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. e du/thir dc ir c uit_2000/231Filed November 2, 2000

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 00-1425

UNITED STATES OF AMERICA, Appellant

v.

LARRY VALENTINE, a/k/a HASSAN DELOA TCH, a/k/a HASSAN DELOACH, a/k/a SHAWN VALENTINE

On Appeal from the United States District Court for the District of New Jersey (D.C. Civil No. 99-cr-00345-1) District Judge: Honorable Katharine S. Hayden

Argued October 6, 2000

Before: NYGAARD, GREENBERG and COWEN, Circuit Judges

(Filed: November 2, 2000)

George S. Leone, Esq. Michael F. Buchanan, Esq. (Argued) Office of the United States Attorney 970 Broad Street, Rm. 700 Newark, NJ 07102

Counsel for AppellantKevin F. Carlucci, Esq. (Argued)

Office of the Federal Public Defender

972 Broad Street Newark, NJ 07102

Counsel for Appellee

OPINION OF THE COURT

COWEN, Circuit Judge:

After receiving a tip from an infor mant, two offic ers stopped Larry Valentine on a city str eet late at n ight and discovered a gun. The gun was subsequently suppress ed, however, when the government pr osecuted Valentine for being a felon in possession of a firear m in violat ion of 18 U.S.C. S 922(g)(1) and (2).

In suppressing the gun, the District Court r easone d that under Florida v. J.L., 529 U.S. 266, 120 S.Ct. 1375 (2000) the informant's tip about Valentine and the surroun ding circumstances did not provide reasonable suspicion that Valentine was engaged in crime. The District Court also

concluded that Valentine's actions after the office rs ordered him to stop should not be considered, notwithstandi ng the Supreme Court's analysis of seizures under the Four th Amendment in California v. Hodari D., 499 U.S. 621, 111 S.Ct. 1547 (1991).

We will reverse. We hold that the officers had reas onable suspicion before ordering Valentine to stop. This c ase is distinguishable from J.L. and our r ecent decision in United States v. Ubiles, 224 F.3d 213 (3d Cir . 2000). We also conclude that the District Court erred in interpret ing

Hodari D. Valentine's acts after the officers order ed him to stop should have been considered.

I

Around 1:00 a.m. on May 8, 1999, Officers W oodard and Contreras were patrolling near the intersection of Columbia and 18th Avenues in Irvington, New Jersey, an area that the officers described in uncontradicted testimony as "very

2bad" with "[a] lot of shootings." App. at 63. As th e officers

approached the intersection, a young black man in h is early twenties flagged them down and explained that he had just seen a man with a gun.

The informant said that the gunman was wearing a bl ue sweat top, blue pants, and a gold chain around his neck. He added that the suspect was dark skinned, had a b eard, and was accompanied by a young man. When asked to identify himself, the informant refused, a response that Officer Woodard testified is common, and one that i s understandable if the informant feared r etribution from the armed man or entanglement with the police. The offi cers did not question the informant further and immediat ely went in search of the gunman.

About 50 to 100 feet north of the intersection wher e the officers had met the informant, Woodard and Contrer as saw three men standing in a well-lit parking lot near a chicken

restaurant. One of the men matched the infor mant's description of the armed suspect given moments ago, and another was a young male in his twenties, also as t he

informant described. The third was an older man who appeared to be in his sixties.

The officers, who were in uniform and in a marked c ar, stopped and stepped out of their vehicle. The thr e e men in the parking lot reacted by walking away, northwards

. Contreras ordered the young male with Valentine to stop, and he obeyed, putting his hands up and walking tow ard the squad car. But when Woodar d told Valentine, wh o was about ten feet away, to come over and place his han ds on the car, Valentine responded,"Who, me?" and charged southwards toward Woodard. As Valentine ran, trying to push aside Woodard's outstretched arms, the officer grabbed his shirt and wrestled him to the gr ound. During the scuffle, Woodard heard a ting as Valentine's si lver, fullyloaded handgun hit the ground. Neither officer had seen the gun before that moment.

