UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 09-4328

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

ANTHONY JOSEPH ALLISON,

Defendant - Appellant.

Appeal from the United States District Court for the Western 

District of North Carolina, at Asheville. Lacy H. Thornburg, 

District Judge. (1:08-cr-00085-LHT-1)

Argued: September 24, 2010 Decided: October 18, 2010

Before NIEMEYER, MOTZ, and GREGORY, Circuit Judges.

Affirmed by unpublished per curiam opinion.

ARGUED: Matthew Segal, FEDERAL DEFENDERS OF WESTERN NORTH 

CAROLINA, INC., Asheville, North Carolina, for Appellant. Mark 

A. Jones, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North 

Carolina, for Appellee. ON BRIEF: Claire J. Rauscher, Executive 

Director, Fredilyn Sison, FEDERAL DEFENDERS OF WESTERN NORTH 

CAROLINA, INC., Asheville, North Carolina, for Appellant. 

Edward R. Ryan, Acting United States Attorney, Charlotte, North 

Carolina, Amy E. Ray, Assistant United States Attorney, OFFICE 

OF THE UNITED STATES ATTORNEY, Asheville, North Carolina, for 

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Unpublished opinions are not binding precedent in this circuit.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

Anthony Allison appeals from an order of the district court 

denying his motion to suppress a gun found in a car in which he 

had been a passenger. We affirm.

I.

On January 11, 2008, a police officer, Sgt. John Hamrick, 

spotted two men in a Ford Explorer on a residential street in 

Shelby, North Carolina. Victor Jerome Wade was driving the 

Explorer and Allison was seated in the front seat beside him. 

Sgt. Hamrick, however, mistakenly thought that he recognized the 

driver as Zavious Wells, a man wanted for a probation violation. 

Sgt. Hamrick and his partner, Officer Brandon Carpenter, made a 

U-turn and began to follow the Explorer, with the intent to make

a traffic stop. Shortly thereafter, Wade drove the Explorer 

into a driveway next to, and toward the rear of, a house. The 

officers parked in the driveway behind the Explorer.

Allison and Wade emerged from the Explorer and then noticed 

the police officers, who had also exited their vehicle. Allison 

and Wade moved toward the front door of the house. The officers 

approached them, and Sgt. Hamrick said to Wade, “You are not 

Zavious, but you are Victor.” Sgt. Hamrick later testified at 

the suppression hearing that he knew Wade because he had charged 

him in 2005 with a “driving offense” and had reason to believe 
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that Wade did not have a driver’s license. He asked Wade 

whether he had a license, and Wade responded in the negative. 

Sgt. Hamrick patted down Wade and Allison for weapons, but found 

nothing. He requested Wade’s consent to search the Explorer,

but Wade refused on the ground that he did not own the vehicle.

Sgt. Hamrick testified that he knew that Allison had 

recently been released from prison, where he had been

incarcerated for gun charges. Sgt. Hamrick also testified that 

he “reasonably felt that there was something that was in the 

vehicle that these two young men were trying to hide” because 

the Explorer had turned quickly into the driveway and proceeded 

to the back of the house. When three women emerged from the 

house shortly after the Explorer arrived, Sgt. Hamrick testified 

that he feared that someone might go into the Explorer and 

retrieve a weapon. Accordingly, Sgt. Hamrick asked Officer 

Carpenter and a third officer who arrived for backup support to 

conduct a “Terry frisk” of the Explorer. One of the officers 

discovered a handgun under the front passenger seat, where 

Allison had been seated. The officers then arrested Allison and 

obtained a search warrant to examine the contents of his cell 

phone, which revealed photographs of him holding a gun that 

resembled the gun seized from the vehicle.

Allison moved to suppress the gun as the product of an 

unlawful search and seizure. He testified at the suppression 
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hearing that he and Wade intended to visit Wade’s ex-girlfriend 

at the house and stay for about 30 minutes. Allison claimed

that he did not feel free to leave when the police arrived 

because he thought the officers would stop him and might try to 

arrest him for resisting. He acknowledged, however, that on 

this occasion, unlike his prior encounters with the police, the 

officers did not specifically do or say anything to indicate 

that he was not free to leave.

The district court denied Allison’s motion to suppress the 

gun on the ground that the police did not stop the vehicle in 

which Allison was a passenger and Allison had no right to 

challenge the search of the vehicle in question. Allison then 

entered a conditional guilty plea to being a felon in possession 

of a firearm in violation of 18 U.S.C. § 922(g)(1), reserving 

the right to appeal the denial of his suppression motion.

