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Media Alerts - United States of America v. Lowe - Third Circuit
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July 6, 2015
  United States of America v. Lowe - Third Circuit
Headline: Third Circuit Holds Suspect Was Seized under Terry When He Submitted to Authority by Not Running Away.

Area of Law: Fourth Amendment

Issues Presented: Does failure to immediately follow commands indicate a failure to submit to authority and allow for reasonable suspicion, under Terry where defendant did not try to run away when confronted by numerous police officers?

Brief Summary:

Lowe was stopped after police received two phone tips related to firearms. The officers responding to the scene commanded Lowe to show his hands multiple times before Lowe complied. Lowe took several steps backwards but made no other effort to leave the scene. The officers frisked Lowe and found a firearm. Lowe appealed his conviction for illegally possessing a firearm as a convicted felon, arguing that the police did not have reasonable suspicion to conduct a Terry stop when they seized him. The Court rejected the argument that Lowe did not submit to the initial show of authority because he failed to show his hands in response to the officers' commands and because Lowe took several steps backwards as the officers approached. This Court determined that Lowe was seized when he submitted to the authority of the police by not fleeing the scene or making any threatening movements, and that that the officers did not have reasonable suspicion when they actually seized Lowe. It reversed the denial of Lowe's motion to suppress.

Extended Summary:

On September 19, 2010, Philadelphia police officers responded to a call reporting a male with a gun at 914 North Markoe Street. Ninety minutes earlier they had received another call reporting a gunshot in the same area. The officers testified that they knew that a shot had been fired at a house, but that no one had been shot and no suspect had been apprehended. Two officers arrived at the scene within two minutes of receiving the phone call, and two additional police cars arrived seconds later. The officers approached Lowe, who matched the description from the phone call, but they did not see a gun or anything indicating that Lowe had a gun.

The officers recounted "varying versions" of what happened next. The officers agreed that Lowe was told at least several times to remove his hands from his pockets, and eventually Lowe was placed against the wall. At that point, the officers frisked Lowe and found a firearm. The District Court also found that Lowe took several steps backing away from the officers and did not initially comply with the orders.

Lowe appealed his conviction for illegally possessing a firearm as a convicted felon, arguing the District Court erred in denying his motion to suppress. Lowe argued that the police did not have reasonable suspicion to conduct a Terry stop when they seized him, and therefore, the evidence discovered as a result of the stop and frisk was obtained in violation of the Fourth Amendment. The Court held that the District Court erred in identifying the moment of seizure, and that the officers did not have reasonable suspicion when they actually seized Lowe. The Court reversed the District Court's denial of Lowe's suppression motion.

The Court used a two part test to determine when Lowe was seized: (1) whether a reasonable person would have understood he/she was not free to leave; and (2) whether the individual "submitted" to a show of authority. The Court examined the surrounding circumstances and determined that a reasonable person in Lowe's position would not have felt free to decline this interaction, given the three police cars, multiple police officers, and the command to show Lowe's hands. The Government's central argument was that Lowe did not submit to the initial show of authority because he failed to show his hands in response to the officers' commands. The Court rejected this argument because Lowe abided by the show of authority by not fleeing or making threatening movements, noting that Lowe's steps backward were not an attempt to flee, but more suggestive of a simple surprise.

Reasonable suspicion analysis must be limited to the facts known to the officers when they effected a Terry stop. The officers lacked reasonable suspicion at the moment of seizure because the Court concluded that Lowe was seized when the officers approached him. The evidence recovered as a result of the search must be suppressed.



Find the full opinion at:

http://www2.ca3.uscourts.gov/opinarch/141108p.pdf

Panel: McKee, Chief Judge, Greenaway, Jr. and Krause, Circuit Judges

Argument Date: October 28, 2014

Date of Issued Opinion: July 2, 2015

Docket Number: No. 14-1108

Decided: Motion to Suppress Granted

Case Alert Author: Jessica Wood

Counsel:

Leigh M. Kipper, Esq., Brett G. Sweitzer, Esq., Robert Epstein, Esq. for Appellant

Zane David Memeger, Esq., Robert A. Zauzmer, Esq., Bernadette McKeon, Esq. for Appellee

Author of Opinion: McKee, Chief Judge

Circuit: Third Circuit

Case Alert Supervisor: Prof. Susan L. DeJarnatt

    Posted By: Susan DeJarnatt @ 07/06/2015 02:42 PM     3rd Circuit  

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