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Pedestrian was seized for Fourth Amendment purposes by actions of officers on bicycles

United States v. Dontray A. Smith, 7th Circuit Court of Appeals No. 14-2982, 7/20/15

Smith’s encounter with two officers on bicycles amounted to a seizure based on the totality of the circumstances surrounding the encounter, and because he was seized without reasonable suspicion, his Fourth Amendment rights were violated.

Two Milwaukee police officers on bicycle patrol were investigating gunshots when they saw Smith crossing a street toward an alley. The officers rode ahead of Smith into the alley and, when they were five feet from Smith, stopped and positioned their bicycles at a 45‐degree angle to him. Neither officer identified himself, said hello, or asked Smith for his name. One officer dismounted, approached Smith with his hand on his gun, and asked Smith whether he had a gun or any other weapon in his possession. When Smith said he had a gun, the officers confiscated it and arrested him for being a felon in possession of a firearm. The district court found this encounter was “consensual” and denied Smith’s suppression motion. (Slip op. at 2-4). The Court of Appeals reverses.

The “crucial” test for determining if there has been a Fourth Amendment seizure is “whether 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.” Florida v. Bostick, 501 U.S. 429, 434 (1991).

Given these factors—in particular, the location of the encounter in a dark alley, the threatening presence of multiple officers, the aggressive nature of the questioning, and the fact that Smith’s freedom of movement was physically obstructed by the positioning of the officers and their bicycles—we conclude that a reasonable person in Smith’s situation would not have felt at liberty to ignore the police presence and go about his business. Therefore, we find that Smith was seized for purposes of the Fourth Amendment. (Slip op. at 7).

As useful as the overall holding itself are the court’s reasons for rejecting the government’s arguments that this was a “consensual” encounter:

  • The encounter occurred in a public place. True, but “alleys are by their nature less travelled and narrower than streets. A citizen approached in an alley will very often be alone, as Smith was, and have limited room in which to maneuver, conditions that may contribute to the reasonable belief that simply walking away from the police is not an option.” (Slip op. at 7).
  • Smith wasn’t physically touched during the encounter. Again, true; but if physical touching “is indicative of coercion, … we disagree with the suggestion that physical contact is required to find that a seizure has taken place.” (Slip op. at 8).
  • The officers didn’t entirely block Smith’s path; he could have walked around or through them. “Common sense dictates that no reasonable person in an alley would feel free to walk ‘through’ two armed officers on bicycles. And our case law makes clear that officers need not totally restrict a citizen’s freedom of movement in order to convey the message that walking away is not an option.” (Slip op. at 9).
  • The officers didn’t convey to Smith that he was a suspect in an ongoing investigation. But no “magic words” are required to convey that message; “[i]n the context of this highly charged encounter—which involved no pleasantries, the cornering of a lone citizen in an alley, and the posing of the sole question, ‘do you have a weapon?’—we find that a reasonable person in Smith’s position would believe he or she was suspected of some criminal wrongdoing, and as such, not at liberty to walk away.” (Slip op. at 10).
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