NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

_____________ No. 10

- 1983

_____________ UNITED STATES OF AMERICA

v. DAVID TROY JOHNSON,

Appellant
.

_____________ On Appeal from the United States District Court For the Eastern Distri ct of Pennsylvania (Crim. No. 08

- cr - 297) District Judge: Honorable Lawrence F. Stengel

_____________ Submitted under Third Circuit L.A.R. 34.1(a)

May 23 , 2011 BEFORE: FUENTES, FISHER and NYGAARD, Circuit Judges

(Opinion Filed: June 23, 2011 )

_____________ OP INION OF THE COURT

_____________ FUENTES, Circuit Judge
. David Troy Johnson appeals the District Court ‟s decision to deny his motion to suppress a firearm and a magazine as “fruits of a poisonous tree,” in this case, an unlawful seizure
. For the reasons set forth below, we will affirm. I.2

We write only for the parties and therefore discuss only the facts necessary to explain our decision. While out on patrol in the l ate hours of December 3, 2008, police
o fficer Ron Miko (“Miko”) stopped several pedestri a ns and recovered drug paraphernalia. He then approached a house he suspected was involved in the distribution of crack cocaine. Following a short conversation with a man in that house, Miko observed him leave the residence, enter the passenger side of a gray Pontiac, and drive off. The Pontiac was driven by appellant David Johnson. Suspecting that the passenger was involved in drug activity, Miko entered his marked police car and followed the Pontiac
. After a short trip around the block, the passenger e xited the vehicle, leaving Miko a car‟s length away
. At this point, Miko noticed that the Pontiac‟s license plate displayed an expired regi stration tag
. Miko then radioed nearby police o fficer Chris Dinger (“Dinger”) that he would be making a stop of the Pontiac
. After following the Pontiac for a block and a half, Miko activated his emergency lights and siren
. The Pontiac did not slow down but continued at a slightly higher speed
. Miko remained in pursuit as the Pontiac proceeded through stop signs an d traffic lights, at some points driving against the flow of traffic
. The car chase culminated with Johnson jumping out of the vehicle and running down a nearby alleyway
. Miko left his police car and chased Johnson on foot, yelling “stop, police, you are under arrest.” App
. Br. at 31
. During the chase , Miko saw Johnson remove a black handgun fro m underneath his jacket and thro w it to his side
. Dinger, who along with other officers had joined th e foot race, was notified of the dropped gun and recovered it
.3

Meanwhile, t he chase continued into the yard and onto the porch of a home in the
area. As Johnson struggled to enter the locked home , Miko took his gun out and ordered Johnson several times to show his hands . Johnson was eventually arrested and a s earch of his person revealed a magazine f itting the pistol recovered by D inger. Johnson was charged with being a convicted felon in possession of a firearm in violation of 18 U.S.C
. § 922(g)(1). He moved to suppress both the pistol and the magazine, claim ing they were both the result of an unlawful seizure
. Relying on California v
. Hodari D. , 499 U.S
. 621 (1991 ), the District Court held that the Fourth Amendment did not require the exclusion of the handgun because Johnson voluntarily abandoned the weapon without ever being the subject of a “seizure.” United States v
. Johnson , No
. 08

- 297, 2009 WL 1578040, at *3 (E.D
. Pa
. 2009)
. Additionally, the District Court concluded that the magazine was found pursuant to a constitutionally reasonable search incident t o a lawful arrest
. Id
. at *4
. Johnson filed a timely appeal. The District Court had jurisdiction pursuant to 18 U.S.C. § 3231 and we have jurisdiction over the District Court‟s final order pursuant to 28 U.S.C. § 1291. II
. 1 A. The Fourth Amendment prot ects the right to be free from “ unreasonable searches and seizures. ” U.S. Const. amend. IV. A seizure occurs when a police officer uses

1 In reviewing a district court‟s denial of a motion to suppress evidence, we exercise plenary review over questions of law and accept a district court‟s findings of fact unless clearly erroneous. See United States v. Allen , 618 F.3d 404, 406 (3d Cir. 2010).4

physical force to restrain a suspect or when a suspect submits to an assertion of authority. Hodari , 499 U.S
. at 626
. A suspect submits to an assertion of authority when he “manifests compliance with police orders .” United States v
. Waterman, 569 F.3d 144 , 146 n
. 3 (3d Cir
. 2009) (citing Couden v
. Duffy, 446 F.3d 483 (3d Cir
. 2006)
. While a traffic stop may constitute a seizure of the person it is justified when based on articulable and reasonable suspicion that either the vehicle or occupant has violated the law. E.g., Delaware v
. Prouse , 440 U.S. 648, 663 (1979) ; see also United Stated v. Delfin

