UNITED STATES COURT OF APPEALS 

FIFTH CIRCUIT

______________________________

No. 91-8044

______________________________

UNITED STATES OF AMERICA,

Plaintiff-Appellant,

versus

MICHAEL ANTHONY HOLLOWAY,

Defendant-Appellee.

___________________________________________________

Appeal from the United States District Court 

for the Western District of Texas

___________________________________________________

(May 27, 1992)

Before DAVIS, JONES, and EMILIO M. GARZA, Circuit Judges.

EMILIO M. GARZA, Circuit Judge:

This case is an appeal of a district court order suppressing

cocaine found concealed in the undergarments of Michael Anthony

Holloway. Cocaine was seized when, acting on information

supplied by a reliable confidential informant, officers in an

unmarked vehicle pulled out in front of Holloway and forced him

to stop his vehicle. Holloway reversed, accelerated, and backed

into an unmarked police unit moving up behind him, damaging both

vehicles beyond repair. Officers then arrested Holloway and

found crack cocaine in a plastic bag tucked inside his underwear. 

Prior to trial, Holloway moved to suppress this evidence on the

grounds that it was the finding of an illegal search. Following

a hearing, the district court granted Holloway's motion to
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suppress. The government appeals. Finding that the search of

Holloway's person which revealed crack cocaine was incident to a

lawful arrest, we reverse the district court's order suppressing

the evidence and remand this case for trial.

I

The government's case rests in large part on the information

relayed to officers Staha and Thompson on August 21, 1989 from a

confidential informant--information officer Staha testified to at

trial:

A The confidential informant told us about a subject

that was selling "Crack" cocaine in the Rosewood

Projects [in Austin, Texas] and . . . [the] informant

told us his name, which was "Mike" Holloway; the car he

was driving, which was a Chrysler New Yorker; and told

us where we could find the vehicle, which was in the

Rosewood Projects.

Q Okay. Did he tell you anything about . . .

Holloway's possession of cocaine?

A Yes, sir. He told us that he was selling "Crack"

cocaine in the projects and he was in possession of

"Crack" cocaine, and he usually kept his "Crack"

cocaine in his underwear.

Q Had this confidential informant provided

information to you in the past?

A Yes, he has.

Q Was it regarding individuals who possessed and

sold "Crack" cocaine?

A That's correct.

Q And had that information then led to the arrest

and subsequent prosecutions of those people?

A Yes, sir.

Q All right. Did you know the person that was

identified to you as--or had been named to you as

Holloway?

A I'd known him when I used to work the

streets . . . in uniform. I knew Michael from an

establishment called Martin's Drive-in.

Q All right. What did you know about Holloway?

A Personal knowledge, from informants and other

sources of information, I knew he was a drug dealer out

in east Austin area.

Q Okay. Besides the confidential informant that you

first told the Court about, did other confidential
 

1 Record on Appeal, vol. 3, at 4-6, United States v.

Michael Anthony Holloway, No. 91-8044 (5th Cir. filed Apr. 11,

1991) ["Record on Appeal"].

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informants give you information about Holloway being a

drug dealer?

A Yes, sir.

Q All right. And did you have information that

Holloway had recently--at least at the time that you

were on the streets out there in August--recently

gotten out of the penitentiary for selling narcotics?

A Yes.

Q Did the other officer and officers that were with

you working that day, were they also aware of Mr.

Holloway's prior drug dealing propensities?

A Oh, yes, sir.

Q All right. And did y'all talk about this?

A Holloway was--when we target an individual,

Holloway was a person that we had targeted in the past. 

We never was able to make a case on him, but pretty

much the whole Repeat Offenders Program office knew

about Michael Holloway . . . .1

Acting within hours of receiving this information, officers

Staha and Thompson who were in an unmarked police unit arranged

for a marked unit to stop and investigate Holloway's Chrysler New

Yorker. Expecting that the investigation would turn up

narcotics, they also arranged for additional support and,

accordingly, they were soon joined by officers Clark and Duty--

two additional plainclothes officers in another unmarked unit. 

At approximately 4:45 on a August 21, 1989, while waiting

for the marked unit, officers Staha and Thompson observed

Holloway and another individual get into a Chrysler New Yorker. 

The vehicle pulled away from the curb and started to leave. 

