2000 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

11-2-2000

United States v. Valentine

Precedential or Non-Precedential:

Docket 00-1425

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2000

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova

University School of Law Digital Repository. It has been accepted for inclusion in 2000 Decisions by an authorized administrator of Villanova

University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.

Recommended Citation

"United States v. Valentine" (2000). 2000 Decisions. Paper 231.

http://digitalcommons.law.villanova.edu/thirdcircuit_2000/231
Filed 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 Appellant 
 Kevin 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 officers 

stopped Larry Valentine on a city str eet late at night and 

discovered a gun. The gun was subsequently suppressed, 

however, when the government pr osecuted Valentine for 

being a felon in possession of a firear m in violation of 18 

U.S.C. S 922(g)(1) and (2). 

In suppressing the gun, the District Court r easoned that 

under Florida v. J.L., 529 U.S. 266, 120 S.Ct. 1375 (2000) 

the informant's tip about Valentine and the surrounding 

circumstances did not provide reasonable suspicion that 

Valentine was engaged in crime. The District Court also 

concluded that Valentine's actions after the officers ordered 

him to stop should not be considered, notwithstanding the 

Supreme Court's analysis of seizures under the Fourth 

Amendment in California v. Hodari D., 499 U.S. 621, 111 

S.Ct. 1547 (1991). 

We will reverse. We hold that the officers had reasonable 

suspicion before ordering Valentine to stop. This case 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 interpreting 

Hodari D. Valentine's acts after the officers ordered 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 

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

approached the intersection, a young black man in his 

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 blue 

sweat top, blue pants, and a gold chain around his neck. 

He added that the suspect was dark skinned, had a beard, 

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 is 

understandable if the informant feared r etribution from the 

armed man or entanglement with the police. The officers 

did not question the informant further and immediately 

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 Contreras 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 the 

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 car, 

stopped and stepped out of their vehicle. The thr ee 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 toward 

the squad car. But when Woodar d told Valentine, who was 

about ten feet away, to come over and place his hands 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 silver, 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 determination 

of whether the officers had reasonable suspicion to stop 

and frisk Valentine. Ornelas v. United States, 517 U.S. 690, 

 3 
116 S.Ct. 1657 (1996); United States v. Riddick , 156 F.3d 

505, 509 (3d Cir. 1998). 

II 

Under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868 (1968) 

and subsequent cases, "an officer may, consistent with the 

Fourth Amendment, conduct a brief, investigatory stop 

when the officer has a reasonable, articulable suspicion 

that criminal activity is afoot." Illinois v. Wardlaw, 528 U.S. 

119, ___, 120 S.Ct. 673, 675 (2000). Reasonable suspicion 

is "a less demanding standard than pr obable cause and 

requires a showing considerably less than preponderance of 

the evidence." 528 U.S. at ___, 120 S.Ct. at 675-76. 

Elaborating on this point, the Supreme Court has said, 

"Reasonable suspicion is a less demanding standar d than 

probable cause not only in the sense that r easonable 

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 that 

reasonable suspicion can arise from infor mation that 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 Officers 

Woodard and Contreras had the "minimal level of objective 

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 consider `the 

totality of the circumstances--the whole picture.' " Sokolow, 

490 U.S. at 8, 109 S.Ct. at 1585 (quoting United States v. 

Cortez, 499 U.S. 411, 417, 101 S.Ct. 690, 696 (1981)). 

We begin our analysis with the Supreme Court's recent 

opinion, J.L., the case that prompted the District Court to 

reconsider its initial denial of Valentine's suppression 

motion. In J.L. the Supreme Court held that police officers 

lacked reasonable suspicion to make a T erry stop when an 

anonymous caller reported that "a young black male 

standing at a particular bus stop and wearing a plaid 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 ___, 

 4 
120 S.Ct. at 1378. Finding the tip unreliable, the Court did 

not consider under what circumstances a r eliable tip 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 report of an 

unknown, unaccountable informant who neither explained 

how he knew about the gun nor supplied any basis for 

believing he had inside information about J.L." 529 U.S. at 

___, 120 S.Ct. at 1379. 

Discussing the reliability of anonymous tips, the Court 

explained, "Unlike a tip from a known infor mant whose 

reputation can be assessed and who can be held 

responsible if her allegations turn out to be fabricated, 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 1378 (quoting 

Alabama v. White, 496 U.S. at 329, 110 S.Ct. at 2415). 

