NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION F ile Nam e: 13a0471n.06 No. 12-1099 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

UNI TED STATES OF AMERI CA, Plaintiff-Appellee ,
v. L EE ARTHUR L OGAN, Def endant- Appellant. ) ) ) ) ) ) ) ) ) ) ON AP P E AL FROM THE UNI TED STATES DI STRI CT COURT FOR THE WES TERN DI STRI CT OF MI CHI GAN

BEF ORE: COL E and GRI FF I N, Circuit J udg es; and GWI N, District J udg e. * GRI FF I N, Circuit J udg e, joined by COL E, Circuit J udg e. Def endant L ee Arthur L og an appea ls his j udg ment of conviction and sentenc e for being a felon in possession of a firea rm and ammunition, 18 U.S.C. §§ 922(g )(1) and 924(e) , on the g round that the district court er re d when it denied his motion to suppress cer tain evidenc e as fruits of an unlawful seizure under the Four th Amendment. We hold that the office rs had rea sonable suspicion to initiate an investigatory stop at the point of L og an’s seizure and, there fore , no Four th Amendment violation occurr ed. Ac cording ly , we a ffirm. I

. The events at issue in this case occur red on October 13, 2010, at approximately 10:30 p.m., on the north side of Kalamazoo, Michig an. J oseph Boutell, a publi c saf ety office r, wa s patrolling
The Honora

ble J ames S

. Gw i n, United States District J udg e for the Norther n District of * Ohio, sitti ng by

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the streets by himself when he noticed a white Chevrolet Suburban parke d in a vaca nt lot around the 600 block of Mabel Street, an are a with a high incidence of drug traff icking and viol ence . The vehicle’ s headlig hts wer e off, but its interior dome light was on, and Offic er Boute ll estimated that four or five individuals wer e inside. I n this same are a, Offic er Boute ll has found i n d i v i d u als smoking marijuana and consuming alcohol. Offic er Boute ll beli ev ed that the individuals in the vehicle w ere trespassing

. Given the number of occupa nts, Offic er Boute ll drove past the lot wit h out stopping and contac ted t wo ot her public safe ty office rs, Brian Veltman and Derek W eldon. He re q u est ed their assistance investigating a suspicious ve hicle and asked them to meet him at a near by location. All three office rs wer e under the impression that the city owned the parking lot in question. I n rea lity , howeve r, t he area was comprised of t hree separ ate lots, only one of which the city owned, and, as it turned out, the white Suburban wa s parke d on private pr operty
. The office rs decide d to enclose o n t h e vehicle toge ther. To g ain a tactica l advanta g e, the office rs pulled i n t o t h e parking lot with their emer g ency lights off, so as to take the occupa nts by surprise. As they near ed, the office rs shined their spotlight s o n the vehicle, another tactica l advanta g e, desig ned to temporar ily blind the occupants of the vehicle and as a measure of office r safe ty . The off

icer s parke d their patrol car s at a c onsiderable distance f rom the vehic le (twe nty

to forty fee t) and in a fashion that did not block the vehicle’ s m ea ns of eg ress from the lot. Offic er Boute ll plann ed to approa ch the driver’ s side of the vehicle, while Offic ers Veltman and Weldon planned to appr oach the passeng er’ s side.

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A man and a woman wer e standi n g outside the driver’ s side of the vehicle. J ust as the office rs emer g ed from their patrol car s, a man later identified as defe ndant L ee L og an quickly exit ed the vehicle from the front side passeng er door. Offic er We l don drew his g un and order ed L og an back into the vehicle. L og an hesitated, unsure about what he wanted to do, and he “stutter stepped” back and forth. L og an’s behavior indicated to Offic er Weldon that he was likely try ing to distance himself from contr aband in the c ar. At that point, Offic er Veltman wave d at L og an and said “come over here with me.” Offic er Veltman testified that L og an appea red uncomforta

