||FOURTH CIRCUIT DISCUSSES CONSENSUAL ENCOUNTERS AND INVESTIGATIVE DETENTIONS

FOURTH CIRCUIT DISCUSSES CONSENSUAL ENCOUNTERS AND INVESTIGATIVE DETENTIONS

On December 26, 2019, the Fourth Circuit Court of Appeals decided the United States v. Lewis[i], which serves as an excellent review of the law related to consensual encounters and investigative detentions.  The facts of Lewis, taken directly from the case, are as follows:

While leaving a staff meeting on the morning of June 12, 2017, Sergeant Matthew Townsend (“Sergeant Townsend”) of the Dillon, South Carolina police department overheard coworkers discussing an arrest warrant charging assault that had recently been issued for someone with the last name of “Lewis.” Later that day, Sergeant Townsend was filling his patrol car’s gas tank when he noticed Appellant walk past. Sergeant Townsend had previously interacted with both Appellant and Appellant’s brother, who share the last name “Lewis.” Sergeant Townsend was aware that Appellant was known as a “neighborhood bully.” J.A. 33.1 When Sergeant Townsend saw Appellant walking down the street, he radioed dispatch to identify the full name on the “Lewis” warrant. Though Sergeant Townsend had yet to receive an answer from dispatch, he followed Appellant. Sergeant Townsend was alone in his patrol car and Appellant was on foot.

When Sergeant Townsend caught up with him, Appellant was nearing the front door to the home Appellant shared with his girlfriend. According to Sergeant Townsend, he first rolled his car window down and said, “Hey, man, let me talk to you for a minute.” J.A. 37. As Sergeant Townsend then exited his car, Appellant replied, “For what?” Id. At this point, Sergeant Townsend recalls he “was probably in [Appellant’s] yard.” Id. at 59. Sergeant Townsend told Appellant, “I may have a warrant on you,” at which point, according to Sergeant Townsend, Appellant turned and ran from one side of the house around to the other side. Id. at 37.

For his part, Appellant testified that he was approaching his front door when Sergeant Townsend pulled up in his patrol car. According to Appellant, Sergeant Townsend “pulled up in the yard, got out of the vehicle, [and] told [him] to turn around and put [his] hands behind [his] back . . . [because he] was under arrest.” J.A. 66. Appellant further attested that he demanded to know why he was under arrest, and when Sergeant Townsend refused to explain, Appellant turned to walk in the door of his residence. At that point, per Appellant, Sergeant Townsend reached to grab him, so Appellant pulled away and ran. Appellant explained that he ran when Sergeant Townsend tried stopping him from continuing into his house because he did not believe Sergeant Townsend had the authority to arrest him. Appellant said he believed he had the right to leave because Sergeant Townsend never told him why he was under arrest.

In both Appellant’s and Sergeant Townsend’s versions of the incident, Appellant ran from the area near his front door to the other side of the house. Appellant then attempted to climb over a chain-link fence near the side of the house, but Sergeant Townsend grabbed him and wrestled him to the ground. During the struggle, Sergeant Townsend saw a black object — later determined to be a firearm — fall to the ground.

After arresting Appellant, Sergeant Townsend learned that the warrant he heard being discussed that morning had in fact been for Appellant’s brother and not Appellant. However, Sergeant Townsend discovered there were multiple outstanding arrest warrants for Appellant on narcotics and firearm charges.[ii]

Lewis was subsequently indicted under federal law for being a felon in possession of a firearm.  He filed a motion to suppress the firearm and the district court denied the motion.  Lewis pleaded guilty with a right to appeal the denial of the motion to suppress.  He then filed a timely appeal with the Fourth Circuit Court of Appeals.

On appeal, Lewis argued that he was seized without reasonable suspicion at his front door during the initial encounter with the officer, and the gun should be suppressed as a product of that Fourth Amendment violation.  The court first stated that

A [Fourth Amendment] seizure of the person . . . occurs when, taking into account all of the circumstances surrounding the encounter, the police conduct would have communicated to a reasonable person that he was not at liberty to ignore the police presence and go about his business.” Kaupp v. Texas, 538 U.S. 626, 629 (2003) (internal quotation marks omitted).

Without a warrant supported by probable cause, a law enforcement officer may still briefly detain an individual for investigative purposes if the officer has reasonable suspicion that the individual has engaged in criminal activity or is presently engaged in criminal activity. United States v. Hensley, 469 U.S. 221, 227 (1985). To use reasonable suspicion to justify even a brief seizure for investigative purposes, “the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.” Terry v. Ohio, 392 U.S. 1, 21 (1968). In assessing whether reasonable suspicion existed, we evaluate “the facts available to the officer at the moment of the seizure.” Id. at 21-22.[iii]

The court then set out to determine when Lewis was actually seized under the Fourth Amendment during his encounter with Sergeant Townsend.  If it were prior to developing reasonable suspicion, then the gun would be suppressed.  Lewis argued that he was seized at or near his front door when the sergeant first spoke with him.  The government argued that the encounter was initially consensual and didn’t become a seizure until the sergeant physically seized Lewis by the fence after he fled.

The court noted the legal principles regarding seizures of persons and stated

Seizure of a person occurs “[o]nly when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen.” Terry, 392 U.S. at 19 n.16. Where physical force was not used to restrain a person, we ask whether “in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.” United States v. Mendenhall, 446 U.S. 544, 554 (1980).

