Alley-way questioning and pat-down request give rise to Fourth Amendment seizure in light of officers’ targeted approach and persistent questioning, the limits on appellant’s movement, and the fact that the encounter occurred in a high crime area with “high visibility” patrols

Nowhere to run by Douglas M. Paine, licensed under Creative Commons

Dozier v. U.S., 15-CF-1098

• Holding 1: Appellant was seized for Fourth Amendment purposes by the time he complied with an officer’s request to put his hands on the wall so that police could frisk him for weapons, where armed, uniformed police parked in front of the alley appellant was walking out of, got out, walked up to appellant, and asked if they could speak to him (twice), if he had any weapons, and after appellant exposed his waistband to prove he did not, if they could pat him down. “Even assuming [this] interaction . . . began in a consensual manner, . . . there was a Fourth Amendment seizure by the time appellant submitted to the officers’ request to a pat-down” because “an innocent person in appellant’s situation would not have felt free to decline that request.” Slip Op. at 12. Factors relevant to the court’s determination include: the natural apprehensiveness any person would feel when approached by multiple officers in a secluded alley late at night, id. at 15; the officers’ persistence which signaled that appellant could not terminate the encounter until police finished their investigation, id. at 15-16, 23-24; and the restraint on appellant’s movement caused by the officers parking at the secluded alley’s entrance and walking toward appellant from that direction, id. at 23. 
• Of Note: In addition, the Court considered that “the encounter took place in a ‘high crime area’”--one subject to “frequent[] and visibl[e]” patrols--“and involved an African-American man.” Id. at 16, 17. The court deemed these factors relevant because even an innocent man in such a neighborhood might reasonably perceive that he is the target of a criminal investigation when approached by police; id. at 16-17, 19; because “persons of color” were “more likely to be subjected to this type of police surveillance” and therefore “particularly justified” in fearing it; id. at 19; and because “[i]n the isolated setting where the encounter took place, appellant . . . reasonably could have feared that unless he complied with the police requests, he would be vulnerable to police violence, without hope that anyone would come to his aid or witness what happened,” id. at 22.
• Holding 2: Because there was no reasonable articulable suspicion to seize by the time appellant submitted to being patted down, testimony that appellant took flight during the pat-down and subsequently threw an object containing a controlled substance should have been suppressed as the fruits of the illegal seizure. Id. at 27-28.

Read the full opinion here.

A copy of this post has been added to the Fourth Amendment section of the (Early) Year In Review (Part 1).

WCC

Fourth Amendment Seizure Where Police Blocked a Narrow Path and Ran a Warrant Check While Asking Accusatory Questions

Jones v. United States (decided February 23, 2017)

Players: Associate Judges Glickman and Fisher, Senior Judge Ruiz. Opinion by Judge Glickman. Dissent by Judge Fisher. Joseph A. Mokodean for Mr. Jones. Trial judge: Harold L. Cushenberry, Jr.

Facts: Jones was walking alone in a narrow alley around 6:00 p.m. when two armed, uniformed officers in a marked patrol car drove up the alley. One officer testified that he saw Jones “fiddling with a Newport cigarette box,” which Jones lowered to his side when he saw the police car. The officers drove up alongside Jones, and one officer got out of the car, blocking Jones’s way. The officer questioned Jones in a “cordial” tone for one to two minutes, and relayed the information to his partner so that his partner could run a warrant check. Before the warrant check was complete, the officer asked to see the cigarette box. Jones handed it over and the officer found crack cocaine inside.

Issue: Had Jones been seized for Fourth Amendment purposes when police asked for the cigarette box, such that the cocaine should have been suppressed?

Holding: Yes. A reasonable person would not have felt free to leave where armed officers subjected him to accusatory questioning while he was alone in a secluded area, the questioning officer physically blocked his path, and police ran a warrant check, which was still going on when they asked for the cigarette box.

Of Note:

• The majority called this a “close legal question” and emphasized that the blockage of Jones’s path and the warrant check “materially increased [the] coerciveness” of the encounter.

• Even though Jones “failed to cite” the fact of the ongoing warrant check in his appellate brief, the majority concluded that he had not abandoned reliance on this factor because his trial counsel had relied on it at the suppression hearing and the trial judge explicitly considered it in ruling, and because his appellate counsel submitted a 28(k) letter before oral argument citing a case analyzing the significance of a warrant check in the Fourth Amendment context.

• In dissent, Judge Fisher stated that he would have treated as forfeited the argument relating to the impact of the warrant check. He also distinguished the two cases the majority relied on pertaining to the significance of the warrant check.  MW

Read full opinion here

It’s Still a Seizure When the Police Ask You, but Not Order You, to Get Out of Your Car

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

Read full opinion here.

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.