©2011 Brian S. Batterton, Attorney, PATC Legal & Liability Risk Management Institute (www.llrmi.com) United States v. Jermaine Smith, 9th Cir. Decided February 3, 2011

On February 3, 2011, the Ninth Circuit Court of Appeals decided the United States v. Jermaine Smith. [i] , which serves as a excellent review of the law as it pertains to attempted seizures (detentions) of persons and the impact of flight by those persons.  The facts of Smith, taken directly from the case, are as follows:

In 2009, Smith crossed the street in front of a patrol car driven by Officer Tyler Dominguez of the Las Vegas Metropolitan Police Department.  Officer Dominguez activated his patrol car’s siren twice, pulled his car to the curb, exited the vehicle, and called for Smith to stop and come stand in front of the car. Smith turned toward the officer and asked either “Who? Me?” or “What for?”  Officer Dominguez confirmed that he was addressing Smith, and repeated the command that Smith come stand in front of the car. According to Smith’s testimony, although Smith had at first stepped toward the patrol car when he heard the siren, he then backed away after the officer got out of the vehicle and told Smith to stand in front of the car. Smith also said that, when he asked if he was under arrest, Officer Dominguez replied that Smith was not under arrest; however, the officer again ordered him to stand in front of the car. Smith continued to back away, and then turned and ran when he saw the officer reach for what Smith believed was a gun. Officer Dominguez pursued Smith on foot. The officer ordered Smith to stop, and threatened to use his Taser if Smith did not stop. Smith stopped involuntarily when he tripped and fell, allowing the officer to catch up with him. With Smith prone on the ground, Officer Dominguez approached him to place him in handcuffs and search him for weapons. While Dominguez approached, Smith stated that he had a gun in his pocket. Officer Dominguez recovered a Walther P99 nine-millimeter handgun from Smith’s person. [ii]

Smith was indicted under federal law for being a felon in possession of a firearm.  He filed a motion to suppress the firearm and argued that the officer lacked reasonable suspicion to detain him at the outset of the encounter.  As such, Smith claims that he was seized without reasonable suspicion, and therefore, the weapon should be suppressed since it was discovered as a result of an unlawful detention.  The district court denied his motion to suppress, and Smith entered a conditional plea with the right to appeal.  He then appealed he denial of his motion to suppress to the Ninth Circuit Court of Appeals.

The Ninth Circuit set out to resolve two issues.  First, the court had to decide whether Smith submitted to the officer’s initial attempted seizure at the patrol car.  Second, the court had to decide whether, after Smith fled, if the officer had sufficient reasonable suspicion to justify a detention of Smith.

Did Smith submit to the officer’s initial attempted seizure?

At the outset, the Ninth Circuit noted that, under Terry v. Ohio, [iii] in order to conduct a lawful detention of a suspect, an officer must be able to articulate specific facts, when taken together with the rational inferences from those facts, would lead the officer to believe that a suspect is engaged in wrongdoing. [iv]   The court stated

A seizure of a person is justified under the Fourth Amendment if law enforcement officers have reasonable suspicion that a person committed, or is about to commit, a crime. Without reasonable suspicion, a person may not be detained even momentarily. [v] [Quotations omitted] [emphasis added]

The Ninth Circuit then stated that, in this case, they did not need to resolve whether the officer had sufficient reasonable suspicion to justify the initial detention of Smith; this is because if Smith was not initially detained (in the constitutional sense) at the patrol car, then whether or not the officer had reasonable suspicion to justify the detention is a meaningless point.  The court noted

[A] person is not “seized” within the meaning of the Fourth Amendment unless by means of physical force or show of authority, his freedom of movement is restrained. In the absence of physical force, in order to constitute a seizure, an officer’s show of authority must be accompanied by submission to the assertion of authority.  We have expressly decline[d] to adopt a rule whereby momentary hesitation and direct eye contact prior to flight constitute submission to a show of authority.  In this case, where the officer did not use physical force during the initial encounter, the question is whether Smith’s actions constituted submission to Officer Dominguez’s show of authority. The Supreme Court has held that a seizure does not occur where the subject does not yield. A policeman yelling ‘Stop, in the name of the law!’ at a fleeing form that continues to flee . . . is no seizure. [vi]  [internal citations and quotations omitted]