Deciding they had to act, Staha and Thompson drove their vehicle

into the street and blocked Holloway's direction of travel. The
 

2 A seizure may constitute an arrest or merely an

investigatory detention, and there is no bright-line rule to

distinguish one from the other. We have held that such a

determination depends upon the "reasonableness" of the intrusion

in light of all the facts. See United States v. Martinez, 808

F.2d 1050, 1053 (5th Cir.), cert. denied, 481 U.S. 1032 (1987),

describing United States v. Sharpe, 470 U.S. 675, 105 S. Ct. 1568

(1985) (holding that--where officer drew his gun, ordered driver

out of truck, patted him down for weapons, and detained him for

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officers then got out of the vehicle and--their guns drawn and

Staha displaying his badge--yelled "Police, police, police." 

Holloway came to a momentary stop ten to fifteen feet in

front of the officers. Unaware that the unit occupied by

officers Duty and Clark was pulling up behind him, Holloway then

reversed his vehicle, accelerated, and rammed into the unit

occupied by Clark and Duty with enough force to damage both

vehicles beyond repair. The officers then helped Holloway out of

his vehicle, frisked him, and found a bag containing seven rocks

of crack cocaine concealed in his underwear. 

A grand jury indicted Holloway for possessing more than 5

grams of cocaine base with intent to distribute--a violation of

21 U.S.C. § 841(a)(1). Holloway moved to suppress the plastic

bag containing crack cocaine as the product of an illegal search,

and, after a hearing during which testimony was taken and

exhibits were introduced, the district court granted that motion

suppressing the evidence. The government appeals.

II

The issues the government brings before us require us to

make two determinations: (a) when Holloway was "seized" for

Fourth Amendment purposes2 and, (b) whether, at the time of that
fifteen minutes until DEA agent arrived, and suspect's vehicle

was then searched by DEA agent--detention was an investigative

stop that required only reasonable suspicion of criminal

activity); see also United States v. Watson, No. 91-3313, slip

op. at 2586 n. 1 (5th Cir. Jan. 31, 1992) (describing how, in

determining when a "seizure" has occurred, police-citizen contact

can be broken down into three tiers); United States v. Zukas, 843

F.2d 179, 181-82 (5th Cir. 1988) (describing three tiers of

citizen-police contact for purposes of Fourth Amendment

analysis), cert. denied, 490 U.S. 1019, 109 S. Ct. 1742 (1989). 

Therefore, our determinations will vary from case to case,

depending on the facts presented. See Sibron v. New York, 392

U.S. 40, 59, 88 S. Ct. 1889, 1901 (1968) ("The constitutional

validity of a warrantless search is pre-eminently the sort of

question which can only be decided in the concrete factual

context of the individual case.").

 

3 See INS v. Delgado, 466 U.S. 210, 216-17, 104 S. Ct.

1758, 1762-63 (1984) (holding that one must look to circumstances

of encounter to determine whether detention under Fourth

Amendment took place); Florida v. Royer, 460 U.S. 491, 500, 103

S. Ct. 1319, 1325 (1983) ("The scope of the intrusion permitted

will vary to some extent with the particular facts and

circumstances of each case."); United States v. Worthington, 544

F.2d 1275, 1279 (5th Cir.), cert. denied, 434 U.S. 817 (1977).

 

4 See Anderson v. Bessemer City, 470 U.S. 564, 573-74,

105 S. Ct. 1504, 1511-12 (1985); United States v. Kohler, 836

F.2d 885, 888 (5th Cir. 1988); United States v. Fores, 816 F.2d

1006, 1010 (5th Cir. 1987).

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seizure, officers had the requisite reasonable suspicion to

initiate an investigatory detention of Holloway or probable cause

to arrest him. 

Precisely when an arrest takes place is generally a question

of fact,3 and this court accepts a district court's purely

factual findings unless clearly erroneous.4 However, in

reviewing a district court's ruling on a motion to suppress based

on live testimony at a suppression hearing, we do not readily

accept a district court's factual findings if they are influenced

by an incorrect view of law. See United States v. Gallo, 927
 

5 Muniz-Melchor, 894 F.2d at 1439 n.9 ("The determination

whether law enforcement officers had probable cause to conduct a

warrantless search involves a mixed question of law and fact.").

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F.2d 815, 819 (5th Cir. 1991) ("In reviewing the district court's

ruling on a motion to suppress based on live testimony at a

suppression hearing, we must accept the district court's factual

findings unless they are clearly erroneous or influenced by an

incorrect view of the law.") (emphasis added); United States v.