We have jurisdiction under 18 U.S.C. S 3731, and conduct plenary review of the District Court's dete rmination of whether the officers had reasonable suspicion to stop and frisk Valentine. Ornelas v. United States, 517 U.S. 690,

3116 S.Ct. 1657 (1996); United States v. Riddick , 1 56 F.3d

505, 509 (3d Cir. 1998).

II

Under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868 (196 8) and subsequent cases, "an officer may, consistent w ith the Fourth Amendment, conduct a brief, investigatory st op when the officer has a reasonable, articulable susp icion that criminal activity is afoot." Illinois v. Wardl aw, 528 U.S. 119, ___, 120 S.Ct. 673, 675 (2000). Reasonable sus picion is "a less demanding standard than pr obable cause and requires a showing considerably less than preponder ance of the evidence." 528 U.S. at ___, 120 S.Ct. at 675-76

. Elaborating on this point, the Supreme Court has sa id, "Reasonable suspicion is a less demanding standar d than probable cause not only in the sense that r easonab le suspicion can be established with information that is different in quantity or content than that required to establish probable cause, but also in the sense tha t reasonable suspicion can arise from infor mation th at is less reliable than that required to show probable cause. " Alabama v. White, 496 U.S. 325, 330, 110 S.Ct. 2412 , 2416 (1990). The question we must address is whether Off icers Woodard and Contreras had the "minimal level of obj ective justification" necessary for a Terry stop. United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 1585 (1989) . And in evaluating reasonable suspicion, "we must consid er `the totality of the circumstances--the whole picture.' " Sokolow, 490 U.S. at 8, 109 S.Ct. at 1585 (quoting United St ates v. Cortez, 499 U.S. 411, 417, 101 S.Ct. 690, 696 (1981 )).

We begin our analysis with the Supreme Court's rece nt opinion, J.L., the case that prompted the District Court to reconsider its initial denial of Valentine's suppre ssion motion. In J.L. the Supreme Court held that police officers lacked reasonable suspicion to make a T erry stop w hen an anonymous caller reported that "a young black male standing at a particular bus stop and wearing a pla id shirt was carrying a gun." Florida v. J.L., 529 U.S. at _ __, 120 S.Ct. at 1377. The Supreme Court explained that the precise issue before the Court was "whether the tip pointing to J.L. had [sufficient] indicia of r eliability." 529 U.S. at ___,

4120 S.Ct. at 1378. Finding the tip unreliable, the Court did

not consider under what circumstances a r eliable t ip that someone was carrying a gun would provide the police with reasonable suspicion. Instead, the Court concluded, "All the police had to go on in this case was the bar e repo rt of an unknown, unaccountable informant who neither explai ned how he knew about the gun nor supplied any basis fo r believing he had inside information about J.L." 529 U.S. at ___, 120 S.Ct. at 1379.

Discussing the reliability of anonymous tips, the C ourt explained, "Unlike a tip from a known infor mant wh ose reputation can be assessed and who can be held responsible if her allegations turn out to be fabri cated, see Adams v. Williams, 407 U.S. 143, 146-147, 92 S.Ct. 1921, 1923-24 (1972), `an anonymous tip alone seldom demonstrates the informant's basis of knowledge or veracity.' " J.L., 529 U.S. at ___, 120 S.Ct. at 13 78 (quoting Alabama v. White, 496 U.S. at 329, 110 S.Ct. at 241 5). Nevertheless, even in the context of probable cause , the Court has rejected its earlier, inflexible two-pron g test for tips set forth in Aguilar v. Texas, 378 U.S. 108, 8 4 S.Ct. 1509 (1964) and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584 (1969). Under Aguilar and Spinelli, the government could not rely on a tip unless the gover nment

could demonstrate both the basis of the infor mant' s knowledge and the informant's reliability or veraci ty. The

Court now uses a flexible standard that assesses th e relative value and reliability of an infor mant's t ip in light of the totality of the circumstances. See, e.g., Illin ois v. Gates, 462 U.S. 213, 230-35, 103 S.Ct. 2317, 2328-30 (1983 ); Alabama v. White, 496 U.S. at 329, 110 S.Ct. at 241 5.

