Sometimes, after a defendant has been arrested for a crime, an Immigration and Customs Enforcement (ICE) officer will file an immigration detainer with the agency that has custody of the defendant. The detainer asks the agency to notify ICE when the defendant would otherwise be eligible for release — for example, because the defendant has posted bond, or because the charges against the defendant have been dismissed — and to hold the defendant for up to 48 hours thereafter to enable ICE to take custody of the defendant. I have often wondered about the authority for holding a defendant pursuant to such a detainer. Recent developments indicate that courts are increasingly wondering about that too. Continue reading
Tag Archives: seizure
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 →
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 new edition of Arrest, Search, and Investigation in North Carolina, Fifth Edition, 2016 is now available. Continue reading for additional information. 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 →
On January 11, 2016, the Fourth Circuit decided Armstrong v. Village of Pinehurst, a major case concerning the use of tasers by law enforcement officers. The opinion is here. This post summarizes the opinion and explores its implications. Continue reading →
The United States Supreme Court held in Rodriguez v. United States, ___ U.S. ___, 135 S. Ct. 1609 (2015) (discussed here), that a law enforcement officer may not extend a traffic stop to investigate matters unrelated to the basis for the stop—not even for a matter of minutes—unless the additional delay is supported by reasonable suspicion. The North Carolina Court of Appeals applied that principle this week in State v. Leak, ___ N.C. App. ___ (2015), reversing the trial court’s denial of the defendant’s motion to suppress and vacating the defendant’s conviction for possession of a firearm by a convicted felon.
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:
This week, the court of appeals decided State v. Price, an interesting gun rights and Fourth Amendment case.
Facts. The defendant was standing in a forest, near a deer stand, holding a rifle, in full camouflage, when a wildlife officer approached him. The officer asked the defendant for his hunting license, under the license check authority of G.S. 113-136(f). The officer then asked the defendant whether he was a convicted felon, and the defendant admitted that he was. The officer called another officer for backup, and they seized the defendant’s gun. The defendant was subsequently charged with possession of a firearm by a felon.
Trial court proceedings. The defendant moved to suppress his statement about his criminal record, and his gun, apparently on the basis that the inquiry regarding his record unduly prolonged the license check and that without the admission, there would have been no basis for seizing the gun. The judge agreed with the defendant’s argument but ordered dismissal, rather than suppression, as the remedy. The defendant also argued that the felon-in-possession statute, G.S. 14-415.1, was unconstitutional as applied to him, because his possession of a firearm did not pose a danger to the community. The judge stated that he agreed with that argument, too, but that he was “dismissing [the case] not based on those grounds,” instead relying on the Fourth Amendment violation. Confusingly, the judge eventually signed two written dismissal orders, one based on the Fourth Amendment violation and one based on the Second Amendment claim. The State appealed.
Second Amendment issue. The court of appeals first addressed the defendant’s constitutional challenge to G.S. 14-415.1. The court observed that under Britt v. State, 363 N.C. 546 (2009), and State v. Whitaker, 201 N.C. App. 190 (2009), as-applied challenges to the statute require consideration of the following factors:
- The type of felony conviction(s) at issue, including whether the conviction(s) involved violence
- How long ago the conviction(s) took place
- “The felon’s history of law-abiding conduct since the crime”
- “[T]he felon’s history of responsible, lawful firearm possession during a time period when possession of firearms was not prohibited”
- “[T]he felon’s assiduous and proactive compliance with the 2004 amendment” to G.S. 14-415.1 (rendering it applicable to all guns everywhere rather than just handguns outside the home)
The court rejected the defendant’s as-applied challenge, noting that he had three prior felony convictions, two for selling marijuana and one for an attempted deadly weapon assault. The assault conviction was “more recent,” as it took place in 2003. And, while there was “no evidence . . . that the defendant has misused firearms, there [was] also no evidence” that the defendant had complied with the Felony Firearms Act, as he possessed his hunting rifle in violation of the statute. The court’s discussion is consistent with my general impression that individuals with felony convictions are much more likely to win the argument that they are constitutionally entitled to possess firearms when that argument is made proactively in a lawsuit against the state than when the argument is raised as a defense after being arrested in possession of a gun.