ble and did not want to be by the passeng er’ s seat. Offic er Veltman asked L og an for his name. Asked whether he was in possession of any contra band, L og an responde d that he was not, and he g ave Offic er Veltman consent to sear ch his person. After discovering a bullet in the r ig ht p o cket of L og an’s jacke t, Offic e Veltman place d L og an in handcuf fs. As Offic er Veltman suspected, L og an had g iven him a false name. Eventually , L og an told Offic er Veltman his true identity , and the database indicated that ther e wa s a wa rra nt out for his arr est. Meanw hile, Offic er B outell eng ag ed the man on the driver’ s side of the ve hicle, identified as Zac hary J ones. Jones was “not fully cooper ative.” O ffice r B outell repe atedly told him to keep his ha nds out of his poc kets. I n light of J ones’s nervous be havior a nd as a safe ty measure , Offic er Boute ll patted him down for wea pons. Offic er Boute ll did not find any wea pons on J ones’s person. He also saw what appea

red to be an open bottle of alcohol in the vehicle’ s console. He retrie ved the bottle of g in from the vehicle and place d it on the hood o f h i s p at ro l car . At this point, Offic er Boute ll believed that he had the authority to lawfully sear ch the entire vehicle. In doing so, Offic er
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Boute ll found a loaded handgun under the front passeng er’ s seat. The bullet found in L og an’s pocket

was a match. L og an was char g ed in an indictment for being a felon in possess i o n o f a firea rm and ammunition, 18 U.S.C. §§ 922(g )(1) and 924(e)

. L og an moved to suppress the bullet found on his p er s o n , the firea

rm found under the passeng er’ s seat, and the war rant for his arr est as fruits o f an unlawful seizure, in violation of his Four th Amendment rig hts. I n its oral ruling from the bench, the district court first reje cted the g overnme nt’s argument that the entire encounte r was consensua l; acc ording to the court, when the three office rs conver g ed

on the scene , a rea sonable person would not have believed that he was fre e to leave o r o therwise terminate the encounte r. Next, with reg ard to the individuals on the driver’ s side of the vehicle, the court deter

mined that they

wer e seized at the outset by virtue of their acquie scenc e to the office rs’ demands. L og an, however, did not immediately submit to the office rs’ show of authority and, there fore , was not seized at the beg inning of the encounte r. L og an had been order ed to g et back into the vehicle, he hesitated, he stutter stepped back and forth, in d ecisive about his next move, and finally he complied with Offic er Veltman’s reque st to “come over here with me.” The district court conclude d that, at that point, L og an wa s seized. Reg arding whether the seizure was supported by rea sonable suspicion, the district court g ave consideration (but not undue weig ht) to the fac t that the 600 block of Mabel Street is in a high- crime

are a on the north s i d e of Kalama zoo. I t g ave no weig ht to the dope house alleg edly in close proxi mity to the site of the encounte r beca use it ha d not be en in the contemplation of the office rs.
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Wit h reg ard to Offic er Boute ll’s mistak en b el ief that the vehicle was trespassing on city -owne d proper ty , the district court found that the err or was objectively rea sonable g iven the close proxi mity of the vehicle to a city -owne d lot a nd, moreove r, the circ umstances justified the stop e ven without the trespass. This is beca use the scene was in close proxi mity to a cut-throug h that was fre quently used as a means of flig ht b y p eo p l e comm itting criminal acts in the adjoining neig hborhood. Acc ording to the district court, the vehicle’ s clos e proxi mity to the cut-throug h, combined with L og an’s actions prior to his s ei z u re, provided rea sonable and articula ble suspicion to initiate an investigatory stop. Finally , the i n fo rm at i o n acquired at the scene , including the discovery of the bullet in L og an’s pocket du ri ng the consensua l sear ch of his person, provided probable cause to

sear ch the ve hicle. Ac cording ly , the district court de nied L og an’s motion to suppress. L og an enter ed a conditional g uilty plea, rese rving the opportunity to appea l the district court’s denial of his m o t i o n t o s u p press. The district court sentenc ed L og an to 204 months of imprisonment and 5 y ear s of supervise d rele ase. L og an timely appea led. I I

