In United States v. Shawn Lowe, No. 14-1108, ___ F.3d. ___, 2015 WL 4032921 (3d. Cir. July 2, 2015), the Third Circuit reversed the district court's denial of Lowe's suppression motion, finding that the district court had erred in determining the moment of seizure during a Terry stop. The Court explained:
Here, three marked police cars nearly simultaneously arrived at Ms. Witherspoon’s residence at 4 o’clock in the morning. Four uniformed police officers immediately got out of their patrol cars and approached Lowe and Witherspoon, commanding them to show their hands. . . . [T]he record indicates that [the officers] arrived in a hurried manner and at least one drew his firearm at some point during the encounter. A reasonable person in Lowe’s position would not have felt free to decline this interaction, turn, and leave.
The Court also determined that Lowe submitted to the show of authority. The seizure was effectuated when he did not flee, did not make any threatening movement or gesture, and remained stationary. Lowe's "few startled steps back in the face of onrushing, armed police officers is entirely consistent with a surprised reaction and even acquiescence" and did not amount to flight.
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