Muniz-Melchor, 894 F.2d 1430, 1433-34 (5th Cir. 1990) (holding

that "the trial court's purely factual findings must be accepted

unless clearly erroneous, or influenced by an incorrect view of

the law, and the evidence must be viewed most favorable to the

party prevailing below . . . ."), cert. denied, 110 S. Ct. 1957

(1990), quoting United States v. Maldonado, 735 F.2d 809, 814

(5th Cir. 1984). 

The government has no quarrel with the district court's

factual findings in this case and challenges the district court's

determination that the officers did not have probable cause to

conduct a warrantless search and arrest of Holloway--a mixed

question of law and fact5--on the grounds that the district

court's determination was influenced by an incorrect view of law. 

Id. ("Accepting [the district court's] facts, however, the

ultimate determination as to probable cause for a warrantless

search seems to be a question of law for this Court to decide.");

United States v. Basey, 816 F.2d 980, 988 (5th Cir. 1987) ("The

ultimate determination of reasonableness in investigatory stop

cases is, however, a conclusion of law."). Accordingly, the
 

6 Record Excerpts for the United States of America at tab

14, pp. 3-4, United States v. Michael Anthony Holloway, No. 91-

8044 (5th Cir. filed June 7, 1991) (Order Granting Defendant's

Motion to Suppress) (emphasis added) ["Record Excerpts"].

 

7 See infra Part II.B, which establishes that reasonable

suspicion is the prerequisite for a valid investigatory stop

while probable cause is required for a valid arrest.

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government's appeal is limited to pure questions of law and the

legal element of a mixed question of law and fact--questions this

court may freely review. See Muniz-Melchor, 894 F.2d at 1439 n.

9; Basey, 816 F.2d at 988.

A

The district court found that:

This was not an investigatory stop as the Government

insists, because, as Officer Howard Staha testified,

the officers' intent at all times was to arrest the

Defendant. As Staha testified, the Austin officers had

a strong desire to arrest Holloway for a long time. 

Upon receiving the information from the confidential

informant, they immediately moved to arrest Holloway;

not to obtain a warrant; not to investigate, but to

arrest. Holloway's actions after he was accosted by

the officers is, unfortunately, irrelevant.6

The government challenges this determination, asserting that the

officers' intention was to stop Holloway so as to either dispel

their reasonable suspicion or, should their suspicion prove valid

enough to establish probable cause, arrest him. The government

asserts that the officers never had an opportunity to dispel

their suspicion and that they seized Holloway only after he

attempted to escape--a time when the officers allegedly had

probable cause to arrest him.7

Our determination of when Holloway was seized for Fourth

Amendment purposes is guided by a series of recent Supreme Court
 

8 We note that the district court issued its opinion on

July 9, 1990 and entered an order denying the government's motion

for reconsideration of its order to suppress the cocaine on

December 7, 1990. Since Hodari D. was not decided by the Supreme

Court until April 23, 1991, the district court did not have the

benefit of its guidance in ruling on these motions. Hodari D.'s

predecessors include Alabama v. White, 496 U.S. 325, __, 110 S.

Ct. 2412, 2415-17 (1990) (defining and distinguishing the

government's burdens regarding reasonable suspicion and probable

cause); Brower v. Inyo County, 489 U.S. 593, 596, 109 S. Ct.

1378, 1381-83 (1989) (where a suspect was caught when stolen car

he was driving at high speeds to elude pursuing police crashed

into police roadblock, holding there was not a "stop" until the

suspect crashed into a blockade); United States v. Sokolow, 490

U.S. 1, 9, 109 S. Ct. 1581, 1586 (1989) (holding that factors

that ordinarily constitute innocent behavior may provide a

composite picture sufficient to raise reasonable suspicion).

 

9 See Brower v. County of Inyo, 489 U.S. 593, 596, 109 S.

Ct. 1378, 1381 (1989). In Brower, police cars with flashing

lights chased decedent for 20 miles before he fatally crashed

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decisions culminating in California v. Hodari D., __ U.S. __, 111

S. Ct. 1547 (1991).8 The facts in Hodari D. are somewhat

analogous to those now before us: upon a showing of authority by

police officers, Hodari D., a juvenile, attempted to flee and was

pursued. Ultimately, Hodari D. was tackled by a police officer,

but not until after he had discarded a small rock--a rock which

the officers retrieved and determined to be crack cocaine. The

Court held that Hodari was not seized until tackled and that the

cocaine he abandoned while fleeing--prior to his seizure--was not

the fruit of an illegal seizure. __ U.S. at __, 111 S. Ct. at

1551. Specifically, the Court held that "[a]n arrest requires

either physical force . . . or, where that is absent, submission

to the assertion of authority." Id. (emphasis in original). 

