holding as factors justifying investí- *7 gatory stop prolonged eye contact with officers, nervousness, and walking at a rapid pace
How later courts described this case
- holding as factors justifying investí- *7 gatory stop prolonged eye contact with officers, nervousness, and walking at a rapid pace
- holding as factors justifying investigatory stop prolonged eye contact with officers, nervousness, and walking at a rapid pace
- consent to search presumed voluntary "where the [passenger] who remains silent knows that the driver has given his verbal consent to a search"
- principles of Hodari D. guide analysis
Written by the judges who cited it.
The opinion
Judge Greene
dissenting.
I agree with the majority that the defendant was seized for Fourth Amendment purposes. See California v. Hodari D, — U.S. —, 113 L.Ed.2d 690 (1991). However, I disagree that the seizure was constitutional. Instead I agree with the defendant that the “initial stop and detention . . . constituted a more serious intrusion than that allowed on mere reasonable suspicion and was tantamount to an arrest.”
In order to apply the law to the evidence, it is necessary to expound some on the facts as shown in the record. Agent Turbeville testified on direct and cross-examination as follows:
Q. Agent Turbeville, to what extent if any did you plan to stop that car for further investigation?
A. Well, first of all, we had to decide where we were going to stop them at; and we determined that the safest place to stop them was at the intersection there on a small service road between Terminal C and Terminal A and B. It’s an area that’s lit up to the point of almost being daylight with extreme *192 ly strong, bright streetlights; and it’s out of the public. And once they reached that point I radioed ahead to Sergeant George to turn on his blue light, who was directly in front of them and at the stop sign, which would prevent them from running. And I was behind them so they would not get out into traffic and pose any danger for anyone.
THE COURT: Were you in radio contact with him [Sergeant George]?
A. Yes. And once we got to this area here (indicating), which is ano extremely well-lit area, that’s when I asked him, when he pulled up to that stop sign, I asked Sergeant George to turn on his blue light. And there was no place for the car to go at that point. He couldn’t get around us because there’s an island in the road there.
Q. Right. Okay. Now, again to describe when the car stopped, you indicated with your diagram where the cars were, where did the police individuals go at the time the suspect car was stopped?
A. I went to the driver’s door. Special Agent Black went to the passenger door. Captain Brown was at the rear of the vehicle, and Sergeant George exited his car and was standing by the front door with the front door open to his car.
Q. So, there was an officer in front of the car, behind the car, and on both sides of the car?
A. That’s correct.
Q. And did you say Officer Black went to the passenger door?
A. Yes.
Q. And you went to the other door?
A. Driver’s door.
Q. Where were the other officers?
A. In the other vehicles?
*193 Q. Yes, sir?
A. They all stayed with their vehicles. I’m not sure if all of them got out or not. I don’t recall all of them being out of their vehicles, but they all stayed at their vehicles. Nobody came up. I had directed them earlier not to come up to the car.
Q. Well, did Mr. McDaniels voluntarily walk up to the front of the vehicle?
A. Again, you’d [sic] to ask Agent Black about that.
Q. Did Mr. Waddell voluntarily walk up to the front of the car?
A. He walked — he got out of the car voluntarily and he came over, sort of to the side of the front of the vehicle, yes, sir.
Q. He walked with you?
A. Yes.
Q. A police officer?
A. Yes.
Q. Identified himself as a police officer?
A. Yes.
Q. In the presence of seven or eight other police officers?
A. Yes.
Q. Four other police vehicles?
A. Yes.
Summarized, the State’s evidence shows the following: The vehicle in which the defendant was a passenger was stopped near the airport at approximately 2:00 a.m. One officer blocked the defendant’s path and turned on his blue light. Another officer came up behind the defendant in another vehicle and turned on his blue light. When the defendant’s car stopped, one officer went to the driver’s door, another officer went to the passenger’s door, another officer went to the rear of the vehicle, and another officer went to the front of the vehicle. A total of four police vehicles surrounded the defendant’s vehicle. There were approximately nine police officers at the scene. Other than the four officers who came to the *194 defendant’s vehicle, the other officers remained in or near their vehicles. The defendant was asked by one of the officers to step out of the vehicle. After getting out of the vehicle, the defendant was subjected to a “pat down” search. Then the driver of the vehicle was asked by one of the officers if he would consent to a search of the vehicle. The driver agreed.
In Terry v. Ohio, 392 U.S. 1 , 20 L.Ed.2d 889 (1968), our United States Supreme Court recognized a “narrowly drawn” exception to the probable cause requirement of the Fourth Amendment for seizures of the person that do not rise to the level of an arrest. Therefore, Terry defined a special category of Fourth Amendment seizures. If the “nature and extent of the detention are minimally intrusive,” a seizure may be supported on less than probable cause. United States v. Place, 462 U.S. 696, 703 , 77 L.Ed.2d 110, 118 (1983). The “critical threshold issue” of whether the seizure qualifies as a Terry stop or instead amounts to a defacto arrest is the “intrusiveness of the seizure.” Id. at 722, 77 L.Ed.2d at 131 (Blackmun, J., concurring). The lower the magnitude of the intrusion, the more likely it qualifies as a Terry stop.
Here, the seizure of the defendant is indistinguishable from a traditional arrest, and “any ‘exception’ that could cover a seizure as intrusive as that in this case would threaten to swallow the general rule that Fourth Amendment seizures are ‘reasonable’ only if based on probable cause.” Dunaway v. New York, 442 U.S. 200, 213 , 60 L.Ed.2d 824, 836 (1979). This case is unlike the typical airport stop case, wherein an officer approaches an individual and asks a few questions in a minimally intrusive manner. The Fourth Amendment requires more to justify the maximal intrusion in this case. Because the State concedes there was no probable cause to stop the defendant, the defendant’s motion to suppress the evidence obtained as a result of this unlawful stop should have been allowed. Wong Sun v. United States, 371 U.S. 471 , 9 L.Ed.2d 441 (1963) (confession, as well as physical evidence obtained as a direct result of an arrest unsupported by probable cause, must be suppressed). I therefore would reverse the ruling of the trial court on the defendant’s motion to suppress and grant the defendant a new trial.