On July 29, 2021, the Eighth Circuit Court of Appeals decided the United States v. Lillich[i], which serves as an excellent review of the law related to consensual encounters and investigative detentions. The relevant facts of Lillich are as follows:
In the early morning of February 3, 2019, two officers from the Woodbury County Sheriff’s Office—Deputy Michael Lenz and a reserve deputy—were patrolling the small town of Sloan, Iowa, due to break-ins the night before at a church and a school. At around 2:00 a.m., while driving past a car wash, they noticed a car in a car wash bay and decided to observe from a short distance away. Deputy Lenz was concerned about a possible burglary, given the break-ins the night before, the time of day, and recent car wash burglaries in nearby counties.
The Sloan car wash has two manual car wash bays that are open and lit 24 hours a day. Both bays have two garage-type doors, allowing a person to drive in, stop and wash their car, and then drive out. The car wash owner testified that the bay doors are kept closed in the winter so the bays stay heated. The south bay (entrance) doors are manual, opened and closed by rope pulleys. The north bay (exit) doors open by pressing a button and automatically close when the car drives over a sensor. Each bay is accessible from the other by a door between the two bays.
As the officers drove by the car wash, they saw a car and a person’s feet in a car wash bay that had the doors close next to an empty bay that had the automatic exit door open. The officers decided to investigate further. They entered the bay occupied by Lillich and his associate, Patrick Steffens, by walking through the open garage bay door of the empty bay and walking the length of the empty bay to the open door between the two bays. The officers identified themselves as law enforcement. They wore their sheriff’s deputy uniforms, and their weapons were holstered and visible on their persons.
In the car wash bay, the officers saw Lillich and Steffens drying a car with the hood popped open. Deputy Lenz asked Lillich and Steffens what they were doing at the car wash at 2:00 a.m., and Lillich responded that they had just been at the WinnaVegas Casino and that he often washes his car after going to the casino. Deputy Lenz explained to Lillich and Steffens that he was checking in based on the recent burglaries, and he asked them for identification. Steffens gave Deputy Lenz a driver’s license, and Lillich gave him an identification card. Lillich explained that he was barred from driving and that Steffens had been driving the car. Deputy Lenz radioed Lillich’s and Steffens’s information to dispatch. While waiting for the results, Deputy Lenz talked with Lillich and Steffens about their plans for the night.
After being on the scene for approximately four minutes, Deputy Lenz went back to his car to scan the identification cards, while the reserve deputy stayed in the bay with Lillich and Steffens. Soon after Deputy Lenz departed, another sheriff’s deputy (Deputy Simoni) arrived and stood in the doorway between the two bays. While Deputy Lenz was gone, Lillich and Steffens dried the car and, on several occasions, opened the driver’s side and passenger’s side doors to access items in the car. Both bay doors remained closed.
Deputy Lenz returned after about three minutes and gave Lillich and Steffens their identification cards back. All three officers started to leave, but before they made it to their patrol cars, they were notified by dispatch that there was a “hit” on Steffens for a United States Marshals hold and a federal arrest warrant related to “dangerous drugs.” The officers then returned to the car wash bay occupied by Steffens and Lillich, but they did not immediately arrest Steffens on the warrant, as the warrant was not verified until approximately 30 minutes later.
The officers questioned Lillich about his car. Eventually Lillich asked if he and Steffens were free to go, and Deputy Lenz responded that they were not. Less than a minute later, Deputy Lenz conducted a pat-down search of Steffens, during which Deputy Lenz discovered a baggie of methamphetamine. Deputy Lenz arrested Steffens, seized Steffens’s cell phone, and placed Steffens in the back of the patrol car. When Steffens was handcuffed, Deputy Simoni suggested that Lillich call someone for a ride because Lillich was barred from driving. Lillich tried to get his cell phone from his car, but Deputy Lenz blocked his path, explaining that he “did not know what’s in there” but that an officer could retrieve the phone for Lillich. Deputy Simoni looked for the phone in the car for some time, but eventually Lillich rescinded his request for the officers to look for his phone.
After finding drugs on Steffens, officers called a K-9 officer to the scene to conduct a drug dog sniff of Lillich’s car. Lillich was not free to leave while they waited for the K-9 officer: Lillich asked if he could step outside, and the officer did not allow him to leave the bay; Lillich also asked if he could walk to the casino to find someone to give him a ride, and the request was denied. The K-9 officer conducted a drug dog sniff of Lillich’s car, and the dog alerted on it. Officers searched the car and found approximately two pounds of methamphetamine and one pound of cocaine inside a bag on the passenger’s seat. Officers then arrested Lillich.[ii]
Lillich was indicted for various federal drug offenses. He filed a motion to suppress his statements and the evidence. The district court denied the motion to suppress the evidence but granted the motion to suppress Lillich’s statements made during the second encounter because the court held that Lillich was unreasonably detained at that point. Lillich pleaded guilty with a right to appeal the denial of his motion to suppress.
On appeal, Lillich argued that (1) the first encounter was not consensual and not supported by reasonable suspicion, (2) the statements he made during the unlawful encounter should be suppressed, and (3) the evidence obtained during the second encounter should be suppressed as fruit of an unlawful detention.
Issue One: Was the initial encounter with Lillich non-consensual and not supported by reasonable suspicion, in violation of the Fourth Amendment?
