UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 09-4328


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

ANTHONY JOSEPH ALLISON,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Asheville.  Lacy H. Thornburg,
District Judge. (1:08-cr-00085-LHT-1)


Argued:   September 24, 2010                 Decided:   October 18, 2010


Before NIEMEYER, MOTZ, and GREGORY, Circuit Judges.


Affirmed by unpublished per curiam opinion.


ARGUED: Matthew Segal, FEDERAL DEFENDERS OF WESTERN NORTH
CAROLINA, INC., Asheville, North Carolina, for Appellant.   Mark
A. Jones, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North
Carolina, for Appellee. ON BRIEF: Claire J. Rauscher, Executive
Director, Fredilyn Sison, FEDERAL DEFENDERS OF WESTERN NORTH
CAROLINA, INC., Asheville, North Carolina, for Appellant.
Edward R. Ryan, Acting United States Attorney, Charlotte, North
Carolina, Amy E. Ray, Assistant United States Attorney, OFFICE
OF THE UNITED STATES ATTORNEY, Asheville, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.




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PER CURIAM:

     Anthony Allison appeals from an order of the district court

denying his motion to suppress a gun found in a car in which he

had been a passenger.    We affirm.



                                 I.

     On January 11, 2008, a police officer, Sgt. John Hamrick,

spotted two men in a Ford Explorer on a residential street in

Shelby,   North   Carolina.   Victor   Jerome   Wade   was   driving   the

Explorer and Allison was seated in the front seat beside him.

Sgt. Hamrick, however, mistakenly thought that he recognized the

driver as Zavious Wells, a man wanted for a probation violation.

Sgt. Hamrick and his partner, Officer Brandon Carpenter, made a

U-turn and began to follow the Explorer, with the intent to make

a traffic stop.      Shortly thereafter, Wade drove the Explorer

into a driveway next to, and toward the rear of, a house.              The

officers parked in the driveway behind the Explorer.

     Allison and Wade emerged from the Explorer and then noticed

the police officers, who had also exited their vehicle.           Allison

and Wade moved toward the front door of the house.           The officers

approached them, and Sgt. Hamrick said to Wade, “You are not

Zavious, but you are Victor.”      Sgt. Hamrick later testified at

the suppression hearing that he knew Wade because he had charged

him in 2005 with a “driving offense” and had reason to believe

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that   Wade       did    not   have   a    driver’s       license.       He      asked     Wade

whether he had a license, and Wade responded in the negative.

Sgt. Hamrick patted down Wade and Allison for weapons, but found

nothing.          He requested Wade’s consent to search the Explorer,

but Wade refused on the ground that he did not own the vehicle.

       Sgt.       Hamrick      testified     that    he     knew    that        Allison     had

recently       been       released    from        prison,        where     he       had    been

incarcerated for gun charges.                 Sgt. Hamrick also testified that

he “reasonably felt that there was something that was in the

vehicle that these two young men were trying to hide” because

the Explorer had turned quickly into the driveway and proceeded

to the back of the house.                   When three women emerged from the

house shortly after the Explorer arrived, Sgt. Hamrick testified

that   he     feared      that    someone    might    go    into     the    Explorer        and

retrieve      a    weapon.        Accordingly,       Sgt.    Hamrick       asked      Officer

Carpenter and a third officer who arrived for backup support to

conduct a “Terry frisk” of the Explorer.                          One of the officers

discovered        a     handgun   under     the     front    passenger          seat,     where

Allison had been seated.              The officers then arrested Allison and

obtained a search warrant to examine the contents of his cell

phone,   which        revealed     photographs       of    him    holding       a   gun    that

resembled the gun seized from the vehicle.

       Allison moved to suppress the gun as the product of an

unlawful search and seizure.                  He testified at the suppression

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hearing that he and Wade intended to visit Wade’s ex-girlfriend

at the house and stay for about 30 minutes.                    Allison claimed

that he did not feel free to leave when the police arrived

because he thought the officers would stop him and might try to

arrest him for resisting.             He acknowledged, however, that on

this occasion, unlike his prior encounters with the police, the

officers did not specifically do or say anything to indicate

that he was not free to leave.

      The district court denied Allison’s motion to suppress the

gun on the ground that the police did not stop the vehicle in

which   Allison    was   a   passenger      and   Allison     had   no   right    to

challenge the search of the vehicle in question.                    Allison then

entered a conditional guilty plea to being a felon in possession

of a firearm in violation of 18 U.S.C. § 922(g)(1), reserving

the right to appeal the denial of his suppression motion.



