Petition for Writ of Certiorari — Ford v. United States (No. 08-1176)

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PILED “ae

(L)o8ti7e MAR 2.9 2009

OF CE OF THE CLERK

Wiliam . Suter, Clerk

No. 08-

Bu the Supreme Court of the GAnited States

TYSON FORD,

Petitioner,

UNITED STATES,

Respondent.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the First Circuit

PETITION FOR A WRIT OF CERTIORARI

ALLISON J. KOURY PAUL M. THOMPSON

ATTORNEY AT LAW Counsel of Record

297 Boston Post Road JEFFREY W. MIKONI

#301 KELLY M. FALLS

Wayland, MA 01778 JUSTIN M. HOLMES

(508) 358-7174 KENDRA C. KINNAIRD

ELIZABETH P,. PHILPOTT

MCDERMOTT WILL &

EMERY I.IL.P

600 Thirteenth Street, N.W.

Washington, D.C. 20005

(202) 756-8000

Altorneys for Petitioner

March 20, 2009

QUESTION PRESENTED

Does an encounter between the police and an

individual become a seizure within the meaning of

the Fourth Amendment when the police retain the

individual’s license, refuse to return it when asked,

fail to advise or indicate that the individual may

leave, and start questioning the individual on

unrelated, potentially criminal, matters?

TABLE OF CONTENTS

ee BO OSS iy SO ]

TABLE OF CONTENTS ........... Te eee essavavadaces i

gg 8 8 yO Vv

PETITION FOR A WRIT OF CERTIORARL........... J

MEP 60... .csccnsccnccoescescncssrsscsscensesceess 1

JURISDICTIONAL STATEMENT ........0.........00002.. 1

RELEVANT CONSTITUTIONAL

Nee sii recasscoesoesserssresscrssencons 1

eee eeeeeeere s GP Bed) CASE .................0..cccccesseceess 2

REASONS FOR GRANTING THE PETITION ...... 8

I. The Decision Below Deepens A Mature

Disagreement Regarding the Effect of

Retention of an Individual’s Identification

on Whether That Individual Was Seized

Within the Meaning of the Fourth

Neen ee. snsnecacosessscesccaccess 9

A. The Fifth, Tenth, and D.C. Circuits

Have All Held That a Police Officer’s

Continued Questioning While Retain-

ing an Individual’s License Effects a

Seizure of the Individual...........0.0.0..000cc.e. 9

Il.

II.

The First Circuit Below Joins the

Second, Fourth, and Eighth Circuits

in Holding That an Individual is Not

Seized When an Officer Engages in

Unrelated Investigatory Questioning

While Retaining the _ Individual’s

DI aii licks dhsverresestonessencen

The Seventh and Eleventh Circuits

Have Inconsistently Applied Both

TRIS 5k vss eee

The State Courts Are Similarly

i” ORAM at Meru k pid enna) Sibir

Under This Court’s Precedent, an Officer

Who Retains an Individual’s License

While Proceeding with Unrelated Invest-

igatory Questioning Has “Seized” That

Individual Within the Meaning of the

Fourth Amendment

The Instant Case Provides an Effective

Vehicle Through Which the Court Can Re-

solve a Question of National Importance........ 32

Pa seer eeeseeseveseeeseeseeseeresesesesees

.22

CONCLUSION ........... ‘Joahidatilea at oaen ae area 36

APPENDIX

Appendix A:

Opinion of the United States Court of

Appeals for the First Circuit .............0....ccc eee. la

Appendix B:

Opinion of the United States District

Court for the District of Massachusetts........ 16a

Appendix C:

Order Denying Motion to Suppress .............. 35a

Appendix D:

Excerpt from Transcript of Proceedings

Before the United States District Court

for the District of Massachusetts on

Defendant's Motion to Suppress ................... 36a

TABLE OF AUTHORITIES

CASES

California v. Hodari D.

re a occa Nov cneusniseceivercousaeseniabetptiaans 27

Crawford v. Marion County Elec. Bd.

