United States Court of Appeals

for the Fifth Circuit

No. 20-60056

United States of America, 

Plaintiff—Appellee,

versus

Otha Ray Flowers, 

Defendant—Appellant.

Appeal from the United States District Court 

for the Southern District of Mississippi

USDC No. 3:19-CR-41-1

Before Jones, Smith, and Elrod, Circuit Judges.

Edith H. Jones, Circuit Judge:

Otha Ray Flowers, convicted of a federal gun violation, appeals the 

denial of his motion to suppress evidence as a violation of his Fourth 

Amendment rights. The questions on appeal are whether Flowers and 

Jeremy Mayo were “seized” when five or six patrol cars parked behind and 

around Mayo’s Cadillac with their patrol lights flashing, and if they were 

seized, whether Officer Stanton had reasonable suspicion to conduct a

United States Court of Appeals

Fifth Circuit

FILED

July 30, 2021

Lyle W. Cayce

Clerk

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“Terry stop.”1 Under the circumstances of this case and viewing the facts 

in the light most favorable to the Government, assuming arguendo that these 

individuals were seized, there was reasonable suspicion to do so. We 

AFFIRM.

I.

On Saturday, February 18, 2017, around 8:30 p.m., Officer Eric 

Stanton of the Jackson Police Department was patrolling an area of Jackson, 

Mississippi. Officer Stanton was a member of the Direct Action Response 

Team (DART), a proactive unit tasked to “look[] for suspicious behavior, 

suspicious activities, traffic stops, [and] things of that nature . . . .” On that 

night, Officer Stanton’s supervisor had directed the DART to an area of

Jackson, around Capitol Street and Road of Remembrance, where “recent

violent crime and burglaries” had occurred.

1 Flowers also seeks a new trial, because the prosecutor made several statements 

during closing arguments, which, he claims, constitute prosecutorial misconduct. Our 

review is for abuse of discretion. United States v. Stephens, 571 F.3d 401, 407 (5th Cir. 

2009). To determine whether there was prosecutorial misconduct, we ask whether 

(1) “the prosecutor made an improper remark” and (2) “the defendant was prejudiced.” 

United States v. Fields, 483 F.3d 313, 358 (5th Cir. 2007) (quotation marks and citation 

omitted). Prejudice is a “high bar,” which is met only where “the prosecutor’s remarks 

cast serious doubt on the correctness of the jury’s verdict.” Id. (quotation marks and 

citation omitted). “To determine whether a remark prejudiced the defendant’s substantial 

rights, we assess the magnitude of the statement’s prejudice, the effect of any cautionary 

instructions given, and the strength of the evidence of the defendant’s guilt.” United States 

v. Alaniz, 726 F.3d 586, 615 (5th Cir. 2013) (quotation marks and citation omitted). 

Flowers objects to three statements: The prosecutor said that (1) he didn’t need to call any 

other officers to corroborate Stanton’s testimony, (2) certain forensic tracing on spent 

ammunition was impossible when dealing with a revolver—a fact that was, allegedly, not 

in evidence—and (3) defense counsel sought evidence that only appears on TV shows. The 

jury convicted Flowers of possession of a firearm that he was allegedly sitting on. After 

reviewing the record and considering the relevant factors, we cannot conclude that any of 

those remarks casts serious doubt on the correctness of that verdict.

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As Officer Stanton was turning from Capitol Street onto Road of 

Remembrance, he saw a silver Cadillac parked in the south end of a small 

parking lot connected to an open convenience store. It was dark outside, but 

Officer Stanton observed that the vehicle was occupied by two men, one in 

the driver’s seat and one in the passenger’s seat. Officer Stanton observed 

the vehicle “for approximately 10 to 15 seconds” and noticed the occupants 

“didn’t appear to be exiting the vehicle, [and] didn’t appear to be patronizing 

the establishment.” Therefore, he decided to conduct what he characterized 

as a “field interview.”

