Search and Seizure - Terry Stop -- What Constitutes a Seizure

Brendlin v. California, 127 S.Ct. 2400 (2007)

When the police stop a vehicle that has a driver and passenger, the passenger is also “detained” for fourth amendment purposes. Therefore, if there was no basis for the stop, the passenger may contest the admissibility of any fruits of that stop (for which he has standing), such as a statement he made, or evidence seized from his person or personal belongings.

Florida v. Bostick, 501 U.S. 429 (1991)

The police may board buses and ask passengers if they would consent to a search of their bags. The question is not whether the passenger would feel free to leave; the question is whether the passenger would feel free to decline the invitation. Compare, INS v. Delgado, 466 U.S. 210 (1984). The court must make a case-by-case determination of whether there was, in fact, a seizure.

United States v. Smith, --- F.3d --- (7th Cir. 2015)

Police officers blocked the defendant’s path coming out of an alleyway and asked an accusatory question: this was a seizure, not a consensual encounter.

United States v. Brodie, 742 F.3d 1058 (D.C. Cir. 2014)

The police were waiting outside a house that they planned to search pursuant to a search warrant. While awaiting their colleagues, the defendant was observed leaving the house (the police were not targeting that individual; the target was already in custody). The police approached the defendant and directed him to place his hands on the car (which he did). Shortly thereafter, he fled, discarding drugs and guns while on the run. The D.C. Circuit held (1) the defendant was detained; (2) there was no basis for the detention because, pursuant to Bailey v. United States, 133 S. Ct. 1031 (2013), the police may not detain an individual in connection with the execution of a search warrant unless the detention is at the time when, and at the place where, the search is being executed; (3) the detention was not attenuated from the defendant’s flight; and (4) the evidence that the police obtained was the fruit of the unlawful detention.

United States v. Hill, 752 F.3d 1029 (5th Cir. 2014)

The police were patrolling in a high crime area of the city when they observed the defendant’s vehicle backed into a parking space in an apartment complex. The defendant was in the driver’s seat and his girlfriend was in the passenger seat. When the police pulled up next to him the girlfriend exited the vehicle and “briskly” walked away. The police directed the defendant to roll down the window (it did not work, so he opened the door). He was asked for his driver’s license (which he did not have), and was then ordered out of the car and was frisked. A gun was found in his pocket. The Fifth Circuit held that the police detained the defendant at the point that he was ordered to exit the car. At that point, even though the defendant acknowledged that he did not have a driver’s license, there was no basis for detaining the defendant. The fact that these events occurred in a “high crime area” provides no support for detaining the defendant was observed committing no crime, or doing anything suspicious. In fact, the police testified that the entire county was a high crime area (not the apartment complex in particular).

United States v. Freeman, 735 F.3d 92 (2d Cir. 2013)

Without a reasonable suspicion, the police approached the defendant and touched his arms. He walked away. The officer then grabbed the defendant around his waist and stopped him. This was a seizure and was not permissible. The fact that the defendant walked away from the officer when the officer first approached him did not provide a basis for seizing him.

United States v. Jones, 678 F.3d 293 (4th Cir. 2012)

The police followed the car the defendant was driving into a parking lot and blocked it in. The only basis for this stop was that the car had out-of-state plates and this was a high-crime area. This was not a sufficient basis to stop the car and the officer’s conduct – blocking in the car – was a seizure. The subsequent discovery of a gun was the fruit of this improper seizure

United States v. Camacho, 661 F.3d 718 (1st Cir. 2011)

The police went to the scene of a street brawl and saw two people walking on the sidewalk. Suspicious that they had been involved in the brawl, the police pulled their car in front of the defendant, stopping him and then frisked the defendant and felt a gun. The defendant pushed the officer’s hand away, after which the defendant was arrested. The First Circuit concluded that the initial encounter was a seizure; there was no lawful basis for the seizure (i.e., there was no articulable suspicion); the frisk was not proper; the discovery of the weapon was not the result of a valid search incident to arrest.