The court of appeals first noted five legal principles that are relevant to this issue. The principles are as follows:
- Government officials, [ ], “do not violate the Fourth Amendment‘s prohibition of unreasonable seizures merely by approaching individuals on the street or in other public places and putting questions to them if they are willing to listen.” United States v. Drayton, 536 U.S. 194, 200, 122 S. Ct. 2105, 153 L. Ed. 2d 242 (2002);
- [E]ven when officers have no basis for suspecting a particular individual, they may generally ask questions of that individual[ and] ask to examine the individual’s identification . . . as long as the police do not convey a message that compliance with their requests is required.” Florida v. Bostick, 501 U.S 429, 434-35, 111 S. Ct. 2382, 115 L. Ed. 2d 389 (1991)
- [A] person has been ‘seized’ within the meaning of the Fourth Amendment only if, in view of all of 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, 100 S. Ct. 1870, 64 L. Ed. 2d 497 (1980).
- In certain circumstances, a citizen’s freedom of movement may be “restricted by a factor independent of police conduct,” Bostick, 501 U.S. at 436, including “by his being a passenger on a bus,” see id., or by his being at his workplace, see INS v. Delgado, 466 U.S. 210, 218, 104 S. Ct. 1758, 80 L. Ed. 2d 247 (1984). In those circumstances, “the ‘free to leave’ analysis . . . is inapplicable,” and “the appropriate inquiry is whether a reasonable person would feel free to decline the officers’ requests or otherwise terminate the encounter.” Bostick, 501 U.S. at 436.
- To determine whether a police-citizen encounter is consensual or implicates Fourth Amendment protections, we must “consider the totality of the circumstances”… Several factors inform our analysis, including:
officer’s positioning themselves in a way to limit the person’s freedom of movement, the presence of several officers, the display of weapons by officers, physical touching, the use of language or intonation indicating compliance is necessary, the officer’s retention of the person’s property, or an officer’s indication the person is the focus of a particular investigation. United States v. Griffith, 533 F.3d 979, 983 (8th Cir. 2008) [iii]
Lillich argued that he was seized under the Fourth Amendment because his freedom of movement was limited to a small carwash bay, with blocked exits and the officer had requested his driver’s license.
Regarding the argument that the police requested his driver’s license, the court of appeals stated
A request to see identification is not a seizure, ‘as long as the police do not convey a message that compliance with their request is required.'” United States v. Vera, 457 F.3d 831, 835 (8th Cir. 2006) (alteration in original) (quoting Bostick, 501 U.S. at 435).[iv]
Here, the court noted that the officers requested Lillich’s license and did not indicated that it was required. Lillich voluntarily gave his identification card to the officers.
The court of appeals also noted that the officers did not block the car exits to the carwash bay with their police vehicles. Further, while one officer did stand in a doorway, this did not block the carwash bay doors. Additionally, the officers allowed Lillich to move freely around the bay and continue to work on his vehicle.
As such, the court determined that the officers did not restrain Lillich’s freedom of movement.
Additionally, the court of appeals stated that the seven minute period where the officer had Lillich’s identification was a reasonable, “brief examination,” and within the scope of Lillich’s consent, as Lillich voluntarily provided his identification and did not request the officer return it.
The court of appeals also noted that the officers did not activate their blue lights, did not brandish firearms, and did not restrain Lillich’s liberty by physical force or a show of authority. Thus, the court held
[W]e conclude that the officers’ conduct would not have “communicated to a reasonable person that the person was not free to decline the officers’ requests or otherwise terminate the encounter.” See id. at 439. Accordingly, we find that the initial encounter between Lillich and the officers was consensual, and thus Lillich’s Fourth Amendment rights were not violated. [v]
Issue Two: Did the officers violate Lillich’s rights under the Fifth Amendment when they questioned him without providing him warnings under Miranda?
The court of appeals first noted
Because the court, in the previous issue, held that the first encounter was consensual, Miranda was not required and Lillich’s Fifth Amendment rights were not violated.
Therefore, the court of appeals reversed the decision of the district court suppressing Lillich’s statements.
Issue Three: Was Lillich’s vehicle unlawfully seized under the Fourth Amendment when it was held such that the evidence found in the car should be suppressed?
The district court held that the officers unlawfully detained Lillich’s person but the inevitable discovery doctrine allowed for admission of the evidence found in Lillich’s vehicle because the evidence would have inevitably been discovered due to the investigation of Lillich’s companion, Steffens.
The court of appeals agreed that the evidence should be admissible, but not because of the inevitable discovery doctrine. Rather, the court of appeals noted that for evidence to be suppressed due to the unlawful detention of Lillich’s person, Lillich must show that his detention (rather than the detention of his vehicle), led to the discovery of the evidence. The court of appeals observed that no evidence was obtained from the unlawful detention of Lillich’s person. Rather, the evidence was obtained from the 30-minute detention of Lillich’s vehicle. Further, the court of appeals held that the detention of Lillich’s vehicle was lawful because
[T]he presence of drugs in Steffens’s—the driver’s—pocket provided reasonable suspicion to seize the car to await a drug dog sniff. Cf. Davis, 569 F.3d at 817-18. No “other facts” were needed. Therefore, we reject Lillich’s argument that the officers lacked authority to seize Lillich’s car.[vii]
As such, the 30-minute detention of Lillich’s vehicle was based on reasonable suspicion and was lawful under the Fourth Amendment. Therefore, the court of appeals affirmed the denial of the motion to suppress the evidence found in the canine sniff of the vehicle.
[i] No. 20-2086 (8th Cir. Decided July 29, 2021)
[ii] Id. at 2-6
[iii] Id. at 10-11
[iv] Id. at 13
[v] Id. at 16
[vii] Id. at 20-21