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UNITED STATES of America v. Jerome SMITH, a/k/a Paul Kelly, Jerome Smith, Appellant.

No. 05-1774.

United States Court of Appeals, Third Circuit.

Submitted Under Third Circuit LAR 34.1(a) March 9, 2006.

Filed May 26, 2006.

John N. Joseph, Office of United States Attorney, Philadelphia, PA, for Appellee.

Donald M. Moser, Philadelphia, PA, for Appellant.

Before ROTH and ALDISERT, Circuit Judges, and RODRIGUEZ,* District Judge.

JUDGMENT ORDER

ALDISERT, Circuit Judge.

This cause came to be considered on the record from the United States District Court for the Eastern District of Pennsylvania and was submitted under Third Circuit LAR 34.1(a) on March 9, 2006, and

IT APPEARING that Appellant Jerome Smith challenges the denial of a motion to suppress evidence on the basis that the officers lacked reasonable suspicion to search him; and

IT APPEARING that Smith is the co-defendant of Kareem Brown, the appellant in United States v. Brown, 448 F.3d 239 (3d Cir.2006) (Judges Barry, Ambro and Aldisert), in which this Court, per Judge Ambro, vacated Brown’s conviction after determining that police did not have reasonable suspicion to stop Brown and that he was seized before any alleged resistance occurred; and

IT APPEARING that Smith and Brown were together when apprehended and that the only factual variance between the circumstances surrounding the seizure of Smith and those surrounding the seizure of Brown is that Smith fled from police moments before Brown began allegedly resisting; and

IT APPEARING that this distinction is immaterial because Smith had already submitted to a show of police authority by engaging in a brief discussion, putting down his coffee, walking over to the police car and starting to place his hands on the officers’ car, see id at *15-16, 448 F.3d at 246; see also United States v. Coggins, 986 F.2d 651, 654 (3d Cir.1993) (holding that defendant submitted to a show of authority where he obeyed agent’s command to “sit down,” even though defendant subsequently fled); and

UPON CONSIDERATION of all facts and legal contentions, there is no other ground distinguishing this case from Brown, nor meriting further discussion; accordingly,

IT IS ORDERED and ADJUDGED that the judgment of the District Court dated July 20, 2004 be and is hereby REVERSED and the conviction is VACATED.

The mandate of this Court shall issue forthwith.

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