Officer Stanton testified that at this point, he and five to six other 

officers, all in separate patrol cars, converged upon the silver vehicle with 

their blue lights activated. The parking lot in front of the store was narrow, 

with very little space or room to maneuver. Officer Stanton later 

acknowledged that it would have been impossible for the silver vehicle to 

leave the parking lot because of the way the officers parked their cars around 

it.

Officer Stanton got out of his patrol car and approached the silver 

vehicle, as did other officers. He testified that the men in the vehicle were 

still free to leave at this point in the encounter, but he did not communicate 

that to them. Flowers, sitting in the driver’s seat, did not attempt to flee. As 

Officer Stanton approached, Flowers lowered the driver’s side window. 

With the window down, Officer Stanton reported smelling “what appeared 

to be the strong odor of marijuana coming from the vehicle.” Officer Stanton 

asked Flowers for identification and Flowers provided his Mississippi 

driver’s license. According to Officer Stanton, the passenger in the vehicle—

Jeremy Mayo—then threw an object into his mouth. In response, Officer 

Stanton ordered both men to exit the Cadillac.

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When Flowers stepped out of the vehicle, Officer Stanton saw in plain 

view a silver, .32-caliber revolver on the driver’s seat where Flowers had been 

sitting.

2 A criminal history check revealed that Flowers had an outstanding 

arrest warrant, and Officer Stanton placed him under arrest. During a search 

incident to his arrest, Flowers stated that he had marijuana on him, and 

Officer Stanton recovered a small, clear plastic bag of marijuana from his 

front left pocket. Officer Stanton identified this marijuana as the source of 

the odor he smelled upon approaching Flowers’s driver-side window.

Flowers was charged with one count of being a felon in possession of 

a firearm, in violation of 18 U.S.C. § 922(g)(1). Before trial, Flowers moved

to suppress evidence of the gun on the basis that the encounter with Flowers 

was a seizure that violated the Fourth Amendment. The district court 

explained orally on the record his reasons for rejecting the motion. The 

district court determined that there was “no evidence” that the 

“investigatory aspect of the initial approach of the officers ever evolved into 

a seizure.” Flowers proceeded to trial, and a jury convicted him.

II.

The Fourth Amendment prohibits “unreasonable searches and 

seizures.” U.S. Const. amend. IV. Evidence seized in violation of the 

amendment may be excluded from introduction at trial. A temporary, 

warrantless detention of an individual constitutes a seizure for Fourth 

Amendment purposes and may only be undertaken if the law enforcement 

officer has reasonable suspicion to believe that a crime has occurred or is in 

the offing. Terry v. Ohio, 392 U.S. 1, 30–31, 88 S. Ct. 1868, 1884–85 (1968)). 

Importantly, however, “law enforcement officers do not violate the Fourth 

Amendment by merely approaching an individual on the street or in another 

2 Stanton found when he inspected it that the gun had five live rounds in it.

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public place, by asking him if he is willing to answer some questions, [or] by 

putting questions to him if the person is willing to listen....” Florida v. Royer, 

460 U.S. 491, 497, 103 S. Ct. 1319, 1324 (1983).

This court reviews the constitutionality of the Terry stop de novo.

United States v. Cervantes, 797 F.3d 326, 328 (5th Cir. 2015). We review the 

findings of fact by the trial court for clear error, id., and are bound by the 

court’s credibility determinations. Moreover, we construe the evidence

presented at the suppression hearing “in the light most favorable to the 

prevailing party”—here, the Government. United States v. Santiago, 

310 F.3d 336, 340 (5th Cir. 2002).

Because a seizure under the Fourth Amendment must be “justified at 

its inception,” our first task is ordinarily to determine when the seizure 

occurred. See United States v. Hill, 752 F.3d 1029, 1033 (5th Cir. 2014)

(quotation marks and citation omitted). Flowers contends that he was seized

at the outset of the police encounter, when the patrol cars surrounded the 

vehicle in which he was sitting. The government contends that the police 

encounter with Flowers was consensual, and a seizure did not occur until 

after Officer Stanton smelled marijuana from Flowers’s open window, giving 

rise to probable cause for arrest.