Nevertheless, even in the context of probable cause, the 

Court has rejected its earlier, inflexible two-prong test for 

tips set forth in Aguilar v. Texas, 378 U.S. 108, 84 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 government 

could demonstrate both the basis of the infor mant's 

knowledge and the informant's reliability or veracity. The 

Court now uses a flexible standard that assesses the 

relative value and reliability of an infor mant's tip in light of 

the totality of the circumstances. See, e.g., Illinois 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 2415. 

The informant's tip in our case is dif ferent from the 

telephone call in J.L. First, unlike J.L., the officers in our 

case knew that the informant was reporting what he had 

observed moments ago, not what he learned fr om stale or 

second-hand sources. At the suppression hearing, Officer 

Woodard was asked, "Did [the infor mant] say how long ago 

that he saw the individual carrying a gun?" W oodard 

replied, "About--maybe a second ago, two seconds ago." 

App. at 68. So the officers could expect that the informant 

had a reasonable basis for his beliefs. The Supreme Court 

 5 
has recognized the greater weight carried by a witness'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 that the 

informant was credible than the officers did in J.L., for a tip 

given face to face is more reliable than an anonymous 

telephone call. As the Fourth Circuit r ecently explained, 

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 States v. 

Christmas, 222 F.3d 141, 144 (4th Cir . 2000). And when an 

informant gives the police information about a neighbor (as 

in Christmas) or someone nearby (as in our case), the 

informant is exposed to a risk of retaliation from the person 

named, making it less likely that the informant will lie. Id. 

Similarly, as the Fourth Circuit noted, "citizens who 

personally report crimes to the police ther eby make 

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. See, 

e.g., Florida v. J.L., 529 U.S. at ___, 120 S.Ct. at 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 where a tip 

might be considered anonymous but nevertheless 

sufficiently reliable to justify a pr oportionate police 

response may be when an unnamed person driving a car 

the police officer later describes stops for a moment and, 

face to face, informs the police that criminal activity is 

occurring."); Davis v. United States, No. 97-CF-1882, 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 general 

 6 
matter, 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 proves 

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 available 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 reliability should 

not prevent appropriate action when a victim of a crime 

immediately has contacted the police. That same analysis 

applies [when a witness informs the police in person about 

a crime]."). 

Valentine contends that the District Court made a finding 

that the informant left the area after giving the officers the 

tip, and therefore this informant could not have been easily 

held accountable. He also complains that the officers 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 immediately. The 

officers knew the suspect was still in the vicinity, and had 

they stalled for more lengthy questioning of the informant, 

the armed suspect could have escaped detection. 

In response to the former objection, we have reviewed the 

record carefully and conclude that the District Court made 

no factual finding about what the informant did. Indeed, 

because no evidence was presented either way on the issue, 

any factual finding that the informant did leave the 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 officers 

could guarantee that they could track down the infor 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 reliability 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 assess the 

 7 
informant'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 eceiving the tip, 

a court may deduce that the officers thought the tipster's 

demeanor, voice, and perhaps a host of other factors 

supported the reliability of the tip. Cf. Ornelas, 517 U.S. at 

699, 116 S.Ct. at 1663 ("[A] police officer views the facts 

through the lens of his police experience and expertise. The 

background facts provide a context for the historical facts, 

and when seen together yield inferences that deserve 

deference."). 

The reliability of a tip, of course, is not all that we must 

consider in evaluating reasonable suspicion; the content of 

the tip must also be taken into account, as well as other 

surrounding circumstances. If we focus on the content of 

the tip, Valentine can invoke our recent holding that, in 

some contexts, even if police officers have a r eliable tip 

saying that someone is carrying a gun, that infor mation 

alone will not provide enough evidence to support a Terry 

stop. See United States v. Ubiles, 224 F .3d 213 (3d Cir. 

2000). 

In Ubiles several officers were overseeing a festival in the 

Virgin Islands when an elderly man appr oached them and 

pointed out a man he had seen in the crowd with a gun. 

We suppressed the gun recover ed from the officers' frisk of 

the suspect, and explained, "For all the officers knew, even 

assuming the reliability of the tip that Ubiles possessed a 

gun, Ubiles was another celebrant lawfully exer cising his 

right under Virgin Island law to possess a gun in public." 

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 Supreme 

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, despite the 

fact that flight is not by itself illegal and could have 

completely lawful and rational explanations. The Court 

explained: 

 8 
 Even in Terry, the conduct justifying the stop was 

 ambiguous and susceptible of an innocent explanation. 

