The North Carolina Court of Appeals in State v. Eagle, 2022-NCCOA-680, ___ N.C. App. ___, 879 S.E.2d 377 (2022), considered whether the driver of a car that had already stopped when a patrol officer pulled in behind it with blue lights activated was seized within the meaning of the Fourth Amendment. The trial court had ruled that the driver was not immediately seized by the officer in this encounter. Instead, the court ruled that a seizure occurred only when the officer took Ms. Eagle’s driver’s license and returned to her patrol car. By this point, the officer had developed reasonable suspicion to believe Ms. Eagle was impaired. The Court of Appeals reversed, determining that Eagle was seized at the outset of this encounter. This post discusses State v. Eagle and its relationship to other recent seizure jurisprudence. Continue reading
Search Results for: Hodari D.
This post summarizes a decision released by the United States Supreme Court on March 25, 2021. Continue reading →
A Fourth Amendment seizure does not occur when an officer turns on her patrol vehicle’s lights and siren to signal for a vehicle to stop. Instead, it occurs when a driver submits to that show of authority by stopping the car. Thus, if an officer lacks reasonable suspicion when she activates the siren, but gathers information sufficient to constitute reasonable suspicion by the time the vehicle stops, the traffic stop does not run afoul of the Fourth Amendment.
But what if the car is already stopped when the officer turns on the blue lights and siren? Have the occupants of the car then been seized for purposes of the Fourth Amendment? Not necessarily, as the court of appeals recently explained in State v. Turnage, __ N.C. App. ___ (May 15, 2018).
Jeff Welty wrote a post in 2010 on when a seizure occurs after an officer operates emergency lights to order a driver to stop his or her vehicle. This post updates his post by summarizing the relatively recent North Carolina Court of Appeals case of State v. Mangum, ___ N.C. App. ___, 795 S.E.2d 106 (Dec. 6, 2016), review denied, ___ N.C. ___, 2017 WL 1086917 (March 16, 2017), which ruled on this issue and provides a useful summary of the case law in North Carolina and other jurisdictions. Continue reading →
In California v. Hodari D., 499 U.S. 621 (1991), the United States Supreme Court reformulated the definition of a seizure of a person under the Fourth Amendment. This post discusses this case and its application to a particular issue: whether an officer’s blocking another vehicle with the officer’s vehicle is a seizure of the vehicle occupants. Continue reading →
Sorting out Fourth Amendment issues in the context of warrantless stops can be tricky. I like to break the case down into five basic questions:
- Did a seizure occur?
- If so and it was a stop, was it supported by reasonable suspicion or other valid basis?
- If reasonable suspicion supported the stop, was the officer’s subsequent conduct sufficiently limited in scope?
- If the seizure was an arrest, was it supported by probable cause?
- If the arrest was supported by probable cause, was the search permissible
This flowchart illustrates the analysis:
Normally, a law enforcement officer will attempt to develop reasonable suspicion before instructing a person to stop. But what if the officer does not have reasonable suspicion at that point, yet develops reasonable suspicion prior to the suspect’s compliance with the officer’s instruction? For example, suppose that an officer sees a vehicle weaving within its lane of travel. Standing alone, this does not provide reasonable suspicion that the driver is impaired, and it will not support a stop. State v. Fields, 195 N.C. App. 740 (2009). Assume that the officer, not having read Fields, nonetheless activates his blue lights. The driver then changes lanes without signaling before pulling over. It turns out that the driver is impaired, and prior to his DWI trial, he moves to suppress, arguing that the stop was not supported by reasonable suspicion and citing Fields. Can the stop be justified based on the driver’s failure to signal while changing lanes in violation of G.S. 20-154(a), even though the violation took place after the officer attempted to initiate the stop?
Probably so. In California v. Hodari D., 499 U.S. 621 (1991), the United States Supreme Court held that an officer’s show of authority is not a seizure until the subject complies. Because the propriety of a seizure depends on the facts known at the time of the seizure, it appears that events after an officer’s show of authority, but before a suspect’s submission to it, may be used to justify the seizure. At least that’s the conclusion that the Second Circuit reached in United States v. Swindle, 407 F.3d 562 (2d Cir. 2005) (reluctantly concluding that a court may “consider[] events that occur[] after [a driver is] ordered to pull over” but before he complies in determining the constitutionality of a seizure). Other courts have reached similar results. See, e.g., United States v. Smith, 217 F.3d 746 (9th Cir. 2000) (relying on Hodari D. to reject the argument that “only the factors present up to the point when [the officer] turned on the lights of his patrol car can be considered in analyzing the validity of the stop”); United States v. McCauley, 548 F.3d 440 (6th Cir. 2008) (“We determine whether reasonable suspicion existed at the point of seizure – not . . . at the point of attempted seizure.”); United States v. Johnson, 212 F.3d 1212 (D.C. Cir. 2000) (similar). Cf. generally 4 Wayne R. LaFave, Search and Seizure § 9.4(d) n. 170 (collecting cases).
