PRECEDENTIAL

       UNITED STATES COURT OF APPEALS
            FOR THE THIRD CIRCUIT
                 _____________

                     No. 17-1901
                    _____________

           UNITED STATES OF AMERICA

                           v.

                 AMIN DE CASTRO,
                             Appellant
                  _____________

     On Appeal from the United States District Court
        for the Eastern District of Pennsylvania
          (D.C. Crim. No. 2-15-cr-00114-001)
       District Judge: Honorable Juan R. Sanchez
                    ______________

                  Argued April 9, 2018
                   ______________

 Before: CHAGARES, VANASKIE, and FISHER, Circuit
                    Judges

            (Opinion Filed: October 3, 2018)

Jacob Schuman, Esq. [ARGUED]
Robert Epstein, Esq.
Maranna J. Meehan, Esq.
Federal Community Defender Office for the
Eastern District of Pennsylvania
601 Walnut Street
The Curtis Center, Suite 540 West
Philadelphia, PA 19106
              Counsel for Appellant

Robert A. Zauzmer, Esq. [ARGUED]
Bernadette A. McKeon, Esq.
Virgil B. Walker, Esq.
Office of United States Attorney
615 Chestnut Street
Suite 1250
Philadelphia, PA 19106
              Counsel for Appellee
                      ______________

                 OPINION OF THE COURT
                     ______________


VANASKIE, Circuit Judge.

       Appellant Amin De Castro challenges the District
Court’s denial of his motion to suppress evidence and
statements obtained by a police officer during a street
encounter, arguing that he was unreasonably seized when the
officer asked him to remove his hands from his pockets.
Discerning no error in the District Court’s finding that the
officer’s request was not a seizure, we will affirm the judgment
of conviction entered on April 12, 2017.




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                               I.

       During the early evening hours of September 22, 2014,
an anonymous source called 911 to report a Hispanic male
pointing a gun at juveniles outside a vacant flower shop on the
1800 block of North 31st Street in Philadelphia, Pennsylvania.
The suspect was reportedly wearing a gray shirt, gray pants,
and a bucket hat.         Philadelphia Police Officer John
Mulqueeney, who had been assigned to that area for
approximately thirteen years and knew about the drug and
firearm activity prevalent there, was dispatched minutes after
the call was placed. He stopped his cruiser approximately
fifteen to twenty feet from De Castro and his neighbor, who
were speaking outside of the vacant flower shop. De Castro
was wearing a light gray bucket hat, a gray striped shirt, and
gray camouflage pants.

       As Officer Mulqueeney exited his car and approached
the men, De Castro turned toward Officer Mulqueeney. “At a
distance of approximately [five to ten] feet, Officer
Mulqueeney used a polite, conversational, and non-threatening
tone to ask De Castro if he would remove his hands from his
pockets.” (App. at 11.) De Castro complied, revealing a green
pistol grip protruding from his pants pocket. Officer
Mulqueeney asked De Castro to raise his hands higher, and
removed a loaded firearm from De Castro’s pocket. When
asked if he had identification or a permit to carry the firearm,
De Castro replied that he had neither, but that he had a passport
from the Dominican Republic.              Officer Mulqueeney
handcuffed De Castro and frisked him, finding in De Castro’s
pocket a loaded magazine containing ammunition that matched
the firearm. Additional officers arrived on-scene as Officer
Mulqueeney placed De Castro under arrest.




                               3
        Following a trial, De Castro was convicted of being an
alien in possession of a firearm, in violation of 18 U.S.C. §
922(g)(5)(A). The District Court, however, granted him a new
trial “due to [his] trial counsel’s constitutionally deficient
representation.” (App. at 11.) Pending his new trial, De Castro
filed a motion to suppress all statements and physical evidence
obtained by Officer Mulqueeney during the September 22,
2014, encounter, contending that the stop was unconstitutional.