Officers Staha and Thompson did carry out a proper show of

authority9--a show of authority to which Holloway ultimately
into a police-erected blockade. The issue before the Court was

whether this person's death was the consequence of an

unreasonable seizure. The Court, finding that the officers' show

of authority did not result in a seizure since the show of

authority did not stop decedent, held that:

a Fourth Amendment seizure does not occur whenever

there is a governmentally caused termination of an

individual's freedom of movement (the innocent

passerby), nor even whenever there is a governmentally

caused and governmentally desired termination of an

individual's freedom of movement (the fleeing felon),

but only when there is a governmental termination of

freedom of movement through means intentionally

applied.

Id. at 596-97, 109 S. Ct. at 1381 (emphasis in original). 

Applying Brower, the Court later held that "the test for

existence of a `show of authority' is an objective one: not

whether the citizen perceived that he was being ordered to

restrict his movement, but whether the officer's words and

actions would have conveyed that to a reasonable person." Hodari

D., __ U.S. at __, 111 S. Ct. at 1551. In the case before us,

officer Staha displayed his badge and both officer Staha and

officer Thompson verbally identified themselves as police when

Holloway was no more than fifteen feet away and facing them. 

Accordingly, we find that this constitutes a proper show of

authority.

 

10 Specifically, for incidents where a suspect refuses to

submit to an assertion of authority or no such assertion is made,

Hodari D. defines the term "seizure" as "a laying on of hands or

application of physical force to restrain movement, even when it

is ultimately unsuccessful." __ U.S. at __, 111 S. Ct. at 1550. 

 

11 Appellee's Brief in Response at 8, United States v.

Michael Anthony Holloway, No. 91-8044 (5th Cir. filed Aug. 22,

1991). We are not persuaded, however, that Hodari D necessarily

applies to an investigatory stop.

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refused to submit. The question before us is, therefore,

narrowed to determining whether Holloway was subjected to

physical force prior to his attempted escape.10 According to

Holloway, Hodari D. does not require physical touching to affect

an "application of physical force with lawful authority to

restrain movement"11 and, therefore, blocking Holloway's path of

direction constituted such an application of physical force. 
 

12 Holloway cites Terry v. Ohio, 392 U.S. 1, 19 n.16, 88

S. Ct. 1868, 1879 n.16 (1968), in support of this proposition. 

This Terry footnote does not define "physical force" and, in

fact, Terry involved touching: "Officer McFadden `seized'

petitioner and subjected him to a `search' when he took hold of

him and patted down the outer surfaces of his clothing." Id. at

21, 88 S. Ct. at 1879. 

 

13 In Hodari D., the Court also held that:

To constitute an arrest, however--the quintessential

`seizure of the person' under our Fourth Amendment

jurisprudence--the mere grasping or application of

physical force with lawful authority, whether or not it

succeeded in subduing the arrestee, was

sufficient. . . . As one commentator has described it:

"There can be constructive detention, which

will constitute an arrest, although the party

is never actually brought within the physical

control of the party making an arrest. This

is accomplished by merely touching, however

slightly, the body of the accused, by the

party making the arrest and for that purpose,

although he does not succeed in stopping or

holding him even for an instant; as where the

bailiff had tried to arrest one who fought

him off by the fork, the court said, `If the

bailiff had touched him, that had been an

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Hodari D. is not explicit as to whether touching is an essential

element of "application of physical force," but we have found no

post-Hodari D. cases supporting Holloway's proposition that

touching is not required.12 To the contrary, the emphasis on

touching within Hodari D.'s analysis suggests that the Court may

have assumed touching to be an element of "application of

physical force." Hodari D., __ U.S. at __, 111 S. Ct. at 1550

("If, for example [the officer] had laid his hands upon Hodari to

arrest him, but Hodari had broken away and had then cast away the

cocaine, it would hardly be realistic to say that disclosure had

been made during the course of an arrest.") (emphasis in

original).13 Applying the Court's Hodari D. analysis to
arrest. . . .'" A. CORNELIUS, SEARCH AND SEIZURE

163-164 (2d ed. 1930) (footnote omitted)

Id. (citations omitted) (emphasis added). 

