UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 06-4474

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

BRODERICK F. JONES,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern

District of Virginia, at Richmond. Robert E. Payne, District

Judge. (3:05-cv-00253-REP)

Argued: March 13, 2007 Decided: May 24, 2007

Before NIEMEYER, MICHAEL, and TRAXLER, Circuit Judges.

Affirmed by unpublished per curiam opinion.

ARGUED: Robert James Wagner, Assistant Federal Public Defender,

OFFICE OF THE FEDERAL PUBLIC DEFENDER, Richmond, Virginia, for

Appellant. Stephen Wiley Miller, OFFICE OF THE UNITED STATES

ATTORNEY, Richmond, Virginia, for Appellee. ON BRIEF: Michael S.

Nachmanoff, Acting Federal Public Defender, Alexandria, Virginia,

Sapna Mirchandani, Research and Writing Attorney, OFFICE OF THE

FEDERAL PUBLIC DEFENDER, Richmond, Virginia, for Appellant. Chuck

Rosenberg, United States Attorney, Angela Mastandrea-Miller,

Assistant United States Attorney, Richmond, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:

Defendant Broderick F. Jones was found guilty after a bench

trial of unlawful possession of a firearm by a felon in violation

of 18 U.S.C.A. § 922(g)(1) (West 2000). The district court

sentenced Jones to 51 months imprisonment. On appeal, Jones

contends that the district court erred in denying his motion to

suppress evidence and in refusing to apply a two-level reduction to

his offense level based on acceptance of responsibility. For the

following reasons, we affirm.

I.

On the evening of March 6, 2005, into the early hours of

March 7, 2005, Sergeant Chris Preuss of the Virginia Commonwealth

University Police Department was patrolling on a bicycle outside a

nightclub called the 534 Club, which is in a known high-crime area

in Richmond, Virginia. At approximately two o’clock in the

morning, Club 534 was closing and more than 500 people were

lingering around the area. An altercation involving fifteen to

twenty female club patrons ensued, and Sergeant Preuss and other

officers were called to intercede and restore order. While he was

following several of the women involved in the altercation down the

street, a woman in a car approached Sergeant Preuss and told him

that she had seen a black male with a gun in his hand standing by

the very last car on the right hand side of the parking lot near
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Club 534. Seconds later, Sergeant Preuss went directly to the

location and observed a black male standing near a car that was

parked in the back right hand corner of the parking lot. The man

was later identified as the defendant. Sergeant Preuss observed a

second man, later identified as Corry Woody, who appeared to be

sleeping in the rear passenger seat of the car. 

Sergeant Preuss dismounted his bicycle and approached the car

to determine whether Jones was the individual described to him by

the citizen. As Sergeant Preuss approached the vehicle, Jones sat

down in the front passenger seat of the car, but left the door

ajar. Sergeant Preuss walked up to the car, stood in the wedge

between the side of the car and the open door, and asked Jones if

the man in the back seat was all right.

When Sergeant Preuss approached Jones, he observed that

Jones’s left hand was concealed between his knees. He asked Jones

what was in his left hand, and Jones opened his hand to show

Sergeant Preuss that it was empty. At that point, Jones suddenly

and without warning jumped from the passenger seat towards Sergeant

Preuss, which placed him “maybe a foot away” from Sergeant Preuss’s

face. J.A. 86. Viewing this as an overreaction to his question,

Sergeant Preuss put his hands up and backed away while asking Jones

what was going on. 