. This case require s us to deter mine at which point L og an was seized and whether , at that time, the offic ers ha d rea sonable suspicion that he w as eng ag ing in c riminal activity sufficie nt to just ify

an investigatory stop. We revie w the district court’s leg al conclusions de novo and its fac tual finding s for clea

r err or. United States v. McCraney , 674 F.3d 614, 616 (6th Cir. 2012). The district court’s leg al conclusion reg arding the point at which a seizure occur red is revie wed “de novo based upon underlying fac tual finding s that will be disturbed only if clea rly err oneous.” United States v.
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Buchanon , 72 F.3d 1217, 1223 (6th Cir. 1995). Whether there was rea sonable suspicion to initiate

an investigatory stop at that time is a mix ed q u es t i o n o f law and fac t, which we revie w de novo. United States v. Lyons , 687 F.3d 754, 762 (6th Cir. 2012). In doing so, this court considers the evidenc e “in the light most likely to support the district court’s decision.” United States v. Marxe n , 410 F.3d 326, 328 ( 6th Cir. 2005) (interna l quotation marks omitted). “A ‘seizure’ occu

r s w h e n p o li c e d etain an individual under circ umstances wher e a rea sonable person would not fee l fre e to leave .” United St ates v. L opez- Medina , 461 F.3d 724, 739 (6th Cir. 2006). “A police office r may make a seizure by a show of authority and without the use of phy sical forc e, but t here is no seizure without actua l submissi on; otherwise, there is at most an attempted seizure, so far as the Four th Amendment is conce rned.” Brendlin v. Calif ornia , 551 U.S. 249, 254 (2007); see also United States v. Johnson , 620 F.3d 685, 690 (6th Cir. 2010) (“[A]n individual must actua lly y ield to the show of authority to be seized within the meaning of the Four th Amendment.”)

. “[W ]hat may amount to s u b m i ssion depends on what a person was doing befor e the show of authority : a flee ing ma

n is not seiz ed until he is phy sically overpow ere d, but one sitti ng in a chair may submit t o authority

by not ge tting up to run a

way .” Brendlin , 551 U.S. at 262. I n this ca s e, al t h o u gh three patrol car s conver g ing on the scene was cer tainly a show of

au thority on the part of the office rs that could amount to a seizure, the district court prope rl y deter mined that L og an was not seized from the outset of the encounte r beca use he did not submit to the show of au thority

. I nstead, L og an “quickly exit [ed] the passeng er side front door and just jump[ ed] out of the vehicle.” As explained in Brendlin , “one sitti ng in a chair [or a vehicle in this

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case ] may submit to authority by not g etting up to run awa y .” Id

. L og an did not rema in seate d, and his d ec i s i o n t o ab rupt ly jump out of the vehicle is a sign of resistanc e to the show of authority

. L og an wa s theref

ore not seized at that time. At which point there afte r the seizure took place depends on when L og an finally y ielded. As descr ibed by Offic er Veltman at the suppression hear ing, L og an “initially g ot out and started walking towards the front of the vehicle,” and when Offic er Weldon order ed him to return to the vehicle, “he

seeme d unsure of what he wanted to do. He kind of stutter step p ed t o wa rd t he passeng er’ s seat wher e he orig inally was, and he kind of stutter stepped awa y from it, and went back and forth for a littl e bit, and he just seeme d a littl e uncomforta ble.” Acc ording to Offic er Veltman, althoug h he was being order ed to return to the vehicle, “[i] t looked t o me like he . . . was very uncomforta ble” and “didn’t want to be by th at p as s eng er’ s seat wher e he was.” I t was as if he “wa nted to distance himself from the vehicle.” Fr om Offic er Veltman’s perspe ctive, the eff orts to order L og an back to the vehicle “didn’t s ee m t o be going that well,” which is why he asked L og an to “come over here and talk to me.” Acc ording to Offic er Weldon, L og an “wa s rea l hesitant to g et back into the vehicle. I t appea red to me he was try ing to distance himself from the ca r. ” Ba s ed o n the rec ord, Offic er Weldon told L og an in no uncer tain terms to g et back in the vehicle, y et L og an did not obey this command, nor did he fre eze. Rather, he moved back and forth in hesitation. Viewing this evidenc e in the l ight most favor able to the di strict court’s decision, L og an’s behavior indi cate s at most that he wa s contemplating

submissi on, which fa lls short of actual submissi on.