The informant's tip in our case is dif ferent from the telephone call in J.L. First, unlike J.L., the offi cers in our case knew that the informant was reporting what he had observed moments ago, not what he learned fr om sta le or second-hand sources. At the suppression hearing, Of ficer Woodard was asked, "Did [the infor mant] say how lo ng ago that he saw the individual carrying a gun?" W oodar d replied, "About--maybe a second ago, two seconds ag o." App. at 68. So the officers could expect that the i nformant had a reasonable basis for his beliefs. The Supreme Court

5has recognized the greater weight carried by a witn ess's

recent report, such as when "the victim of a street crime seeks immediate police aid and gives a description of the assailant." Adams v. Williams, 407 U.S. at 147, 92 S.Ct. at

1924.

Second, the officers had more reason to believe tha t the

informant was credible than the officers did in J.L ., for a tip given face to face is more reliable than an anonymo us telephone call. As the Fourth Circuit r ecently exp lained, when an informant relates information to the police face to face, the officer has an opportunity to assess the informant's credibility and demeanor . United State s v. Christmas, 222 F.3d 141, 144 (4th Cir . 2000). And when an informant gives the police information about a neig hbor (as in Christmas) or someone nearby (as in our case), t he informant is exposed to a risk of retaliation from the person named, making it less likely that the informant wil l lie. Id. Similarly, as the Fourth Circuit noted, "citizens w ho personally report crimes to the police ther eby mak e themselves accountable for lodging false complaints ." Id. (citing Illinois v. Gates, 462 U.S. at 233-34, 103 S.Ct. at 2329-30 (1983); Adams v. Williams, 407 U.S. at 146- 47, 92 S.Ct. at 1923).

Many cases have recognized the differ ence between inperson informants and anonymous telephone calls. Se e, e.g., Florida v. J.L., 529 U.S. at ___, 120 S.Ct. a t 1381 (Kennedy, J., concurring) ("If an informant places his anonymity at risk, a court can consider this factor in weighing the reliability of the tip. An instance wh ere a tip might be considered anonymous but nevertheless sufficiently reliable to justify a pr oportionate p olice response may be when an unnamed person driving a ca r the police officer later describes stops for a mome nt and, face to face, informs the police that criminal acti vity is occurring."); Davis v. United States, No. 97-CF-188 2, 2000 WL 1358490 (D.C. Sept. 21 2000) (An officer had pr obable

cause for a search after an informant who declined to give his name flagged down the officer and told him that a man nearby in a wheelchair was selling crack out of his right shoe.); United States v. Salazar, 945 F .2d 47, 50- 51 (2d Cir. 1991) ("[A] face-to-face informant must, as a gener al

6matter, be thought more reliable than an anonymous

telephone tipster, for the former runs the greater risk that he may be held accountable if his information prove s false."); United States v. Sierra-Her nandez, 581 F .2d 760, 763 (9th Cir. 1978) ("[A]lthough the informant did not identify himself by name, he would have been availa ble for further questioning if the agent had judged the pr ocedure appropriate. Unlike a person who makes an anonymous telephone call, this informant confronted the agent directly."); United States v. Gorin, 564 F.2d 159, 161 (4th Cir. 1977) (per curiam) ("[S]tandar ds of reliabili ty should not prevent appropriate action when a victim of a c rime immediately has contacted the police. That same ana lysis applies [when a witness informs the police in perso n about a crime].").

Valentine contends that the District Court made a f inding that the informant left the area after giving the o fficers the tip, and therefore this informant could not have be en easily held accountable. He also complains that the office rs could have questioned the informant further. In response to the latter objection, we are not going to second-guess the officers' decision to pursue the suspect immediatel y. The officers knew the suspect was still in the vicinity , and had they stalled for more lengthy questioning of the in formant, the armed suspect could have escaped detection.

