State v. Damian Darnell Washington, 2005 WI App 123
For Washington: Diana M. Felsmann, SPD, Milwaukee Appellate
¶13 In United States v. Mendenhall, 446 U.S. 544 (1980), the Supreme Court stated that “[w]e adhere to the view that a person is ‘seized’ only when, by means of physical force or a show of authority, his freedom of movement is restrained[,]” id. at 553, and concluded that “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[,]” id. at 554. …
¶14 … The trial court found that Washington stopped when ordered to do so. Though he also continued to take a few steps backwards, and the officer may have thought that he might run, that does not equate his actions with fleeing. Indeed, he stopped and addressed the police, allegedly inquired as to what he had done, and eventually threw his hands up in the air. He stopped walking towards the store, or wherever he was going, when the police stopped within a few feet of him, and ordered him to stop. We cannot conclude, under these facts, that Washington did not yield until after he threw his hands in the air.
The wrinkle here is that, when Washington threw up his hands, cocaine flew out, ¶2. If he hadn’t first been “seized,” then there would be no arguable illegality whose exploitation led to the tainted recovery of this contraband. The trial court denied suppression on the theory that no seizure occurred before the cocaine was dropped, and that California v. Hodari D., 499 U.S. 621 (1991) applied, ¶¶8-9. The court of appeals distinguishes the two cases: Hodari fled at police approach, in other words, “he did not yield to a show of authority,” but had to be tackled; contrastingly, Washington not only didn’t flee, “(t)he trial court found that Washington stopped when ordered to do so,” ¶14. That he took a few steps backward coupled with police perception that he might run doesn’t add up to flight, id. (The court actually leaves a bit unsaid. Its dry analysis is fine but it’s not hard to imagine this subtext: the police were in what they described as a high-crime area, investigating drug trafficking—more than a little tension in the air—and as they approached, one of the cops trained his gun on Washington. Now, imagine someone suddenly points a gun at you while you’re walking down the street: wouldn’t you reflexively step back?)
Though the court of appeals applies the Hodari D. test for seizure, the court also notes, ¶13 n. 4, the challenge to its viability in the then-pending State v. Young, 2004 WI App 227, 277 Wis. 2d 715, 690 N.W.2d 866; however, that case has since been affirmed, 2006 WI 98.
Note that there is no issue raised as to whether Washington “abandoned” the cocaine when it fell from his hands—this is undoubtedly because under State v. Robert F. Hart, 2001 WI App 283, ¶¶24-25, such action cannot be considered abandonment or separated out from the police illegality. This principle is mentioned because “seizure” defines the existence of police illegality: pre-seizure relinquishment of evidence is “abandoned” and thus falls outside the police illegality and the exclusionary rule; post-seizure relinquishment is the result of police “exploitation” of their illegal action and is suppressible.