This Hodari D. holding appears determinative for our

purposes. The only obvious distinction between the Hodari D.

facts and those in Holloway is that, while attempting to back

away from officers Staha and Thompson, another police vehicle

moved up from behind Holloway, thereby boxing him in and giving

Holloway a lesser opportunity to escape than that enjoyed by

Hodari D. However, Holloway was still not under the officers'

control--an observation evidenced by the fact that Holloway was

able to slam into the unit behind him, travelling far enough to

pick up enough speed to damage both vehicles beyond repair. In

fact, Holloway hit with enough force to buckle the driver's seat

he occupied. A photograph of the totalled vehicles, entered into

evidence as "Government Exhibit G-2," reveals that the entire

trunk of Holloway's vehicle is virtually resting on the ground. 

 

14 Officer Staha testified as follows:

Q So then when you say you were--"you were 10 feet

away," you were 10 feet away from the bumper?

A In front of the bumper, right.

Q All right. So it was actually maybe 15 or 17 feet

to actually where the Defendant was sitting, is that

correct?

A Approximately.

* * *

Q All right. So the windows, then, were all the way

up on this vehicle, and you were maybe 15 feet away

from the driver, and your partner was maybe just a

little--

A About the same.

Record on Appeal, vol. 3, at 25 (testimony of officer Staha)

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Holloway, Staha and Thompson never laid their hands upon

Holloway--they never even came within fifteen feet of Holloway's

person until after he attempted to flee and damaged his vehicle

beyond repair14--and, in fact, Holloway was able to break away

from officers Staha and Thompson and travel far enough to pick up

enough speed to irreparably damage both his vehicle and the one

occupied by officers Duty and Clark. Only then was Holloway's

movement restrained--meaning under the officers' control.

This court has held that:
 

15 The Zukas facts at least loosely parallel those now

before us. Officers observed their suspects and, when it became

apparent that the suspects were making final flight preparations,

the officers parked their car in front of the suspects' plane so

as to block its access to the runway. The officers then

approached the pilot and asked for identification and

registration papers which they retained and, after questioning

the suspects further, the officers then obtained consent to

search the plane and found a bag containing cocaine. Id. at 181. 

We held that:

Although both sides agree that the search was

voluntary, it cannot be justified if the preceding

level of intrusion made the seizure a de facto arrest

before the consent was given, as Zukas argues was the

case. We hold, however, that, based upon the totality

of the circumstances, the level of intrusion prior to

the consent search was no more than was necessary to

dispel the officers' legitimate suspicions.

Id. at 183.

 

16 See supra note 1; see generally infra Part II.B.

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The line between a valid investigatory stop and an

arrest requiring probable cause is a fine one. United

States v. Hanson, 801 F.2d 757 (5th Cir. 1986). 

Although there is no litmus test for making this

determination, an investigation detention must last no

longer than is necessary to effect the purposes of the

stop and should employ the least intrusive means

reasonably available to verify or dispel the officer's

suspicion in a short period of time. Florida v. Royer,

460 U.S. 491, 500, 103 S. Ct. 1319, 1325, 75 L.Ed.2d

229 (1983). See also United States v. Sharpe, 470 U.S.

675, 105 S.Ct. 1568, 84 L.Ed.2d 605 (1985).

United States v. Zukas, 843 F.2d 179, 182 (5th Cir. 1988), cert.

denied, 490 U.S. 1019, 109 S. Ct. 1742.15 Applying this holding

to Holloway, officers Staha and Thompson had reason to suspect

that Holloway was carrying drugs,16 and they acted to stop him

from driving away before they had an opportunity to dispel their

suspicion. The officers did block Holloway's path of travel and

bring him to a complete stop which lasted long enough for them to

fully and directly confront Holloway and identify themselves, and
 

17 These facts somewhat distinguish Holloway from Hodari

D., __ U.S. __, 111 S. Ct. 1547 (1991). Specifically, Hodari D.

was one of a pack of youths who fled as he saw an officer's car

approaching. Accordingly, the Court held that Hodari D. was not

seized for Fourth Amendment purposes until tackled by the officer

pursuing him. Id. at __, 111 S. Ct. at 1552.

 

18 See supra note 6 and accompanying text. 

 

19 For example, in United States v. Robinson, 414 U.S.

218, 94 S. Ct. 467 (1973), the defendant challenged his search on

the ground that the officers' motivation for the search did not

coincide with the officers' legal justification for carrying it

out. The Supreme Court rejected defendant's argument and held

that the courts must examine challenged searches under a standard

of objective reasonableness without regard to the underlying

intent or motivation of the officers involved. Id. at 235, 94 S.

