NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION F ile Nam e: 12a0083n.06 No. 10-1551 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT
UNI TED STATES OF AMERI CA, Plaintiff-Appellant,

v. EL I J AH SMI TH, Def endant- Appellee
. ) ) ) ) ) ) ) ) ) ) ON AP PEAL FR OM T HE UNI TED STATES DI STRI CT COURT FOR THE EAS TERN DI STRI CT OF MI CHI GAN

BEF ORE: KEI TH, GRI FF I N, and STRANCH, Circuit J udg es. GRI FF I N, Circuit J udg e. The g overnme nt appea ls the district court’s order g ranting defe ndant Elijah Smit h’s motion to suppress the evidenc e aga inst him. We reve rse and rema nd the case fo r fu rt h er p ro ceeding s in
acc ordanc e with this opinion. I
. The events g iving rise to this case beg an when Offic er J uan Sifuentes of the Welasco Police Depa rtment in Texas contac ted Drug Enforc ement Administration (“D EA”) Ag ent Ross Roel in Mich i gan t o t el l him that they had interce pted a Fe dera l Ex press packa g e with a half kilogr am of suspected heroin that was being shipped to “Jason Christie” at 19975 Har twell Street i n Detroit. United States v. Smith , 684 F. Supp. 2d 937, 938 (E.D. Mich. 2010). After Ag ent Roel ag ree d to conduct a controlled delivery , Offic er Sifuentes allowed the packa g e to proce ed on its normal routeNo. 10-1551

USA v. Elijah Smith

to a Fe dera l Ex press fac ility in Detroit. When it arr ived, a DEA canine positively al er t ed t o the packa g e for the odor of a controlled substance, and a subsequent field test at DEA hea d q uarte rs confirme d that the substance was heroin. Ag ents then obtained a sear ch war rant for the Har

twell Street residenc e from a Way ne County judge and repa ckag ed a repr esenta tive sample of the heroin for use in the controlled de livery
. Smith , 684 F. Supp. 2d at 938. The controlled delivery took place later that same day
. Dre ssed in a Fe dera l Ex press uniform, Offic er L indsey Pace parke d a police vehicle disguised as a Fe dera l Ex press delivery van in front of the Har twell Street residenc e, g ot out, and knocked on the front door. An individual, later identified
as Elijah Smit h, answe red the door, signe d for the packa g e, and then went back inside. Smith , 684 F. Supp. 2d at 938. After Offic er Pace depar ted, Smit h opened the front door of the re sidence and looked north an d s o u t h o n Ha rtwell Street. Id. Two minutes later, Smit h walked out of the residenc e, g ot into a vehicle, and beg an to drive south. Id. A transmitter attache d to the packa g e that
was desig ned to aler

t office rs to the movement and opening of the packa g e had not been activate d. The officers at t h is point moved i n. Ag ent R oel’s vehicle and another underc over vehicle blocked the intersec tion wher e defe ndant was heade d a n d a c ti v a te d th e ir emer g ency lights and sirens, direc ting Smit h to stop. Smit h did not stop at the o ff i ce rs ’ comm ands, howeve r. He shifted into
reve rse and “re cklessly ” drove backw ard at a high rate of speed for approximately half a block, until other law enfor ceme nt vehicles box ed him in near the orig inal delivery addre ss. Smith , 684 F. Supp. 2d at 938-39. Once Smit h was stopped, the office rs exit ed their vehicles, identified themselves, and
secur ed Smit h in handcuf

fs. Smith , 684 F. Supp. 2d at 939. The office rs also rec overe d the packa g e

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USA v. Elijah Smith
of her oin, which they

observe d protruding from Smith’s waistband. Id. Smit h was subsequently indicted fo r conspirac y to possess with intent to distribute a controlled substance and possession with intent to di stribute a contr olled substance in violation of 21 U.S.C. §§ 846 and 841(a) (l). He filed a motion to suppress the evidenc e in th e d i s t ri ct court. After briefing and a hear ing, the district court g rante d Smit h’s motion. Smith , 684 F. Supp. 2d 937. I t rea soned that “[Sm ith’s] arr est cannot be justified if authorities lacke d a proper basis under the Four th Amendment for attemptin g t o s t o p h im in the first place ,” and it conclude d that the drug evidenc e neede d to be suppressed beca use the office rs lacke d rea sonable suspicion to support “the initiation of the stop.” Id. at 940 n.3, 942. The g overnme nt timely appea ls. I I
. When revie wing a district court’s decision reg arding a motion to suppress, we must consider t he evidenc e “in the light most likely to support the district court’s decision.” United S t a t es v. Marxe n , 410 F.3d 326, 328 (6th Cir. 2005) (citation and internal quot at i o n marks omitted). We revie w the leg al aspec t of a district court’s deter mination reg ar d ing the exis tence of rea sonable suspicion or probable cause de novo. United States v. Pasquarille , 20 F.3d 682, 685 (6th Cir. 1994) (citation omitted). I I I
. The g overnme nt arg

ues that the office rs had rea sonable suspicion to stop, as well as probable
cause to arr est, Smit h beca use he signe d for and rec eived a packa g e known to contain heroin, peer ed up and down the street in a suspicious manner afte r signing for the packa g e and just befor e leaving
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USA v. Elijah Smith
in a vehicle, and disreg arde d the office rs’ order direc ting him to stop his vehicle by driving in reve rse at a hig h rate of spee d in the opposite direction until other off icer s box ed him in. We ag ree . A. The proble m with the district court’s ana ly sis is t hat the police did not need to justify their “attempt to stop” Smit h. Smith , 684 F. Supp. 2d at 940 n.3, 942. The Four th Amendment g overns
sear ches and seizures; it does not g overn attempts at sear ches and seizures. I f a suspect is not seized beca use he evade s law enfor ceme nt – as Smit h was not seized when he put his vehicle in reve rse and drove awa