United States v. Beauchamp, 659 F.3d 560 (6th Cir. 2011)

The defendant was walking on the sidewalk in a “high crime area” when the police approached. The defendant was ordered to approach the officer, which he did. The defendant appeared to be nervous. The officer then frisked the defendant to look for weapons. The officer then asked for consent to conduct a search of the defendant’s person and the defendant agreed. The officer found drugs inside the defendant’s boxers. The Sixth Circuit held that this was an seizure, it was not based on an articulable suspicion and the consent was tainted by the illegal detention.

United States v. Villa-Gonzalez, 623 F.3d 526 (8th Cir. 2010)

The defendants were in custody when they were confronted and questioned on the porch outside their trailer. Several law enforcement officers questioned the brothers. They were accused of being drug dealers. Their identification papers were taken from them. This amounted to a seizure of Fourth Amendment purposes and for Miranda purposes.

United States v. Johnson, 620 F.3d 685 (6th Cir. 2010)

The police received a call that there were suspicious people at an apartment complex. The police went to the scene and saw the defendant, carrying a bag, walking calmly from the yard of the complex to a car. The police ordered him to stop; he kept walking. The police ordered him to stop again; he kept walking until he arrived at the car, opened the passenger door, threw the bag in and then stood still at the open door. The Sixth Circuit held that when he finally stopped, he had been seized. Because there was no articulable suspicion to justify the seizure, the resulting frisk and search was unconstitutional and evidence should have been suppressed.

United States v. Williams, 615 F.3d 657 (6th Cir. 2010)

The defendant was standing in a housing project with others when a police officer approached and said he was “again trespassing on [housing authority] property.” During the following interaction, the defendant acknowledged in response to questions that there might be a warrant out for his arrest and he also acknowledged carryihng a gun. The Sixth Circuit held that the encounter was a seizure for Fourth Amendment purposes. There were two officers, they approached the defendant an immediately accused him of a crime, and there was no basis that would lead the defendant to believe that he could simply walk away from the officers. There was insufficient information known to the police to support the seizure; the defendant’s statement was the fruit of that detention; the evidence would be suppressed, even though there was an outstanding arrest warrant.

United States v. Fox, 600 F.3d 1253 (10th Cir. 2010)

The defendant’s wife pulled up to her house and was approached by a police officer who was conducting surveillance of the house (in particular, the defendant). The officer entered the wife’s car and directed her to drive across the street to a parking lot. She was questioned and then asked for consent to search her car. Ultimately, she consented to a search of the house. The Tenth Circuit held that the wife was detained; there was no basis for the detention and the consent to search was the product of this detention. The gun found in the house, therefore, should have been suppressed at the defendant’s trial.

Gentry v. Sevier, 597 F.3d 838 (7th Cir. 2010)

The defendant was walking with a wheel barrow through a neighborhood late at night. The police were called. When the police arrived, they summoned the defendant over to their car and told him to “keep his hands up.” This amounted to a seizure, which was not supported by an articulable suspicion. The officer then patted down the defendant, locating a garage opener. There was no basis for this frisk: there was no reason to believe the defendant was armed or dangerous and he was not subject to a legitimate arrest or detention. Moreover, there was no basis to keep the garage door opener (and thereafter walk down the street seeing if it opened any garage in the neighborhood), because it was not a weapon, or apparent to be contraband. Finally, the search of the wheelbarrow was illegal. Though some items on the top of the pile in the wheelbarrow were subject to plain view, other items below the surface could only be seen when the officer probed beneath the surface. The defendant’s trial counsel was ineffective in failing to move to suppress the fruits of the search.

United States v. Gross, 662 F.3d 393 (6th Cir. 2011)

The same officer that was the subject of the opinion in See, infra, was the officer that made the illegal stop in this case. The officer pulled into a parking lot and blocked the vehicle in which the defendant was a passenger. There was no basis for this stop and the evidence obtained as a result of this illegal detention should have been suppressed.

