U.S. v. Black (Lawyers Weekly No. 13-01-0187, 16 pp.) (Gregory, J.) No. 11-5084, Feb. 25, 2013; USDC at Charlotte, N.C. (Whitney, J.) 4th Cir.
Holding: Even assuming the initial encounter between a group of uniformed police officers and a group of five men congregated at a gas station was consensual, the officers’ increasing show of authority, immediate seizure of one man’s gun and frisk of the men in the group and seizure of defendant’s ID, quickly changed the encounter to an investigatory detention, and the 4th Circuit says a gun found on defendant should have been suppressed.
Considering the totality of the circumstances of this case, it is clear that when Officer Zastrow expressly told defendant he could not leave, defendant was already seized for purposes of the Fourth Amendment. First is the collective show of authority by the uniformed police officers and their marked police vehicles. The citizens observed a marked police vehicle drive to the parking lot, and then drive out of view. The police vehicle returned along with another marked police vehicle. Four uniformed officers approached the men, a number that quickly increased to six uniformed police officers, and then seven. At least two of the officers were performing perimeter duties, ensuring that no other individuals interrupted the police interaction, and preventing the men from leaving the vicinity.
Second, Officer Strayer had obtained one man’s gun and secured it in his police vehicle, indicating that at the very least, that man was not free to l eave. Third, Officer Strayer had frisked the man with the gun and was frisking another man; a reliable indicator that Officer Strayer would proceed to frisk the remaining men, and that the men were not free to leave until such action was completed. Fourth, and highly material, is the retention of defendant’s ID by Officer Zastrow, while Officer Strayer frisked other men in the group.
These factors persuade us that, long before he was told not to leave, defendant was seized for purposes of the Fourth Amendment. Specifically, we hold that in view of all these circumstances, defendant was seized at the point when Officer Zastrow pinned defendant’s ID to his uniform, while Officer Strayer frisked the men in the group. The verbal directive from the officers not to leave was not the initiation of the seizure, but rather an affirmation that defendant was not free to leave. Defendant’s subsequent decision to leave does not negate the finding that a reasonable person in defendant’s circumstances would not feel free to leave. Instead, defendant’s decision to leave was an effort to terminate an illegal seizure.
The totality of the factors outlined by the district court – an individual’s presence at a gas station, arrest history of another individual; lawful possession and display of a firearm by another; defendant’s’ submission of his ID showing an out-of-district address, all of which occurred in a high crime area at night – fails to support the conclusion that Officer Zastrow had reasonable suspicion to detain defendant. Here, we encounter yet another situation where the government attempts to meet its Terry burden by patching together a set of innocent, suspicion-free facts, which cannot rationally be relied on to establish reasonable suspicion.
We reverse the district court’s denial of the suppression motion and vacate defendant’s conviction on a conditional guilty plea and his sentence.
Traxler, C.J.: I concur in the result reached by the majority.