y from the office rs here – the Four th Amendment i s n o t implicated. Brendlin v. Calif ornia , 551 U.S. 249, 254 (2007) (“[T]here is no seizure without actua l submissi on; otherwise, there is at most an attempted seizure, s o far as t he F ourth Amendment is conc erne d.”); Calif ornia

v. Hodari D. , 499 U.S. 621, 626 (1991) (“[The Four th Amendment] does not remotely apply
. . . to the prospec t of a policeman y elling ‘Stop, in the name of the law!’ at a flee ing form that continues to flee
. That i s no sei z u re . ”) ; United St ates v. McCauley , 548 F.3d 440, 443 (6th Cir. 2008) (“We deter mine whether re as o n ab l e suspicion exis ted at the point of seizure—not
. . . at the point of attempted seizure.”) (empha sis in original). Smit h acknow ledg es this fac t, but argues that the g overnme nt waived its argument that evidenc e of his would-be flig ht is rele vant beca use it “cited no case s and develope d no argument for the proposition that a seizure does not occur until the defe ndant submits to authorit y .” Howeve r, while the g overnment may not have fully develope d the argument befor e the district court, it
cer tainly raised the issue. I n response to Smit h’s motion to suppress, the g overnme nt asser ted that
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USA v. Elijah Smith
Smit h’s flig ht from the office rs in his vehicle supported a finding of rea sonable suspicion or probab le
cause . The district court reje cted that contention, making clea r that it considere d Smit h’s would-be flig ht irrele vant beca

use it occur

red afte r the police attempted to seize him. We decline to hold that the g overnme nt waived the issue by failing to develop or press its argument any further
. Cf. United States v. Archibald , 589 F.3d 289, 296 (6th Cir. 2009) (holding that the g overnme nt waived an issue on appea l beca

use it failed to pre sent the issue to the district court at all). Smit h also asser

ts that we should rema

nd the case beca

use whether he actua lly fled from the office rs is “a fac t-bound issue” and “[t] he district court may very well have deter mined that [he] was
mere ly attempting to g et out of the path of oncoming emer g ency vehicles, rathe r than attempting to flee .” We disag ree . There is no dispute that when “a g ents moved in to block [S mith’s] vehicle[,] [S mith]
. . . switched the vehicle into reve rse” and went the other way at a high rate of speed. Smith , 684 F. Supp. 2d at 938 (“[Smit h’s vehicle] immediately went in reve rse very fast northbound” and the police vehicles “with the emer g ency lights and siren
. . . followed.”). R eg ardle ss of how the district court might hav e viewed Smit h’s conduct, and reg ardle ss of Smit h’s intent, rea sonable office rs would have seen it as evasive
. See W atkins v. City of

Southfield , 221 F.3d 883, 889 (6th Cir. 2000) (“We deem the ignor ing of order s to pull over the vehicle to be equivalent for these purposes to attempting to fle e fr om police upon a sig nal to stop.”). B. The fac ts in this case are familiar. We upheld a district court’s denial of a motion to suppress in near ly identical circum s tance s in United St ates v. Barthol omew , 310 F.3d 912 (6th Cir. 2002).
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USA v. Elijah Smith
I n that case , the United Parce l Service (“U PS”) contac ted the police reg arding a suspicious packa g e. Id. at 916. The police deter mined that the packa g e contained marijuana , and an underc over office r, posing as a UPS driver, delivere d the packa g e to the labeled ad d re s s. Id. A man named Warren Har ris answe red the door, signe d for the packa g e, and went back inside. Id. He then left the house by the back door and walked throug h the neig hborhood in a manner sug g esting to the police that he
was try ing to deter

mine whether he was being observe d. Id. After sever al minutes, Har ris g ot into
a ca r that had stopped for him and the police followed in an unmar ked van. Id. The oc cupants of the car appar ently beca

me awa re that they wer e being followed and shortly there afte r parke d and fled
on foot. Id. Upon revie w, we held that these fac ts g ave the office rs probable cause to arr est one of the ca r’s for mer pa sseng ers, Richa

rd B artholomew. Id. at 919. The prese nt case is essentially the same. Her e, Smit h signe d for an d re ceived a known packa g e of heroin; he g lance d up and down the street in a suspicious m anner befor e leaving in a vehicle; and he subsequently ignor ed the office rs’ commands for him t o s top the vehicle, instead shifting into reve rse and driving at a high rate of speed awa y from them for approximately half a block until other office rs box ed him in. Smith , 684 F. Supp. 2d at 938-39. Be cause “the fac ts a nd circ umstances within [t he officer s’] knowl ed ge . . . wer e sufficient to war rant a prudent person in believing that [S mith] had committed or was committing an offe nse, ” i
. e. , that he knowing ly possessed the heroin, the office rs had probable cause to arr est Smit h at the time he was seized. United States v. Smith , 549 F.3d 355, 359 (6t h C i r. 2 0 0 8) (citation and internal quotation marks
om i t ted); cf. also United States v. Dotson , 49 F.3d 227, 231 (6th Cir. 1995) (explaining that
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USA v. Elijah Smith
“Dotson’s eff

orts to flee , coupled with [t he detec tive’s] rea sonable suspicion that Dotson was involved in criminal ac tiviti es, established pr obable c ause to a rre st Dotson.”). I V. For the fore g oing rea sons, we reve rse the district court’s order suppressing the evidenc e and
rema nd for f urther pr ocee dings c onsistent with thi s opinion.

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