A seizure occurs when, under the totality of the circumstances, a law 

enforcement officer, by means of physical force or show of authority, 

terminates or restrains a person’s freedom of movement. Florida v. Bostick, 

501 U.S. 429, 434, 111 S. Ct. 2382, 2386 (1991). The test that applies in the 

absence of an unambiguous intent to restrain or upon a suspect’s passive 

acquiescence is whether “in view of all of the circumstances..., a reasonable 

person would have believed that he was not free to leave.” United States v. 

Mendenhall, 446 U.S. 544, 554, 100 S. Ct. 1870, 1877 (1980). And the Court 

added to this test that when a person “‘has no desire to leave’ for reasons 

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unrelated to the police presence, the ‘coercive effect of the encounter’ can 

be measured better by asking whether ‘a reasonable person would feel free to 

decline the officers’ requests or otherwise terminate the encounter.” 

Brendlin v. California, 551 U.S. 249, 255, 127 S. Ct. 2400, 2405–06 (2007)

(citing Bostick, 501 U.S. at 435–36, 111 S. Ct. at 2387).

The parties debate the existence of a “seizure” under the

circumstances present here, and there appears to be no Fifth Circuit case 

where a law enforcement seizure occurred by the mere surrounding presence 

of police cars and Officer Stanton’s non-threatening approach to Mayo’s 

auto. We need not resolve that debate and will assume arguendo that the 

police cars’ surrounding of the Cadillac, under the totality of circumstances, 

“seized” Flowers and Mayo. The district court principally viewed this 

incident as analogous to a stop-and-frisk situation, for which the court found 

reasonable suspicion under Terry. This conclusion, based on credibility 

determinations to which we are bound to defer, was sufficient to vindicate 

the officers’ actions.

The following facts are determinative. The police were patrolling on 

Capitol and Remembrance, the exact streets where this arrest occurred, 

because of the prevalence of “violent crime and burglaries.” The Supreme 

Court has noted, “the fact that [a] stop occurred in a ‘high crime area’ [is]

among the relevant contextual considerations in a Terry analysis.” Illinois v. 

Wardlow, 528 U.S. 119, 124, 120 S. Ct. 673, 676 (2000) (citing Adams v. 

Williams, 407 U.S. 143, 147–48, 92 S. Ct. 1921, 1924 (1972). In addition, 

Officer Stanton was no novice. He possessed an undergraduate degree in 

justice administration and a masters degree in criminology and had ten years

of law enforcement experience. In determining reasonable suspicion, courts 

must consider the facts in light of the officer’s experience. Terry, 392 U.S. at

27, 88 S. Ct. at 1883.

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The officer saw a car parked in the convenience store lot as far as 

possible from the storefront, facing its brick wall rather than the glass door, 

so its occupants could not easily be viewed from within the store. Two males

were in the car, and Officer Stanton observed that neither of them stepped 

out of the Cadillac heading toward the store for 10–15 seconds. The district 

court found the officer’s testimony credible. Every case that turns on 

reasonable suspicion is intensely fact specific. United States v. Jacquinot, 

258 F.3d 423, 427 (5th Cir. 2001) (per curiam) (“The reasonable suspicion 

analysis is a fact-intensive test . . . .”). The reasonable, articulable facts taken 

in context here supported an investigation at least to the point of the officer’s 

dispelling the ambiguity in the situation.

In 1992, this court decided en banc that a police officer did not violate 

the Fourth Amendment when he “reached out and touched the pants 

pocket” of an individual who, appearing to be intoxicated, was standing in 

the road, at night, in a high crime area. United States v. Rideau, 969 F.2d 1572, 

1573 (5th Cir. 1992) (en banc). As happened here, the individual was later 

convicted of illegally possessing a gun discovered during the frisk. We 

reiterated en banc the reasonableness of an officer’s conduct during a stopand-frisk two years later in United States v. Michelletti, 13 F.3d 838 (5th Cir. 