II.

To challenge the search of a vehicle, a passenger must have 

a reasonable expectation of privacy in the vehicle and its 

contents. When, as here, he does not own the vehicle and does 

not claim ownership of its contents, he typically does not have 

such an expectation. See Rakas v. Illinois, 439 U.S. 128, 148-

49 (1978); United States v. Rusher, 966 F.2d 868, 874-75 (4th 

Cir. 1992). However, the Supreme Court has held that passengers
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are seized in traffic stops, and thus may challenge the legality 

of such stops. Brendlin v. California, 551 U.S. 249, 258 

(2007). In Brendlin, the defendant challenged only the legality 

of the stop, and not the subsequent search, but the Court has 

held that searches that are the “fruits” of seizures are subject 

to challenge as well. See Wong Sun v. United States, 371 U.S. 

471, 484 (1963).

The parties agree that Wade drove the Explorer to its 

destination, parked it, and that he and Allison exited the 

vehicle before either of them noticed the officers. 

Nonetheless, Allison contends that the officers’ actions 

amounted to a traffic stop because when the police car parked 

behind the Explorer in the driveway, it prevented the Explorer 

from leaving. Allison seeks to challenge the stop and the 

ensuing search as the “fruit” of the stop.

He heavily relies on the Brendlin holding that “[a] person 

is seized by the police and thus entitled to challenge the 

government's action under the Fourth Amendment when the officer, 

by means of physical force or show of authority, terminates or 

restrains his freedom of movement, through means intentionally 

applied.” 551 U.S. at 254 (internal citations and quotation 

marks omitted, emphasis removed). This holding, however, 

provides little assistance to Allison. This is so because by 

the time the officers pulled into the driveway, blocking the 
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Explorer, the Explorer had come to a stop, and Allison and Wade 

had exited it with the admitted intent to enter a house for 

thirty minutes. Given these facts, the inquiry must focus on 

Allison’s rights as a pedestrian, not as a passenger.

Both the Supreme Court and this court have distinguished 

pedestrian stops from automotive stops, reasoning that 

questioning a pedestrian is significantly less intrusive than 

arresting the progress of an automobile. See United States v. 

Mendenhall, 446 U.S. 544, 556-57 (1980); United States v. 

Weaver, 282 F.3d 302, 312 (4th Cir. 2002) (“pedestrian 

encounters are much less restrictive of an individual’s 

movements”).

Indeed, Brendlin, the very case on which Allison relies to 

claim standing as a passenger, draws a stark contrast between 

individuals within a vehicle and those outside its confines: 

pedestrians possess a degree of physical and environmental 

freedom that automotive occupants lack. See Brendlin, 551 U.S. 

at 257 (2007) (noting that a stop of persons inside a vehicle 

triggers a “societal expectation of ‘unquestioned police 

command’” (internal citations omitted)). The holding in 

Brendlin -- that a traffic stop seizes a passenger as well as 

the driver -- rests on the physical confinement of the 

automobile. As the Brendlin Court explained, “[a]n officer who 

orders one particular car to pull over acts with an implicit 
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claim of right . . ., and a sensible person would not expect a 

police officer to allow people to come and go freely from the 

physical focal point of the investigation . . . .” Id. The 

walls of the car -- and the passenger’s dependence on the driver 

while within those walls –- bind the car’s occupants; a seizure 

of one is a seizure of all.

Here, by contrast, confinement in the Explorer did not 

limit Allison’s freedom of movement at the time the officers 

pulled into the driveway and blocked the vehicle. Police effect 

a seizure only if they “terminate[] or restrain[] [an 

individual’s] freedom of movement” “by means of physical force 

or show of authority.” Id. at 254 (internal quotation omitted). 

Because the car did not limit Allison’s movement at the time of 

the police encounter, the blocking of that car did not restrain 

his freedom of movement. Cf. INS v. Delgado, 466 U.S. 210, 218 

(1984) (finding no seizure when INS agents obstructed exits to 

large factory while interrogating workers, because “workers were 

not prevented by the agents from moving about the factories”).

III.

In summary, Allison does not have standing to contest the 

search of the Explorer that led to the recovery of the 

challenged weapon. Because Allison did not have standing to 

challenge the search of the Explorer and the search was not the 
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fruit of an illegal seizure of Allison, we reject Allison’s 

contention that the district court erred in refusing to suppress 

the gun. Therefore, the judgment of the district court is 

AFFIRMED.