633 U.S. , 128 S. Ct. 2607 (ZOOS) ....<0sccccceceesss. 35

Finger v. State

799 N.E.2d 528 (ind. 2003).................000000002... 23, 24

Florida v. Bostick

Be By ee ose vivica cuca vsaccssncecvnesenueareeas 6, 26, 27

Florida v. Royer

ee PY i cases annvacnvesvacevessabdarsuce passim

Franklin v. Montgomery County

No. 2005-0489, 2006 WL 2632298

I, OO I cs cocknukssavecussdcneesseuseeueees 32

Golphin vu. State

BO SO. BS TITS COIR. BOD sinesscccccsscssccccescescasessass 25

Hiibel v. Sixth Judicial Dist. Court

i BO yg | |) SC ae a en nnn ae eR ee 29

INS v. Delgado

466 U.S. 210 (1984)...... eas eee Cepia ceer 27, 29

Michigan v. Chesternut

ee og oncncs vencnatacencvsceasduaccusnensouen 33

People v. Jackson

Be ee BT CUO, BOO ooivscin ose cincviccvcveccensscccccesees 34

People v. Jenkins

691 N.W.2d 759 (Mich. 2005) ................c..cccccseseess 26

Piggott v. Commonwealth

537 S.E.2d 618 (Va. Ct. App. 2000)...................... 24

Rogers v. State

426 S.E.2d 209 (Ga. Ct. App. 1992)................... whe

State v. Daniel

Oe Fe ee rd CTR, BO ioe ccccuccccccscccsesccocsscssces 24

United States v. Battista

op tue Bo OS ee a. 11

United States v. Carpenter

Be FB BOE CEG CE, BOG) o.ncccicerscscccscccsccccssssssss 18

United States v. Chavez- Villarreal

De BE Pe) Se 14, 34

United States v. Cordell

TES Oe BOO CIC GAP. TOGBG)......ccc.ccscccscesccsess 19, 20

United States v. De La Rosa

Bee Fo 7 CLUED CAP. BED])......0.ccccccccccccncvececeess 21

United States v. Elsoffer

Oe eee Pe CEE Car. RBZ) oonccocccssccssccvcscocsecss 21

United States v. Glover

ST Fee BOS CEG CAP. BOB) .....ccc0cccccoscecceccess 17, 18

United States v. Gonzalez-Lerma

Pee” BP ee 2G Be Re hs | 13

United States v. Goodwin

BAe Fe FO CTE GAT, BOG) oonccccccccccoscccccccccscsseeses 20

United States v. Jordan

Soe ©.2e foe (CU. Cit. 1992).......0.....0.0600 passim

United States v. Lambert

46 F.3d 1064 (10th Cir. 1995).............00000000 ee. 13

Vil

United States v. Lopez

443 F.3d 1280 (10th Car. 2006)........... 11, 12, 13, 33

United States v. Maine

No. 3:01-00096, 2008 WL 686215

COED, WN RO. IED ics icsiccccevscndcncsctccecsvess Oe

United States v. Mendenhall

ro Ghee” 8. ene 7, Ae ts Oe

United States v. Thompson

713 F.28 1366 (11th Cir. 1683).......csccccsee: 21, 30, 33

United States v. Weaver

Pe Bo RE Se | passim

STATUTES

Ie re i pv cus snacdaccucocevesasvasesvsccendonsesncians 4,8

PETITION FOR A WRIT OF CERTIORARI

Tyson Ford respectfully petitions this Court for a

writ of certiorari to review the judgment of the

United States Court of Appeals for the First Circuit.

OPINIONS BELOW

The decision of the court of appeals is reported at

United States v. Ford, 548 F.3d 1 (1st Cir. 2008), and

reprinted as Appendix A. The court of appeals

affirmed the decision of the district court, which is

reported at 440 F. Supp. 2d 16 (D. Mass. 2006), and

reprinted as Appendix B.

JURISDICTIONAL STATEMENT

The United States Court of Appeals for the First

Circuit entered its judgment and opinion on

November 5, 2008. Justice Souter’ granted

petitioner’s application to extend the time to file a

petition for a writ of certiorari through and including

March 20, 2009. Supreme Court Dkt. No. 08A549.

