Devon Sharp v. United States (decided February 18, 2016)
The Players: Associate Judges Blackburne-Rigsby and Beckwith, Senior Judge Farrell. Opinion by Associate Judge Beckwith. Tito V.A. Castro for Mr. Sharp. Trial Judge: Michael Ryan.
Facts: Police officers heard a “loud scream or commotion” coming from a parking lot identified by officers as a place for valeting cars, but also where “a lot of cars are broken into.” While the scream “wasn’t like a someone-in-danger scream,” it caused enough of a noise to catch the officers’ attention. Sharp was not involved with the noise makers.
When the people who caused the commotion walked away, the police diverted their attention to Sharp, who was sitting in the driver’s seat of a parked Jeep, listening to rap music with “his head down[,]” “looking down at something in his hands.” Two officers wearing police vests and badges approached Sharp and asked why Sharp was there in the parking lot. Sharp nervously gave nonresponsive answers. The police asked to search the Jeep. Sharp declined. At this point, Sharp’s nervous energy had seeped into the officer, who now felt nervous himself, so the police “asked could [Sharp] step out of the vehicle.” Sharp complied with the request and stepped out of his Jeep.
Once Sharp stood with police, he admitted to having brass knuckles, which were recovered from his jacket. Police then found, in a search incident to arrest of both his person and his vehicle, cocaine, marijuana, and other drug paraphernalia.
The trial court denied Sharp’s motion to suppress tangible evidence as the court determined Sharp’s exit from the vehicle to be consensual. After a stipulated trial, Sharp was found guilty of all charges.
Issue 1: Did officers seize Sharp by asking, yet not commanding, him to step out of his car?
Holding 1: Yes. Although the officer “simply asked appellant to get out of the car,” such a request amounted to a Fourth Amendment seizure because “the officer’s routine act of asking the driver to get out of the car—a request made after the driver had already turned down the officer’s initial request to search the car—would have communicated to a reasonable person that the person was not free to decline the officers’ request or otherwise terminate the encounter.” In other words, a reasonable person in Sharp’s shoes would not have felt free to tell the police, “No, thanks. I’d rather not step out. Bye, bye.”
Issue 2: Did the officers have a reasonable articulable suspicion to justify Sharp’s seizure?
Holding 2: No. The police did not have a particularized basis to suspect that criminal activity may have been afoot. Sharp was not involved in the “loud scream or commotion”; those individuals walked away. Sharp was legally parked, and the fact that he was looking at something in his hands did not arouse suspicion. Sharp did not make any furtive gestures. The Court found that Sharp’s nervousness, nonresponsive comments, and refusal to allow the police to search his car did not amount to a reasonable articulable suspicion that would have justified the intrusion.
Of Note:
- The Court stopped short of declaring a per se rule “that a police officer seizes a car’s occupant in every instance where he asks him to get out of the vehicle.” Under the totality of the circumstances test, there remains a theoretical possibility that “an officer might ask a vehicle’s occupant if he would consent to getting out of a car in a way that gave the occupant a realistic right to decline[.]” While the Court did not foreclose such a possibility, the language in the opinion seems to suggest that a majority of these police requests — in cases not involving routine traffic stops — would result in a seizure. JW
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