1994) (en banc) (officer lightly frisked pants pocket in which a man held his 

right hand while barging out of the back door of a bar at closing time, holding 

an open beer in his left hand, as he approached a group of police and 

individuals they were about to question). Michelletti noted that in the seminal 

Terry case, when detained by the police, the suspects had actually turned and 

began walking away from the store they had possibly been casing for later 

burglary. Moreover, in support of its conclusion, the Supreme Court relied 

heavily on the police officer’s seasoned judgment of what the occasion 

demanded. Terry, 392 U.S. at 22–23, 88 S. Ct. at 1880–81. Here, of course, 

we are not confronted with the additional physical invasion of a frisk, only the 

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officer’s attempt to question Flowers and Mayo, which was cut short by the 

marijuana odor wafting from their car. Time has not overborne these 

considered holdings in our circuit.

Ignoring these authorities, Flowers and the dissent cite other cases. 

The case most heavily relied upon by Flowers is United States v. Hill, 

752 F.3d 1029 (5th Cir. 2014), but that case is distinguishable. First, the court 

held that there was no seizure until the officer took the suspect out of his car 

and told him to turn around and place hands on his car. Id. at 1033. The 

officer’s merely approaching the car and insisting that the suspect talk to him 

did not trigger a seizure. Second, Hill has nothing to say about the 

circumstances preceding the officer’s commands, other than that the 

elevated incidence of crime considered there spanned an entire county, not a 

single neighborhood as in this case. Id. at 1034. Third, apart from concern 

about crime in the county, the only facts supporting the seizure in Hill were 

that the man and woman were sitting in a car and the woman hastily exited

when they noticed the police. Id. Fourth, the car was parked in plain view in

an apartment complex, a location where one would expect multiple cars to be 

parked, not in a suspicious spot as the only car in a convenience store lot. Id.

Nor is our holding contrary to United States v. Beck, 602 F.2d 726 (5th 

Cir. 1979), on which the dissent relies. In that case, the court held there was 

no reasonable suspicion for an afternoon seizure of two individuals seen 

parked in a car, where no crimes had been committed recently in the vicinity, 

and there was no reason to suspect the vehicle’s occupants were engaging in 

improper conduct. In Flowers, however, the stop occurred at night in a 

neighborhood so unsavory it had a special task force assigned to patrol

actively, and the defendants were parked suspiciously close to a convenience 

store in a manner that suggested to the seasoned officer that its occupants

might be casing the store or preparing to prey on patrons.

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United States v. McKinney is also not helpful to the dissent. See

980 F.3d 485 (5th Cir. 2020). In that case, there was no suppression hearing 

in the district court, and this court’s review was therefore de novo. Further, 

the defendant McKinney had entered a conditional guilty plea, and when this 

court found the facts insufficient to sustain reasonable suspicion as a matter 

of law, we remanded for a hearing and potentially a trial. Although McKinney

is somewhat similar, its procedural posture prevents using that case as 

precedent here.

In any event, McKinney correctly observed that the reasonable 

suspicion analysis “depends on the combination of facts,” id. at 491, but the 

combination of facts in Flowers is different. In McKinney, the court described 

the crime in the area as several recent drive-by shootings, which is serious to 

be sure, but does not present the same pervasive and continuous criminal 

pattern described in the case before us. It also appears that the officers in 

McKinney voiced a questionable and overbroad approach to policing that did 

not suffice to articulate a reasonable basis for suspicion.

3

 In this case, in a 

notoriously crime-ridden neighborhood, at night, two men were seen to be 

dawdling in a Cadillac parked out of view from inside the convenience store 

but also stationed where they could watch its entrance. Convenience stores 

are a type of establishment known to be frequent targets for theft, robbery,

and burglary. Taken together, these facts present a similarly suspicious 

scenario to that which alerted the officer in Terry, and it captured the 

attention of the officer here. Finally, the non-threatening nature of Officer 

3 “Officer Carmona added: ‘You want to know what my reasonable suspicion is? 