This Court has jurisdiction over this matter

pursuant to 28 U.S.C. § 1254(1).

RELEVANT CONSTITUTIONAL PROVISIONS

The Fourth Amendment to the Constitution

provides:

The right of the people to be secure in their

persons, houses, papers, and effects, against

unreasonable searches and seizures, shall

not be violated, and no Warrants shall issue,

but upon probable cause, supported by Oath

or affirmation, and particularly describing

the place to be searched, and the persons or

things to be seized.

STATEMENT OF THE CASE

1. On September 8, .2005, around 3:00 p.m.,

Petitioner Tyson Ford was walking through the

Dorchester section of Boston, Massachusetts, which

officers describe as a “hot spot” for criminal

activities. Pet. App. 17a—18a. At that time, Boston

Police Department Officers Daran Edwards and

Daniel Griffin were on patrol in the area. Pet. App.

17a. The officers observed Mr. Ford walking alone

down Harvard Street. Pet. App. 18a. There was

nothing unusual or suspicious about Mr. Ford, and

the officers had no belief upon viewing him that he

was engaged in any criminal activity. Pet. App. 38a

39a, 44a. Neither officer knew the identity of the

individual they were following. Pet. App. 2a, 39a.

And, as the government concedes, the officers did not

have reasonable suspicion or probable cause that Mr.

Ford was engaged in wrongdoing. Pet. App. 5a.

As the police cruiser approached Mr. Ford, he

turned onto Gleason Street, a one-way street

running in the opposition direction. Pet. App. 18a.

Still lacking any suspicion that Mr. Ford was

engaged in criminal activity, the officers turned their

cruiser the wrong way down the one-way street and

followed Mr. Ford. Pet. App. 2a. The officers then

pulled the cruiser alongside Mr. Ford, and Officer

Griffin called out to him from the passenger window

“Hey James, where you been?” Pet. App. 45a. At

that time, Officer Griffin still did not know the

identity of Mr. Ford and had no reason to believe his

name was James. Pet. App. 19a.

Not wishing to be mistaken for “James,” Mr.

Ford stopped and identified himself to Officer

Griffin. Pet. App. 45a—47a. Mr. Ford then handed

his driver's license to Officer Griffin, telling him “I

don’t have any warrants, I’m not on probation.” Pet.

App. 19a, 46a. Officer Griffin took Mr. Ford's

identification inside the cruiser and handed it to

Officer Edwards, who began a warrant search on the

police database. Pet. App. 19a.

While Officer Edwards retained Mr. Ford’s

identification, Officer Griffin continued to question

Mr. Ford. Pet. App. 19a. Officer Griffin asked Mr.

Ford “Do you live around here?” and “Where are you

headed?” Pet. App. 19a. Mr. Ford gave a home

address matching the address on his license. Pet.

App. 40a-4la. Officer Griffin also asked Mr. Ford

whether he had ever been arrested and “Do you have

anything on you we need to know about?” Pet. App.

19a. Mr. Ford replied, “No.” Pet. App. 19a.

At that point, Officers Griffin and Edwards both

got out of the police cruiser and approached Mr.

Ford. Pet. App. 19a. Officer Edwards did not return

Mr. Ford’s identification, instead leaving it within

the police cruiser where Mr. Ford was unable to

retrieve it. Neither officer told Mr. Ford, or indicated

in any other way, that he was free to leave or

terminate the encounter. Pet. App. 43a—44a.

Mr. Ford asked the officers “what about my ID?”

and “what’s this all about?” Pet. App. 47a. Officer

Griffin again asked Mr. Ford whether he had any

weapons on him. Pet. App. 20a. Mr. Ford answered

“Yeah, I got a gun in my pocket, but it don’t fire.”

Pet. App. 20a. The officers then placed Mr. Ford in

handcuffs and frisked him. Pet. App. 20a. Officer

Griffin seized a non-operational handgun from the

pocket of Mr. Ford’s pants. Pet. App. 20a. The

officers then arrested him. Pet. App. 20a.

