NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

_____________

No. 12

- 2418

_____________ UNITED STATES OF AMERICA ,

v. IRVING RICHARDSON, Appellant

_______________ On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. No. 09

- cr - 463) District Judge: Hon. C. Darnell Jones, II

_______________ Submitted Under Third Circuit LAR 34.1(a) November 15, 2012 Before: SCIRICA, FISHER, and JORDAN , Circuit Judges

. (Filed: November 16, 2012 )

_______________ OPINION OF THE COURT

_______________ JORDAN, Circuit Judge

. Irving Richardson pleaded guilty in the United States District Court for the Eastern District of Pennsylvania to possession of a loaded firearm by a conv icted felon and possession of marijuana

. H e now challenges the District Court’s order denying his motion to suppress the firearm and marijuana. For the following reasons , we will affirm.2 I. Background On January 24, 2009, Philadelphia Police Officers Willia m Verica and Gerard Murphy were on patrol in a marked vehicle in the 39 th P olice D istrict in Philadelphia , Pennsylvania

. When the officers arrived at the intersection of 21 st S treet and Allegheny Avenue, they saw a white 1995 Chevrolet Malibu with a defec tive center

- rear brak e light

. Believing the defective light to be in violation of P ennsylvania’s motor vehicle law s, O fficer Murphy activated the overhead lights and siren on his vehicle and signaled the Chevrolet to stop. The Chevrolet stopped at the e ntrance to the parking lot of a Kentucky Fried Chicken (“KFC”) restaurant located on the corner of 22 nd S treet and Allegheny Avenue.
As soon as it came to a stop, the passenger, Irving Richardson, began to get out of the car
and said “ he was just going to get some chicken .” ( Supplemental App. at 12

. ) Officer Verica instructed Richardson to g e t back in the vehicle and told the driver to park in a parking space. Richardson and the driver complied , and the Chevrolet pulled into a parking space

. At that po int, Richardson i mmediately got out of the car and began running southbound on 22 nd S treet

. Verica chased him on foot, while Murphy pursued
in the police vehicle , leaving the Chevrolet and its driver in the parking lot

. During the pursuit, Richardson pu ll ed a black revolver from his waistband and point ed it in Verica’s direction

. Officer Ve rica immediately took cover behind a parked car and saw Richardson throw the gun on the ground

. T he chase then continued until they reached the intersection of 22 nd and Lippincott S treet s , where Richardson put up his hands, dropped a plastic bag containing marijuana to the ground , and said, “Y ou got me

. ”3 ( Supplemental App. at 20 (internal quotation marks omitted). ) He also volunteered that there were open arrest war rants against him

. After arresting Richardson , Verica recovered the plastic bag containing marijuana and the black revolver

. Although , O fficers Verica and Murphy radioed for other police officers to go to the KFC parking lot to see if the driver was stil l at th at location , b y the time the other officers arrived at the KFC, the car and driver were gone and witnesses said the Chevrolet had fled northbound
on 22 nd S treet. Officer Murphy completed a n Investigation Report, in which he noted that the Chevrolet was pulled over because it was traveling with a “defective middle brake light. ” ( Id . at 118 (internal quotation marks omitted)

. ) Officer Verica completed an Arrest Memo, in which he indicated that the reason for vehicle stop was a “3303B

– mid brake lig ht out.” 1 On July 14, 2009, a two

- count Indictment was filed against Richardson: Count One charged him wi th possession of a loaded firearm by a convicted f elon , in violation of 18 U.S.C § 922(g)(1), and Count Two charged him with possession of m arijuana, in violation of 21 U.S.C. § 844(a)

. On November 20 , 2009, Richardson filed a motion to suppress “all evidence

s temming from his illegal stop and seizure on January 24, 2009

. ” ( J.A. at 20

. ) The District Court held a hearing and subsequently denied the motion on February 22, 2010

. The Court decided that O fficers Verica and Murphy carried out a reasonable seizure

1 During the suppression hearing, Verica testified that he inten ded to write “4303B,” which indicates the existence of a defective center

