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).
Background. The United States Supreme Court held in California v. Hodari D., 499 U.S. 621 (1991) that a person is seized for Fourth Amendment purposes when (1) an officer applies physical force, however slight, to the person or (2) the person submits to an officer’s show of authority. In Hodari D., two patrol officers approached a group of young men huddled around a car. The young men ran when they saw the officers’ car approach, and the car around which they had been gathered sped away. One of the officers pursued the juvenile, Hodari, on foot, proceeding down a parallel street and cutting off his flight head-on. When the juvenile saw the officer running toward him, he discarded a rock of cocaine. Hodari later argued that he had been seized without reasonable suspicion at the time he dropped the drugs and that the drugs were therefore the fruit of that unlawful seizure.
The State conceded that the officer lacked reasonable suspicion at the time Hodari discarded the drugs, but claimed that the juvenile was not seized until he was tackled by the officer moments later. The Supreme Court sided with the State, determining that, assuming the officer’s pursuit was a “‘show of authority’ enjoining Hodari to halt, since Hodari did not comply with that injunction, he was not seized until he was tackled.” 499 U.S. at 629. Thus, the court concluded that the cocaine Hodari abandoned while he was running was not the fruit of a seizure.
Appellate decisions from North Carolina and other jurisdictions applying the Hodari D. rule are discussed in several earlier blog posts.
What if the person is already stopped? When a person, including the occupant of a vehicle, is already stationary at the time an officer displays her authority, it can be difficult to determine whether the person has submitted to the officer’s show of authority or instead has remained in place because he prefers not to go anywhere. The U.S. Supreme Court in Brendlin v. California, 551 U.S. 249 (2007), explained the fact-specific determination this way:
[W]hat may amount to submission depends on what a person was doing before the show of authority: a fleeing man is not seized until he is physically overpowered, but one sitting in a chair may submit to authority by not getting up to run away.
551 U.S. at 262.
The Brendlin Court concluded that the defendant-passenger in that case submitted to the officer’s show of authority during a traffic stop by staying inside the vehicle after it stopped. Id.
What happened in State v. Turnage, ___ N.C. App. ___ (2018). Detectives from the Duplin County Sheriff’s Department were watching a house for suspected drug activity when they saw a van driven by Turnage leave the residence. Three detectives in plain clothes traveling in an unmarked pick-up truck followed the van for about a half-mile until it suddenly stopped in the roadway. Detective Miller, who was driving the trailing pick-up truck, stopped about 15 feet behind the van, waited about 15 seconds, and then turned on his blue lights.
As Detective Miller approached the driver’s side of the car, he saw a man, whom he recognized from other law enforcement encounters, get out of the passenger side of the van. The man began to walk toward the pick-up truck with his hands in his pockets. Detective Miller told the detective in the passenger seat of the truck to get out of the vehicle. At this point, the man ran back to the van, yelling “Go, go, go.” The van sped away. Detective Miller chased, and the van stopped a mile and a half later, after running off the shoulder of the road, crossing the center line, and speeding more than 80 miles per hour. After the van stopped, officers discovered that two young children were riding in the back of the van. They did not find any drugs in the van.
The defendant, who was driving the van, was charged with fleeing to elude arrest, resisting a public officer, and child abuse. She moved to suppress the evidence gathered after the officers activated their blue lights, arguing that she was seized without reasonable suspicion. The trial court granted her motion, determining that the van and its occupants were seized when the detective came up behind the van and activated his blue lights and that there was, at that point, no reasonable suspicion to justify the seizure.
The court of appeals reversed.
Analysis. The appellate court reasoned that the detectives, who were traveling in an unmarked vehicle in plain clothes, did nothing to cause the defendant to stop her van in the roadway. Thus, she was not seized when the van initially stopped. That stop in the roadway, it said, “invited an encounter with any concerned motorist, including law enforcement officers.” Slip op. at 11 (noting that officers may approach and question individuals in public places when the circumstances indicate that citizens may need help or mischief might be afoot). Even when the detective did turn on his vehicle’s blue light, thereby making a “show of authority,” the court reasoned that the defendant was not seized because she did not submit to that show of authority. Instead, she fled. As a result, she was not seized until her van stopped upon encountering a patrol vehicle blocking her path. By that point, she had led officers on a high-speed chase during which they had observed her commit traffic violations.