Ct. at 477; see also Maryland v. Macon, 472 U.S. 463, 470-71, 105

S. Ct. 2778, 2782-83 (1985); United States v. Villamonte-Marquez,

462 U.S. 579, 584 n.3, 103 S. Ct. 2573, 2577 n.3 (1983); Scott v.

United States, 436 U.S. 128, 138, 98 S. Ct. 1717, 1723 (1978);

United States v. Zukas, 843 F.2d 179, 183 (5th Cir. 1988)

("[officer's] subjective intent is not important in determining

whether an arrest was made"), cert. denied, 490 U.S. 1019, 109 S.

Ct. 1742; United States v. Causey, 834 F.2d 1179, 1184 (5th Cir.

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long enough for officers Clark and Duty to approach Holloway from

behind, thereby limiting Holloway's mobility.17 However, the

initial stop by Staha and Thompson was extremely brief and never

approached being intrusive since, rather than allowing the

officers to conduct their investigation, Holloway decided to

flee. 

Finally, in accepting Holloway's contention that "assertion

of physical force" includes officers Thompson and Staha blocking

his path of travel, the district court was apparently influenced

by its own determination that the officers had the subjective

intent to arrest Holloway.18 The law on this point is wellsettled: courts are precluded from giving weight to the

subjective intent of the police officers.19
1987) (en banc) ("[S]o long as police do no more than they are

objectively authorized and legally permitted to do, their motives

in doing so are irrelevant and hence not subject to inquiry.")

(footnote omitted).

 

20 In a situation where an officer's suspicion was

supported only by a receipt indicating that the suspect had

purchased chemicals known to be used in the manufacture of

controlled substances, this court held:

Agent Harr's suspicions were aroused for the first time at

the offices of Aldrich and as the two were driving off. 

Because he did not know their names or where they were

heading, the stop on the highway was a reasonable means of

confirming or dispelling his suspicions. The method of the

stop--blocking the Oldsmobile, ordering the occupants out of

the car, and patting them down for weapons--is a reasonable

means of effecting the stop and ensuring the safety of the

officers and does not convert the stop into a de facto

arrest.

United States v. Martinez, 808 F.2d 1050, 1053 (5th Cir. 1987)

(footnote omitted); see also supra note 2.

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In sum, we find that, (i) since Holloway was in the process

of driving away, stopping Holloway was the least intrusive means

available for officers Thompson and Staha to dispel their

suspicion (see Zukas, 843 F.2d at 183), (ii) Holloway was fully

stopped and confronted by officers Thompson and Staha but failed

to submitted to their initial show of authority, (iii) Holloway

was never under the officers' physical control even though his

mobility was limited by officers closing in on him, and (iv) that

this stop--an effort by officers Staha and Thompson to search

Holloway for drugs to dispel their suspicion--was, due to

Holloway's attempted escape, extremely brief and nonintrusive. 

Accordingly, we hold that the initial stop of Holloway by

officers Staha and Thompson was not a de facto arrest20 and,

applying the Supreme Court's holding in Hodari D., we further
 

21 Under Terry and its progeny, a temporary investigatory

stop is proper if the stop is based on reasonable suspicion "that

criminal activity may be afoot . . . ." 392 U.S. at 30, 88 S.

Ct. at 1884.

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hold that Holloway was not arrested until after he attempted to

flee and ended up under the officers' physical control.

B

Having applied Hodari D. to the facts before us and

determined that the initial contact between Holloway and officers

Staha and Thompson does not constitute an arrest but, rather,

constitutes an effort by these officers to investigate their

suspicion that Holloway was carrying drugs, we now must consider

whether the officers had the requisite reasonable suspicion to

initiate that detention.21 "The ultimate determination of

reasonableness in investigatory stop cases is . . . a conclusion

of law." United States v. Basey, 816 F.2d 980, 988 (5th Cir.

1987). Therefore, this court may freely review such district

court conclusions.

This court has defined an investigatory stop as "a brief

seizure that must be supported by reasonable suspicion, that

is[,] `specific and articulable facts, which taken together with

rational inferences from these facts reasonably warrant an

intrusion.'" United States v. Zukas, 843 F.2d 179, 181 (5th Cir.

1988), cert. denied, 490 U.S. 1019, 109 S. Ct. 1742 (1989),

quoting Terry, 392 U.S. at 21, 88 S. Ct. at 1880 (1968). The

Supreme Court has been even more specific:

The officer, of course, must be able to articulate

something more than an "inchoate and unparticularized
 

22 We must consider the collective knowledge and

experience of the officers involved--that is we must look at "the

sum total of layers of information and the synthesis of what the

police have heard, what they know, and what they observed as

trained officers. We weigh not the individual layers but the

`laminated' total." United States v. Edwards, 577 F.2d 883, 895

(5th Cir.), cert. denied, 439 U.S. 968, 99 S. Ct. 458 (1978)

(citation omitted); see also United States v. Gerry, 845 F.2d 34,

37 (1st Cir. 1988).