We have identified a number of factors to consider when determining whether a seizure has occurred, including the number of police officers present during the encounter, whether they were in uniform or displayed their weapons, whether they touched the defendant, whether they attempted to block his departure or restrain his movement, whether the officers’ questioning was non-threatening, and whether they treated the defendant as though they suspected him of illegal activity rather than treating the encounter as routine in nature. Santos v. Frederick Cty. Bd. of Comm’rs, 725 F.3d 451, 461 (4th Cir. 2013) (quoting United States v. Jones, 678 F.3d 293, 299-300 (4th Cir. 2012)). “A police officer may make a seizure by a show of authority and without the use of physical force, but there is no seizure without actual submission; otherwise, there is at most an attempted seizure, so far as the Fourth Amendment is concerned.” Brendlin v. California, 551 U.S. 249, 254 (2007).[iv]

In summary, there are two types of seizures of persons: (1) where a person submits to a “show of authority” on the part of an officers, and (2) a physical seizure of a person.  The court also identified several factors to consider when determining whether or not a seizure has occurred.  The factors are (1) the number of officers present, (2) whether the officers were in uniform, (3) whether the officers displayed their weapons, (4) whether they physically touched the person, (5) whether they blocked the person’s path, (6) whether they restrained person’s movement in some way, (7) whether the officers questioning was non-threatening or overbearing, and (8) whether the nature of the question was accusatory or routine in nature.

The court then examined the facts of the case in light of the above rules.  Regarding the initial encounter near the front door, the court found that the sergeant, while in uniform, did not draw his weapon and did not restrain or touch Lewis.  The court also found that, while the sergeant asked Lewis about the warrant, he did not do so in a threatening manner.  Lastly, while Lewis’s subjective feelings are not dispositive on this issue, his actions and testimony in court show that he did not feel he was being detained, in that he fled.  Regarding the initial encounter near the front door, the court of appeals thus held

In view of all the circumstances surrounding the incident in question, the initial encounter here is at most an attempted seizure — one from which Appellant quickly fled.[v]

The court also stated that the sergeant did not seize Lewis under the Fourth Amendment until he ran to the side of house and was physically seized at the fence.  With this in mind, the court then set out to determine if this seizure was supported by reasonable suspicion.  The court stated

Pursuant to the standard given in Terry, an investigatory stop may be justified by an officer’s “reasonable suspicion grounded in specific and articulable facts that the person he stopped has been or is about to be involved in a crime.” United States v. Moore, 817 F.2d 1105, 1107 (4th Cir. 1987) (citations omitted). “An inchoate and unparticularized suspicion or hunch is not a permissible basis for a Terry stop.” United States v. Hernandez-Mendez, 626 F.3d 203, 207 (4th Cir. 2010) (internal quotation marks omitted). “Courts assess reasonable suspicion by examining the totality of the circumstances in order to determine whether officers had a ‘particularized and objective basis for suspecting the person stopped of criminal activity.'” Id. (quoting United States v. Cortez, 449 U.S. 411, 417-18 (1981)).[vi]

The court then examined the facts of this case that are relevant regarding whether reasonable suspicion was present.  First, Sergeant Townsend knew there was a warrant for assault for person with the last name “Lewis,” and he knew there were two brothers with that last name.  Second, Sergeant Townsend then saw one of the brothers and knew his reputation as a “neighborhood bully,” is congruent with the assault warrant.  Third, when Sergeant Townsend mentioned the warrant to Lewis, he fled on foot around the house, to a fence.

The court noted that, while Lewis had the right to walk away from the initial consensual encounter with the sergeant, he did not walk away; rather, “there was sudden panic and precipitous flight.”[vii]  The court stated

In context, flight and other evasive behaviors are proper considerations to be taken into account under the totality of the circumstances. See Illinois v. Wardlow, 528 U.S. 119, 124 (2000) (recognizing “nervous, evasive behavior” including unprovoked flight “is a pertinent factor in determining reasonable suspicion“).[viii]

In light of these facts, the court of appeals held

In combination with the other information available to Sergeant Townsend — that is, that there was an outstanding warrant for assault for an individual in the area with the last name “Lewis,” and Appellant, whose last name is “Lewis,” was known as a neighborhood bully — Appellant’s sudden flight provided reasonable suspicion for Sergeant Townsend to detain him.[ix]

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

________________________________________________

Citations

[i] No. 18-4487 (4th Cir. Decided December 26, 2019 Unpublished)

[ii] Id. at 2-4

[iii] Id. at 6 (emphasis added)

[iv] Id. at 8-9 (emphasis added)

[v] Id. at 10

[vi] Id.  (emphasis added)

[vii] Id. at 11

[viii] Id. at 12 (emphasis added)

[ix] Id.

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By |2020-11-09T10:05:01-05:00November 9th, 2020|Legal updates|

About the Author:

Brian Batterton is an attorney in the State of Georgia and currently a Lieutenant with the Cobb County Police Department. He has been in law enforcement since 1994 and obtained his Juris Doctorate in 1999 from John Marshall Law School in Atlanta. He has served as an officer in Uniform Patrol, a detective in Criminal Investigations, a Corporal in the Training Unit and as a Sergeant in Uniform Patrol. Brian is currently assigned as the Legal Officer to the Chief of Police. In addition to his work at the police department, he also lectures for the Legal and Liability Risk Management Institute (LLRMI) on both criminal law and procedure topics, as well as, police civil liability.