Sergeant Preuss testified that things then went “a little

haywire.” J.A. 86. In addition to Jones’s sudden and seemingly
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aggressive motion, Sergeant Preuss was then faced with a second

threat--with Jones no more than a foot from Sergeant Preuss’s face,

Woody woke up and became verbally combative. Concerned about his

own safety, Sergeant Preuss ordered Jones to turn around and place

his hands on the car in order to conduct a patdown search. Instead

of complying with this request, however, Jones doubled over,

falling into Sergeant Preuss while bringing his hands toward his

own body. After Jones doubled over, he complained of pain from a

gun shot wound. Sergeant Preuss believed the complaint was feigned

and pushed Jones upward toward the car. While these events were

unfolding, Woody, who continued to be verbally combative, tried to

exit the rear door of the vehicle, which Sergeant Preuss struggled

to prevent by simultaneously placing his body against the door. A

third man, Albert Anderson, also arrived and attempted to intercede

on Jones’s behalf.

During the struggle, Sergeant Preuss managed to call for

backup. Because several officers were still at the front of the

parking lot dealing with the aftermath of the earlier altercation,

help arrived quickly. Officer Milligan arrived and, upon observing

Woody attempting to reach under the rear car seat, drew his weapon

and ordered Woody to exit the car. Anderson was restrained after

attempting to charge other officers on the scene, and Jones was

taken to the ground and handcuffed. During a patdown search, the

officers retrieved a loaded .357 magnum from Jones’s outside jacket
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pocket and two additional firearms from the car, one under the

front passenger seat. Jones was charged with being a felon in

possession of a firearm.

Prior to trial, Jones moved to suppress the evidence seized on

the night of his arrest, arguing that his seizure violated the

Fourth Amendment. After an evidentiary hearing, the district court

denied Jones’s motion to suppress. Immediately thereafter, Jones

informed the court that he wished to enter a conditional guilty

plea that preserved his right to appeal the denial of his

suppression motion, any adverse rulings at sentencing, and any

other appellate issues. The government, however, would only agree

to a conditional plea that allowed an appeal of the suppression

issue.

After plea negotiations fell through, Jones proceeded to a

bench trial. On the morning of trial, after the district court

denied Jones’s motion to dismiss the indictment for Speedy Trial

Act violations, Jones stipulated to the evidence presented by the

government at the suppression hearing and at trial. Jones

presented no evidence and raised no new motions on his behalf. The

district court found Jones guilty of the charged offense.

The presentence investigation report (“PSR”) recommended that

Jones be assigned an offense level of 16 and a Category V criminal

history, resulting in a Guidelines range of 41 to 51 months

imprisonment. Jones objected to the PSR’s failure to reduce his
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offense level to reflect his acceptance of responsibility. See

U.S.S.G. § 3E1.1. Jones argued that he qualified for acceptance of

responsibility because he proceeded to trial for the sole purpose

of preserving appellate issues that were unrelated to his factual

guilt.

The district court overruled Jones’s objection and determined

that Jones failed to accept responsibility by continuing to

challenge the validity of his arrest on constitutional grounds, by

delaying in stipulating to the government’s evidence until the

morning of trial, and by failing to admit his guilt until he met

with the probation officer regarding his PSR. The court adopted

the PSR’s recommendations and sentenced Jones to 51 months

imprisonment. 

II.

The Fourth Amendment provides that “[t]he right of the people

to be secure in their persons, houses, papers, and effects, against

unreasonable searches and seizures, shall not be violated.” U.S.

Const. amend. IV. It was “designed to prevent arbitrary and

oppressive interference by enforcement officials with the privacy

and personal security of individuals.” INS v. Delgado, 466 U.S.

210, 215 (1984) (internal quotation marks omitted). “The Supreme

Court has recognized three distinct types of police-citizen

interactions: (1) arrest, which must be supported by probable
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cause; (2) brief investigatory stops, which must be supported by

reasonable articulable suspicion; and (3) brief encounters between

police and citizens, which require no objective justification.”

United States v. Weaver, 282 F.3d 302, 309 (4th Cir. 2002)

(citations omitted). In reviewing a denial of a motion to

suppress, “we review the factual findings of the district court for

clear error and its legal conclusions de novo.” See United States

v. Brown, 401 F.3d 588, 592 (4th Cir. 2005) (internal quotation

marks omitted).