- rear brake light. (Supplemental App. at 44.)4 when they pulled over the Chevrolet for what they believed to be a necessary enforcement of Pennsylvania’s Motor Vehicle Code. T he Court speci fically held that
O fficer Verica was justified in ordering Richardson to step back in the vehicle. 2 It also found that the officers had a reasonable basis to pur sue Richardson when he ignored Verica’s instruction and “fled before any information could be obtained in accordance with 75 Pa.C.S. A. § 6308(b). ” 3

On May 9, 2012, Richardson ple a d ed guilty to Count One of the I ndictment a nd

was se ntenced to 100 months’ imprisonment , with three years of supervised release. ( Id

. at 100.) Further, the Court determined that Richardson’s act of throwing the firearm and marijuana constituted an uncoerced abandonment. Finally, the Court concluded that the revolver and the ma rijuana were not “fruit of the poisonous tree

. ” ( Id

. at 101 (internal quotation marks omitted)

. ) Accordingly, the District Court denied R ichardson’s motion to suppress.

4

2 The District Court stated that an officer may order a passenger out of the car as a precautionary measure, without reasonable suspici on that the passenger poses a safety risk. See Brendlin v. California , 551 U.S. 249, 258 (2007). Based on that rationale, the Court determined that ordering Richardson to remain in the car was justified. Richardson filed this timely appeal.

3 Pennsylvania’s Motor Vehicle Code permits a po lice officer who has reasonable suspicion that a traffic violation is occurring to stop a vehicle “for the purpose [ s ] of checking the vehicle’s registration ... vehicle identification number ... or the driver’s license, or to secure such other information as t he officer may reasonably believe to be necessa ry to enforce [the traffic laws ]

. ” 75 Pa. Cons. Stat. Ann. § 6308(b).

4 Richardson pleaded guilty pursuant to a plea agreement in which the Government agreed to drop Count Two

– possession of marijuana

– bu t Richardson reserved his right to appeal the District Court’s suppression ruling.5 II. Discussion 5 In challenging the District Court’s ruling on his motion to suppress, Richardson first argues that the stop of the Chevro let for a defective center

- rear brake light was illegal. He also argues that , even if the stop had been legal, officers unlawfully seized
him during the stop. Therefore, he contends , the fruit of the illegal stop and unlawful seizure

– the gun and mariju ana

– must be suppressed. We address Richardson’s arguments in turn.
A. Traffic Stop Richardson argues that the initial traffic stop of the Chevrolet was illegal because the officers did not , under 75 Pa. Cons. Stat. Ann. § 4303(b), have a valid basis to stop the car for a nonfunctioning center

- rear brake light , and , therefore, a ny evidence recovered as a result of the stop should have been suppressed. We disagree. An officer may, consistent with the F ourth Amendment, conduct a brief investigatory stop of a person when the officer has a reasonable, articulable suspicion that criminal activity is afoot. Terry v. Ohio , 392 U.S. 1, 21 (1968). For reasonable suspicion, “the likelihood of criminal activity need not rise to the level required for probable ca use, and it falls considerably short of satisfying a preponderance of the evidence standard.” U nited S tates v. Arvizu , 534 U.S. 266, 274 (2002) (citing United

5 The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We have jurisdiction pursuant to 18 U.S.C. § 3742 and 28 U.S.C. § 1291. “ We review the District Court ’s denial of a motion to suppress for clear error as to the underlying factual determinations but exercise plenary review over the District Court’s application of law to those facts. ” United States v. Stabile , 633 F.3d 219, 230 (3d Cir. 2011).6 States v. Sokolow , 490 U.S. 1, 7 (1989) )

. Reasonable suspicion requires “some minimal level of objective justification for making a stop. ” Sokolow , 490 U.S. at 7 ( internal quotation marks omitted )

. Police officers may perform investigatory traffic stops based on reasonable suspicion that “ an individual has violated the traffic laws. ” United State s v. Delfin

- Colina , 464 F.3d 392, 397 (3d Cir. 2006)