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I n United States v. Jones , 562 F.3d 768, 774 (6th Cir. 2009), involving fac ts simil ar to those prese nted here , this c ourt conclude d that the defe ndant was not se ized whe n the police hemmed in beca use he did not rema in seate d in the vehicle but instead opened the door and ju mped out as though he wanted to run. The defe ndant was only seized when he complied with the office r’s order to st o p . Id

. at 7 74–75. Simi larly , in Robinson v. Howes , 663 F.3d 819, 828 (6th Cir. 2011), we deter mined that the “[p] etitioner was not y et s eized when he saw officer s approa ching his vehicle with their guns drawn beca use he did not submit to their show of authority ; rathe r, he jumped out

o f h i s vehicle and beg an walking awa y .” The petitioner was “unquestionably seized” when t h e office r “gr abbed him.” Id

. Ba sed on this authority and the rec ord evide nce in this case , we ag ree with the district court that actua l submissi on occur red when L og an submitt ed to Offic er Veltman’s invitation to “come over

here and talk to me.” I n support of his position that the seizure occur red ear lier, L og an relies on autho ri ty sug g esting that “[p] hy si ca l m o v em ent alone does not neg ate the possibili ty that a seizure may

never theless have occur

red.” United States v. W

ilson , 953 F.2d 116, 123 (4th Cir. 1991). We do not disag ree with this g ener al proposition, nor is it inconsisten t wi t h B r endli n . Although phy sical movement does not neg ate t h e p o s s ibilit y that a seizure occur red, neither does it conclusively establ i s h t h at a seizure occur red. Rather, “wha t may amount to submissi on depends on what a person was doing befor e the show of authority .” Brendlin , 551 U.S. at 262. I n W ilson , “[t] he fa ct that [t he defe ndant] continued walking throug h the airport [was] not dispositi ve,” since, despite his best eff orts, he was unabl e to terminate the encounte r and continue on his way . W ilson , 953 F.2d

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at 123. A seizure had occur red beca use “[t] he office r’s prolong ed and persistent questioning after the [defendant] had convey ed an unequivoca l unwillingness to eng ag e in further conver sation with the office r is the ty

pe of conduct that is proscr ibed by th e Fo u rt h Am endment.” Id

. (empha sis added)

. I mplicit is that the defe ndant’s “unequivoc al u n wi l lingne ss to eng ag e in further

conver sation” at the outset did not amount to a seizure; the seizure occur red “sometime soon afte r” the def endant’ s resistive ef

forts, which w ere unsucce ssful in the fac e of “ [t ]he office r’s prolong ed and persistent questioning.” Id

. The same can be said in this case . L og an was seized sometime soon afte r his abrupt exit from the vehicle and hesitant stutter steps back and forth, when Offic er Veltman pulled him aside. L og an als o p o ints to Kansas v. Smith , 184 P.3d 890, 896–97 (Ka n. 2008), in which the Supreme Court of Kansa s aff irmed the deter

mination that the defe ndant passeng er was seized when the police office r initiated a traff ic stop, blocked the vehicle, and activate d his patrol car ’s emer g ency lights. The seizure occur

red from the outset of the traff ic stop, even though the defe ndant passeng er exit ed the vehicle, walked to ne arby steps, and sat down. Id