What if a person momentarily stops or submits to a show of authority, but later flees or resists? The court of appeals did not address Turnage’s momentary delay following the officer’s show of authority. Perhaps the court did not consider Turnage’s initial stationary position as constituting submission to the officers since Turnage had already stopped the van on her own volition. One could argue, however, that Turnage’s remaining still after the officers activated the blue lights constituted submission to the officer’s show of authority and that she only fled after her male passenger told her to “Go, go, go.” Had the court adopted such a view, it would not have automatically required exclusion of the evidence. The court could then have considered whether Turnage’s subsequent conduct was sufficiently attenuated from the search such that suppression was not warranted. See, e.g., State v. Hester, 803 S.E.2d 8, 18 (N.C. Ct. App. 2017) (holding that the defendant’s commission of a separate and distinct criminal offense was a sufficient intervening circumstance to purge the taint of the illegal stop).
Identifying the moment of submission. Courts in other jurisdictions have wrestled with the difficult line-drawing that is required to identify the moment at which a suspect whose behavior varies over the course of encounter is deemed to have submitted to a show of authority.
A panel of the Tenth Circuit in United States v. Roberson, 864 F.3d 1118 (10th Cir. 2017), considered whether a defendant submitted to officers’ show of authority when the officers shined bright lights on him and approached his car in a parking lot—before they had reasonable suspicion of criminal activity. The defendant argued that he submitted to the show of authority by not running or driving away. Thus, he said he was immediately seized. The State argued that the defendant did not submit until he complied with the officers’ commands to put his hands on the steering wheel. During the seconds in between, the defendant made stuffing motions underneath the driver’s seat, which provided the officers with reasonable suspicion. If the defendant was not seized until after he made the stuffing motions and put his hands on the steering wheel, the gun found under the driver’s seat and the marijuana in the console were not the fruit of an unlawful search. The three judges who considered the case disagreed about the law. One judge reasoned that the defendant did not consent until he put his hands on the steering wheel. Another reasoned that the officers did not display a show of authority. And a third dissenting judge reasoned that the defendant was seized within the first few seconds after the officers parked in front of his car, “‘lit [his car] up with’ disorienting takedown lights and spotlights . . . and aggressively approached his car in a manner that blocked his exit path,” while the defendant remained seated in his parked car. Id. at 1134 (Moritz, J., dissenting). The defendant in Roberson has petitioned the United States Supreme Court for certiorari review of whether a person may submit to an officer’s show of authority–and therefore be seized for purposes of the Fourth Amendment–by temporarily remaining in a parked and running car.
The United States District Court for the Eastern District of Virginia recently undertook a similar analysis in United States v. Curry, 2018 WL 1384298 (March 19, 2018). There the defendant was stopped by officers who were patrolling a housing project after hearing gunshots. The officer who stopped the defendant lacked reasonable suspicion to believe the defendant had fired the shots or was engaged in any other criminal activity. He nevertheless ordered the defendant to show his hands. The defendant stopped, turned around, raised his hands and stood completely still for a few seconds before lowering his hands and moving. The officer then ordered the defendant to lift his shirt. The defendant lifted part of his shirt, but did not lift in in a way that allowed the officer to determine whether he had a weapon in his waistband. He also moved in a way that the officer perceived as an attempt to hide his right side. The officer patted the defendant down and felt a hard object that felt like the butt of a handgun. At this point the defendant began to struggle against the officers. Shortly thereafter, he was arrested.
The defendant moved to suppress the evidence gathered in the encounter on the basis that he was unlawfully seized once he halted and raised his hands at the officers’ command. The State argued that the defendant was not seized because he did not comply with the officers’ request to lift his shirt and that all of his acts once he began to interact with the officers were designed to conceal the firearm on his person. The court agreed with the defendant, holding that the seizure was effectuated when the defendant stopped, changed directions and raised his hands in response to the officer’s commands. The seizure continued, the court explained, because the defendant did not at any point attempt to flee or terminate the interaction with the officers. The State has appealed the trial court’s ruling to the Fourth Circuit Court of Appeals.
Back to Turnage. Another aspect of Turnage that I find interesting is the viability of the charges for felony flee to elude. That offense prohibits a person from fleeing or attempting to elude a law enforcement officer who is in the lawful performance of his duties. G.S. 20-141.5(a). If the officers lacked reasonable suspicion to stop the defendant (or any other justification for the show of authority, such as community caretaking), it seems to me that Turnage’s driving away from the officers would not constitute fleeing to elude. The court of appeals did not, of course, definitively determine that the officers lacked authority to detain Turnage when they first activated their blue lights. The appellate court did not have to reach the issue because it held that the officers had probable cause by the time Turnage was arrested. This conundrum is left for the trial court–or the jury—to resolve.