That there's been three or four shootings here in the last day and a half.’ Later, Officer 

Holland warned the others in the group: ‘[If] [y]ou are hanging out over here, you are going 

to get stopped, you are going to get checked. Especially if you are gang members.’” United 

States v. McKinney, 980 F.3d 485, 489 (5th Cir. 2020).

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Stanton’s approach to the car’s occupants is supported here by the lack of 

hostility on the part of Flowers and Mayo, and indeed a reaction that 

indicated Flowers was attempting to cooperate with the “field interview.”

It bears repeating that apart from the presence of a number of police 

cars, the tenor of Officer Stanton’s encounter with Flowers was entirely 

benign until Stanton smelled marijuana. He conducted no physical frisk of 

Flowers’s person but simply approached the Cadillac to ask some questions. 

If this course of conduct is constitutionally impermissible, then it is difficult 

to see how any active policing can take place in communities endangered and 

impoverished by high crime rates.

4 Officers in such areas may well require 

safety in numbers, while the law-abiding citizens desperately need protection 

that will be denied if law enforcement officials believe that incriminating 

evidence will be suppressed or they will be sued for alleged violations of 

rights. Terry prescribes a careful balance that protects individual rights, but 

not at the expense of reasonable law enforcement activity and officer safety.

More recently commenting on these types of cases, the Supreme 

Court noted in Illinois v. Wardlow, “[e]ven in Terry, the conduct justifying 

the stop was ambiguous and susceptible of an innocent explanation.” 

528 U.S. at 125, 120 S. Ct. at 677 (2000). The Court rejected the proposition 

that because the suspect’s flight from officers might have been innocent and 

“not necessarily indicative of ongoing criminal activity,” the detention was 

constitutionally unreasonable. The Court reaffirmed that “officers c[an]

detain [] individuals to resolve the ambiguity” in their conduct. Indeed, the 

Court emphasized that, in allowing such detentions, the Fourth Amendment 

4 The murder rate in Jackson, MS, has been among the highest in the nation, 

according to FBI statistics, in 2018, 2019 and 2020.

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“accepts the risk that officers may stop innocent people.” Id. at 126, 

120 S. Ct. at 677.

In the case before us, there is no indication that the officers were either 

abusive or threatening. Once Flowers opened his window, Officer Stanton 

smelled a distinct odor of marijuana, and immediately afterward he saw Mayo 

apparently attempting to swallow something that could be evidence. At that 

point, it is undisputed that he had probable cause to seize Flowers by asking 

him to step out of the car, leading to the immediate discovery of his pistol.

* * *

Based on the foregoing discussion, we AFFIRM the conviction.

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Jennifer Walker Elrod, Circuit Judge, concurring in part,1 dissenting

in part:

In Terry v. Ohio, the Supreme Court held that reasonable suspicion 

supported a stop where an officer, who suspected two men of casing a store,

observed them walking back and forth in front of the store for ten to twelve 

minutes. 392 U.S. 1, 6 (1968). Here, the majority opinion finds reasonable 

suspicion after a police officer in Jackson, Mississippi observed two men 

sitting in a parked vehicle outside a convenience store for ten to fifteen 

seconds. How far we have come.

“Any analysis of reasonable suspicion is necessarily fact-specific . . .” 

United States v. Ibarra-Sanchez, 199 F.3d 753, 759 (5th Cir. 1999). The key 

facts are undisputed in this case. Otha Ray Flowers and another man were 

sitting in a parked Cadillac in front of an open convenience store at 8:30 p.m. 

on a Saturday night. The majority opinion describes the car as being parked 

“as far as possible from the storefront,” Maj. Op. at 7, but the exhibits 

submitted at the evidentiary hearing conflict with this characterization. 

Instead, the exhibits show that the men were parked in one of only five or six

available spots in the small lot. The small parking lot offered few other 

parking options besides the spot Flowers chose.