. The court rea soned that “she did not walk awa y ; she rema ined at or n ea r t h e phy sical foca l point of the investigation in a passive submissi on to the show of author ity .” Id . at 896. Smith i s d i s t i n g uishable from the instant case . L og an’s abrupt exit from the vehicle and hesitant stutter steps back and forth cannot be fairly analog ized to casua lly walking to near by steps and sitti ng down. Moreove r, the defe ndant passeng er in Smith had not been order ed to return to the vehicle; she was there fore not direc tly disobey ing police order s throug h her movement. By contra st,

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L og an continued his m o v em en t back and forth, appar ently unsure about his next move, despite having been order ed to return to the vehicle. Thus, althoug h L og an “re mained at or near the phy sical foca l point of the investigation,” his behavior cannot be considere d “passive submissi on to the show of authority ,” as in Smith

. Having conclude d that L og an was seized when Offic er Veltman pulled him aside, we next consider whether the seizure was lawful at that time. A police office r may initiate an investigatory stop short of probable cause to arr est. United States v. Atchley , 474 F.3d 840, 848 (6th Cir. 2007). A brief investigatory stop is justified under the Four th Amendment wher e “a police office r observe s unusual conduct which leads h i m rea sonably to conclude in light of his experience that criminal activity may be afoot.” Terry v. Ohio , 392 U.S. 1, 30 (1968); see also O’Malley v. City of Flint , 652 F.3d 662, 670 (6th Cir. 2011) (ex plaining that a Terry stop must be supported by articula bl e fa cts that form a rea sonable suspicion that the defe ndant was eng ag ing in criminal activity ). “The office r must be able to articula te something mo r e th a n a n in c h o a te a n d unparticula

rized suspicion or hunch.” United States v. Gross , 662 F.3d 393, 399 (6th Cir. 2011) (internal quotation marks omitted). I n evalu at i n g whether the office rs had a rea sonable suspicion, this court examines the totality of the fac ts and ci rc u m stance s of which the office rs wer e awa re, including the contextual fac tor of the

are a’s crime l evel. United St ates v. Davis , 514 F.3d 596, 608 (6th Cir. 2008). “A d d i t i o n al l y , the

ex p erie nce of the law enfor ceme nt office r must be taken into acc ount in the rea sonable suspicion analy sis[ .]” United States v. McCauley , 548 F.3d 440, 445 (6th Cir. 2008). The court may consider all events up until the point of seizure. See Johnson , 620 F.3d at 696.

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I n conducting its rea sonable suspicion analy sis, the district court first considere d the fac t that the 600 block of Mabel Street is a high- crime are a of Kalama zoo, known for drug traff icking and g un violence. This consideration was appropr iate

. See Davis , 514 F.3d at 608; cf. United States v. See , 574 F.3d 309, 314 (6th Cir. 2009) (explaining that an individual’s pr esenc e in a high- crime are a is rele v an t an d may be considered but cannot standing alone support a reasonable suspicion that the individual is eng ag ing in criminal activity ). I t also considere d that the vehicle was located in close proxi mity to a cut-throug h, fre quently used as a means of flig ht by people committing criminal acts in the adjoining neig hborhood. This fac t was appropr iately considere d as either contextual evidenc e

or the experience of the law enfor ceme nt office rs. See Davis , 514 F.3d at 608; McCauley , 548 F.3d at 445. Most critica lly , the district court considere d the information acquir ed by the office rs during their approa ch of the vehicle up until the point of the seizure. This, too, was proper . See Johnson , 620 F.3d at 696. As the district court explained, based on the office rs’ experience and training , L og an’s quick exit from the vehicle heig htened the conce rn for their safety , particula rly g iven t he violent are a. The officer s’ t estimony reve als that L og an appeared indecisive about his next move and, for some rea son, soug ht to distance himself from the passeng er’ s seat of the vehicle. Although L og an did not run fr om the scene , it appear ed that he started to f lee by jumping out of the ca r, and he there afte r defie d the commands of the police. See Illinois v. W ardlow , 528 U.S. 119, 124 (2000) (re cog nizi ng “unprovoke d flig ht upon noticing the police” as “a p er t i nent fac tor in deter mining

rea sonable suspicion”); United States v. Jones , 673 F.3d 497, 502 (6th Cir. 2012)

