On July 10, 2013, the Sixth Circuit Court of Appeals decided the United States v. Jeter [i] which serves as an excellent review of constitutional law as it pertains to seizures of persons that run from the police. The facts of Jeter, taken directly from the case, are as follows:
On May 10, 2011, several police officers from the Toledo Police Department (“TPD”) were on patrol near downtown Toledo, Ohio. While patrolling their assigned area, they came to a shopping center on the corner of Franklin and Bancroft Street. The shopping center, which contained very few stores, was located in an area from which the police department received many complaints pertaining to robberies, thefts, drug activity, and loitering.
Throughout the day, the officers noticed a distinct group of people in the shopping center’s parking lot. As the district court summarized, “They were not going in or out of the stores; instead, they were simply gathered [sic], and, apparently, remaining together without any visible purpose except to be in each other’s company.” Among the group of people in the parking lot was a man on a bicycle, who was seen on several occasions traversing back and forth across the parking lot. After observing this group of people at least three or four times in the parking lot, TPD Officers Toth and Niles decided to address what they believed was a loitering problem because “nobody was shopping, nobody had shopping bags, nobody had any items they’d just bought.”
According to the district court, Jeter was on a bicycle, but was not a member of the group allegedly loitering in the parking lot, nor was he the individual seen earlier in the day traversing the parking lot. Jeter did not arrive at the shopping center parking lot until some time after the officers saw the first man on a bicycle. When Jeter arrived, he entered a grocery store in the shopping center and purchased a snack and a bottled water. After exiting the store, he stopped for three or four minutes, consumed the snack, placed his water on his bicycle, and then began to leave the parking lot on his bicycle.
At the same time Jeter was leaving the parking lot, Officers Toth and Niles, while in their own police car, called two other police cars to the scene, each containing two officers, at least one police sergeant, a police lieutenant, and the TPD’s helicopter crew to “saturate” the shopping center plaza. The officers assembled down the street away from the shopping center to discuss their strategy concerning where each officer would be positioned. The intent was to “bum rush” the parking lot with several ground units and the helicopter so as to round up the group suspected of loitering. The ground units were strategically positioned around the shopping center to prevent any member of the group in the parking lot from fleeing on foot, while the helicopter hovered overhead to provide “over watch” in the event anyone did in fact flee. In short, the manner in which the officers entered the parking lot was designed to contain the people in that area. The TPD implements this “bum rush” or “saturation” tactic “every couple weeks” in an attempt to rid problem areas of suspected criminal activity, with “added benefits” including getting “more gun[s] off the street” or “more person[s] with outstanding warrants.”
As the TPD officers approached the shopping center, Officers Toth and Niles observed an African-American male on a bicycle who appeared to be the same individual the officers had spotted earlier that day. The individual on the bicycle was “the person who was of most interest all day because of his actions.” The individual on the bicycle—Jeter—was pedaling normally toward Franklin Street and away from the point of entry from which Officers Toth and Niles came. As Officers Toth and Niles approached Jeter, Officer Niles rolled his window down and asked to speak with Jeter. Jeter did not respond and “started wandering away on his bike.” Officers Toth and Niles then moved to prevent Jeter from exiting the parking lot. They pulled their police car into the grass in the parking lot, which effectively blocked Jeter’s pathway onto Franklin Street.
Once the police car blocked Jeter’s path, Jeter “had stopped at that point,” and Officer Niles exited the police car from the passenger’s side to talk with Jeter. Jeter then looked at both officers, dropped his bicycle, and started running away. The officers chased Jeter down an alley. As Jeter fled, officers observed him clutching the right front pocket of his shorts. Police quickly caught up with Jeter. They seized him, searched him, and ultimately recovered a .22 caliber handgun in the right front pocket of Jeter’s shorts. Jeter was transported to the TPD and charged with being a felon in possession of a firearm. [ii]
Jeter was subsequently charged with federal firearms offenses. He filed a motion to suppress which was denied and he pled guilty with the right to appeal. He later appealed the denial of his motion to suppress the gun to the Sixth Circuit Court of Appeals.
On appeal, Jeter first argued that he was “seized” without probable cause or reasonable suspicion when he initially paused when the police blocked his path during the first encounter. As such, the gun should be seized as fruit of an unlawful encounter. Second, Jeter argued that the police provoked his flight without reasonable suspicion so it should not be used as a factor to justify a later finding of reasonable suspicion for the second encounter.
At the outset, the court noted that the officers did not have probable cause or reasonable suspicion when they first approached Jeter and “bum rushed” the group in the parking lot. In fact, the court of appeals noted that the district court found that Jeter was not the man on the bike that the police had previously observed, he had patronized the store, there were no complaints of loitering that day and none of the people in the parking lot were acting in violation of the city’s loitering ordinance. The court further noted that reasonable suspicion did not exist solely because Jeter and the others were in a “high crime area.” [iii] Thus, since the court of appeals found that there was no reasonable suspicion to detain Jeter, the court had to examine whether Jeter submitted to the police such that the police impermissibly seized him without reasonable suspicion of criminal activity.