Five to six officers were patrolling the area, each in a separate patrol 

car. They were not responding to any calls regarding suspicious behavior in 

the area or at the convenience store, and certainly not regarding the two men 

sitting in their car. After Officer Stanton turned onto Road of Remembrance, 

he observed the car and its occupants “for approximately 10 to 15 seconds,”

1 I agree with the majority opinion that none of the prosecutor’s statements at trial 

casts serious doubt on the correctness of the verdict. The statements did not prejudice 

Flowers’s substantial rights.

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the time period that the majority opinion refers to as “dawdling.” Maj. Op. 

at 9. Officer Stanton did not observe the occupants make any suspicious 

movements within the car during those few seconds. He merely noticed that 

they had not exited the car during the time that the police caravan turned the 

corner.

Based solely on that observation, Officer Stanton and at least four 

other patrol cars activated their blue emergency lights and surrounded the 

Cadillac in which Flowers and his passenger sat, trapping them. The officers 

exited their patrol cars to approach the vehicle from both sides. 

Although the majority does not reach the issue, there is no doubt that 

this encounter constituted a seizure. A person is seized when, under the 

totality of the circumstances, “a reasonable person would have believed that 

he was not free to leave.” Brendlin v. California, 551 U.S. 249, 255 (2007) 

(quoting United States v. Mendenhall, 446 U.S. 544, 554 (1980)). 

Here, the placement of the patrol cars blocked Flowers’s exit from the 

parking lot. To leave, Flowers would have had to either collide with a patrol 

car to drive away or abandon his car and, on foot, weave through the patrol 

cars and approaching officers. Those options were simply not reasonable. 

Flowers was trapped. 

The majority opinion states that “there appears to be no Fifth Circuit 

case where a law enforcement seizure occurred by the mere surrounding 

presence of police cars and Officer Stanton’s non-threatening approach to 

Mayo’s auto.” Maj. Op. at 6. To the contrary, this circuit has held that a 

seizure occurred where officers—in only one vehicle rather than five or six—

pulled alongside a defendant’s vehicle in close proximity to it. United States 

v. Beck, 602 F.2d 726, 729 (5th Cir. 1979) (“By pulling so close to the 

Chevrolet, the officers effectively restrained the movement of Beck and his 

passenger; from the record it is readily apparent that they were not [‘]free to 

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ignore the officer(s) and proceed on (their) way.[’]” (internal citation 

omitted) (first citing United States v. Robinson, 535 F.2d 881, 883 n.2 (5th Cir. 

1976); then quoting United States v. Elmore, 595 F.2d 1036, 1041 (5th Cir. 

1979))). Under our precedent, Flowers was seized at the outset of this 

encounter, before he rolled down his window, when officers surrounded his 

vehicle with their vehicles.

Other circuits have concluded similarly. For instance, in United States 

v. Delaney, 955 F.3d 1077, 1083 (D.C. Cir. 2020), the court held that a seizure 

had occurred where a single patrol car parked within a few feet of the 

defendant’s vehicle in a narrow parking lot and partially blocked the 

defendant’s egress, and police officers activated their take-down lights. In so 

holding, the court dismissed the government’s argument that the defendant 

could have maneuvered his car around the police vehicle or simply walked 

away from the encounter. Id. at 1083–84; see also United States v. See, 574 

F.3d 309, 313 (6th Cir. 2009) (“Given the fact that Williams blocked See’s 

car with his marked patrol car, a reasonable person in See’s position would 

not have felt free to leave.”); United States v. Pavelski, 789 F.2d 485, 488 (7th 

Cir. 1986) (“A reasonable person . . . bounded on three sides by police patrol 

cars, would not have believed that he was free to leave.”).

