Joshua Wilson had just pulled his truck out of the driveway of a residence in Burlington when he saw a police car parked in the road in front of him. A uniformed officer had gotten out of the car and was walking toward the residence. When the officer saw Wilson, he waived his hands back and forth in the air to tell Wilson to stop his car. Wilson stopped. The officer approached the truck on the driver’s side. The window was down, and he smelled the odor of alcohol. Wilson was arrested shortly thereafter for driving while impaired. The question on appeal was whether he was seized by the officer when he stopped his truck.
The answer. The court of appeals in State v. Wilson, __ N.C. App. ___ (December 6, 2016), held that Wilson was not seized under the Fourth Amendment when he stopped. Thus, the appellate court concluded that the trial court did not err in refusing to suppress the evidence obtained from the officer’s encounter with Wilson. Judge Dillon dissented, reasoning that Wilson was seized, but that the case should be remanded for more findings on whether the seizure, which was not supported by reasonable suspicion, was nevertheless constitutionally reasonable.
Facts and procedural history. The officer who encountered Wilson had gone to the Burlington residence to look for a man who had outstanding warrants for his arrest. The officer had received an anonymous tip that the man would be at the residence. The officer did not suspect that Wilson was the person he was looking for, but flagged him down to ask him whether he knew anything about the other man. The officer’s car was in the road but was not blocking the road, and his blue lights and siren were not on.
In his trial on charges of impaired driving, Wilson moved to suppress the evidence resulting from his encounter with the officer. The trial court denied Wilson’s motion, and he appealed.
Free to leave? The standard for determining whether a person is seized is whether “taking into account all of the circumstances surrounding the encounter, the police conduct would have communicated to a reasonable person that he was not at liberty to ignore the police presence and go about his business.” Slip op. at 5-6.
Florida v. Bostick. The U.S. Supreme Court articulated this standard in Florida v. Bostick, 501 U.S. 429 (1991), holding in that case that a bus passenger was not necessarily seized when two police officers approached him and asked for permission to search his luggage. One of the officers carried a zipper pouch containing a pistol, but the gun was not removed from its pouch during the encounter. In addition, the officers advised Bostick that he could refuse to consent to the search. The Court held that “the mere fact that Bostick did not feel free to leave the bus did not mean that the police seized him.” Id. at 436. Instead, the Court reasoned that Bostick’s confinement was “the natural result of his decision to take the bus.” Id. The Court remanded the case for consideration of whether, in light of all of the circumstances, Bostick was seized under the Fourth Amendment.
Relevant factors. In an earlier case, United States v. Mendenhall, 446 U.S. 544 (1980), the Supreme Court provided examples of circumstances that might indicate a seizure, listing the following: the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer’s request might be compelled.” Id. at 554.
Wilson Court’s analysis. The court in Wilson relied on the following circumstances in concluding that Wilson was not seized:
- The officer was alone.
- He did not draw his weapon.
- The lights and siren on the patrol car were off.
- The officer did not use any language or tone that indicated Wilson was required to stop.
- Wilson was in a truck and could have driven around the police car.
What about state traffic laws? Wilson argued that he was required to stop pursuant to G.S. 20-114.1(a), which prohibits the willful refusal “to comply with any lawful order or direction of any law-enforcement officer or traffic-control officer invested by law with authority to direct, control or regulate traffic, which order or direction related to the control of traffic.”
The court disagreed, reasoning that the officer’s hand motion was “not related to the control of traffic” and there was nothing–no cones, construction, blue lights, or roadblock–to indicate otherwise.
Stay tuned. I mentioned earlier that there was a dissent. That means that Wilson has an appeal of right to the state supreme court should he choose to exercise it.