If the analysis above is correct, some interesting questions arise. For example, does a motorist submit to an officer’s show of authority as soon as he begins to slow down, only when he has come to a complete stop, or somewhere in between? In the right case, the answer could make all the difference, but I’ll leave that topic for another day.
I did a little research yesterday morning about running from the police. It started when, in connection with a presentation for which I was preparing, I reviewed State v. Mewborn, __ N.C. App. __, 684 S.E.2d 535 (2009). Mewborn arose in Kinston. Officers were “patrolling a high crime neighborhood” and specifically, were “approaching and questioning people in the neighborhood to ‘make sure [the people were] in the right area.'” When the officers approached the defendant and asked him to “hold up for a minute,” the defendant took off running. The officers gave chase, caught the defendant, and determined that he was in possession of drugs and a gun.
Although it wasn’t directly the issue in the case, I started wondering if fleeing from the police always provides reasonable suspicion for a Terry stop. In other words, if you run from police, can they always give chase?
The answer is basically yes, but with a few caveats. What follows is a list of cases in this area, then my short synthesis of the law.
- Illinois v. Wardlow, 528 U.S. 119 (2000) (presence in a high crime area, coupled with unprovoked “headlong flight” from police provides reasonable suspicion)
- State v. Butler, 331 N.C. 227 (1992) (presence at a known drug corner where several recent arrests have been made, coupled with turning and walking away as officers approach provides reasonable suspicion)
- State v. Sinclair, 191 N.C. App. 485 (2008) (presence in a “drug activity area,” then running after declining an officer’s request to search “may have contributed to . . . reasonable suspicion”)
- In re J.L.B.M., 176 N.C. App. 613 (2006) (juvenile’s decision to walk away from approaching patrol car insufficient to provide reasonable suspicion)
- State v. Fleming, 106 N.C. App. 165 (1992) (presence in high drug area plus decision to walk away from police did not give rise to reasonable suspicion)
- United States v. Jones, 584 F.3d 1083 (D.C. Cir. 2009) (stating in dicta that “[m]erely walking away, even quickly . . . upon the arrival of the uniformed police officer would not provide articulable suspicion”)
- Jewett v. Anders, 521 F.3d 818 (7th Cir. 2008) (flight from police at Wal-Mart plus a report that a suspect in an attempted murder was at the Wal-Mart amounted to reasonable suspicion)
- United States v. Bonner, 363 F.3d 213 (3rd Cir. 2004) (passenger’s flight from traffic stop supports Terry stop of passenger)
Now for the synthesis: (1) It isn’t clear whether running from police, all by itself, provides reasonable suspicion. (2) But running from police combined with any other circumstance that provides even a minimal amount of suspicion is enough. Thus, in Wardlow, running plus presence in a high crime area was enough. In Jewett, running plus a report of a fugitive being in the vicinity was enough. And I would expect, for example, that running plus having a substantial known criminal record would be enough. Since an officer will almost always be able to point to some factor other than flight as a basis for suspicion, it isn’t surprising that there’s no case on flight alone. (3) Walking away is much less suspicious than running. In California v. Hodari D., 499 U.S. 621 (1991), Justice Scalia famously quoted Proverbs 28:1 — “The wicked flee when no man pursueth” — to suggest that flight is an important factor in the reasonable suspicion calculus. But the Court has also often noted that citizens are free to ignore the police and go on about their business. Walking away from a potential encounter with police is closer to going about one’s business, and is farther from the “headlong flight” described in Wardlow. For this reason, I think that Butler is a borderline case, and if I were an officer, I would be hesitant to stop a person who calmly walked away from me absent significant additional indicia of suspicion.
As a aside, there’s a little body of case law on whether the flight of a person’s companion’s tends to provide suspicion justifying a stop of the person. Although it isn’t as strong an indicator as an individual’s own flight, most cases find that the flight of a companion provides at least some basis for suspicion. See, e.g., State v. Mello, __ N.C. App. __, 684 S.E.2d 483 (2009) (majority and dissent disagreeing about this to some extent); United States v. Edmonds, 240 F.3d 55 (D.C. Cir. 2001).
Finally, although unprovoked flight may give rise to reasonable suspicion, it doesn’t constitute resisting, delaying, or obstructing an officer, at least not unless and until the officer orders the fleeing person to stop.
