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
Tag Archives: seizure
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.
Today, the court of appeals decided State v. Baker. Baker explains when a trial judge is required to make findings of fact when hearing a motion to suppress, and it raises what I think is an interesting search and seizure issue.
The facts were as follows. An officer was on patrol near a nursing facility where several minor crimes had recently been committed. He saw the defendant walking in the area at 11:00 p.m., and stopped him (or stopped to talk to him — more on this later). In part because the defendant was “fidgety” and smelled of alcohol, the officer decided to frisk him. The defendant had a gun in his pants, and the officer charged him with carrying a concealed weapon and with being a felon in possession of a firearm. The defendant moved to suppress. Both the officer and the defendant testified at the suppression hearing. The motion was denied, the defendant was convicted, and he appealed.
The court of appeals held that the trial judge erred in failing to make findings of fact and conclusions of law in violation of G.S. 15A-977(f). The court explained that a judge is excused from making findings only if (1) there is no material conflict in the evidence, and (2) the judge explains the reason for his decision clearly from the bench. In such a case, proper findings are implicit in the court’s ruling. If either condition is not met, however, the failure to make findings “is fatal to the validity of [the court’s] ruling and constitutes reversible error.”
Applying this standard to the case at bar, the court first noted that it had never previously reversed a trial judge for failing to make findings of fact in the face of conflicting evidence. It determined that a material conflict exists when “evidence presented by one party controverts evidence presented by an opposing party such that the outcome of the matter to be decided is likely to be affected.” (As an aside, I don’t see why it matters which party presents the evidence. If, for example, the state calls two officers to testify, and the officers contradict one another on an important point, it seems to me that there is a material conflict, even if the defendant doesn’t present any evidence.) The court found that standard to be satisfied, because the parties’ evidence conflicted about the number of officers who were present on the scene, a factor that could be relevant to whether the interaction was a “stop” or a consensual encounter.
The court’s procedural clarification of when findings are required is helpful. But, as I suggested at the beginning of this post, I think the substantive issue in this case is even more interesting. Here’s the heart of it: “Defendant argues that he was seized . . . when [the officer] activated his blue lights [which he did as he pulled his car directly behind the defendant]. The State contends that defendant was free to leave until the time the gun was found.” As far as I can tell from the opinion, the officer did not activate his siren. He explained that he turned on his lights “to notify other motorists of the presence of his patrol vehicle,” which apparently protruded into the road to some extent, not as a way of compelling the defendant to stop.
The court didn’t conclusively resolve the significance of the blue lights. That isn’t surprising, given that it remanded the case for further findings. It did state that “[t]he activation of blue lights on a police vehicle has been included among factors for consideration to determine when a seizure occurs.” My initial reaction was that the use of blue lights is conclusive, not merely a “factor for consideration.” Only police vehicles may be equipped with blue lights. G.S. 20-130.1(c). Motorists are required by law to pull over when an officer activates his blue lights and siren. G.S. 20-157. At least when a reasonable person would believe that the officer’s activation of his blue lights is directed at him, it seemed to me that the use of blue lights constitutes a show of authority. If the person stops, the interaction is a seizure. Cf. Brower v. County of Inyo, 489 U.S. 593 (1989) (characterizing “flashing lights and continuing pursuit” as a show of authority). See generally 4 Wayne R. LaFave, Search and Seizure § 9.4(a) (discussing what constitutes a show of authority). But the Fourth Circuit held that the use of blue lights does not always constitute a show of authority with respect to pedestrians in an interesting unpublished case. The dissent in United States v. Williams, 2000 WL 718395 (4th Cir. June 5, 2000), argued that “[a] reasonable person is certain to understand that when he is approached directly by a police cruiser with flashing red and blue lights, the officer is making a display of authority, not giving a safety warning.” But the majority noted that a pedestrian, unlike a motorist, is not required to stop in response to blue lights. Therefore, it concluded, when a pedestrian does stop upon seeing blue lights, he does so consensually. I admit that I’m not fully persuaded by Williams, but the issue does seem to be meatier than I initially believed. I would be very interested to hear readers’ analyses of it.