This case turns on whether, at that moment of seizure, the officers had 

reasonable suspicion of the men in the vehicle sufficient to justify the stop. It 

is the Government’s burden to prove “specific and articulable facts that 

support the reasonableness of the suspicion.” United States v. Hill, 752 F.3d 

1029, 1033 (5th Cir. 2014). We consider the “totality of the circumstances” 

to determine whether the officer’s suspicion was reasonable. United States 

v. Arvizu, 534 U.S. 266, 273 (2002) (quoting United States v. Cortez, 449 U.S. 

411, 417 (1981)). 

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Looking at the totality of the circumstances, there was no reasonable 

suspicion in this case, and the stop therefore violated Flowers’s Fourth 

Amendment rights. Two men were sitting in a parked car outside an open 

convenience store during the early evening for a mere ten seconds. That is 

not suspicious behavior, nor does it transform into suspicious behavior

because the convenience store was located in a high-crime area. While the 

majority opinion notes that “[c]onvenience stores are a type of establishment 

known to be frequent targets for theft, robbery, and burglary,” Maj. Op. at 9, 

a convenience store is also a place to get soft drinks, batteries, gum, and lastminute Valentine’s Day gifts. Parking in one of only a few available parking 

spots in front of a convenience store at an unextraordinary time of evening—

8:30 p.m.—is something that any law-abiding citizen might do in order to 

patronize the store. As for the “dawdling” of approximately ten to seconds, 

the men could have been finishing a conversation, responding to text 

messages, watching with curiosity as a six-car police caravan passed, or 

engaging in other reasonable behavior that explains the delay. The facts in 

this case simply do not support an officer’s reasonable suspicion.

Our court has held that reasonable suspicion was lacking in 

remarkably similar circumstances. In Beck, we held that there was nothing 

“inherently suspicious” about two men sitting in a parked car in a high crime

neighborhood on a midsummer afternoon a short distance from a convenience 

store. 602 F.2d at 729. As we noted in Beck, “[h]ad [the officer] observed 

the vehicle for some time and seen Beck or his passenger take some 

suspicious actions, a stop might have been permissible, but under the facts 

here . . . the stop was illegal.” Id.

Likewise, in United States v. Hill, we held that officers did not have 

reasonable suspicion sufficient to justify a stop after observing a man and 

woman sitting in a car parked in a high-crime area. 752 F.3d at 1035–36. In 

that case, a man and woman were sitting in their parked car at an apartment 

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complex that had a reputation for drug-dealing. It was much later at night,

11:00 p.m. on a Saturday night. Id. at 1034, 1036. When the police arrived, 

the female passenger exited the car hastily. Id. at 1035. Based on these 

circumstances, the police officer thought a drug transaction may have 

occurred in the car and seized the defendant. Id. Still, we held there was no 

reasonable suspicion.

The majority opinion deems it significant that in Hill, the court 

pointed to the moment Hill was asked to step out of his car and put his hands 

on the top of his car as the moment of seizure. Maj. Op. at 8. Of course, in 

Hill, the officers did not surround and block Hill’s car with lights flashing 

preventing his egress entirely. Hill, 752 F.3d at 1034. Rather, they parked 

several parking spaces away, parallel to the car on the passenger side, and 

then approached. Id. Thus, the circumstances of Hill’s seizure were 

different than Flowers’s seizure. But the analysis in Hill that there was no 

reasonable suspicion under these circumstances should guide us in this case.

Most recently, in United States v. McKinney, we held that there was 

no reasonable suspicion for a seizure where officers observed the defendant 

standing on a sidewalk with three other people near a gas station which was 

in a high-crime area and in recent days had been the location of multiple gangrelated drive-by shootings. 980 F.3d 485, 490 (5th Cir. 2020). In that case, 

the defendant was wearing a jacket on a hot, humid night and red shorts (the 

color red was associated with a neighborhood gang). Id. Moreover, a woman 

in the group with the defendant slowly walked away when officers arrived. Id. 

Still, we held that this behavior did not suffice to raise an officer’s reasonable 

suspicion.2 Id. at 497.