Fourth Amendment issue. The court also reversed on the Fourth Amendment issue, concluding that once the defendant produced his hunting license to the wildlife officer, he was free to leave. Thus, the further discussion regarding the defendant’s criminal record was consensual, not part of a seizure, and was outside the scope of the Fourth Amendment. (And once the defendant admitted to being a felon, the rifle itself was properly seized as evidence of a crime that was in plain view.) This result is generally consistent with the courts’ treatment of traffic stops, where the return of the driver’s license to the driver generally marks the end of the seizure and the beginning of a consensual encounter. My paper on traffic stops – available here – discusses that issue in detail.
The line between a consensual encounter and a seizure can be blurry. Generally, there is no seizure when an officer simply approaches a person and asks the person a question. But there is a seizure when an officer approaches a person with a show of authority that would make a reasonable person feel that he or she was not free to leave. The court of appeals just decided an interesting case in this area – one that makes an interesting contrast with another relatively recent case.
Facts of Knudsen. This week’s case is State v. Knudsen. It arose when two Winston-Salem officers, on patrol downtown at 11:00 p.m. on a summer night, noticed the defendant get into, and start, a car “while holding a cup that looked similar to cups that were commonly used at downtown bars to serve mixed drinks.” One of the officers rode past the car on his bicycle and peered in the window. The defendant and his companion subsequently exited the vehicle and began to walk down the sidewalk, with the defendant still carrying the cup.
The bicycle officer positioned himself on the sidewalk in the pedestrians’ path, and the other officer, who was driving a cruiser, pulled into a parking lot just behind the bicycle officer in such a way as to block access to the lot. As the defendant approached the bicycle officer, the latter asked “what do you have in the cup?” Water, said the defendant, and indeed, water it was.
Lower court proceedings. The court’s opinion doesn’t describe what happened next, but I assume that the interaction developed in a way that gave the officers probable cause to believe that the defendant was impaired, as the defendant was eventually charged with driving while impaired. The defendant pled guilty to that offense in district court, appealed, and in superior court filed a “Motion to Dismiss for Lack of Reasonable Suspicion.”
The superior court judge granted the motion, ruling (1) that the defendant was seized when the officers blocked the defendant’s normal path of pedestrian travel in a way that would have made a reasonable person feel that he was not free to go, and (2) that the officers lacked reasonable suspicion for the stop.
Ruling on appeal. The State appealed, and the court of appeals affirmed. The key part of the opinion is the ruling that the officers seized the defendant. The court noted that the two officers were armed and in uniform, and took an obvious interest in the defendant. Then, the bicycle officer “imped[ed] Defendant’s continued movement along the sidewalk,” and the officer in the cruiser also “blocked the sidewalk” before the first officer “demanded” that the defendant state what he had in his cup. The court concluded that a reasonable person would not feel free to leave under these circumstances.
Comparison with Isenhour. As an empirical matter, I imagine that most people would feel obliged to stop in the circumstances present in Knudsen. But the same could probably be said of the earlier case of State v. Isenhour, 194 N.C. App. 539 (2008). In that case, the defendant was sitting in his car, with another person, in the parking lot of a fast food restaurant. Two officers “pulled up to defendant’s car in a marked patrol car. The officers parked their patrol car approximately eight feet away from defendant’s car,” then approached either side of the defendant’s vehicle on foot. They were in uniform and armed, and asked the defendant first to roll down his window, and later to exit his car. The court of appeals ruled that this did not constitute a seizure as a reasonable person would have felt free to ignore the officers and walk, or drive, away.
Perhaps Knudsen and Isenhour can be reconciled based on the fact that the officers in Knudsen blocked the defendant’s path, while the officers in Isenhour did not block the egress of the defendant’s vehicle. But having an officer at both doors of one’s car, as in Isenhour, seems to me as great a constraint as the defendant in Knudsen faced. My own view is that this difficult and fact-intensive area of the law simply generates decisions that aren’t entirely consistent.
One more comparison. As a final note, Knudsen is also somewhat reminiscent of the situation where an officer activates his or her blue lights and pulls in immediately behind a pedestrian. Is that a show of authority that would make a reasonable person feel not free to leave? I tend to think so but noted a split of authority on the issue in this prior post.