United States v. See, 574 F.3d 309 (6th Cir. 2009)

The police pulled into a parking lot and saw the defendant’s vehicle backed into a parking space. The police parked their car directly in front of the defendant’s car so it could not leave. This was a seizure and absent any articulable suspicion to support this seizure, the evidence derived as a result of the seizure should have been suppressed.

United States v. Tyler, 512 F.3d 405 (7th Cir. 2008)

The police observed the defendant walking on the sidewalk with an open bottle of beer. Believing that this amounted to a violation of state or municipal law, the officers stopped him, asked for his identification and eventually dislodged a crown royal bag from under his belt and discovered drugs. Carrying a bottle of beer is not a crime. Therefore, stopping the defendant was unlawful and everything that flowed from this encounter should have been suppressed. In addition, the encounter did involve a seizure, because the police told him he was violating the law, they took his identification and ran a warrant check while holding his identification papers.

United States v. Espinoza, 490 F.3d 41 (1st Cir. 2007)

An ICE agent saw a large van with tinted windows driving near Boston on the Interstate and became suspicious that the van was smuggling illegal aliens. The agent determined that the car was registered to a man whose name he recognized from another investigation. The van had Texas plates. The car stopped near a restaurant and left its engine running. The officer approached the car, asked the driver for identification and ordered the driver to turn off the engine. The First Circuit held that the information known to the agent did not support an investigatory detention. The Court also held that directing the driver to turn off the engine, in this case, amounted to a detention. The First Circuit affirmed the order suppressing all evidence obtained by the detention.

United States v. Washington, 490 F.3d 765 (9th Cir. 2007)

The police approached the defendant in his parked car and asked if he would consent to a search of his person and car. The defendant was asked to get out of his car, “assume the position” and then was frisked and his car was searched. The Ninth Circuit held that at the point the defendant was asked for consent to search the car, the encounter had escalated to a “seizure” that required an articulable suspicion. Among the factors considered by the court were, (1) the manner in which the police directed the defendant to stand to be frisked (blocking his path to leave); (2) recent events in the community in which unarmed black citizens were shot by white police officers and a pamphlet sent out by the police instructing people to comply with officer’s directions during traffic stops; (3) the lighting in the area; (4) the fact that there were two officers and the defendant was alone; (5) the failure of the police to advise the defendant that he was free to decline the invitation to consent to a search of his vehicle.

United States v. Brown, 448 F.3d 239 (3rd Cir. 2006)

The police received a report that a woman had just been robbed by two African American men, both in their late teens, one about 5’8” and the other about 6’. Shortly thereafter, the police stopped the defendant and his companion coming out of a coffee shop. The two men were 27 and 31 and both had full beards. The two men were ordered to stand against the patrol car and were patted down. The defendant tried to break away at that point. The Third Circuit concludes that prior to the defendant’s attempt to break away, he had already been “seized” for Fourth Amendment purposes and the police did not have an articulable suspicion supporting the stop and the frisk (and the discovery of a gun) was therefore illegal.

United States v. Lopez, 443 F.3d 1280 (10th Cir. 2006)

The police approached the defendant and his colleague who were standing next to their car. There was no articulable suspicion that prompted the police to approach the two individuals. Approaching them, of course, was nothing more than a consensual encounter. However, the officer then requested that the two individuals give him any identification documents that they had (i.e., ID card, or driver’s license). The officer took the ID’s back to his car and determined that one of the two had an outstanding warrant. The Tenth Circuit held that the evidence discovered during an ensuing search should have been suppressed. There was no basis for detaining the two individuals and taking the ID’s amounted to a detention. While the police may request a person’s identification without detaining him, once the officer takes the ID with him to another location (i.e., back to his car), this amounts to a detention.