. A traffic stop will be deemed a “reasonable ‘seizure’ when an objective review of the f acts show s that an officer possessed specific, articulable facts that an individual was violating a traffic law at the time of the stop.” Id. at 398. Thus, an officer’s belief that a traffic law has been violated does no t have to be factually accurate; it “need only p roduce facts establishing that s he reasonably believed that a violation had taken place.” Id. If a n officer has a mistaken understanding of the law, however, the stop is unreasonable unless the facts support a violation of a different and properly interpreted law. Id. at 399. Section 4303(b) of t he Pennsylvania Motor Vehicle Code provides: Every vehic le operated on a highway shall be equipped with a rear lighting system including, but not limited to, rear lamps, rear reflectors, stop lamps and license plate light, in conformance with regulations of the department

. If a vehicle is equipped with a centr ally mounted rear stop light, a decal or overlay may be affixed to the centrally mounted rear stop light if the decal or overlay meets all applicable State and Federal regulations. 75 Pa. Cons. Stat. Ann. § 4303(b). T hat sectio n , Richardson argues, does not require the
center

- rear brake light to function , and, therefore, the traffic stop was unlawful because it is not a traffic violation to have a nonfunctioning center

- rear brake light

.7 Although the Pennsylvania Supreme Court has not addressed that issu e, 6

We agree with this persuasive authority, and Richardson provides no authority to the contrary. It follows that O fficers Verica and Murphy were permitted to pull over the the Pennsylvania Superior Court has said that Pennsylvania law do es require a functioning
center

- rear brake light. In Commonwealth v. Muhammed , 992 A.2d 897 (Pa. Super. Ct. 2010), the court held that a nonfunctioning center

- rear brake light constitute d a violation of the Pennsylvania Motor Vehicle Code and, therefore, was a valid basis for a traffic stop. Id. at 903. The court explained that, in addition to § 4303(b), the regulatory provision in 67 Pa. Code § 153.4 gives the lighting specifications f or each stop lamp on a vehicle, requiring a stop lamp to light when activated. Id. at 902. Moreover, 67 Pa. Code § 175.66 provides the specifications for lighting and ele ctrical systems, and it specifi es that stop lamps must be visible during normal dayl ight hours. Id. Considering this combination of statute and regulation s, the court concluded that , although a center

- rear brake light is not mandatory equi pment, if a vehicle does have a center

- rear brake light , it must meet the same requirements as o the r brake lights

– that is, it must illuminate upon activation. Id. at 903.

6 In the event that the state’s highest court has not clearly spoken on an issue of state law, courts give “due regard, but not conclusive effect , to the decisional law of lower state courts.” Nationwide Mut. Ins. Co. v. Buffetta , 230 F.3d 634, 637 (3d Cir. 2000). We are mindful that “[ t]he opinions of intermediate appellate state courts are ‘not to be disregarded by a federal court unless it is convinced by other persuasive data that the highest court of the state would decide otherwise.’” Id. (quoting West v. A m. Tel. & Tel. Co. , 311 U.S. 223, 237 (1940)).8 Chevr olet for traveling with an inoperable center

- rear brake light

. Thus, the District Court properly rejected Richardson’s argument that the traffic stop was illegal

. 7
B. Seizure of Defendant Richardson next contends that , even if the traffic stop was prope r , the District Court erred in not suppressing the gun and marijuana because he was unlawfully seized when O fficer Verica instructed him to get back into the car, and his subsequent abandonment of the revolver and marijuana was a product of that unlawful s eizure.
A ccording to Richardson, the officer’s words “were a show of unnecessary authority and Mr. Richardson perceived that he was unable to leave if he wanted .” 8

F or there to be a Fourth Amendment violation, there must first be a seizure. United States v. Valentine , 232 F.3d 350, 358 (3d Cir. 2000)

. A seizure occurs “when the (Appellant’s Br. 11.) Again, w e disagree with Richardson’s reasoning

.