 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 lawful, but it 

 also suggested that the individuals were casing the 

 store for a planned robbery. T erry recognized that the 

 officers could detain the individuals to r esolve 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, standing alone, 

did not provide reasonable suspicion because nothing 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 lawfully 

possess a gun during a festival, and there was no reason to 

think Ubiles's gun was unregistered or had an altered serial 

number, the two ways we mentioned that the gun 

possession could have been illegal. 

Our case is distinguishable from Ubiles. First, there is 

the broader context. Valentine was walking around at 1:00 

a.m. in a high-crime area known for shootings. While 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 occurred in a 

`high crime area' [is] among the r elevant contextual 

considerations in a Terry analysis." Id. (citing Adams v. 

Williams, 407 U.S. at 144 and 147-48, 92 S.Ct. at 1922 

and 1924). The constellation of likely criminal acts in a 

high-crime area at 1:00 a.m. goes well beyond simply 

carrying a gun without registration or with altered serial 

numbers. Indeed, given the large number of potential 

crimes and the danger posed by an armed criminal, we 

think that if the police officers had done nothing and 

continued on their way after receiving the informant's tip, 

the officers would have been remiss. People who live in 

communities torn by gunfire and violence are entitled to be 

free from fear of victimization and have police investigate 

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

Wardlaw, when the police lear n of potentially suspicious 

conduct, officers can stop and question the suspects 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 exception 

--without having any evidence creating suspicion. Florida v. 

Bostick, 501 U.S. 429, 434, 111 S.Ct. 2382, 2386 (1991) 

("Since Terry we have held r epeatedly that mere police 

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 Terry, 392 

U.S. at 23-24, 88 S.Ct. at 1881, a ruling in V alentine's 

favor would produce inexplicable results. We would be 

holding that while diligent officers would have questioned 

Valentine after receiving the tip, the officers were not 

permitted to frisk him, even though they encountered him 

late at night in a high-crime area known for shootings, and 

even though, unlike Terry, the officers had specific, reliable 

reasons for believing that he was armed. We do not think 

the Supreme Court's jurisprudence supports such a result. 

As the Supreme Court noted in a case much like ours, an 

officer has "ample reason to fear for his safety" while 

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]very year in 

this country many law enforcement officers ar e killed in the 

line of duty, and thousands more are wounded. Virtually all 

of these deaths and a substantial portion of the injuries are 

inflicted with guns and knives."). 

In evaluating the totality of the circumstances, we must 

also take into account that Valentine and the two men with 

him immediately began walking away from the patrol car 

when it arrived. Walking away from the police hardly 

amounts to the headlong flight considered in Wardlaw and 

of course would not give rise to reasonable suspicion by 

itself, even in a high-crime area, but it is a factor that can 

be considered in the totality of the cir cumstances. As the 

Supreme Court recently said, "nervous, evasive behavior is 

a pertinent factor in determining reasonable suspicion." 

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

States v. Sokolow, 490 U.S. at 8-9, 109 S.Ct. at 1585-86; 

United States v. Brignoni-Ponce, 422 U.S. 873, 885, 95 S.Ct. 

2574 (1975); Florida v. Rodriguez, 469 U.S. 1, 6, 105 S.Ct. 

308, 311 (1984) (per curiam). As the First Cir cuit recently 

stated in the context of a search of a taxi,"slouching, 

crouching, or any other arguably evasive movement, when 

combined with other factors particular to the defendant or 

his vehicle, can add up to reasonable suspicion." United 

States v. Woodrum, 202 F.3d 1, 7 (1st Cir. 2000) (citing 

United States v. Sharpe, 470 U.S. 675, 682 n.3, 105 S.Ct. 

1568, 1573 n.3 (1985); United States v. Aldaco , 168 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-to-face tip, 

were in a high-crime area at 1:00 a.m., and saw Valentine 

and his two companions walk away as soon as they noticed 

the police car. 

The government offers another gr ounds for distinguishing 

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 Jersey 

presumes that someone carrying a handgun does not have 

a permit to possess it until the person establishes

otherwise. See N.J.S.A. S 2C:39-2(b). New Jersey also has 

strict permit requirements and a rigid investigation and 

approval process that buttress the statutory presumption. 

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

Given the evidence supporting the informant's tip in 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 about 

reasonable suspicion in this case should be confined to 

 11 
events before Woodard order ed Valentine to stop. Because 

the District Court reached this issue, we think it is 

important to explain why that holding was err oneous. 