-16-

suspicion or `hunch'." The Fourth Amendment requires

"some minimal level of objective justification" for

making the stop. That level of suspicion is

considerably less than proof of wrongdoing by a

preponderance of the evidence. We have held that

probable cause means "a fair probability that

contraband or evidence of a crime will be found," and

the level of suspicion required for a Terry stop is

obviously less demanding than that for probable cause. 

United States v. Sokolow, 490 U.S. 1, 7, 109 S. Ct. 1581, 1585

(1989) (citations omitted). 

To determine whether officers Staha and Thompson had

reasonable suspicion to stop Holloway, we must consider the

"totality of the circumstances," meaning that "[b]oth factors--

quantity and quality [of information relied upon]--are considered

in the `totality of the circumstances--the whole picture,' United

States v. Cortez, 449 U.S. 411, 417, 101 S. Ct. 690, 695 (1981),

that must be taken into account when evaluating whether there is

reasonable suspicion." Alabama v. White, 496 U.S. 325, __, 110

S. Ct. 2412, 2416 (1990). Factors that ordinarily constitute

innocent behavior may provide a composite picture sufficient to

raise reasonable suspicion in the minds of experienced22 officers

such as Staha and Thompson. See Sokolow, 490 U.S. at 9, 109 S.
 

23 For example, a tip from a confidential informant which

is sufficiently corroborated, as is true in Holloway, may furnish

the requisite reasonable suspicion to make and investigative

stop. See United States v. Rodriquez, 835 F.2d 1090, 1092 (5th

Cir. 1988); United States v. Gomez, 776 F.2d 542, 546-48 (5th

Cir. 1985). 

 

24 The defendant in Sokolow was stopped as he was about to

get into a cab and later asserted that, rather than forcibly

detaining him, agents should have opted for the "least intrusive

means reasonably available to dispel their suspicion" and simply

approached and spoken with him. The Court disagreed, holding

that "[s]uch a rule would unduly hamper the police's ability to

make swift on-the-spot decisions . . ." Id. This is especially

true in a situation such as that in Holloway where the defendant

was actually in a vehicle and in the process of driving away.

 

25 See supra note 1 and accompanying text.

 

26 Id.; see also Record on Appeal, vol. 3, at 13-20

(testimony of officer Staha):

Q . . . . [The confidential informant] was debriefed

on the street. And at that time, he indicated to you

that he had seen the Defendant in possession of "Crack"

-17-

Ct. at 1586-87 (1989).23 Moreover, "[t]he reasonableness of the

officer's decision to stop a suspect does not turn on the

availability of less intrusive investigatory techniques." Id. at

11, 109 S. Ct. at 1587.24

 The totality of information available to officers Staha and

Thompson justifies their reasonable suspicion that Holloway was

involved in criminal activity: 

-- A reliable informant--that is, an informant who had

provided reliable information to officers in the past

regarding individuals who possessed and sold crack

cocaine--stated that Holloway was a crack dealer;25

-- The informant described Holloway's possession of

cocaine as part of an ongoing activity (specifically,

the informant told the officers that Holloway often

sold crack cocaine at the corner of Rosewood and

Poquito Streets), and stated that he had just been with

Holloway and seen him in possession of and selling

crack cocaine;26
cocaine a time before -- a brief time before that, is

that correct?

A Yeah, just moments before we went to the area.

Q All right. How long, an hour, a half hour?

* * *

Q . . . . Officer Thompson indicated that the

confidential informant reported the possession to take

place approximately a half hour before the debriefing?

A I can--I would agree with that.

* * *

Q [The informant] had seen him actually selling a

half hour before, is that correct?

A That's correct.

Q All right. And your debriefing took approximately

how long, Officer?

A Oh, 15 minutes.

Q And then after that debriefing, what did you do?

A We proceeded to the area with the informant, he

pointed out the car to us, and then as I recall, the

informant was released at the scene--

 

27 See supra note 1 and accompanying text.

 

28 Id.; see also Record on Appeal, vol. 3, at 11

(testimony of officer Staha): 

Q So now, after you've seen this wreck, what's the

next thing that happens?

A Thompson and I approached the car, Thompson--the

seat buckled from the wreck. . . . There's no doubt

that Holloway knew who I was, knew I was a police

officer.