In response to the former objection, we have review ed the record carefully and conclude that the District Cou rt made no factual finding about what the informant did. In deed, because no evidence was presented either way on the issue, any factual finding that the informant did leave th e area would have been clearly erroneous. We simply do not know

what the informant did after the officers left.

What matters for our purposes is not that the offic ers could guarantee that they could track down the info r mant again. As the Supreme Court has said in cases like Gates, the question is whether the tip should be deemed sufficiently trustworthy in light of the total cir cumstances. And in this case the circumstances support the reli ability of the tip: the informant was exposed to r etaliation from Valentine and knew that the officers could quickly confirm or disconfirm the tip; and the officers could asses s the

7informant's credibility as he spoke, knew what the

informant looked like, and had some opportunity to find the informant if the tip did not pan out. Fr om the fact that the officers acted, and acted quickly, after r ecei ving the tip, a court may deduce that the officers thought the ti pster's demeanor, voice, and perhaps a host of other factor s supported the reliability of the tip. Cf. Ornelas, 517 U.S. at 699, 116 S.Ct. at 1663 ("[A] police officer views t he facts through the lens of his police experience and exper tise. The background facts provide a context for the historic al facts, and when seen together yield inferences that deserv e deference.").

The reliability of a tip, of course, is not all tha t we must consider in evaluating reasonable suspicion; the co ntent of the tip must also be taken into account, as well as other surrounding circumstances. If we focus on the conte nt of the tip, Valentine can invoke our recent holding th at, in some contexts, even if police officers have a r eli able tip saying that someone is carrying a gun, that infor m ation alone will not provide enough evidence to support a Terry stop. See United States v. Ubiles, 224 F .3d 213 (3 d Cir. 2000).

In Ubiles several officers were overseeing a festiv al in the Virgin Islands when an elderly man appr oached them and pointed out a man he had seen in the crowd with a g un. We suppressed the gun recover ed from the officers' frisk of the suspect, and explained, "For all the officers k new, even assuming the reliability of the tip that Ubiles pos sessed a gun, Ubiles was another celebrant lawfully exer cis ing his right under Virgin Island law to possess a gun in p ublic."

Id. at 218.

We also acknowledged, however, that r easonable suspicion does not require that the suspect's acts must always be themselves criminal. In many cases the Su preme Court has found reasonable suspicion based on acts capable of innocent explanation. Most recently, in Wardlaw the Court held that headlong flight from the police in a high-crime area provides reasonable suspicion, desp ite the fact that flight is not by itself illegal and could have completely lawful and rational explanations. The Co urt explained:

8Even in Terry, the conduct justifying the st op was

ambiguous and susceptible of an innocent exp lanation. The officer observed two individuals pacing back and forth in front of a store, peering into the window and periodically conferring. Terry, 392 U.S., at 5-6, 88 S.Ct. 1868. All of this conduct was by itself lawf ul, but it also suggested that the individuals were cas ing the store for a planned robbery. T erry recogniz ed that the

officers could detain the individuals to r e solve the ambiguity. Id., at 30, 88 S.Ct. 1868.

Wardlaw, 528 U.S. at ___, 120 S.Ct. at 677.

Despite the obvious danger posed by an armed man in a crowd, we concluded in Ubiles that the tip, standin g alone, did not provide reasonable suspicion because nothin g in "the defendant's behavior pointed to the pr esence of illegal activity." 224 F.3d at 217. In particular , we said that under the laws of the Virgin Islands, a citizen could law fully possess a gun during a festival, and there was no r eason to think Ubiles's gun was unregistered or had an alter ed serial number, the two ways we mentioned that the gun possession could have been illegal.

