# United States v. Leo J. Tavolacci

> Court of Appeals for the D.C. Circuit · January 9, 1990 · 895 F.2d 1423

URL: https://www.frixlaw.com/law-library/cases/9480002

## Case

- **Full name:** UNITED STATES of America v. Leo J. TAVOLACCI, Appellant
- **Court:** Court of Appeals for the D.C. Circuit
- **Decided:** January 9, 1990
- **Citations:** 895 F.2d 1423; 283 U.S. App. D.C. 1; 1990 U.S. App. LEXIS 708; 1990 WL 1281
- **Precedential status:** Published
- **Opinion:** Concurrence by Mikva
- **Judges:** Mikva, Edwards, Williams
- **Cited by:** 72 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9480002

## How later opinions describe it (automated extraction)

- finding that police acted diligently in conducting a canine sniff, where approximately fifteen minutes elapsed before dog was procured, even though officers had advance notice of suspect’s arrival
- finding that encounter in which detective approached defendant on train, identified himself, and asked permission to ask some questions was not a seizure
- recognizing criticism of test as "based on a false assumption that ordinary citizens believe they are normally free to cut police inquiries short."

## Opinion text

MIKVA, Circuit Judge,
concurring in part and concurring in the judgment:
I agree with my colleagues that if the officers’ initial encounter with Tavolacci amounted to a seizure, it would not be supported by the reasonable suspicion necessary to justify a Terry stop. While I concur in the judgment that the initial encounter did not constitute such a seizure, I write separately to articulate my reasons for so finding. In my dissenting opinion in United States v. Maragh, 894 F.2d 415 (D.C.Cir.1990), issued this day, I discussed at length why the rationales informing the Mendenhall test for when a seizure has occurred would best be served by adopting a clearly erroneous standard of review of trial court determinations under that test. There, I explained that this circuit should follow the course of several of our sister circuits in recognizing that deference must be paid to the trial judge, who had the opportunity to observe the testimony of the witnesses, assess credibility, interpret demeanor, and draw inferences as to the impact of the total factual circumstances of the encounter. Where subtle factors of demeanor have the potential to be critical to the outcome, appellate courts should not substitute their judgment for that of the trial court.
In this case we are faced with subtle questions, particularly what inference to draw from the fact that Mr. Tavolacci’s only means of exit, should he have desired to use it, was physically blocked by three policemen. Even if Mr. Tavolacci had no desire to leave, the question remains as to what impact this particular physical blockage coupled with the narrow surroundings would have on a reasonable person’s feelings of freedom to end the interview. The demeanor of the detective who conducted the interview in this ease is also important. As a trial judge, I might well have summed all of these facts to the conclusion of our dissenting colleague. But that call is not ours to make. The trial court found that the circumstances surrounding the initial questioning of appellant Tavolacci did not constitute a seizure and that the encounter was consensual. 704 F.Supp. 246, 249 (D.D.C.1988). Under the clearly erroneous standard, the district court’s decision must be affirmed unless upon considering the entire record we are left with a definite and firm conviction that a mistake has been made. United States v. United States Gypsum Co., 333 U.S. 364, 395 , 68 S.Ct. 525, 541 , 92 L.Ed. 746 (1948). Because the trial court is best suited to assess the subtle factors at issue in this case, and because nothing in the record suggests that the trial court clearly erred in its conclusions, I concur in affirming its decision.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9480002. Public record. Not legal advice.