Q Now, why is there no doubt?

A Well, unfortunately when I worked east Austin, I

was titled with a nickname. . . . Besides saying my

last name, Staha, he said the nickname to me, too.

Q Tell the Judge, to the best of your memory, what

the Defendant said when he was taken out of the car.

A He said, "Staha, why are you always messing with

me?" And then he said--which is the nickname--he said,

-18-

-- The informant's credibility was enhanced by his

ability to provide supportive details: he told

officers (i) exactly where Holloway could be found,

(ii) the color, style, and license plate number of the

car Holloway would be driving, and (iii) exactly where

on Holloway's person cocaine was hidden;27

-- Officer Staha confirmed the informant's information

through personal knowledge--information collected from

other informants and sources--gained while working the

streets as a uniformed officer;28 and 
"`Fathead,' why you"--and he cursed at me--"why are you

always fuckin' with me?"

 

29 See supra note 1 and accompanying text.

 

30 In United States v. Costner, 646 F.2d 234 (5th Cir.

1981), we held:

The officers had been given descriptions of both robbers and

knew the license plate numbers of the getaway truck. The

license plate check directed the officers to Baldwin's

residence at which time a car was seen heading for Baldwin's

driveway. The officers decided to inquire into the

identities of the passengers since two of the occupants fit

the general physical descriptions of the robbers. These

factors were more than sufficient to create reasonable

suspicion in the minds of the officers to stop the Plymouth.

Id. at 236. Officers Staha and Thompson had at least this much

reason to suspect Holloway of criminal activity.

-19-

-- The officers knew that Holloway had recently been

released from the penitentiary after serving time on a

conviction involving possession of narcotics.29

In short, "[a]ny one of these factors is not by itself proof of

any illegal conduct . . . . [b]ut we think taken together they

amount to reasonable suspicion." Sokolow, 490 U.S. at 9, 109 S.

Ct. at 1586. Accordingly, we hold that the officers had

reasonable suspicion and that the investigatory stop of

Holloway's car was proper.30

 Finally, we must consider whether, after his attempt to

escape, the officers had probable cause to arrest Holloway. 

"Probable cause for an arrest exists when reasonably trustworthy

facts and circumstances are within the knowledge of the arresting

officers to warrant a reasonable belief that an offense has been

or is being committed." Costner, 646 F.2d at 236. To make such

a determination, this court must embark upon an objective

assessment of the officers' actions in light of the facts and
 

31 Specifically, in Amuny we held that:

If a police officer identifies himself while

approaching a suspect and the suspect flees, the

suspect's conduct suggests that he knowingly seeks to

evade questioning or capture. Such conduct ordinarily

supplies another element to the reasonable suspicion

calculus . . . but may occasionally serve as the

catalyst to convert mere reasonable suspicion to

probable cause.

Id. (but ultimately holding that defendant's flight from scene

was ambiguous conduct and insufficient to support finding of

probable cause); see also Sibron v. New York, 392 U.S. 40, 66-67,

88 S. Ct. 1889, 1904 (1968) ("[D]eliberately furtive actions and

flight at the approach of strangers or law officers are strong

indicia of mens rea, and when coupled with specific knowledge on

the part of the officer relating the suspect to the evidence of

crime, they are proper factors to be considered in the decision

to make an arrest.").

 

32 In fact, even without Holloway's attempt to escape, the

totality of information available to officers Staha and Thompson

may have constituted probable cause. See infra notes 25-29 and

accompanying text.

-20-

circumstances confronting them at the time. See United States v.

Basey, 816 F.2d 980, 990-91 (5th Cir. 1987). We have held that,

where police officers clearly identify themselves, an attempt to

flee "ordinarily supplies another element to the reasonable

suspicion calculus" and "may occasionally serve as the catalyst

to convert mere reasonable suspicion to probable cause." United

States v. Amuny, 767 F.2d 1113, 1124 (5th Cir. 1985).31 Applying

these principles to the case before us, we find that Holloway's

attempt to escape from officers Staha and Thompson, irreparably

damaging his vehicle and a police unit in the process, was a

sufficient additional factor to push the officers' reasonable

suspicion over the threshold of probable cause. See Costner, 646

F.2d at 236.32 
-21-

III

Finding that Holloway's arrest was lawful, that the search

of his person revealing cocaine was incident to that lawful

arrest, and that the cocaine found concealed in Holloway's

undergarments should not be suppressed, we REVERSE the district

court's order suppressing that evidence and REMAND this case for

trial.