United States v. Johnson, 427 F.3d 1053 (7th Cir. 2005)

The police received an anonymous tip that the defendant was a cocaine dealer and that he lived at a particular location. The police went to the defendant’s house and when the defendant’s girlfriend came out, she was asked by the police to knock on the door. She did so and the defendant came to the door. The police talked to him briefly, after which he turned around and started walking away, back down the hall. The police pulled out a gun, pointed it at the ground, and cautioned that “this was a matter of officer safety.” The defendant stopped in his tracks and returned to the door. He then consented to a search. The Seventh Circuit held, (1) this did amount to a detention; (2) there was no articulable suspicion supporting the detention; (3) the consent to search was a fruit of the unlawful detention.

United States v. Chan-Jimenez, 125 F.3d 1324 (9th Cir. 1997)

An officer observed the defendant's pickup truck and was suspicious, though there was no motor vehicle offense observed, or anything particular about the pickup that the officer could identify as being suspicious. The pickup pulled over to the side of the road and the driver raised its hood. The officer pulled in behind and asked the driver for his license and registration. Then, without returning the papers (and without having ever asked if the defendant was having trouble with the vehicle), the officer, hand on hisweapon, asked if he could look in the vehicle. The driver consented. This was an unlawful detention. Withholding the papers in this situation prevented the defendant from freely refusing consent and the consent that was given, therefore, was ineffective.

United States v. Richardson, 385 F.3d 625 (6th Cir. 2004)

After issuing the driver a warning ticket, the police asked him to “stay where he was” and then approached one of the passengers (the owner of the car) for consent to search. This direction to the driver amounted to a detention – a detention that had no basis in an articulable suspicion – and amounted to an unlawful stop that tainted any subsequent search, even a consensual search. The detention of the driver amounted to a detention of all the car’s occupants.

United States v. Montilla, 928 F.2d 583 (2d Cir. 1991)

The Second Circuit concludes that in reviewing a trial court’s decision about whether a seizure occurred, the appellate court exercises de novo review. The issue poses a legal question, given a certain set of facts.

United States v. Wilson, 953 F.2d 116 (4th Cir. 1991)

The defendant was encountered by task force agents at the airport. They asked if they could search him. He allowed them to search his carry-on bag and his person, but when they asked to search his coat which he had over his arm, he refused. They persisted. He refused. He walked away and the officers walked with him. At this point, the defendant was “detained” in so far as he would have been aware that he was not “free to leave” in the sense of being free to “break off the encounter.” The information known to the police did not give them an “articulable suspicion.” Apart from “looking suspicious,” coming from a source city, providing only a check-cashing card for identification, and misrepresenting his itinerary, the only information known to the police was that there was a visible bulge in the coat pocket. A bulge in a coat pocket – not hidden from view – is not suspicious at all. The only suspicious factor was the lie about where the defendant was coming from. However, it is not clear why this would provide suspicion that the defendant was a courier. That is, why would someone coming from New York carrying drugs lie and state that he was actually coming form Boston? This does not support the inference that he was carrying drugs. The motion to suppress should have been granted.

United States v. Gonzales, 842 F.2d 748 (5th Cir. 1988)

A federal agent informed an air traveler that he was “working narcotics” and requested permission to search his carry-on luggage. The Court holds that this constitutes a “seizure” requiring reasonable suspicion under Terry. The Fifth Circuit later held that the Gonzales decision set forth the incorrect burden of proof to establish consent, but did not alter the holding regarding what constitutes a seizure. United States v. Hurtado, 905 F.2d 74 (5th Cir. 1990).

United States v. Caicedo, 85 F.3d 1184 (6th Cir. 1996)

The defendant arrived at the bus station in Cincinnati and a narcotics officer testified that he looked nervous. The officer followed the defendant until he got into the car of another person. The officer approached the car and asked the two if he could talk to them. The defendant (the passenger) got out of the car and – though the evidence was unclear, the appellate court concluded – the officer then frisked him and then asked for consent to search his backpack. The appellate court held that the evidence should have been suppressed. If the frisk occurred before the request for consent, then the defendant was at that time “seized” and there was no basis for this seizure. The ensuing consent, therefore, was invalid and the search of the backpack violated his Fourth Amendment rights.