       After conducting an evidentiary hearing, the District
Court determined that Officer Mulqueeney’s request for De
Castro to remove his hands from his pockets did not constitute
a seizure under the Fourth Amendment. The District Court
opined that Officer Mulqueeney, who responded to the scene
alone, “neither ordered nor repeatedly asked De Castro to
comply. Instead, he used a polite, conversational, and non-
threatening tone to communicate his single request from a
distance of at least five feet, with his weapon holstered and
without any physical touching.” (App. at 13.) The Court thus
concluded that De Castro was not seized at that moment
because “a reasonable person would have felt free to decline
Officer Mulqueeney’s lone request.” (Id.) Moreover, even
assuming, arguendo, that the request was a seizure, the District
Court nonetheless found that it was supported by reasonable
suspicion. 1 As such, the District Court denied De Castro’s
suppression motion, and De Castro subsequently pled guilty to
the offense. He was sentenced to time served plus a two-year
term of supervised release, and was then deported to the
Dominican Republic. He timely appealed.


       1
        Since we conclude that the request was not a seizure,
we need not address the question of whether there was
reasonable suspicion.




                               4
                               II.

       The District Court had jurisdiction under 18 U.S.C. §
3231, and we have jurisdiction under 28 U.S.C. § 1291. Since
the District Court’s factual findings are not in dispute, our
review is plenary. United States v. Givan, 

, 458
(3d Cir. 2003) (citations omitted).

                              III.

       The Fourth Amendment protects against “unreasonable
searches and seizures.” U.S. Const. amend. IV. We have
observed, however, that “not every interaction between a
police officer and a citizen is protected by the Fourth
Amendment.” United States v. Smith, 

, 312 (3d
Cir. 2009). Rather, “[p]olice encounters with citizens fall into
one of three broad categories, each with varying degrees of
constitutional scrutiny: ‘(1) police-citizen exchanges involving
no coercion or detention; (2) brief seizures or investigatory
detentions; and (3) full-scale arrests.’” United States v. Brown,

, 288 (3d Cir. 2014) (quoting United States v.
Perez, 

, 777 (11th Cir. 2006)).

         Analyzing whether a police encounter in the second
category comported with the Fourth Amendment requires a
two-step inquiry: “Was there in fact a seizure? If so, was that
seizure reasonable?” 

. Regarding the
first step, the Supreme Court has observed:

       [L]aw enforcement officers do not violate the
       Fourth Amendment by merely approaching an
       individual on the street or in another public
       place, by asking him if he is willing to answer
       some questions, by putting questions to him if




                               5
       the person is willing to listen, or by offering in
       evidence in a criminal prosecution his voluntary
       answers to such questions . . . . The person
       approached, however, need not answer any
       question put to him; indeed, he may decline to
       listen to the questions at all and may go on his
       way . . . . If there is no detention—no seizure
       within the meaning of the Fourth Amendment—
       then no constitutional rights have been infringed.

Florida v. Royer, 

, 497-98 (1983) (plurality
opinion) (internal citations omitted). 2

       The Supreme Court elaborated on this holding one year
later in Immigration & Naturalization Service v. Delgado,
stating:

       our recent decision in Royer . . . plainly implies
       that interrogation relating to one’s identity or a
       request for identification by the police does not,
       by itself, constitute a Fourth Amendment seizure
       . . . . While most citizens will respond to a police
       request, the fact that people do so, and do so

       2
          Notably, the Court in Royer concluded that asking
Royer to produce his airline ticket and driver’s license “were
no doubt permissible in themselves,” but that a seizure was
thereafter effected “when the officers identified themselves as
narcotics agents, told Royer that he was suspected of
transporting narcotics, and asked him to accompany them to
the police room, while retaining his ticket and driver’s license
and without indicating in any way that he was free to depart
. . . .” 

.




