# 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/9480003

## 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:** Dissent by Edwards
- **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/9480003

## 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

*1430 HARRY T. EDWARDS, Circuit Judge,
dissenting:
In Terry v. Ohio, 392 U.S. 1 , 88 S.Ct. 1868 , 20 L.Ed.2d 889 (1968), the Supreme Court created an exception to the probable cause and warrant requirements of the Fourth Amendment, holding that a person could be stopped and detained by a police officer for investigative purposes so long as the officer was acting pursuant to a reasonable, articulable suspicion. In Florida v. Royer, 460 U.S. 491 , 103 S.Ct. 1319 , 75 L.Ed.2d 229 (1983), the Court added new meaning to the investigative detention exception, when it held that a person is not “stopped” within the meaning of Terry if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was free to leave an encounter with the police. See id. at 502, 103 S.Ct. at 1326 (quoting United States v. Mendenhall, 446 U.S. 544, 554 , 100 S.Ct. 1870, 1877 , 64 L.Ed.2d 497 (1980) (Opinion of Stewart, J.)). We now hold that a person who is blocked in a small train roomette by three police officers is not detained within the meaning of Terry because there was no “intent to prevent the [defendant] from leaving the scene.” If this judgment is correct, then I respectfully suggest that the so-called “free to leave” test is virtually meaningless. In my view, the majority comes perilously close to holding that armed agents of the law can effectively block the free movement of a citizen without a warrant, without probable cause, and even without articulable suspicion.
In this case, the Government concedes, and we agree, that there was no articulable suspicion to justify the police action in question. Therefore, the only question before us is whether the defendant reasonably believed that he was free to leave his encounter with the police. It seems to me that the answer is clear. Here three police officers arrived uninvited at and crowded around a traveler’s small train compartment, effectively blocking him therein, rendering him unable even to close the compartment door without having to push an officer out of the door jamb. In these circumstances no reasonable person would feel free to leave the encounter with the officers. To hold otherwise is to cast the “free to leave” test in a fashion that is wholly divorced from reality, for it defies belief to suggest that a person in the defendant’s situation could or would “slam the door” on three uninvited police officers.
“Free to leave” means complete freedom of movement, without any police obstruction, something that the defendant lost once he was blocked in his roomette by the officers. The majority advances the proposition, quoting Michigan v. Chesternut, 486 U.S. 567 , 108 S.Ct. 1975 , 1980 n. 7, 100 L.Ed.2d 565 (1988), that “police intentions are relevant ‘to the extent that [they have] been conveyed to the person confronted.’ ” However, the majority also acknowledges that the test for seizure is an objective one; i.e., the intent that is relevant is the one perceived by the defendant, not the one locked up in the officers’ minds. In this case the officers never stated their intentions one way or the other. If their intent was relevant at all, it must be inferred from the circumstances of the encounter. A reasonable person confronted by three uninvited officers, one of whom blocked the doorway of his small train compartment, could infer only that they did not intend to allow him to leave. In short, Chesternut does not support the majority’s conclusion that the police did not seize the defendant.
It may be that the pressures of the docket are driving our decisions in this area, especially in cases that reveal the threats of the illegal drug trade. But we cannot permit rules designed to assist police officers in responding to these threats to take on a life independent of constitutional measure. Constitutional caution must rise above fear and above even the legitimate desire to defend against societal dangers. Like other provisions in the Bill of Rights, the Fourth Amendment guarantee that police personnel cannot block and burden the movement of citizens without good reason for doing so is perhaps most urgently to be protected when it is least popular. 1 Such *1431 protection is the proper province of the judicial branch of government. By discharging this obligation, the judiciary helps to preserve the enjoyment of individual liberty, which this country has from its earliest days held up as its ideal.
To some there may seem to be a comfortable distance between the pressing everyday efforts of law enforcement officials to thwart drug trafficking and any threat those officials might pose to vital Fourth Amendment freedoms. Yet, it is when we ignore the proximity of the two that we come closest to destroying the balance of order and liberty that our Constitution demands. If we continue on our current course, we may soon embrace a doctrinal conclusion that armed agents of the law can block the free movement of citizens for any reason or for no reason, with or without reasonable articulable suspicion. Surely the Constitution does not permit such a result.
. Cf. Abrams v. United States, 250 U.S. 616, 630-31 , 40 S.Ct. 17, 22 , 63 L.Ed. 1173 (1919) *1431 (Holmes, J., dissenting); Whitney v. California, 274 U.S. 357, 372-80 , 47 S.Ct. 641, 647-50 , 71 L.Ed. 1095 (1927) (Brandeis, J., concurring).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9480003. Public record. Not legal advice.