2 Other circuits have similarly held. See United States v. Delaney, 955 F.3d 1077, 

1086–87 (D.C. Cir. 2020) (no reasonable suspicion when, shortly after hearing gunshots in 

a high-crime area, the officers came across a man and a woman sitting in a parked car); 

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Together these cases follow the principle from the Supreme Court 

that the fact that individuals are present in an area with a high crime rate, 

standing alone, “is not enough to support a reasonable, particularized 

suspicion that the person is committing a crime.” Illinois v. Wardlow, 528 

U.S. 119, 124 (2000).

As of yet, our court has not held that living in a high crime area 

renders all actions suspicious. The circumstances in both United States v. 

Rideau, 969 F.2d 1572 (5th Cir. 1992) (en banc) and United States v. 

Michelletti, 13 F.3d 838 (5th Cir. 1994) (en banc), cited by the majority 

opinion, involve such different circumstances that they are not relevant to 

determining whether reasonable suspicion is present in this case. 

In Rideau, police were driving at night in a high crime area and 

encountered a man wearing dark clothing standing in middle of the road. 969 

F.2d at 1573. Upon pulling over and approaching the man, he seemed 

nervous and evasive. Id. Only at that point did one of the officers reach out 

to pat the man’s outer clothing to see if he had any weapons that could harm 

him or his partner. Id. In Michelletti, police officers were patrolling a high 

crime area around 2:00 a.m. 13 F.3d at 839. They observed the defendant 

drinking beer as he was leaving bar, a possible alcoholic beverage offense, and 

saw him approach a group of individuals the officers had previously 

determined were acting suspiciously outside the bar. Id. at 839–40.

United States v. Jones, 606 F.3d 964, 966 (8th Cir. 2010) (no reasonable suspicion for 

seizure when officers observed a man clutching the front of his hooded sweatshirt on a 

warm, sunny day in a high-crime area while watching the police cruiser as if concerned the 

officers would stop him); Fam. Serv. Ass’n ex rel. Coil v. Wells Twp., 783 F.3d 600, 604 (6th 

Cir. 2015) (no reasonable suspicion when officers observed a pedestrian walk on the side of 

the road late at night in high-crime area, initially refuse to provide the police officer with 

his identity, and then walk away).

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No. 20-60056

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Moreover, the defendant had his right hand in his pocket at all times, making 

the officers suspect that he might have a gun. Id. at 842. 

Neither of these cases involves conduct similar to the innocuous 

behavior observed in this case. Rideau and Michelletti are relevant only

because the concerns voiced by the dissents in those cases—namely, that we 

must ensure that Americans living in disadvantaged or high-crime 

communities still have Fourth Amendment protections—are squarely 

present in this case.

Here, as in Hill and Beck, the Government did not point to any 

additional facts sufficient to convert an ordinary scene of two people sitting 

in a car into one that would support an officer’s reasonable suspicion of 

criminal activity. It was not a suspicious time of day—merely 8:30 p.m. on a 

Saturday. The officers were not responding to any reports of suspicious 

behavior in the area, at the convenience store, or regarding the two men 

sitting in their vehicle. There was no testimony that police officers were 

looking for Flowers and his passenger or someone whose description they 

matched. Officers did not observe any suspicious movements in the vehicle 

as they turned the corner—the two men just sat there.

I would follow our precedent and hold that the officers did not have 

reasonable suspicion sufficient to justify the stop and that they violated 

Flowers’s Fourth Amendment rights. For citizens to become suspects, they 

must do more than merely exist in an “unsavory” neighborhood. Maj. Op. 

at 8. As my able colleague once put it, “it defies reason to base a justification 

for a search upon actions that any similarly-situated person would have 

taken.” Rideau, 969 F.2d at 1581 (Smith, J., dissenting). Otherwise, our law 

“comes dangerously close to declaring that persons in ‘bad parts of town’ 

enjoy second-class status in regard to the Fourth Amendment.” Id. at 1577. 

I respectfully dissent.

Case: 20-60056 Document: 00515958733 Page: 18 Date Filed: 07/30/2021