                                6
       without being told they are free not to respond,
       hardly eliminates the consensual nature of the
       response . . . . Unless the circumstances of the
       encounter are so intimidating as to demonstrate
       that a reasonable person would have believed he
       was not free to leave if he had not responded, one
       cannot say that the questioning resulted in a
       detention under the Fourth Amendment.

 

, 216 (1984). 3

        Police conduct rises to the level of a “seizure” when,
“by means of physical force or a show of authority, [a person’s]
freedom of movement is restrained.” United States v.
Mendenhall, 

, 553-55 (1980) (holding that agents’
requests for an individual to produce her plane ticket and
identification, “without more, did not amount to an intrusion
upon any constitutionally protected interest”). “Only when
such restraint is imposed is there any foundation whatever for
invoking constitutional safeguards.” 

“[T]he test for
existence of a ‘show of authority’ is an objective one: not
whether the citizen perceived that he was being ordered to
restrict his movement, but whether the officer’s words and
actions would have conveyed that to a reasonable person.”
California v. Hodari D., 

, 628 (1991) (citation
omitted). A person is thus “seized” when he or she yields to
the show of authority. 

       3
         In Delgado, the Court ruled that questioning workers
inside a factory about their citizenship status while
immigration agents were stationed at the factory’s exits did not
effectuate a seizure for Fourth Amendment purposes.

.




                               7
        Factors tending to indicate a seizure include “the
threatening presence of several officers, the display of a
weapon by an officer, some physical touching of the person of
the citizen, or the use of language or tone of voice indicating
that compliance with the officer’s request might be
compelled.” 

. Compare 

(holding that “[t]here was nothing about the
detectives’ brief initial approach that constituted a Fourth
Amendment seizure” when the detectives “did not activate
their lights or sirens, brandish their weapons, block [the
defendant’s] path, physically touch [the defendant], or make
any threats or intimidating movements”), and 

(holding that an individual was not seized when an
officer repeatedly asked the question, “Where is your girl’s
house?” because “[t]here was no overt indication the
questioning was not part of a consensual encounter between
the officer and [the individual]”), with United States v. Brown,

, 245 (3d Cir. 2006) (holding that an individual
was “seized” when he turned and placed his hands on the police
vehicle after the officer told him “that a robbery victim was
being brought over to identify [him and another individual] as
possible suspects and, if they were not identified, they would
be free to go—necessarily implying that they were not free to
leave”), and Johnson v. Campbell, 

, 205-06 (3d
Cir. 2003) (finding that “it became clear that [the individual]
could not refuse [the officer’s repeated] requests” to roll down
his car window, and was thus seized).

       To determine whether Officer Mulqueeney’s request
constituted a seizure, the District of Columbia Court of
Appeals’ decision in United States v. Barnes, 

(D.C. 1985), is instructive. There, an officer was patrolling a
high crime area when he observed Appellee Keith Barnes




                               8
standing outside a men’s clothing store, peering up and down
the street, while another individual went in and out of the store
a few times. 

. The officer, finding
their behavior to be “suspicious,” approached and asked
Barnes to remove his hands from his pockets. 

and voluntarily answered the officer’s question about
his reason for being there (“just hanging around”), and any
prior arrests (previously arrested for armed robbery). 

then “observed a bulge in the stomach area of
[Barnes’s] windbreaker which ‘looked unusual.’” 

the bulge and suspecting it was a gun, the officer asked
Barnes to place his hands on the police car and then removed a
revolver from Barnes’s jacket. 

arrested on
weapons charges, and subsequently moved to suppress the gun
and ammunition seized by the officer. 

court ruled
in Barnes’s favor, concluding that “the facts did not ‘justify a
suspicion sufficient to stop [Barnes] and to conduct a search.’”

the Court of Appeals addressed the
“threshold question of . . . [w]hen did the seizure occur?” 