Jones contends that the district court erred in denying his

motion to suppress the evidence as a result of his encounter with

Sergeant Preuss. Specifically, he asserts that he was unlawfully

seized on three occasions: when Sergeant Preuss positioned himself

within the passenger door opening, when Sergeant Preuss asked Jones

what was in his left hand, and when Sergeant Preuss ordered him to

turn around and place his hands on top of the car. Jones argues

that at no point did Sergeant Preuss have a reasonable, articulable

suspicion or probable cause to believe that Jones had engaged in

criminal activity. 

The district court found that the initial encounter between

Sergeant Preuss and Jones was consensual and, therefore, did not

implicate the protections of the Fourth Amendment. The district

court found that a seizure did occur when Sergeant Preuss ordered

Jones to place his hands on the car, but that this seizure did not
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violate Jones’s Fourth Amendment rights because “[t]he officer had

a reasonable articulable apprehension of an assault on a police

officer when the defendant jumped out of the car in response to a

perfectly simple limited, very civilly stated, nonauthoritatively

stated, question. . . . [T]he officer was entitled at that juncture

to stop the assault and he did.” J.A. 166. Accordingly, the

district court denied Jones’s motion to suppress. In sum, the

district court found that the seizure was justified by the totality

of the circumstances including the citizen report of an armed man

in the location where Jones was found, the high-crime area, and

Sergeant Preuss’s reasonable fear for his safety when Jones jumped

toward Sergeant Preuss in a seemingly aggressive manner.

A.

We begin with Jones’s challenge to the district court’s

finding that Jones’s encounter with Sergeant Preuss was a

consensual one prior to Jones’s act of jumping from the vehicle.

Determining whether an encounter was consensual or a seizure

requires consideration of many factors, such as whether there

existed “the threatening presence of several officers, the display

of a weapon by an officer, some physical touching of the person of

the citizen, or the use of language or tone of voice indicating

that compliance with the officer’s request might be compelled.”

United States v. Mendenhall, 446 U.S. 544, 554 (1980). A seizure
9

of the person occurs only when a law enforcement official, by means

of physical force or a show of authority, restrains the liberty of

a citizen in such a way that a reasonable person would believe he

was not free to terminate the encounter, and the person submits to

the show of authority. See California v. Hodari D., 499 U.S. 621,

626 (1991). “[A] seizure does not occur simply because a police

officer approaches an individual and asks a few questions. So long

as a reasonable person would feel free to disregard the police and

go about his business, the encounter is consensual and no

reasonable suspicion is required.” Florida v. Bostick, 501 U.S.

429, 434 (1991) (citation and internal quotation marks omitted). 

Having considered the facts in light of the appropriate

factors, we agree that Sergeant Preuss’s act of positioning himself

in the passenger doorway and asking Jones what was in his left hand

was a consensual police-citizen encounter. This encounter involved

only Sergeant Preuss and Jones. When Sergeant Preuss approached

Jones, Jones was already seated in the front seat of the vehicle

with the door ajar. Sergeant Preuss placed himself in the doorway

to speak with Jones, but the record contains no indication that his

placement was threatening or constituted a show of authority. He

asked Jones in a conversational tone whether Woody, who was asleep

in the rear seat, was okay and simply asked Jones what was in his

left hand. Sergeant Preuss never displayed his weapon, nor did he

touch or in any way prevent Jones from exiting the vehicle and
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terminating the conversation. Sergeant Preuss simply asked

questions, to which Jones voluntarily responded. Such an encounter

does not constitute a seizure. See Weaver, 282 F.3d at 312-13 (no

seizure where defendant voluntarily complied with officers’

requests). 

B. 

As found by the district court, when Jones jumped up

unexpectedly and Sergeant Preuss ordered him to turn around and

place his hands on top of the vehicle, the previously consensual

encounter did become a seizure, implicating Fourth Amendment

concerns. The question thus becomes whether Sergeant Preuss’s act

of seizing Jones, followed by the patdown which revealed the

initial handgun, was reasonable under the totality of the

circumstances. 

