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Stop – Basis – Test: Failure to Yield to Authority / Hodari D.

State v. Charles E. Young, 2006 WI 98, affirming 2004 WI App 227
For Young: Martha K. Askins, SPD, Madison Appellate

Issue/Holding:

¶26      Under Hodari D. and Kelsey, an uncomplied-with show of authority cannot constitute a seizure. …

¶37      Mendenhall is the appropriate test for situations where the question is whether a person submitted to a police show of authority because, under all the circumstances surrounding the incident, a reasonable person would not have felt free to leave. If a reasonable person would have felt free to leave but the person at issue nonetheless remained in police presence, perhaps because of a desire to be cooperative, there is no seizure. …

¶38      Hodari D. … supplements the Mendenhall test to address situations where a person flees in response to a police show of authority. …

¶39      … The Mendenhall test applies when the subject of police attention is either subdued by force or submits to a show of authority. Where, however, a person flees in response to a show of authority, Hodari D. governs when the seizure occurs. Deciding when a seizure occurs is important because the moment of a seizure limits what facts a court may consider in determining the existence of reasonable suspicion for that seizure.

¶40      The Hodari D. test does not supersede the Mendenhall test, it supplements the Mendenhall test. …

Some tangential but recurrent problems: If a mere order to stop doesn’t constitute a seizure, then it probably follows that an unreasonable order to stop does not violate the 4th amendment; and it might follow that a stop may be based on events transpiring afterward, such as flight – e.g., U.S. v. Muhammad, 2nd Cir No. 05-4923-cr, 9/7/06; U.S. v. Swindle, 407 F.3d 562 (2nd Cir 2005); State v. Travis, 2008 Ohio 1042 (App 2008) (reasonable suspicion where “(t)he officers’ approach caused the Appellant to increase his step and walk more rapidly,” and appellant was non-resident of housing project where encounter occurred). But see Jones v. Commonwealth, 670 S.E.2d 31 (Va. App. 2008) (briskly walking away from officer approaching in high-crime area can’t alone provide basis for stop).

Normally, a seizure occurs when a squad car activates its emergency lights, but when an officer “merely extended his arm to motion” a passing motorist to stop, there was no seizure, Commonwealth v. Spalding, KY App No. 2005-CA-001215-DG, 5/19/06. Consensual encounter escalated to seizure of person by dint of “authoritative” and perhaps overly aggressive manner in which officer conducted consensual search: U.S. v. Washington, 9th Cir. No. 06-30386, 6/19/07.

Even if the Hodari D. rule is now settled, it certainly has its limits – to illustrate, see State v. Robert F. Hart, 2001 WI App 283, ¶¶23-24 (suspect’s tossing contraband aside during illegal pat-down is not abandonment of property).

The other side to the actually-yielded coin is that the police must actually assert authority: “We begin by determining when the seizure of [the person] occurred, as that is the moment ‘the Fourth Amendment becomes relevant,'” U.S. v. Brown, 3rd Cir No. 05-1723, 5/22/06 (clear show of authority when officer told Brown a victim was being brought over to identify him, and demanded that Brown submit to a pat-down; Brown submitted by turning to face police car and putting his hands on it); U.S. v. Barry, 8th Cir No 04-1751, 1/14/05 (merely approaching already, independently stopped car not sufficient show of authority that subject would reasonably see himself as not free to leave; collecting authorities on point), though it may not take much, e.g., State v. Patterson, 2005 ME 26 (officer’s tap on window of stopped car, along with “please roll down the window” amounted to seizure; authority such as Barry distinguished by presence of officer’s “verbal contact,” which amounted to an “order” rather than request; but court acknowledges this is “close case” with other courts reaching differing conclusions on similar facts); State v. Gross, KS App No. 97,444, 6/6/08 (approaching car and telling occupant to roll down window or open door was detention); Delorenzo v. State, FL App 4D04-3607, 3/8/06 (“Ordering an individual to take his hand out of his pocket ordinarily turns a consensual encounter into a stop.”); People v. Garry, Cal App No. A114235, 11/13/07 (use of spotlight, together with officer “briskly” walking toward person and “pointedly” asking about parole status amounted to detention).

While merely asking for identification doesn’t establish a seizure, U.S. v. Campbell, 6th Cir No. 06-3321, 5/24/07, police retention of the person’s ID is typically enough to escalate a consensual encounter to a seizure, e.g., State v. Daniel, TN SCt, 1/31/00 (and string-citing authorities). Of course, seizure may be apparent in myriad different ways, e.g., People v. Torres, IL App 1st Dist No. 1-02-2579, 3/19/05 (“the officers’ conduct in positioning themselves on either side of Torres’ vehicle, then demanding that he exit the vehicle and identify himself, constituted a show of their official authority such that … a seizure indeed occurred”); State v. Hall, Ore. SCt No. S49825, 7/15/05 (officer’s stopping car next to defendant and gesturing him to approach did not amount to seizure; but subsequent taking of ID and running warrant check did); State v. Highley, OR App No. A130716, 3/26/08 (“In numerous other cases both before and after Hall, Oregon appellate courts have concluded that an officer’s action in requesting a defendant’s identification and running a records check was a stop for purposes of Article I, section 9”); State v. Rider, OR App No. A128863, 11/28/07 (running warrant check even without request for ID effected seizure of person); Johnson v. State, Ind App No. 49A02-0410-CR-901, 12/30/05 (initial request for ID from passenger of parked car not seizure, but transformed to one when officer ordered passenger to get out and put hands on trunk of car).

Keep in mind, too, the idea espoused by United States v. Childs, 277 F.3d 947, 950 (7th Cir.) (en banc), cert. denied, 123 S.Ct. 126 (2002): “approaching a person on the street (or at work, or on a bus) to ask a question causes him to stop for at least the time needed to hear the question and answer (or refuse to answer),” is not a seizure, at least where the police merely asked a question. The larger idea, perhaps, is that 4th amendment concerns are governed no less than other constitutional provisions by the maxim, de minimis non curat lex.

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