On August 25, 2023, the Eleventh Circuit Court of Appeals decided the United States v. Larson[i], which serves as an excellent review of the law related consensual encounters and reasonable suspicion.  The relevant facts of Larson are as follows:

At about 10:30 p.m. on May 31, 2021, Lieutenant Rebecca Butscher saw Larson sitting next to a wheelchair and multiple bags on the side of West Newberry Road in Gainesville, Florida. Larson was eating food from a free food pantry that a church kept nearby. Butscher pulled over and turned on her vehicle’s spotlight and emergency lights. She and Larson talked, and she asked him for identification. When Larson opened his bag to look for his identification, Butscher shone her flashlight into his bag and saw a sheathed knife. Larson was unable to find his identification.

Butscher was not particularly concerned about the knife, but she did ask Larson to move in front of her car while she ran his name and birthdate through the teletype. She discovered that he had an outstanding, non-extraditable Minnesota warrant for having received stolen property.

Two or three more officers arrived on the scene, and they also pulled over and turned on their emergency lights. One of their vehicles had a dashcam video that Larson introduced into the record. Butscher and Larson continued talking about Larson’s homelessness, his recent arrival in Gainesville, and his criminal history including convictions for burglary and dealing in stolen property.

Butscher then noticed that Larson had a stack of twenty-to-thirty vinyl records with him, which she suspected were stolen. She proceeded to pat him down, and he told her that he had a pocketknife, marijuana, and marijuana paraphernalia. He also volunteered that he had a sawed-off shotgun in one of his bags. Butscher immediately arrested Larson.[ii]

Larson filed a motion to suppress and argued that he was detained without reasonable suspicion during the encounter with the officers.  The district court found that the he was not detained without reasonable suspicion and denied the motion.  Larson entered a guilty plea with the right to appeal the denial of his motion to suppress.

On appeal, Larson argued that he was detained without reasonable suspicion during the encounter with the officers.

The court of appeals first noted that they cannot overturn factual findings of the district court unless the findings were clearly erroneous.  The court then examined the legal principals that apply to Larson’s case and stated

Consistent with the Fourth Amendment, an officer may perform a limited investigatory detention of someone whom she reasonably suspects has committed criminal activity. United States v. Bruce, 977 F.3d 1112, 1116 (11th Cir. 2020) (citing Terry v. Ohio , 392 U.S. 1, 30, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968)). Such stops may last only as long as is necessary to achieve their limited investigatory purpose. See United States v. Campbell, 26 F.4th 860, 882 (11th Cir. 2022) (en banc). Additionally, with or without reasonable suspicion, an officer may approach an individual and ask him questions, so long as a “reasonable person would feel free to terminate the encounter.” United States v. Jordan, 635 F.3d 1181, 1186 (11th Cir. 2011) (quotation omitted).[iii]

The court then examined at what point reasonable suspicion was present to detain Larson.  The court determined that, when Lieutenant Butscher saw the 20-30 vinyl records, she had reasonable suspicion to believe that Larson may be in possession of stolen property.  The court considered that that, at this point, Lieutenant Butscher knew that Larson had an outstanding warrant and prior conviction for dealing in stolen property.  Additionally, the court considered that it was unusual for a homeless person to have that large quantity of vinyl records and no record player or apparent reasons for being in possession of such records.  The totality of these circumstances provided reasonable suspicion to detain Larson.  The court further noted that, at the point, Lieutenant Butscher asked if she could pat Larson down for weapons and Larson admitted that he had a knife, marijuana and a sawed-off shotgun.  This provided Lieutenant Butscher probable cause to arrest Larson for being a convicted felon in possession of a firearm, and she did so.

The court of appeals then examined the officers’ interaction with Larson prior to the observation of the vinyl records.  The court discussed the factors they consider when determining if a person has been detained or seized under the Fourth Amendment.  The court stated

To determine whether an individual has been detained, we consider the following factors as part of a holistic, totality of the circumstances analysis: (1) “whether a citizen’s path is blocked or impeded”; (2) “whether identification is retained”; (3) “the suspect’s age, education and intelligence”; (4) “the length of the suspect’s detention and questioning”; (5) “the number of police officers present”; (6) “the display of weapons”; (7) “any physical touching of the suspect”; and (8) “the language and tone of voice of the police.” Id. (quotations omitted). Our consideration of the factors is not rigid, because the “ultimate inquiry remains whether a person’s freedom of movement was restrained by physical force or by submission to a show of authority.”[iv]

The court of appeals then focused on factors six, seven and eight, above.  The court noted that, prior to the discovery of the vinyl records, the officers did not display weapons, did not touch Larson, and did not use any coercive means to convey that Larson was not free to leave.  Further, the officers and Larson engaged in a cordial conversation, that involved joking, and was absent of profanity, yelling, and threating or coercive speech.

The court also considered that

There is nothing in the Constitution which prevents a policeman from addressing questions to anyone on the streets.” Jordan, 635 F.3d at 1186 (quotation omitted). “Even when law enforcement officers have no basis for suspecting a particular individual, they may pose questions, ask for identification, and request consent to search luggage—provided they do not induce cooperation by coercive means.” United States v. Drayton, 536 U.S. 194, 201, 122 S. Ct. 2105, 153 L. Ed. 2d 242 (2002).[v]

The court noted that prior to the pat-down, the officers used no coercive force to compel Larson’s cooperation, nor was his movement “restrained by physical force or by submission to a show of authority.”

Larson argued that he was detained the moment the police asked for his identification on a deserted road, late at night, and he subjectively felt that he was not free to leave.  The court of appeals stated

[W]hen an officer asks for identification, that alone does not turn an encounter into a detention. Drayton, 536 U.S. at 201. Nor does Larson’s subjective sense of whether he was free to leave affect what is an objective inquiry. United States v. Knights, 989 F.3d 1281, 1286 (11th Cir. 2021).[vi]

The court reiterated that the questions the officers asked of Larson were “without any display of coercive power,” and “such questions do not, on their own, amount to a detention under the Fourth Amendment.”[vii]

Therefore, the court of appeals held that during the encounter, Larson was not initially detained, and when he was detained, the detention was supported by reasonable suspicion.

Larson also argued that Lieutenant Butscher conducted an illegal search when she shined her flashlight into his bag, although he did not make this argument to the district court.  The court of appeals noted that Larson cited no cases from the Supreme Court or the Eleventh Circuit that have held that shining a flashlight into an unzipped backpack was a search, and therefore this argument failed.

Thus, the court of appeals affirmed the denial of the motion to suppress.

Practice Pointer:

This case did not discuss the fact that Lieutenant Butscher activated her emergency lights when she stopped to talk to Larson.   Officers should be aware that, if considered, a court could consider that as an indication that a person was being “stopped,” as emergency lights are used to initiate traffic stops.  This was not addressed in this case.

Note:  Court holdings can vary significantly between jurisdictions.  As such, it is advisable to seek the advice of a local prosecutor or legal adviser regarding questions on specific cases.  This article is not intended to constitute legal advice on a specific case.

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Citations

[i] No. 22-12031 (11th Cir. Decided August 25, 2023 Unpublished)

[ii] Id. at 1-3

[iii] Id. at 4 (emphasis added)

[iv] Id. at 5-6 (emphasis added)

[v] Id. at -6-7 (emphasis added)

[vi] Id. at 7 (emphasis added)

[vii] Id. at 8