Our case is distinguishable from Ubiles. First, the re is the broader context. Valentine was walking around a t 1:00 a.m. in a high-crime area known for shootings. Whil e an individual's presence in a high-crime ar ea is not by itself sufficient to warrant a Terry stop, Wardlaw, 528 U. S. at ___, 120 S.Ct. at 676 (citing Brown v. Texas, 443 U .S. 47, 99 S.Ct. 2637 (1979)), "the fact that the stop occu rred in a `high crime area' [is] among the r elevant contextu al considerations in a Terry analysis." Id. (citing Ad ams v. Williams, 407 U.S. at 144 and 147-48, 92 S.Ct. at 1 922 and 1924). The constellation of likely criminal act s in a high-crime area at 1:00 a.m. goes well beyond simpl y carrying a gun without registration or with altered serial numbers. Indeed, given the large number of potentia l crimes and the danger posed by an armed criminal, w e think that if the police officers had done nothing and continued on their way after receiving the informan t's tip, the officers would have been remiss. People who liv e in communities torn by gunfire and violence are entitl ed to be free from fear of victimization and have police inv estigate

9before shootings occur. As the Supr eme Court said in

Wardlaw, when the police lear n of potentially susp icious conduct, officers can stop and question the suspect s to resolve ambiguity about the suspects' conduct.

Moreover, it is well established that officers are allowed to ask questions of anyone--and gun owners ar e no exc eption --without having any evidence creating suspicion. F lorida v. Bostick, 501 U.S. 429, 434, 111 S.Ct. 2382, 2386 (1 991) ("Since Terry we have held r epeatedly that mere po lice questioning does not constitute a seizure."). Given that the original rationale in Terry for per mitting frisks was to safeguard officers while they ask questions, see Te rry, 392 U.S. at 23-24, 88 S.Ct. at 1881, a ruling in V alen tine's favor would produce inexplicable results. We would be holding that while diligent officers would have que stioned Valentine after receiving the tip, the officers wer e not permitted to frisk him, even though they encountere d him late at night in a high-crime area known for shooti ngs, and even though, unlike Terry, the officers had specifi c, reliable reasons for believing that he was armed. We do not think the Supreme Court's jurisprudence supports such a r esult.

As the Supreme Court noted in a case much like ours , an officer has "ample reason to fear for his safety" w hile investigating a person reported to have a concealed weapon at 2:15 in the morning in a high-crime ar ea. Adams v. Williams, 407 U.S. at 147-48, 92 S.Ct. at 1924. See also Terry, 392 U.S. at 23-24, 88 S.Ct. at 1881 ("[E]ver y year in this country many law enforcement officers ar e kil led in the line of duty, and thousands more are wounded. Virtu ally all of these deaths and a substantial portion of the in juries are inflicted with guns and knives.").

In evaluating the totality of the circumstances, we must

also take into account that Valentine and the two m en with him immediately began walking away from the patrol car when it arrived. Walking away from the police hardl y amounts to the headlong flight considered in Wardla w and of course would not give rise to reasonable suspici on by itself, even in a high-crime area, but it is a fact or that can be considered in the totality of the cir cumstances . As the Supreme Court recently said, "nervous, evasive beha vior is a pertinent factor in determining reasonable suspic ion."

10Wardlaw, 528 U.S. at ___, 120 S.Ct. at 676. See als o United

States v. Sokolow, 490 U.S. at 8-9, 109 S.Ct. at 15 85-86; United States v. Brignoni-Ponce, 422 U.S. 873, 885, 95 S.Ct. 2574 (1975); Florida v. Rodriguez, 469 U.S. 1, 6, 1 05 S.Ct. 308, 311 (1984) (per curiam). As the First Cir cuit recently stated in the context of a search of a taxi,"slouch ing, crouching, or any other arguably evasive movement, when combined with other factors particular to the defen dant or his vehicle, can add up to reasonable suspicion." U nited States v. Woodrum, 202 F.3d 1, 7 (1st Cir. 2000) (c iting United States v. Sharpe, 470 U.S. 675, 682 n.3, 105 S.Ct. 1568, 1573 n.3 (1985); United States v. Aldaco , 16 8 F.3d 148, 152 (5th Cir. 1999)). See also United States v . Brown, 159 F.3d 147 (3d Cir. 1998).