In Terry v. Ohio, 392 U.S. 1 (1968), the Supreme Court

recognized that

there must be a narrowly drawn authority to permit a

reasonable search for weapons for the protection of the

police officer, where he has reason to believe that he is

dealing with an armed and dangerous individual,

regardless of whether he has probable cause to arrest the

individual for a crime. The officer need not be

absolutely certain that the individual is armed; the

issue is whether a reasonably prudent man in the

circumstances would be warranted in the belief that his

safety or that of others was in danger. And in

determining whether the officer acted reasonably in such

circumstances, due weight must be given, not to his

inchoate and unparticularized suspicion or “hunch,” but

to the specific reasonable inferences which he is
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entitled to draw from the facts in light of his

experience.

Id. at 27 (internal citations omitted); see also United States v.

Raymond, 152 F.3d 309, 312 (4th Cir. 1998) (“Police may conduct a

patdown search without a warrant if, under the totality of the

circumstances, the officer has an articulable, reasonable suspicion

that a person is involved in criminal activity and that he is

armed. . . . If a reasonably prudent person would believe that his

safety, or the safety of others, is endangered, he may conduct a

limited search of outer clothing to discover any weapons.”

(internal citation omitted)). 

Here, Sergeant Preuss initially approached Jones in response

to an eyewitness report by a citizen who had observed a black male

carrying a firearm in a specific location within the Club 534

parking lot. Even if Sergeant Preuss did not have reasonable

suspicion for a Terry stop at that time, cf. Florida v. J.L., 529

U.S. 266, 271-72 (2000), when Jones unexpectedly and suddenly

jumped from the vehicle in response to Sergeant Preuss’s questions,

the circumstances evolved to present a much more suspicious and

dangerous climate. Sergeant Preuss had received an eyewitness

citizen report of an armed man in the exact location where he found

Jones, and Sergeant Preuss had been involved in dealing with the

altercation that had just occurred outside the nightclub, creating

heightened tension in an already-known high-crime area. When Jones

engaged in activity which Sergeant Preuss reasonably perceived to
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be aggressive in nature -- jumping from the vehicle suddenly and

unexpectedly in response to an innocuous question –- the totality

of the facts known to Sergeant Preuss combined to create a

reasonable, articulable suspicion that Sergeant Preuss was in

danger and that Jones was armed and dangerous.

As we have previously stated, “the very point of Terry was to

permit officers to take preventive action and conduct investigative

stops before crimes are committed, based on what they view as

suspicious -- albeit even legal -- activity.” United States v.

Perkins, 363 F.3d 317, 326 (4th Cir. 2004). “We cannot afford to

read the Fourth Amendment to require officers to wait until

criminal activity occurs, and perhaps until innocent bystanders are

physically harmed, before taking reasonable, preventive measures.”

Id. at 328; see Adams v. Williams, 407 U.S. 143, 145 (1972) (“The

Fourth Amendment does not require a policeman who lacks the precise

level of information necessary for probable cause to arrest to

simply shrug his shoulders and allow a crime to occur or a criminal

to escape. On the contrary, Terry recognizes that it may be the

essence of good police work to adopt an intermediate response.”).

Given the totality of the circumstances, we agree with the district

court that Sergeant Preuss was justified in seizing Jones and

conducting a patdown search for weapons. Accordingly, we affirm

the district court’s denial of Jones’s motion to suppress. 
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III.

Jones’s second contention is that the district court erred in

refusing to apply the two-level reduction of his offense level for

acceptance of responsibility under U.S.S.G. § 3E1.1. After the

suppression hearing, Jones wanted to enter a conditional guilty

plea preserving his right to appeal the denial of his suppression

motion, any adverse rulings at sentencing, and any other appellate

issues. The government offered Jones a plea agreement which would

allow him to appeal only the denial of his suppression motion, but

Jones declined the government’s limited offer. Jones elected a

bench trial, and on the morning of trial advised the court that he

would stipulate to the government’s evidence.