- Colina , 464 F.3d 392, 397 (3d Cir. 2006). When property is voluntarily abandoned before a seizure and retrieved by the police, it has been lawfully recovered and there can be no claim that it was the subject of an unconstitutional seizure
. Hodari , 499 U.S
. at 624
. After a seizure, the well

established exception for searches incident to a lawful arrest allows the police to search an arrestee‟s person and the areas from which “he might gain possession of a weapon or destructible evidence” without running afoul of the Fourth Amendment. Arizona v
. Gant , 129 S
. C t . 1710, 1713, 1716 (2009) (internal Citations omi tted ). B. Johnson ‟s sole argument on appeal is that the police lacked reasonable suspicion to initiate a traffic stop
. As such, “[e]verything that happened after Offi cer Miko activated his lights and siren is ca us ally connected to the initial invalid attempt to pull the vehicle over” and should be suppressed as the fruit of an unlawful seizure
. App. Br
. at 9; see Wong Sun v. United States , 371 U.S. 471, 484 ( 1963) ( st ating that if evidence is5

obtained as a result of an unlawful seizure, it is to be excluded as “the „fruits‟ of the [police officer‟s] unlawful action.” ). Johnson ‟s argument is flawed because Miko‟s initiation of the traffic st op did not constitute a seiz ure for purposes of the Fourth Amendment. After Miko activated his lights and siren, Johnson increased his speed commencing a dangerous police chase. At no point did Johnson “manifest compliance with police orders.” See Waterman, 569 F.3d at 146 n.3. W e agree with the District Court that although there was an attempted traffic stop, Johnson never actually submitted to Miko‟s show of authority
. See County of Sacramento v
. Lewis , 523 U.S
. 833, 845 n . 7 (1998) (“Attempted seizures of a person are beyond th e scope of the Fourth Amendment.”)
. Even as the chase transitioned from car to foot, Miko had still not seized Johnson
. When Miko shouted “stop, police, you are under arrest,” Johnson kept running down the alleyway
. As the Supreme Court stated in Hoda ri , the Fourth Amendment term seizure does not apply to “the prospect of a policeman yelling „ stop, in the name of the law.‟” 499 U.S
. at 626
. Due to Johnson ‟ s failure to submit to Miko‟s show of authority , we agree with the District Court that Johnson wa s not seized while fleeing from Miko down the alley
. Because there was no seizure , Johnson‟s voluntary decision to abandon the pistol was not the product of a Fourth Amendment violation and, therefore, was not fruit of the poisonous tree. Id
. The Distr ict Court correctly concluded that the first and only seizure occurred on the porch of the home, and as such, we agree with the decision to allow the magazine into evidence as it was the product of a search incident to a lawful arrest. See Gant, 129 S. Ct
.6

at 1716. The scuffle on the porch was the first time physical force was used to subdue and arrest Johnson
. See Hodari, 499 U.S. at 626. This seizure was well within the confines of the Fourth Amendment as Johnson‟s flight from police and subsequent
ac tions provided Miko with the requisite probable cause to arrest Johnson without a warrant. See Atwater v. City of Lago Vista , 532 U.S. 318, 354 (2001) (“If an officer has probable cause to believe that an individual has committed even a very minor crimin al offense in his presence, he may, without violating the Fourth Amendment, arrest the offender.”). After making a valid arrest, the Fourth Amendment did not prohibit Miko from conducting a reasonable search of Johnson‟s person because this was an area fr om which Johnson “might gain possession of a weapon or destructible evidence.” Gant, 129 S. Ct. at 1713. Accordingly, the District Court properly denied Johnson‟s motion to suppress the magazine. 2

2 The District Court held in the alternative that “[e]ven if there was a prior illegal seizure, evidence of the magazine will not be suppressed because the crimes Jo hnson committed while fleeing from the police constituted independent grounds for a second, legitimate arrest.” United States v. Johnson , No. 08

- 297, 2009 WL 1578040, at *4 n.2 (E.D. Pa. 2009). As the District Court points out, the Third Circuit has not d irectly ruled on this issue. Id. It is worth noting that several circuits have come to the same conclusion. See, e.g. , United States v. Mattiex , 2006 WL 2741645 (S.D.N.Y. Sept. 21, 2006); Marshall v. White , 2006 WL 1791383 (E.D. Mich. June 27, 2006); Unite d States v. Sprinkle, 106 F.3d 613 (4th Cir. 1997); United States v. Dawdy , 46 F.3d 1427, (8th Cir. 1995); United States v. Waupekenay , 973 F.2d 1533, (10th Cir. 1992); United States v. King , 724 F.2d 253 (1st Cir. 1984); United States v. Bailey , 691 F.2d 1009 (11th Cir. 1982); United States v. Garcia , 516 F.2d 318 (9th Cir. 1975); United States v. Nooks , 446 F.2d 1283 (5th Cir. 1971). However, because we have already decided that there was no seizure, and that the motion to suppress was correctly denied, t here is no reason for us to visit this issue in the current case.7 III
. For the foregoing reasons, we will affirm the Dist rict Court‟s decision to deny a motion to suppress both the handgun and the magazine.