In summary, we conclude that the officers had reasonable suspicion after they received the face-t o-face tip, were in a high-crime area at 1:00 a.m., and saw Val entine and his two companions walk away as soon as they no ticed the police car.

The government offers another gr ounds for distingu ishing this case from Ubiles. Unlike the V irgin Islands, New Jersey not only makes it a crime when a person "knowingly has in his possession any handgun, including any antique handgun, without first having obtained a per mit to carry the same," N.J.S.A. S 2C:39-5(b), but also New Jers ey presumes that someone carrying a handgun does not h ave a permit to possess it until the person establishes otherwise. See N.J.S.A. S 2C:39-2(b). New Jersey al so has strict permit requirements and a rigid investigatio n and approval process that buttress the statutory presum ption.

See N.J.S.A. S 2C:58-4.

Given the evidence supporting the informant's tip i n this case, we need not consider New Jersey's regulatory scheme or determine under what circumstances New Jersey's presumption would provide reasonable suspicion for a Terry stop.

IV

The District Court expressly held that inquiry abou t reasonable suspicion in this case should be confine d to

11events before Woodard order ed Valentine to stop. B ecause

the District Court reached this issue, we think it is important to explain why that holding was err oneou s.

While it is true that the "reasonableness of offici al suspicion must be measured by what the officers kne w before they conducted their search," J.L., 529 U.S. at ___, 120 S.Ct. at 1379, the District Court's analysis di d not take

into account that there can be no Fourth Amendment

violation until a seizure occurs. In Hodari D. the Supreme Court held that for there to be a seizur e, the pol ice must apply physical force to the person being seized or, where force is absent, have the person seized submit to a show of police authority. Hodari D., 499 U.S. at 626-28, 11 1 S.Ct. at 1550-51; Abraham v. Raso, 183 F.3d 279, 291 (3d Cir. 1999); United States v. Bradley, 196 F .3d 762, 768 (7th Cir. 1999). Thus, if the police make a show of authority and the suspect does not submit, there is no seizur e. Hoda ri D., 499 U.S. at 626, 111 S.Ct. at 1551; United States v

. $32,400 in United States Currency, 82 F .3d 135, 13 9 (7th Cir. 1992). As the Supreme Court r ecently explaine d, "Attempted seizures of a person are beyond the scop e of the Fourth Amendment." County of Sacramento v. Lewis, 5 23 U.S. 833, 845 n.7, 118 S.Ct. 1708, 1716 n.7 (1998). Cf. Brower v. Inyo County, 489 U.S. 593, 596-97, 109 S. Ct. 1378, 1381 (1989) (A seizure did not occur during t he 20 miles in which a police car, with flashing lights, chased a suspect, and instead only occurred when the suspect 's car crashed into a police blockade.).

The facts of Hodari D. illustrate how the concept o f a seizure should be applied. When two police officers approached a group of four or five youths gathered around a car, the group immediately dispersed, prompting o ne officer to pursue Hodari, the respondent. By taking a side street, the officer was able to overtake Hodari. Su rprised, Hodari tossed away what appeared to be a small rock

, moments before the officer tackled him. The central question before the Supreme Court was whether the s mall rock, which turned out to be crack, should be suppr essed.

The Court held that even assuming that the officers did not have reasonable suspicion to stop Hodari when t he pursuit began, the crack should not have been suppr essed,

12for Hodari never complied with the police officers' original

show of authority and therefore was not seized when he

threw the crack aside.

Other courts have applied Hodari D. and considered a suspect's conduct after he failed to comply with an officer's show of authority. See, e.g., United States v. John son, 212 F.3d 1313 (D.C. Cir. 2000); United States v. Smith, 217 F.3d746 (9th Cir. 2000); United States v. SantamariaHernandez, 968 F.2d 980 (9th Cir . 1992).