If it occurred at the moment when Barnes was asked
to take his hands out of his pockets, then a Fourth Amendment
violation had been committed because the police did not then
have reasonable suspicion to believe that criminal activity was
afoot. It was only after Barnes answered that he was “just
hanging around” and had a prior arrest for armed robbery,
coupled with the observations the officer had made of Barnes’s
companion repeatedly entering and exiting a store, that the
officer had the requisite reasonable suspicion to effectuate “an
investigatory detention and protective frisk.” 

As
to the status of the encounter before the officer conducted the




                               9
frisk, the Court of Appeals held that was “consensual,”
explaining:

       Officer Clark’s request that [Barnes] remove his
       hands from his pockets (which was no more
       intrusive than a request for identification),
       followed by two questions and [Barnes’s]
       “voluntary answers,” . . . met the Supreme Court
       test for a pre-seizure, “consensual encounter.”
       There are no indications of “intimidating”
       circumstances . . . . Officer Turner remained in
       the car while Officer Clark alone approached
       [Barnes]. Clark did not touch [Barnes] or draw a
       gun. Clark’s requests that [Barnes] remove his
       hands from his pockets and answer two questions
       were nonintimidating; there was no threatening
       language or any indication that Clark used a
       severe tone of voice. In short, nothing
       happened—under Supreme Court analysis—that
       would have warranted [Barnes’s] reasonable
       belief that he was not free to ignore the questions
       and walk away.

(citations omitted). Accordingly, the Court of
Appeals reversed the trial court order suppressing the evidence
obtained as a result of the protective frisk. 

further instructive to note that many state courts to
have reviewed the issue have likewise determined that an
officer’s request that a person take their hands out of their
pockets is not alone sufficient to convert an otherwise
voluntary encounter into a seizure. See, e.g., State v. Jennings,

, 1150 (Kan. Ct. App. 2004) (“We . . . find that
the request for the men to remove their hands from their




                               10
pockets did not turn this voluntary encounter into a seizure.”);
Wayne R. LaFave, Search and Seizure § 9.4(a) (5th ed. 2012)
(citations omitted) (quoting Florida v. Bostick, 

,
435 (1991)) (noting that a seizure does not occur “‘as long as
the police do not convey a message that compliance with [a]
request is required,’ and the same is true of a request that the
suspect remove his hands from his pockets”). Indeed, although
not at issue here, many courts have applied this rationale to
instances in which the officer does so in the form of a direction
rather than a request. See, e.g., United States v. Broomfield,

, 656 (7th Cir. 2005) (holding that an officer did
not seize the defendant where, before asking him a question,
“[a]ll that the officer had said was take your hands out of your
pockets, an obvious precaution since it was dark and an armed
robber was on the loose”); State v. Walker, 

,
806 (Ga. 2014) (finding that defendant “was not seized within
the meaning of the Fourth Amendment by [officer’s] direction
that he remove his hands from his pockets”) (emphasis in
original); State v. Fortun-Cebada, 

, 805 (Wash.
Ct. App. 2010) (“[W]e conclude the direction to remove [a
person’s] hands from his sweatshirt pocket did not convert a
permissible social contact into a seizure.”). Courts have further
recognized that officers routinely make such requests for their
own safety and not necessarily for investigative purposes. See,
e.g., State v. Hamilton, 

, 214 (La. 2010) (holding
that police officers’ “instruction to remove [the defendant’s]
hands from his pocket . . . was based on concerns for officer
safety and did not communicate an intent to stop, seize, or
search the defendant”); State v. Nettles, 

, 712
(Wash. Ct. App. 1993) (noting that “it is not unreasonable to
permit a police officer in the course of an otherwise permissive
encounter to ask an individual to make his hands visible”).




