©2012 Brian S. Batterton, Attorney, PATC Legal & Liability Risk Management Institute (www.llrmi.com)
On June 4, 2012, the Eighth Circuit Court of Appeals decided the United States v. Phillips [i] which is instructive regarding cases of mistaken identity during officer/citizen stops and the Fourth Amendment’s reasonableness requirement. The facts of Phillips, taken directly from the case, are as follows:
On October 25, 2010, a shooting took place at 1422 4th Avenue Southeast in Cedar Rapids, Iowa. Police officers had information that Gregory Hollie possessed a pistol when the shooting occurred and had given the pistol to another individual, who was later arrested. An investigation revealed information that Hollie possessed multiple firearms, was a convicted felon, and was wanted on a warrant for an unrelated incident. Officers believed that Hollie was staying at 1418 4th Avenue Southeast in Cedar Rapids.
During the early afternoon of October 27, 2010, Cedar Rapids Police Officer John O’Brien and his partner were attempting to locate Hollie. The officers had seen Hollie’s booking photo and had been told Hollie’s physical description—a black male in his mid-thirties, who stands six feet tall, weighs two hundred fifteen pounds, and is bald. O’Brien was driving an unmarked vehicle. As they headed westbound on the 1400 block of 4th Avenue Southeast, the officers observed a “male black subject” walking eastbound on the sidewalk adjacent to 4th Avenue, approaching 1418. According to O’Brien, he and his partner believed that the subject was Hollie. The officers saw the subject turn towards 1418, but were unable to ascertain whether he proceeded to the house located at 1418 or to the area between 1418 and 1422.
O’Brien then drove to the end of the block and later positioned his vehicle so that he could view the alley behind the house. The officers observed a white vehicle pull into the parking area behind 1418, and after again repositioning, saw the white vehicle driving down the alley towards 14th Street. The officers observed a white female driver, a white female passenger in the front seat, and the man they had seen walking on 4th Avenue Southeast, who they believed to be Hollie, seated behind the driver. Although the officers did not see the subject enter the car, O’Brien testified that he was sure that it was the same individual they had seen walking near the front of 1418. According to O’Brien, “the bald head really stuck out.”
After following the white vehicle for a few blocks, the officers initiated an investigative stop. O’Brien conceded that there had been no traffic violations or any other independent reason to stop the vehicle. According to O’Brien, when the occupants of the vehicle noticed the officers, the individual he believed was Hollie began “fidgeting” or “manipulating” something to the right side of his body.
O’Brien and his partner approached the vehicle and asked the occupants for identification. O’Brien testified that “[a]t that point, I was convinced that it was Mr. Hollie from all of the information that I had at that time.” When the male subject reached for his right rear pants pocket to retrieve his identification, he turned his body away from O’Brien, which struck O’Brien as “a really unnatural maneuver.” Id. According to O’Brien, “if your wallet is on your back right pocket, you’re going to lean to the left and take the weight off of the wallet as opposed to putting more weight on it to get it out of your pocket.” O’Brien became concerned at this point because “the suspect we were looking for was known to be armed, had just left an area where a shooting had taken place, and now I’m getting this weird maneuver in the car to shield his body from me to get his wallet out of his back pocket[.]”
As the subject reached for his identification card, O’Brien asked him if he had come from the residence located at 1418 4th Avenue Southeast. The subject replied that he had not, but after O’Brien mentioned having seen him near that address, the subject admitted that he had stopped by the house to give some money to a friend.
The subject handed O’Brien his identification card, which listed the name Tony Phillips. O’Brien testified that he could not determine whether the person on the identification card was the same person who was sitting in the back passenger’s seat, in part because O’Brien had stepped back from the car to shield himself when the subject was reaching awkwardly for his identification. O’Brien asked the subject to step out of the car. As the subject was doing so, O’Brien asked if he had any weapons in his possession. He replied that he had a pistol in his right front pocket. O’Brien and his partner then placed the individual in handcuffs. After the subject exited the vehicle, O’Brien “was able to get a good look at his face, was able to determine that the I.D. was good.” Phillips was charged with being a felon in possession of a firearm. [ii]
Phillips filed a motion to suppress and argued that his stop violated the Fourth Amendment. The district court denied the motion and he appealed to the Eighth Circuit Court of Appeals.