In Johnson, for example, two officers in an unmarke d car were patrolling a high-crime area and pulled into a parking lot where two people were sitting in a parked car w ith a young woman standing nearby. As the officers appr o ached, they saw the woman lean into the passenger's window and hand the defendant, Johnson, an object. As the offi cers drew closer, the woman walked away, and Johnson mad e what the officers described as a "shoving down" mot ion. Thinking Johnson might be armed, one officer drew h is gun, advised his partner to do the same, and shoute d, "Let me see your hands." 212 F.3d at 1315. But Johnson d id not comply and continued to shove down with his ar ms several more times. In response, the officer quickl y strode up to the car, reached in, and discover ed crack.

The D.C. Circuit reasoned that if the seizure had t aken place when the officers drew their guns and ordered Johnson to show his hands, the court "doubt[ed] ver y much" whether the officers would have had r easonab le suspicion to make a stop. Id. at 1316. Johnson did not comply, however, with the officers' show of authori ty. "On the contrary, he continued to make `shoving down' m otions, gestures that were the very opposite of complying w ith Fulton's order, and which a reasonable officer coul d have thought were actually suggestive of hiding (or retr ieving) a gun." Id. at 1316-17. Those actions, the court held , gave the officers reasonable suspicion for the search th at revealed the crack. Cf. Watkins v. City of Southfie ld, 221 F.3d 883 (6th Cir. 2000) (A suspect's refusal to co mply with an officer's order to stop contributed to the offic er's suspicion.); United States v. Moorefield, 111 F.3d 10, 14 (3d Cir. 1997) (When officers stopped the defendant's c ar, his "furtive hand movements and refusal to obey the off icers'

13orders" helped provide the officers with reasonable

suspicion.).

We conclude that as in Johnson and Moorefield, what Valentine did after he failed to comply with the po lice officers' orders can be considered in evaluating re asonable suspicion. Valentine hopes to distinguish cases lik e Johnson and Smith by claiming that in fact he had a lready been seized before he charged towar d Officer Wooda rd. He says that when Woodard order ed him to come over an d place his hands on the car, he momentarily"complied " with the order, stopped, and gave his name. This "compli ance," he protests, was enough to trigger a seizur e.

We have reviewed the record carefully and find no evidence in support of Valentine's theory that he e ven momentarily complied, and some evidence, such as Woodard's police report, appears to rebut the theor y. But regardless, no factual determination is necessary, for even if we accept Valentine's version, it would not show that he was seized before he charged Woodard.

Under some circumstances we have held that a defendant was seized despite his subsequent flight. In United States v. Coggins, 986 F.2d 651, 653-54 (3d Cir. 1993) police officers stopped the defendant in a st airwell at an airport and asked him a number of questions, whi ch he answered. After the defendant later asked per missi on to go to the bathroom and was allowed to leave, hefled. O n appeal we rejected the government's ar gument that the

defendant had not been seized.

But Valentine's case is easily distinguishable, for his momentary "compliance" is a far cry fr om the lengt hy detention in Coggins. Cf. United States v. Hernande z, 27 F.3d 1403, 1407 (9th Cir. 1994) (The defendant's momentary hesitation and direct eye contact with of ficer prior to his flight did not constitute a seizur e.) ; United States v. Sealey, 30 F.3d 7, 10 (1st Cir . 1994) (A defendant was not seized when an officer approached him and c alled out, "Hey Stephen, what's up?"); United States v. Washington, 12 F.3d 1128, 1132 (D.C. Cir. 1994) (Th e defendant was not seized when he stopped his car at the curb in response to police commands, but then sped away

14when the officer approached on foot.). Even if Vale ntine

paused for a few moments and gave his name, he did not submit in any realistic sense to the officers' show of authority, and therefore there was no seizure until Officer Woodard grabbed him.

And once we consider Valentine's actions after Wood ard's order, it is clear that we have an independent grou nd for finding that the officers had reasonable suspicion. For if headlong flight in a high-crime area pr ovides reas onable suspicion under Wardlaw, then charging toward a pol ice officer in a high-crime area also by itself provide s reasonable suspicion.

For the foregoing reasons, the District Court's ord er of April 27, 2000, will be reversed. The case will be remanded to the District Court for further proceedings consi stent with this opinion.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

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