The court noted that the United States Supreme Court recognizes two types of seizures of persons. The first type exists when an officer uses physical force to restrain a suspect. [iv] The second type of seizure occurs when a person submits to a show of authority from an officer. [v] Thus, if an officer tells a person to “stop” or “hold up” and a person obeys or submits to the order, that person has been “seized” under the Fourth Amendment.
Jeter argued on appeal that his momentary pause when the police blocked his path amounted to an illegal “seizure” under the Fourth Amendment since no reasonable suspicion existed and the pause was a “submission” to police authority; therefore, all evidence that followed that illegal seizure should be suppressed. The court set out to determine whether Jeter’s momentary pause was sufficient to amount to a “submission” to police authority.
The court then examined legal precedent relevant to this issue. In Jeter’s case, the court of appeals found it significant that Jeter did not, in any way, converse with the officers before he ran. Rather, after the police blocked his path and approached him on foot, he paused for a moment, discarded his bike, and fled on foot down an alley. The court found that Jeter’s conduct manifested his intent to ignore the officer’s command to stop. The court then stated:
Jeter’s momentary pause can hardly be considered a submission to authority, especially where he did not attempt to converse with the officers. In fact, Jeter intentionally ignored the officers and their requests. As such, we find that Jeter did not submit to authority as required by Hodari D. Where there is no seizure, there can be no Fourth Amendment violation. See Hodari D., 499 U.S. at 626; see also Galas v. McKee, 801 F.2d 200, 202 (6th Cir. 1986). [vi]
The court of appeals then sought to determine whether the police had sufficient justification under the Fourth Amendment to justify Jeter’s seizure when they tackled him and arrested him. Jeter argued that the since the police provoked his flight without reasonable suspicion, that should render the gun tainted and inadmissible.
At the outset, the court noted that there was a lack of clarity as to what level of facts amounted to “provoked” flight. After examining various court precedent on this issue, the court stated:
Despite the lack of clarity on the matter of provoked flight, we can certainly extrapolate some guiding principles. Fraud, for example, would surely suggest wrongdoing on the part of the officers and thus make a finding of provocation more likely. If police officers put a defendant in reasonable fear of physical harm, that might also qualify as provocation. [vii]
In looking at the facts of Jeter’s case, the court noted that there was no evidence that the police used fraud to provoke Jeter’s flight, and he did not run because he feared imminent harm. Evidence to support this was the fact that Jeter did not flee into the store to seek safety, rather he fled down an alley as if to escape the police. Additionally, testimony of the officers at the motion to suppress suggested the police used the “bum rush” to prevent people from fleeing by covering the means of escape.
In addition to the above, the court also noted three other reasons that Jeter’s argument that he was provoked into flight does not prevail. First, the court noted that Jeter was the only person out of the large group to flee when the police rushed the group. The court stated that three police cars and a helicopter was not excessive in light of the group of 5-20 people and the high crime area where others have fled in the past.
Second, the court noted that only one car with two officers approached Jeter. The two officers approached Jeter with their windows down and asked to speak to him. At this point he fled and the officer tried to block him with their car.
Lastly, Jeter admitted to the officers that he ran because he had a gun. Thus, the court stated that this undermined his later argument that he ran because the police improperly provoked him into fleeing. [viii] Thus, the court held that Jeter was not improperly provoked into fleeing.
Regarding whether the totality of the circumstances amounted to sufficient legal justification under the Fourth Amendment to support the stop, the court stated:
Wardlow is dispositive of whether a fleeing suspect gives officers reasonable suspicion to conduct a Terry stop. 528 U.S. at 125-26. Wardlow held that flight “is not necessarily indicative of wrongdoing, but it is certainly suggestive of such.” Id. at 124. Here, Jeter fled in response to the presence of law enforcement, and, as credited by the district court, grabbed the front right pocket of his shorts as he fled, giving officers a belief that he possibly had contraband. The district court correctly found that Jeter’s flight, in combination with the grabbing of his pocket in a “high crime area,” provides the inference of suspicious behavior that justifies a Terry stop under Wardlow. Id. at 124-25. There are innocent reasons to flee, but Terry permits “officers [to] detain the individuals to resolve the ambiguity.” Id. at 125 (citing Terry, 392 U.S. at 30). [ix]
The court then held that reasonable cause existed to detain Jeter after he ran and was seen grabbing his pocket. As such, the court affirmed the denial of the motion to suppress.
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. 12-3909, 2013 U.S. App. LEXIS 13893 (6th Cir. Decided July 10, 2013)
[ii] Id. at 2-5
[iii] Id. at 8
[iv] Id. at 10 (quoting Terry v. Ohio, 392 U.S. 1, 19 n.16, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968))
[v] Id. (citing California v. Hodari D., 499 U.S. 621, 626, 111 S. Ct. 1547, 113 L. Ed. 2d 690 (1991))
[vi] Id. at 13
[vii] Id. at 16
[viii] Id. at 19-20
[ix] Id. at 20-21