                                       II.

      To challenge the search of a vehicle, a passenger must have

a   reasonable    expectation    of    privacy     in   the   vehicle     and    its

contents.     When, as here, he does not own the vehicle and does

not claim ownership of its contents, he typically does not have

such an expectation.         See Rakas v. Illinois, 

, 148-

49 (1978); United States v. Rusher, 

, 874-75 (4th

Cir. 1992).      However, the Supreme Court has held that passengers

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are seized in traffic stops, and thus may challenge the legality

of   such    stops.        Brendlin     v.    California,        

,   258

(2007).      In Brendlin, the defendant challenged only the legality

of the stop, and not the subsequent search, but the Court has

held that searches that are the “fruits” of seizures are subject

to challenge as well.              See Wong Sun v. United States, 

, 484 (1963).

       The    parties      agree    that     Wade    drove    the    Explorer       to   its

destination,        parked    it,     and    that    he   and    Allison        exited   the

vehicle       before       either      of     them        noticed         the     officers.

Nonetheless,        Allison        contends       that    the     officers’        actions

amounted to a traffic stop because when the police car parked

behind the Explorer in the driveway, it prevented the Explorer

from    leaving.        Allison     seeks     to     challenge      the    stop    and   the

ensuing search as the “fruit” of the stop.

       He heavily relies on the Brendlin holding that “[a] person

is   seized    by    the     police    and    thus    entitled      to     challenge     the

government's action under the Fourth Amendment when the officer,

by means of physical force or show of authority, terminates or

restrains his freedom of movement, through means intentionally

(internal citations and quotation

marks     omitted,      emphasis       removed).          This      holding,       however,

provides little assistance to Allison.                       This is so because by

the time the officers pulled into the driveway, blocking the

                                              6
Explorer, the Explorer had come to a stop, and Allison and Wade

had exited it with the admitted intent to enter a house for

thirty minutes.           Given these facts, the inquiry must focus on

Allison’s rights as a pedestrian, not as a passenger.

      Both the Supreme Court and this court have distinguished

pedestrian        stops     from          automotive        stops,       reasoning        that

questioning a pedestrian is significantly less intrusive than

arresting the progress of an automobile.                          See United States v.

Mendenhall,       

,   556-57        (1980);      United    States     v.

Weaver,     

,         312     (4th     Cir.     2002)     (“pedestrian

encounters        are     much       less       restrictive       of    an     individual’s

movements”).

      Indeed, Brendlin, the very case on which Allison relies to

claim standing as a passenger, draws a stark contrast between

individuals within a vehicle and those outside its confines:

pedestrians       possess        a    degree      of     physical      and    environmental

freedom that automotive occupants lack.                        See 

(2007) (noting that a stop of persons inside a vehicle

triggers     a     “societal          expectation         of      ‘unquestioned      police

command’”      (internal         citations           omitted)).         The     holding    in

Brendlin -- that a traffic stop seizes a passenger as well as

the   driver      --    rests        on     the      physical      confinement      of     the

automobile.       As the Brendlin Court explained, “[a]n officer who

orders one particular car to pull over acts with an implicit

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claim of right . . ., and a sensible person would not expect a

police officer to allow people to come and go freely from the

physical focal point of the investigation . . . .”                        

of the car -- and the passenger’s dependence on the driver

while within those walls –- bind the car’s occupants; a seizure

of one is a seizure of all.

     Here,    by    contrast,    confinement       in   the    Explorer    did   not

limit Allison’s freedom of movement at the time the officers

pulled into the driveway and blocked the vehicle.                  Police effect

a   seizure    only     if     they   “terminate[]        or    restrain[]       [an

individual’s] freedom of movement” “by means of physical force

or show of authority.”          

(internal quotation omitted).

Because the car did not limit Allison’s movement at the time of

the police encounter, the blocking of that car did not restrain

his freedom of movement.          Cf. INS v. Delgado, 

, 218

(1984) (finding no seizure when INS agents obstructed exits to

large factory while interrogating workers, because “workers were

not prevented by the agents from moving about the factories”).



                                      III.

     In summary, Allison does not have standing to contest the

search   of   the     Explorer    that       led   to   the    recovery    of    the

challenged weapon.           Because Allison did not have standing to

challenge the search of the Explorer and the search was not the

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fruit   of   an   illegal   seizure   of   Allison,   we   reject   Allison’s

contention that the district court erred in refusing to suppress

the gun.     Therefore, the judgment of the district court is



                                                                    AFFIRMED.




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