2. On November 1, 2005, Mr. Ford was charged

with being a convicted felon in possession of a

firearm under 18 U.S.C. § 922(g)(1) in the United

States District Court for the District of

Massachusetts. Pet. App. 4a. Mr. Ford moved in the

district court to suppress the firearm seized by

Officers Gnffin and Edwards as the fruits of an

illegal seizure under the Fourth Amendment. Pet.

App. 4a. He also moved to suppress certain

statements made to the officers, including his

statement that he possessed a non-functioning gun.

Pet. App. 4a.

On April 25, 2006, the district court held a

hearing on the motion to suppress at which Mr.

Ford, and Officers Griffin and Edwards testified

about the events leading up to Mr. Ford’s arrest.

Pet. App. 36a.!. When asked to describe his

' Notwithstanding the First Circuit’s statement to

the contrary, see Pet. App. 12a—13a, Mr. Ford

unquestionably testified at the suppression hearing.

See, e.g., Pet. App. 45a—48a.

ei |

“attitude” at the time of the encounter, Mr. Ford

explained:

At the time I| felt hke I couldn’t walk away.

They had my identification. So if | was free

to leave, | could never leave. I paid for that

driver's license, I was trying to obtain it but

I couldn't. It was in their possession.

Pet. App. 47a. Later in his testimony, Mr. Ford

elaborated about how he had requested the return of

his license, and how the officers’ refusal to do so

made him feel trapped:

Q:Did the car block your ability to go

forward on Gleason Street?

A:No, but once they had my ID in their

possession, 1 couldn’t leave. I did ask for it

at one point.

Q: You asked them for your ID?

A: Yes, I did.

Q:And when was that?

A: That was after the fact. That was — once

they got out of the car, that’s when I said

what about my ID. And TI said what’s this all

about. I did ask for my ID because I felt |

didn’t commit no crimes... . They know I did

nothing wrong, give me my ID and let me go

mind my business.

Pet. App. 47a.

Despite this testimony, on July 20, 2006, the

district court concluded that the officers had not

seized Mr. Ford within the meaning of the Fourth

Amendment. Pet. App. 4a. Rather, the court held,

Mr. Ford’s incriminating statements occurred during

a consensual encounter that did not implicate his

Fourth Amendment nghts. Pet. App. 33a. “The

most important factor,” the _ district court

determined, “is that the Defendant voluntarily

stopped walking and voluntarily produced his

identification.” Pet. App. 29a. Accordingly, the court

denied Mr. Ford’s motion to suppress. Pet. App. 34a.

On October 4, 2006, Mr. Ford entered a

conditional plea of guilty, reserving the right to

appeal the denial of his suppression motion. Pet.

App. 4a. The district court, on October 11, 2006,

sentenced Mr. Ford to the mandatory statutory term >

of imprisonment of fifteen years. Pet. App. 4a. On

October 16, 2007, Mr. Ford timely noticed his appeal

to the United States Court of Appeals for the First

Circuit. Pet. App. 4a.

3. On appeal, the First Circuit considered

whether, at any point prior to the discovery of the

firearm, Mr. Ford had been seized by the officers

within the meaning of the Fourth Amendment. Pet.

App. 4a—-5a. As a preliminary matter, the court

noted that “the Government concedes. . . that the

Officers lacked the reasonable suspicion required for

a seizure and that, if a seizure occurred, the

handgun found on Ford’s person ‘must be suppressed

as tainted fruit.” Pet. App. 5a (citing Florida uv.

Bostick, 501 U.S. 429, 433-434 (1991)).