7 Richardson also argues the officers ’ failure to issue a c itation for violating § 4303(b) demonstrates that they lacked reasonable suspicion to stop the vehicle. But t he fact that the officers did not issue a citation does not alter th e fact that they had reasonable suspicion to conduct a lawful stop of the Chevrolet

. Richardson further asserts that the stop was illegal because Officers Verica and Murphy ignored the driver of the Chevrolet, as they were focused on pursuing Richardson and “they neglected to issue a citation because they [were determined to arrest Richardson ]

. ” (Appellant’s Br. at 9.) Even if true, that fact is irrelevant to the legality of the stop. See Whren v. United States , 517 U.S. 806, 813 (1996) (finding that

“ the constitutional reasonableness” of traffic stop does not turn on “the actual motivations of the individual officers involved ”). 8 Richardson also asserts that he was seized for the second time when officers told him to exit the vehicle and sit on the c urb. ( See Appellant’s Br. At 5 (“[D]efendant contends that he did not run until after he had been removed from the Chevy, patted down for weapons, and ordered to sit on the curb.”).) The record contains no evidence to sup port this new argument, which is not surprising since it is hardly believable that Richardson , who had a revolver in his waistband , managed to conceal that from t he officers during a pat down.9 officer, by means of physical force or show of authority, has in some way restrained the liberty of a citi zen.” Terry , 392 U.S. at 19 n.16. If physical force is absent, “ submission to the assertion of authority ” is required. California v. Hodari D. , 499 U.S. 621, 626 (1991). E ven if there is a show of authority, “ there is no seizure without actual
submissi on . ” Brendlin v. California , 551 U.S. 249, 254 (2007). Further, submission requires “something more than a momentary pause or mere inaction.” United States v.
Waterman , 569 F.3d 144, 146 (3d Cir. 2009). During a routine traffic stop, p olice officers “h a[ve] the authority and duty to control the vehicle and its occupants, at least for a brief period of time.” United States v.
Bonner , 363 F.3d 213, 217 (3d Cir. 2004.). Once a vehicle has been lawfully stopped, an officer may ask the driver to step out o f the vehicle. Pennsylvania v. Mimms , 434 U.S. 106, 111 (1997). A n officer may also order “passengers to get out of the car pending completion of the [traffic] stop.” Maryland v. Wilson , 519 U.S. 408, 415 (1997). More to the point here , a n officer may order passengers to remain in the car

. See United States v. Moorefield , 111 F.3d 10, 13 (3d Cir. 1997) (“ Just as the Court in Wilson found ordering a passenger out of the car to be a minimal intrusion on personal liberty, we find the imposition of having to remain in the car with raised hands equally minimal .”). And although , as a general matter , an occupant is seized within the meaning of the Fourth Amendment during a traffic stop, see Brendlin , 551 U.S. at 263 (concluding that occupants of car that was pulled over are seized within meaning of Fourth Amendment) , that seizure is not i llegal if the stop was lawful.10 Thus, because the stop of the Chevrolet was lawful, Officer Verica had the authority to order Richard son to remain in the car while the stop w as taking place. Yet Officer Verica’s lawful attempt to briefly seize Richardson was unsuccessful

. Richardson only momentarily complied with V erica’s order to remain in the car, and momentary compliance does not amount to submission to a seizure

. See Wa terman , 569 F.3d at 146 (concluding that submission to police order requires “something more than a momentary pause or mere inaction”); Valentine , 232 F.3d at 359 (holding that there was no seizure when defendant failed to place his hands on car as instruc ted, even assuming that he momentarily complied by stopping and giving his name)

. Importantly, a t the time of Richardson’s actual seizure, when officers apprehended him after his flight , he had already abandon ed the revolver and marijuana. United States
v. Harrison , 689 F.3d 301, 3 07 (3d Cir. 2012) (“In most cases, disclaiming ownership or physically relinquishing the property is sufficient to establish abandonment.”)

. And b ecause Richardson abandoned the revolver and marijuana before the officers seized him, he ha d no reasonable expectation of privacy in those items

. See Hodari D , 499 U.S. at 629 (holding that cocaine abandoned by defendant whilst fleeing from police was not fruit of seizure an d “ motion to exclude evidence of it was properly denied ”) ; c f. United
States v. Fulani , 368 F.3d 351, 354 (3d Cir. 2004) (“ Although a person has a privacy interest in the co ntents of his personal luggage he forfeits that interest when he abandons his property

. ” (citation omitted ) )

. Accordingly, w e conclude that th e District Court did
not err in denying Richardson’s motion to suppress

.11 III. Conclusion For the foregoing reasons , we will affirm the District Court’s order denying the motion to suppress.