United States v. Jerez, 108 F.3d 684 (7th Cir. 1997)

The police decided to investigate the occupants of a hotel room in Milwaukee on the basis that the car being driven by them had out-of-state plates (Florida plates) and the car was a two-door vehicle. They also learned that the driver had previously been arrested on narcotics charges. At about 11:00 p.m., the officers knocked on the door of the room for several minutes and hearing no reply, then went outside and started knocking on the window. After several minutes, the defendant opened the door and eventually consented to a search of the room. The Seventh Circuit concluded that the knocking on the door and window late at night amounted to a seizure that had no valid basis. The consent was tainted by this unlawful detention.

United States v. Jefferson, 906 F.2d 346 (8th Cir. 1990)

Without any articulable suspicion, a trooper parked behind the defendant’s rented car, retained the defendant’s identification and rental agreement and then asked the driver to join him in the patrol car. Because there was no articulable suspicion justifying this detention, the subsequently discovered drugs should have been suppressed. The fact that the trooper kept the defendant’s personal documents changed the encounter from a consensual one, to a detention during which the defendant reasonably would not have felt free to leave.

United States v. Chan-Jimenez, 125 F.3d 1324 (9th Cir. 1997)

The police pulled behind the defendant’s vehicle which was disabled on the side of the road. The officer obtained the defendant’s license and registration and found everything in order. Without returning the identification documents back to the defendant, however (and while keeping his hand on his holstered weapon), the officer then asked for consent to search the vehicle. Retaining the documents amounted to a seizure, which was not supported by an articulable suspicion. A subsequent consent to search was not valid: the defendant was not told that he could refuse consent, he was not Mirandized and he was being unlawfully detained.

United States v. Alarcon-Gonzalez, 73 F.3d 289 (10th Cir. 1996)

The law enforcement agents (INS) approached the defendant and his colleague and yelled, “freeze.” This “order” amounted to a seizure for Fourth Amendment purposes and the ensuing questioning was the product of this detention.

United States v. Little, 60 F.3d 708 (10th Cir. 1995)

A train passenger was seized for Terry purposes when an agent questioned her in her roomette and asked incriminating questions in a manner which indicated that she was not free to leave. The agent also failed to advise the defendant that she was free to decline answering the questions.

United States v. Lambert, 46 F.3d 1064 (10th Cir. 1995)

The defendant purchased a plane ticket from Los Angeles to Wichita, Kansas with cash. When he arrived in Kansas, DEA agents approached him and asked if they could speak with him. He provided his driver’s license which they retained during further questioning. The retention of his driver’s license constituted a seizure, which, in this case, was not supported by any articulable suspicion.

United States v. Hall, 978 F.2d 616 (10th Cir. 1992)

Based on a tip, the police met the defendant when her train arrived at the station. She was asked for consent to search her luggage which she refused. She had purchased a one-way ticket from Flagstaff to Harrisburg, Pa. She appeared nervous when questioned. On this basis, the officers seized the luggage, but allowed the defendant to leave. This was unlawful. In order to seize the luggage, the police must have the same level of information – reasonable suspicion – as is required to seize the person. United States v. Place, 462 U.S. 696 (1983). The facts in this case did not amount to reasonable suspicion.

United States v. Wood, 981 F.2d 536 (D.C.Cir. 1992)

The police ordered the defendant to “halt right there . . . stop.” The defendant complied and dropped his gun. This amounted to a seizure under the standard of California v. Hodari D., 499 U.S. 621 (1991), because there was a show of authority and an act of submission.

United States v. Jordan, 951 F.2d 1278 (D.C. Cir. 1991)

The record did not support the district court’s determination that, at the time the defendant was asked for consent to search his bags, he was not being detained. A remand was necessary, however, to augment the record. Of prime importance is the question were the police in possession of the defendant’s identification when they asked for his consent. The test is not whether the defendant himself felt free to leave, but whether the officer’s words and actions would have conveyed that to a reasonable person. See California v. Hodari D., 499 U.S. 621 (1991).