. Ba sed on these circ umstances we ighe d toge ther, the c ourt conclude d that the officers had rea sonable suspi cion t o
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no err or occ urre d. L og an empha siz es that an individual’s pre sence in a high-c rime area, in and of itself, doe s not establish rea sonable suspicion. See , 574 F.3d at 314. He also points to “the dang ers of relying too easily or t oo heavily” on this consideration, since “labe ling a n are a ‘hig h-cr ime’ ra ises specia l

conce rns of rac ial, ethnic, and socioec onomic profiling .” United States v. Caruthers , 458 F.3d 459, 467 (6th Cir. 2006). Although these poi nts are well t aken, the district court did not rely solely on the fac t that the vehicle was parke d in a high- crime are a to conclude that the office rs had rea sonable suspicion. Quite t he opposi te, t he court indicated that it did not g ive t h e fact “undue weig ht” and noted that it was entitled only to “some consider ation” in the totality of the c ircumstance s. L og an claims that this court in Johnson g ave no weig ht to the high- crime are a beca use “the

are a was known for drug traff icking specific ally ” and the office r “obs er v ed n o contac t from [t he defe ndant] consis t en t wi t h d rug activity .” Johnson , 620 F.3d at 693. His rea ding of Johnson is incorre ct. Although our court cautioned about consideration of the are a’s crime level, we indicated that the fac tor may be considere d in the totality of the circ umstances but should not be g iven undue weig ht. Id . at 692–93. L og an’s relianc e on See is simil arly unavailing

. Unlike in this case , the defe ndant in See was seized at the outset of the traff ic stop. See , 574 F.3d at 313. At that point, the traff ic stop was based almost entirely

on context-based fa ctors such a s the time of day and the are a’s c rime leve l, fac tors

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which “would have pertaine d to any one in the parking lot at that ti me.” Id. at 314. Critically , the office r “did not suspect the men of a specific crime, he had not seen the men sitti ng in the car for an extended period of time, he was not acting on a tip, he had not seen the men do any thing suspicious, and the men did not try to flee upon seeing [t he office r] approa ch.” Id

. “Apa rt from the contextual fac tors of time and the high- crime status of the are a, all that [t he office r] knew at the time he parke d his car was that there wer e three men in an unlit car in the parking lot of a housing complex and that they had not c hosen to pa rk in one of the spots c loser to the building.” Id . This did not a mount to

rea sonable suspicion and, the ref ore, the stop was unlawf

ul. Id

. I n this case , howeve r, the seizure occur red later, afte r the office rs observe d L og an jump from the vehicle and take hesitant stutter steps back and forth, appea ring unsure about his next move, and, for some rea son, try ing to distance himself from the passeng er’ s seat. Prima rily based on these acquir ed observa tions, along with some consideration g iven to the high- crime are a and near by cut-throug h often used as an avenue of flig ht by individuals eng ag ed in criminal activity , the office rs at that point had an a

rticulable, r easona

ble suspicion that L og an wa s eng ag ed in cr iminal activity

. L og an points to authority sug g esting that it is “a matter of common knowledg e that men who

are entirely innocent do sometimes fl[ ee ] fr o m the scene of a crime throug h fea r of being appre hended a s the g uilty parties, or fr om an unwillingne ss to appear as witnesses.” Calif