The question before the court, then, was whether

the encounter between the officers and Mr. Ford

converted into a seizure, thus implicating Mr. Ford’s

Fourth Amendment rights. Pet. App. 6a. This

inquiry turned on the standard the Supreme Court

articulated in United States v. Mendenhall: whether

‘In view of all the circumstances surrounding the

incident, a reasonable person would have believed

that he was not free to leave.” Pet. App. 7a (quoting

446 U.S. 544, 554 (1980)).

In assessing whether the officers’ retention of

Mr. Ford’s_ identification during questioning

constituted a seizure, the First Circuit refused to

apply Florida v. Royer, 460 U.S. 491, 493-494

(1983), in which this Court held that the retention of

an individual’s license and airplane ticket during

questioning effected a seizure of that individual.

Pet. App. lla.

While refusing to apply Royer to the facts of the

present case, the First Circuit acknowledged that

the D.C. Circuit had taken the contrary approach,

reading Royer to forbid unnecessary police retention

of an individual's license. Pet. App. 12a. Rejecting

the D.C. Circuit's approach, the First Circuit

followed the Fourth’s Circuit decision in United

States v. Weaver, 282 F.3d 302, 313 (4th Cir. 2002),

to hold that an officer’s retention of a license during

continued questioning does not necessarily

constitute a seizure. Pet. App. 12a. The court

concluded: “While the retention of Ford’s license is

an important factor in our analysis, we decline to

elevate it above other considerations.” Pet. App. 12a.

Accordingly, the First Circuit affirmed Mr.

Ford’s conviction under 18 U.S.C. § 922(g)(1) and the

district courts denial of Mr. Ford’s motion to

suppress. Pet. App. 15a. This petition for a writ of

certiorari followed.

REASONS FOR GRANTING THE PETITION

In Florida v. Royer, 460 U.S. 491 (1983), a

plurality of this Court established that a consensual

encounter between the police and an individual

escalates into a Fourth Amendment “seizure” when

the police retain the individual’s identification

beyond the time necessary to conduct an initial

inquiry into the person’s identity, using that

retention as leverage to conduct or continue an

investigation. But in the wake of Royer, the lower

courts have adopted conflicting legal standards to

address such situations.

Some courts correctly read Royer to place

primacy on the police’s decision to retain an

individual license. They therefore hold that

retention along with minor additional factors, such

as investigatory questioning or the failure to disclose

that the individual is free to leave, transforms the

encounter into a detention that must be predicated

upon reasonable suspicion. Other courts—including

the First Circuit in its decision below—have refused

to follow suit. As a result, courts across the country

are failing to apply uniform rules governing the

dividing line between consensual police encounters

and “seizures” subjected to Fourth Amendment

scrutiny.

Though Fourth Amendment issues are always,

to a certain degree, fact-bound, the conflict here is

one easily susceptible to this Court’s resolution. The

lower courts disagree not about a question of fact,

but rather about the legal weight that license

retention should receive in a constitutional seizure

analysis. This confusion is firmly entrenched on an

issue relevant to myriad interactions between

average citizens and the police. The instant case

provides the Court with a clean vehicle through

which it can resolve this disagreement and restore

clarity to Fourth Amendment jurisprudence.

This Court should therefore grant the petition

for a writ of certiorari in order to review (and

ultimately reverse) the First Circuit’s decision below.

I. The Decision Below Deepens a Mature

Disagreement Regarding the Effect of

Retention of an Individual’s Identifi-

cation on Whether That Individual Was

Seized Within the Meaning of the

Fourth Amendment.

A. The Fifth, Tenth, and D.C. Circuits

Have All Held That a Police Officer’s

Continued Questioning While Re-

taining an _ MIndividual’s License

Effects a Seizure of the Individual.

In a series of cases involving consensual

encounters between police and individuals the Fifth,

Tenth, and D.C. Circuits have all held that a Fourth

Amendment seizure occurs whenever a police officer,

while retaining an_ individual’s. license’ or

identification, investigates subject matter unrelated

to the original reason for requesting the

identification.