The court also examined a case from the Third Circuit Court of Appeals that is very similar to Smith’s case.  In the United States v. Valentine, [vii]   police officers approached a suspect in a parking lot and ordered him to put his hands on the patrol car.  The suspect replied “Who, me?” and then fled.  The Third Circuit held that

[E]ven if the defendant paused for a few moments and gave his name, he did not submit in any realistic sense to the officers’ show of authority, and therefore there was no seizure. . . [viii]

The Ninth Circuit then considered the relevant facts of Smith’s case in light of the above rules.  In Smith, by his own admission, he did not yield to the officer’s orders.  Rather, Smith turned to the officer, asked him a few questions in response to the orders, took a few steps toward the police car (as instructed), but then backed up.  Smith then asked if he was under arrest and when the officer said “no,” he fled.  In light of these facts, the court held

Because Smith did not submit to the officer’s show of authority, and because he was not otherwise coerced or physically forced to submit, Smith was not seized within the meaning of the Fourth Amendment during his initial encounter with the officer. [ix]

Did the officer have sufficient reasonable suspicion to justify a detention of Smith after he fled?

It is not disputed that the officer seized Smith after he tripped during the foot chase.  The court noted several rules relevant to this issue.  First, the court noted that the Supreme Court has previously held

[A]n individual’s presence in an area of expected criminal activity, standing alone, is not enough to support a reasonable, particularized suspicion that the person is committing a crime. [x]

Thus, although Smith was in a high-crime area, this alone was not sufficient to establish reasonable suspicion.
However, the court also noted that the Supreme Court has previously held

[A] person’s “headlong,” “unprovoked” flight upon seeing a police officer, when it occurs in a high-crime neighborhood, is sufficient to establish reasonable suspicion that the person is involved in criminal activity… Flight, by its very nature, is not ‘going about one’s business’; in fact, it is just the opposite.  Headlong flight—wherever it occurs—is the consummate act of evasion: It is not necessarily indicative of wrongdoing, but it is certainly suggestive of such. [xi] [internal citations and quotations omitted]

As such, while Smith may have been free to go about his business and walk away from the encounter of the officer, he did not do so. [xii]   Had he done so, the officer would not have had the reasonable suspicion required to stop (detain) him. [xiii]    However, Smith did not do so.  Instead, he burst into “headlong flight.” [xiv]   The court stated

[T]he circumstances here indicate that Smith’s flight was sufficient to engender reasonable suspicion. It is undisputed that Smith was in a high-crime neighborhood during the events in question, that Officer Dominguez clearly identified himself as a police officer, and that Smith burst into headlong flight for no other reason than to evade Officer Dominguez. The officer’s determination that Smith’s sudden flight was suggestive of wrongdoing was reasonable under these circumstances. [xv]

As such, the court affirmed the denial of Smith’s motion to suppress as (1) he was not initially seized when he fled, and (2) his subsequent flight created sufficient reasonable suspicion to justify his detention after the foot chase.


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


[i] No. 10-10036, 2011 U.S. App. LEXIS 2122 (9th Cir. Decided February 3, 2011)

[ii] Id. at 2-3

[iii] 392 U.S. 1 (1968)

[iv] Id. at 5

[v] Id. (quoting United States v. Washington, 490 F.3d 765, 774 (9th Cir. 2007)) [Authors note:  Without reasonable suspicion an officer may conduct a consensual encounter with a suspect; however, the suspect must be free to leave and is not required to speak to the officer.]

[vi] Id. at 6-7

[vii] 232 F.3d 350 (3rd Cir. 2000)

[viii] Id. at 359

[ix] Id. at 9

[x] Id. (quoting Brown v. Texas, 443 U.S. 47 (1979))

[xi] Id. at 10 (quoting Illinois v. Wardlow, 528 U.S. 119 (2000))

[xii] Id.

[xiii] Id.

[xiv] Id.

[xv] Id. at 10-11

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