hand gets around to the front of the car which when he has a honor ok so then he was told not to move the car before he got on the right he was told to remain in the vehicle whether or not it was before he got out of the car as he was getting out of the car it's unclear in the record stover physical force of a three thousand pound block on one in use that's a show of force and when there is a show of force under hoedown any there are two conditions the necessary condition the first condition is that a reasonable person person in the circumstances not feel free to leave the mendenhall test the second condition is even with a show of force as long as there is not a physical touching you must submit to the authority of the police here mr stover did anything but submit to the authority of the police he disobeyed their express command he got out of the vehicle and walked away he carried a gun with a bullet in the chamber ready to fire had he basically squeezed the trigger would have gone off around to the front of the car which he had in his hand when the officer came around from the other side and only when the officer pointed a weapon in mr stover's at mr stover did he discard the gun now it's very difficult to see that as any sort of submission to authority mr stover remained in the vehicle and thrown the gun out the window it could well be a different case had mistrust overtaken not according to you you said it would make any difference i said i would make that argument to a district court judges judge brinn points out these are fact bound endeavors the take place at the lower court level and depending on what he did for instance if the police were to say stay in your vehicle remain in your vehicle and then he were to start throwing things out the window as the vehicle was traveling down so you slowly on out the window no moving vehicle and he merely discards the gun correct under the second steed under the second condition of i would argue and i i may well not w arguing it that he hasn't submitted to police authority because part of submission to police authority is staying put in the vehicle and throwing projectiles out of the vehicle particularly when those projectiles are the gun is wrapped in a pillow i mean it's not going to hurt if if in that circumstance he would not he would have submitted to the police authority i'd like to know the gun in the car right and i thought you told me earlier that every you discard evidence that's not submitting to authority no it's not whenever you're on or in as to what his intent and what the officers observed at the time in the same way that it's possible that an individual that gets out of the car and walks toward the officers may well submit to their authority it depends on what he says it depends on what he does it depends on what his tent is it depends on the totality of the circumstances in the case there are definitely cases you could come up with i think where someone could remain in the vehicle submit to police authority while simultaneously throwing something out of the vehicle and if i said differently earlier than i misspoke and i re myself they didn't have reasonable suspicion they did block him in but under the supreme court law we don't have any touching one of them a touched that would be all she wrote we don't have touching you have to either have passive acquiesce or you have to it is so or you have to show that you are to authority and the question is do you have that here we've got what we're just but you can't pass a fact we have since for two seconds  reasonable again the reasonable inference when this all occurs in a short amount of time and he walks five or six steps to the hood of the car is that so by not short amount of time you were relying on so that the running to the that's what you would say it was running along to the front of the car  the short amount time instead of running in a direction opposite the officers running maybe direction opposite of the officers because you had run toward to me to run right into their car their cars back it tell me if i'm wrong here because you know you know these facts better than i do but i thought that they had blocked his car in so that they are blocking him in at the rear of his car he walks to the front of his car so he's walking away from the officer in the united states if you jones this co cites approvingly united states where the officer where the defendant is walking a way for me all these years and there's a lot are walking away from him and factually he was walking away from the officers here correct yes but he's walking he's walking to the front of the car which i'm distinguishing from walking in a direction that is walking towards a house that is in an up in a total opposite direction in other words he's walking five to six stops he's going from here turning to the foot of the car he's not he's not going this way well the way i looked at the pictures which is hard to it's hard to make too much out of them but it doesn't look like there's anywhere to go there's not he to right directly in front of him i would just about fifteen feet there's an apartment complex to the left of him there's another apartment complex but there's an alley in between the two apartment complexes and then to his left there are some trees and the road so he definitely could have ran in an attempt to evade the officers but that's not what we have seen here in this fact that he didn't run away he did not go in the direction of the officers but there's no evidence that he ran away it's there he walked the evidence is that he walked around the front but i think the problem is we're conflating acquiescence with obedience and that's different if you venn diagram in the sense you