While it is true that the "reasonableness of official 

suspicion must be measured by what the officers knew 

before they conducted their search," J.L., 529 U.S. at ___, 

120 S.Ct. at 1379, the District Court's analysis did 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 police 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, 111 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. Hodari D., 

499 U.S. at 626, 111 S.Ct. at 1551; United States v. 

$32,400 in United States Currency, 82 F .3d 135, 139 (7th 

Cir. 1992). As the Supreme Court r ecently explained, 

"Attempted seizures of a person are beyond the scope of the 

Fourth Amendment." County of Sacramento v. Lewis, 523 

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 the 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 of 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 one 

officer to pursue Hodari, the respondent. By taking a side 

street, the officer was able to overtake Hodari. Surprised, 

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 small 

rock, which turned out to be crack, should be suppressed. 

The Court held that even assuming that the officers did 

not have reasonable suspicion to stop Hodari when the 

pursuit began, the crack should not have been suppr essed, 

 12 
for 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. Johnson, 212 

F.3d 1313 (D.C. Cir. 2000); United States v. Smith, 217 F.3d 

746 (9th Cir. 2000); United States v. SantamariaHernandez, 968 F.2d 980 (9th Cir . 1992). 

In Johnson, for example, two officers in an unmarked car 

were patrolling a high-crime area and pulled into a parking 

lot where two people were sitting in a parked car with a 

young woman standing nearby. As the officers appr oached, 

they saw the woman lean into the passenger's window and 

hand the defendant, Johnson, an object. As the officers 

drew closer, the woman walked away, and Johnson made 

what the officers described as a "shoving down" motion. 

Thinking Johnson might be armed, one officer drew his 

gun, advised his partner to do the same, and shouted, "Let 

me see your hands." 212 F.3d at 1315. But Johnson did 

not comply and continued to shove down with his ar ms 

several more times. In response, the officer quickly strode 

up to the car, reached in, and discover ed crack. 

The D.C. Circuit reasoned that if the seizure had taken 

place when the officers drew their guns and ordered

Johnson to show his hands, the court "doubt[ed] very 

much" whether the officers would have had r easonable 

suspicion to make a stop. Id. at 1316. Johnson did not 

comply, however, with the officers' show of authority. "On 

the contrary, he continued to make `shoving down' motions, 

gestures that were the very opposite of complying with 

Fulton's order, and which a reasonable officer could have 

thought were actually suggestive of hiding (or retrieving) a 

gun." Id. at 1316-17. Those actions, the court held, gave 

the officers reasonable suspicion for the search that 

revealed the crack. Cf. Watkins v. City of Southfield, 221 

F.3d 883 (6th Cir. 2000) (A suspect's refusal to comply with 

an officer's order to stop contributed to the officer's 

suspicion.); United States v. Moorefield, 111 F.3d 10, 14 (3d 

Cir. 1997) (When officers stopped the defendant's car, his 

"furtive hand movements and refusal to obey the officers' 

 13 
orders" 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 police 

officers' orders can be considered in evaluating reasonable 

suspicion. Valentine hopes to distinguish cases like 

Johnson and Smith by claiming that in fact he had already 

been seized before he charged towar d Officer Woodard. He 

says that when Woodard order ed him to come over and 

place his hands on the car, he momentarily"complied" with 

the order, stopped, and gave his name. This "compliance," 

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 even 

momentarily complied, and some evidence, such as 

Woodard's police report, appears to rebut the theory. 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 stairwell at 

an airport and asked him a number of questions, which he 

answered. After the defendant later asked per mission to go 

to the bathroom and was allowed to leave, hefled. On 

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 lengthy 

detention in Coggins. Cf. United States v. Hernandez, 27 

F.3d 1403, 1407 (9th Cir. 1994) (The defendant's 

momentary hesitation and direct eye contact with officer 

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 called 

out, "Hey Stephen, what's up?"); United States v. 

Washington, 12 F.3d 1128, 1132 (D.C. Cir. 1994) (The 

defendant was not seized when he stopped his car at the 

curb in response to police commands, but then sped away 

 14 
when the officer approached on foot.). Even if Valentine 

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 Woodard's 

order, it is clear that we have an independent ground for 

finding that the officers had reasonable suspicion. For if 

headlong flight in a high-crime area pr ovides reasonable 

suspicion under Wardlaw, then charging toward a police 

officer in a high-crime area also by itself provides 

reasonable suspicion. 

For the foregoing reasons, the District Court's order of 

April 27, 2000, will be reversed. The case will be remanded 

to the District Court for further proceedings consistent with 

this opinion. 

A True Copy: 

Teste: 

 Clerk of the United States Court of Appeals 

 for the Third Circuit 

 15