There were two issues before the court. The first was whether the officer’s stop of Phillips based on the general physical description and distance from which the officer initially viewed Phillips was reasonable under the Fourth Amendment. The second issue was whether it was reasonable under the Fourth Amendment to order Phillips to exit the vehicle when officer could have verified his identification as he sat in the vehicle.
The court first sought out to determine if the initial stop was reasonable under the Fourth Amendment. Phillips argued that the physical description used by the officers (black male, mid-30’s, 6 feet tall, 200 lbs, bald head) was too general in nature to justify his stop. Further, he argued that the officers observed him from too far a distance for too short a time to justify the stop. In examining the issue of whether the initial stop of Phillips was reasonable, the court noted that:
A law enforcement officer may conduct an investigative stop of a vehicle if the officer has a reasonable suspicion supported by articulable facts that criminal activity may be afoot. [iii]
Further, the court noted that:
“[T]he validity of a stop depends on whether the officer’s actions were objectively reasonable in the circumstances, and in mistake cases the question is simply whether the mistake, whether of law or of fact, was an objectively reasonable one.” [iv]
Applying the two rules above to the facts of the case, the Eighth Circuit observed that Phillips physical description closely matched Hollie’s (the wanted person) and he resembled the book-in photo that the officer’s had previously examined. Further, the officers observed Phillips approaching a house where Hollie was believed to be staying. The Eighth Circuit then held under the totality of the circumstances, the officer’s mistaken belief that Phillips was Hollie was objectively reasonable under the Fourth Amendment. As such, the stop was reasonable.
The court then examined whether it was reasonable to have Phillips exit the vehicle to verify his identification. Phillips argued that the officers should have verified his identification through the car window. The Eighth Circuit noted that:
During a lawful investigative stop, an officer may order a passenger to exit the vehicle. See United States v. Cloud, 594 F.3d 1042, 1045 (8th Cir. 2010) (citing Maryland v. Wilson, 519 U.S. 408, 415, 117 S. Ct. 882, 137 L. Ed. 2d 41 (1997) (“We . . . hold that an officer making a traffic stop may order passengers to get out of the car pending completion of the stop.”)). [v]
The court then applied the above rule to the facts of the case. Here, the officer observed Phillips make a furtive or unnatural type of body movement when reaching for his wallet while in the car. Further, the court noted that Hollie was known to be armed. In light of this, and the rule above, the court held that it was reasonable for the officer to require Phillips to exit the vehicle for the purpose of verifying his identification. Specifically, the court stated:
The investigative stop was pending when O’Brien asked Phillips to exit the car, for O’Brien had not yet determined whether the subject was Hollie. O’Brien testified that he asked the subject to exit the vehicle because of the concern for officer safety. Immediately after exiting the vehicle and before his identity could be fully established, Phillips admitted to having a gun in his front pocket. We agree with the magistrate judge’s determination that O’Brien’s “action seems particularly prudent in this case, since O’Brien believed that he was dealing with an armed fugitive who had been involved in a shooting two days earlier. [vi]
As such, the stop did not violate the Fourth Amendment and the gun which was found during the stop was not the fruit of a constitutional violation.
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.
[i] No. 11-3014, 2012 U.S. App. LEXIS 11207 (8th Cir. 2012)
[ii] Id. at 2-5
[iii] Id. at 6 (citing United States v. Robinson, 670 F.3d 874, 876 (8th Cir. 2012) (quoting United States v. Sokolow, 490 U.S. 1, 7, 109 S. Ct. 1581, 104 L. Ed. 2d 1 (1989) and Terry v. Ohio, 392 U.S. 1, 30, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968)) (internal quotations omitted).
[iv] Id. (quoting United States v. Smart, 393 F.3d 767, 770 (8th Cir. 2005).
[v] Id. at 8