At the sentencing hearing, Jones argued that he was entitled

to the two-level acceptance of responsibility reduction because he

proceeded to trial solely to preserve his appellate rights on

issues unrelated to his factual guilt. The district court

overruled Jones’s objection, concluding that Jones’s desire to

preserve all of his rights to appeal, delay in stipulating to the

government’s evidence until the morning of trial, and failure to

admit his guilt until meeting with the probation officer regarding

the PSR amounted to the “antithesis of acceptance of

responsibility.” J.A. 350.

Section 3E1.1 provides for a two-level reduction of the

offense level “[i]f the defendant clearly demonstrates acceptance
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of responsibility for his offense.” U.S.S.G. § 3E1.1(a). Because

“[t]he sentencing judge is in a unique position to evaluate a

defendant’s acceptance of responsibility. . . . the determination

of the sentencing judge is entitled to great deference on review.”

U.S.S.G. § 3E1.1 comment. (n.5); see also United States v.

Greenwood, 928 F.2d 645, 646 (4th Cir. 1991) (“A trial judge's

determination that a defendant is entitled to a two-level reduction

for acceptance of responsibility under Guidelines § 3E1.1 is a

factual issue that will not be disturbed unless clearly

erroneous.”). 

As a general rule, acceptance of responsibility is

inconsistent with a defendant’s decision to exercise his right to

a trial. The Guidelines, however, provide for a narrow exception:

This adjustment is not intended to apply to a defendant

who puts the government to its burden of proof at trial

by denying the essential factual elements of guilt, is

convicted, and only then admits guilt and expresses

remorse. Conviction by trial, however, does not

automatically preclude a defendant from consideration for

such a reduction. In rare situations a defendant may

clearly demonstrate an acceptance of responsibility for

his criminal conduct even though he exercises his

constitutional right to a trial. This may occur, for

example, where a defendant goes to trial to assert and

preserve issues that do not relate to factual guilt

(e.g., to make a constitutional challenge to a statute or

a challenge to the applicability of a statute to his

conduct). In each such instance, however, a

determination that a defendant has accepted

responsibility will be based primarily upon pre-trial

statements and conduct.

U.S.S.G. § 3E1.1 comment. (n.2) (emphasis added). 
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This case is not one of the “rare situations” in which a

defendant who proceeds to trial may still be entitled to an

acceptance of responsibility reduction. Id. Jones’s decision to

proceed to trial to preserve his right to appeal the denial of his

suppression motion would not have disqualified him from receiving

an acceptance of responsibility reduction. See United States v.

Muldoon, 931 F.2d 282, 289 (4th Cir. 1991) (concluding that Muldoon

was entitled to an acceptance-of-responsibility reduction under the

Guidelines where he proceeded to trial in order to preserve his

constitutional and statutory challenge to the wiretaps but did not

testify or introduce any evidence). But in this case, Jones

rejected the government’s limited offer of a conditional guilty

plea in order to preserve any and all issues that might exist for

appeal, and while he ultimately stipulated to the facts, he did not

do so until the morning of trial, thereby requiring the government

to be fully prepared for trial and have its witnesses present. Cf.

United States v. Dickerson, 114 F.3d 464, 469-70 (4th Cir. 1997)

(concluding that acceptance-of-responsibility reduction not

warranted where defendant put the government to its burden of proof

at trial by denying an essential factual element of his guilt).

Moreover, Jones did not admit his guilt until he met with the

probation officer regarding the PSR. Given these facts and the

deference to which the district court’s decision is entitled in

this regard, we cannot say that the district court clearly erred in
16

finding that Jones was not entitled to a two-level reduction for

acceptance of responsibility. 

IV.

For the foregoing reasons, we affirm Jones’s conviction and

sentence. 

AFFIRMED