ornia v. Hodari D ., 499 U.S. 621, 630 n.4 (1991) (Stevens, J ., dissenting) (interna l quotation marks omitted). T h i s sug g estion, valid as it may be, simply stands for the proposition that flee ing the scene is n o t alway s an acc urate predic tor of gu i l t
. I t d o es not stand for the proposition that flee ing the scene
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cannot c reate re asonable suspicion of criminal activity . And while L og an may have ha d a rig ht to avoid police contac t, that rig ht does not mean that flig ht and other uneasy or nervous behavior when approa ched can never weig h into an office r’s calc ulus of rea sonable suspicion. See Caruthers , 458 F.3d at 459 (“ Al t h o u gh the police may validly consider an individual’s furtivene ss in deciding whether to conduct a Terry stop, c ourts must take car e that the fac tor not be invoked cava lierly .”). L og an calls our attention to United States v. Beauc hamp , 659 F.3d 560, 571 (6th Cir. 2011), wher e this court held that contextual fac tors and testimony that the defe ndant hurriedly walked awa y from the office r without making ey e contac t did not a mount to rea sonable suspicion. What L og an fails to mention is that, in Beauc hamp , this court stated that avoiding police contac t can contribute to re asonable suspicion wher e “spec ific fac ts have shown that the defe ndant’s behavior was otherwise suspicious.” Id

. at 570–71. Her e, L og an quickly exit ed the vehicle when the three patrol

car s conver g ed on the scene with the ir spotlights on. Despite that an office r had order ed him ba ck into the vehicle and had draw n his g un, L og an took hesitant stutter steps back and forth and appea red to be try ing to distance himself from the passeng er’ s seat. This is not a situation wher e the defe ndant simply walked a way and avoide d ey e conta ct in the fa ce of a ca sual approa ch by

the police. Viewing the evidenc e in the light most favor able to the district court’s decision, we hold that L og an was seized within the meaning of the Four th Amendment when he s u b m i t t ed t o Offic er Veltman’s invitation to “come over here and talk to me,” and, at that point, the office rs had

rea sonable suspicion to believe that L og an was eng ag ed in cr i minal activity sufficie nt to justify a brief investigatory stop. We fu rt h er hold that the information acquir ed during the Terry stop

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rant

wer e obtained la

wfully , and the district cour t properly denied L og an’s motion to suppress. I I I

. For these re asons, we a ffirm.

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GWI N, District J udg e, joined by COL E, Circuit J udg e, conc urring

.

Whil e I join in the dispositi on of this case , I write separ ately to emphasize that I do so based on L og an’s f

ailure to c omply

with the office rs’ dire ctives. I do not believe that L ogan’s “shuff le s tep” contributed to rea sonable suspi cion. I ndeed, I

am not even sure what this term means. The “Te x as S h u ffle Step,”sometimes ref err ed to as the “Te x as Two Step,” i s a dance that “ may be danc ed to any

four- count music and may be danced in forwa rd line of dance direc tion, sidewar d, or in place .” I doubt, howeve r, that L og an was attempting 1 dance steps. I also do not a g ree with the majority ’s repe ated ref ere nces to “ tactica l a dvantag es.” Surely it would be a tactica l advanta g e for police to execute all sear ches in the middle of the night without

a wa rra nt and without knocking . The Constituti on, howeve r, for bids such prac tices. More importantly , video evidenc e reve als that when the office rs came upon L o gan , they order ed him back into the c ar at least six times. L og an did not g et back in the car, and thus failed to submit to the office rs’ show of authority

. Such a failure to submit supports rea sonable suspicion. For this reason, I

join in the disposi tion of this case. I am nonetheless troubled by the overa ll events in this case . The police err oneously believed that L og an was trespassing

. They conver g ed on his c ar, fore closing his e scape . They order ed him back into the car . When L og an did not comply , they order ed him to come in their direc tion. He did.

Be tty Casey , Dance Across Texas , 106 (1985). 1 - 16 -No. 12-1099

United States v. Logan By not initially submitt ing, L og an’s acts g ave rise to rea sonable s u s p i ci o n , and, in turn, a lawful

sear ch. Perha

ps the only

way that L og an could have avoide d being subject t o a lawf ul searc h was to submit to an unlawful one. Whil e I believe that this is the corr ect result in this case , it shows how

cra mped the fre edoms aff

orded by the Four

th Amendme n t may become when office rs make

rea sonable mistakes.

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