Seizure occurred when police asked man about his identity for 10 minutes; suspicion that he lied about his name didn't justify the stop

Kelby R. Gordon v. United States (decided July 23, 2015).

The Players:  Associate Judges Beckwith and McLeese, Senior Judge Ferren.  Opinion by Senior Judge Ferren.  Anna B. Scanlon for Appellant.  Trial Judge: Harold Cushenberry, Jr.

The Facts: Four police officers entered the small foyer of a building in a “high crime” area where four men, including Mr. Gordon, were hanging out.  The whole building smelled like burned marijuana, but the officers did not see the men smoking.  One officer asked Mr. Gordon for identification.  Mr. Gordon said he had none and did not live in the building.  He told the officer his name was “Khalil Mikes” and gave his date of birth.  In response to more questioning, he said he had been locked up in D.C. before.  The officer used his laptop to search for Mr. Gordon’s record, but found nothing.  He continued to question Mr. Gordon about how he spelled his name, whether he used aliases, etc.  This went on for ten minutes or so.  Mr. Gordon eventually gave his real name.  The officer finally retrieved Mr. Gordon’s data, discovered he had an outstanding warrant, and placed him under arrest.  Mr. Gordon admitted he had weed on him, was searched incident to arrest, weed was found and he was subsequently charged with possessing it.     

Holding: Mr. Gordon was seized unlawfully, without reasonable, articulable suspicion that he had been engaged in criminal activity.  As to seizure, the Court held that a man questioned about his identity for ten minutes would not reasonably believe that he could simply walk away.  Gordon was seized because he submitted to what amounted to a show of police authority consisting of repeated questioning accompanied by computer database searches.  The police’s focus on him would lead a reasonable person to think that he would not be allowed to leave until his identity and record were confirmed by the searches.  Nor was the seizure justified.  The Court rejected the idea that giving a false name (even when combined with “high crime area” and other soft factors) gave grounds for a detention because people can give a false name merely because they are afraid, not because they are committing a crime. SF

Read full opinion here.