                               11
       With this analysis in mind, we turn to the encounter
between De Castro and Officer Mulqueeney. De Castro urges
us to find that Officer Mulqueeney’s request was a seizure,
contending that Officer Mulqueeney made a show of authority
by arriving in his patrol car, “immediately focusing on [De
Castro] and walking toward him, . . . asking him to take his
hands out of his pockets.” (Appellant’s Br. at 13.) While De
Castro acknowledges Officer Mulqueeney’s “conversational
tone,” he nonetheless argues that “even a polite request for
someone to take his hands out of his pockets constitutes a show
of authority if a reasonable person would not feel free to
refuse.” (Id.) De Castro also makes a public policy argument
based on the recent history of police encounters resulting in
death, arguing that “[a] reasonable person in [his] shoes would
have been well aware of the many tragic stories suggesting that
failing to comply with a police officer’s request – especially
conveying a threat by refusing to show hands – can end in
death.” (Id. at 19.)

       We reject De Castro’s arguments in light of the
Mendenhall factors and Barnes. Officer Mulqueeney was the
only officer present during the initial encounter, and made a
sole, polite, and conversational request for De Castro to
remove his hands from his pockets, rather than an order for him
to show his hands. No weapons were drawn, and no threats
were made. Officer Mulqueeney did not communicate to De
Castro—either through words or actions—that he was not free
to leave. Rather, it was appropriate for Officer Mulqueeney to
request that De Castro remove his hands from his pockets for
the safety of himself and others. See Rodriguez v. United
States, 

, 1616 (2015) (recognizing the
governmental interest in officer safety during traffic stops,
which are “especially fraught with danger to police officers”




                              12
(quoting Arizona v. Johnson, 

, 330 (2009)));

(7th Cir. 2005) (holding that, in
the midst of a robbery investigation, an officer’s request for an
individual to remove his hands from his pockets did not
constitute a seizure because the request was “an obvious
precaution since it was dark and an armed robber was on the
loose”). And finally, the totality of the circumstances indicates
that a reasonable person in De Castro’s position would have
felt free to ignore the officer’s request and end the encounter.
See 

. We thus hold that Officer
Mulqueeney’s request for De Castro to remove his hands from
his pockets did not constitute a seizure.

       Holdings of our sister circuits finding a seizure when
officers made similar requests are distinguishable. For
example, an officer’s request for an individual to remove his
hands from his pockets constituted a seizure where there were
multiple officers present and the location was actively being
searched for drugs when the individual arrived. See United
States v. Jackson, 

, 83 (7th Cir. 1990). The Seventh
Circuit found that the request “implie[d] that [the officers]
anticipate[d] some potential menace from [the individual],”
and “[i]n th[ose] circumstances he would be foolhardy to try to
leave.” 

See also United States v. Camacho, 

, 729 (1st Cir. 2011) (finding a “substantial show of
authority” when officers “cut[] off [two individuals’] path with
an unmarked police car, order[ed] [the first individual] to put
his hands on the hood, ask[ed] [the second individual]
‘accusatory’ questions, and order[ed] [him] to take his hands
out of his pockets”). Indeed, we have ruled similarly in this
regard. See, e.g., United States v. Lowe, 

, 431-32
(3d Cir. 2015) (finding that officers approaching an individual
“in a hurried manner” and with a firearm drawn displayed a




                               13
show of authority when they made five to ten requests for the
individual to show his hands). A seizure has also been
recognized when an individual ignored an officer’s first
request for him to remove his hands from his pockets, causing
the officer to “repeat[] the question in an increasingly loud
voice a few more times . . . .” United States v. Dubose, 

, 119 (1st Cir. 2009).

       Here, by way of contrast, there was no similar show of
authority or intimidating conduct on the part of Officer
Mulqueeney. He was alone. He did not brandish a firearm.
He spoke in a conversational tone. De Castro voluntarily
removed his hands from his pockets, thereby revealing a
weapon that furnished Officer Mulqueeney with the necessary
reasonable suspicion to seize the gun. Accordingly, the
District Court did not err in denying De Castro’s suppression
motion.

                            IV.

      For the foregoing reasons, we will affirm the judgment
of conviction entered on April 12, 2017.




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