1. The D.C. and Tenth Circuits have each

applied this rule in cases factually similar to

petitioner’s—1.e., where a police interaction with a

random pedestrian escalated into a Fourth

Amendment seizure.

a. In United States v. Jordan, 958 F.2d 1085

(D.C. Cir. 1992), the D.C. Circuit considered whether

a person was constitutionally seized when an officer

requested permission to search his bag while

retaining Jordan’s driver’s license. Jd. at 1088. The

police detecuive approached Jordan as he was

walking across a bus terminal’s parking lot and

preparing to enter his car. /d. at 1086. Upon the

officer’s request, Jordan handed the officer his

driver’s license and bus ticket. /d. Rather than

return Jordan’s identification after review, the

detective continued with his investigation by asking

Jordan whether he was carrying drugs and,

ultimately, searching Jordan’s bag and discovering

illegal substances. Id.

On appeal, the D.C. Circuit rejected the

argument that the encounter between Jordan and

the police never escalated into an investigatory

detention. Jd. at 1086-1089. In doing so, the court

adopted a common-sense objective rule, explaining

that it had:

considered on several occasions the effect on

citizens stopped by the police of being asked

to hand over critical identification or travel

documents and having the police retain them

while questioning ensues, noting that “once

the identification is handed over to police

and they have had a reasonable opportunity

to review it, if the identification is not

returned to the detainee [it is] difficult to

imagine that any reasonable person would

feel free to leave without it.”

Id. at 1087 (quoting United States v. Battista, 876

F.2d 201, 205 (D.C. Cir. 1989)). The court drew

support for this rule directly from this Court’s

opinion in Royer—in particular, its emphasis on the

continued questioning of the suspect as facilitated by

the retention of the license. /d. In doing so, the D.C.

Circuit correctly held that Jordan had been seized

when the officer retained his license and continued

to question him.

b. The Tenth Circuit reached a_= similar

conclusion, most recently in United States v. Lopez,

443 F.3d 1280 (10th Cir. 2006). In Lopez, a police

officer approached two individuals who were

standing next to a running vehicle. Jd. at 1282. The

police officer had already run the vehicle’s license

plates through his mobile data _ terminal,

determining both the owner of the vehicle and that it

was not reported stolen. /d. The officer requested

identification from both men, and was able to

determine “within seconds” that the address on

Lopez's license matched the car’s registration. Jd. at

1282, 1285. Nevertheless, the police officer retained

Lopez’s license and returned to his cruiser to run a

warrants check on Lopez, without giving him and his

colleague any indication that they were free to leave

the area. Jd. at 1282. When the investigation

revealed that Lopez was wanted for a misdemeanor,

the officer arrested Lopez and searched his person

and vehicle, finding drugs and a firearm. Jd. at 1282.

On appeal, the Tenth Circuit affirmed the

district court’s holding that Lopez had _ been

unconstitutionally seized during his encounter with

the police. In reaching this conclusion, the court of

appeals recognized that the officer’s request for

Lopez’s identification, standing alone, did not

implicate the Fourth Amendment. /d. at 1285

(citing United States v. Mendenhall, 446 U.S. 544).

Nevertheless, the Tenth Circuit held that the

officer’s retention of Lopez’s license after his identity

had been verified, coupled with the officer’s failure to

tell Lopez that he was free to leave, transformed

their encounter into an investigatory detention

unsupported by reasonable suspicion.

The Supreme Court has also made clear,

however, that an individual “may not be

detained even momentarily without

reasonable, objective grounds for doing so.”

... At the time he asked for Lopez's

identification, [the officer] knew the address

of the owner of the car next to which Lopez

was standing and knew the car had not been

reported stolen. Within seconds of reviewing

Lopez's license, [the officer] was able to

establish Lopez’s identity and confirm that

Lopez’s address matched the address on the

car registration. After that point in time,

the continued retention of Lopez’s license

was undue.

Id. at 1285 (quoting Royer, 460 U.S. at 498;

emphasis in original). The Lopez court thus reached

the same conclusion as the D.C. Circuit did in

Jordan—under the totality of the circumstances, no

reasonable person would feel free to terminate a

police encounter after the police officer fails to return

personal identification materials. Jd. at 1285-1286.

2. This same rule has been elaborated upon in

the factually-similar context of vehicle stops. The

Tenth Circuit expressly acknowledged this

connection in United States v. Lambert, 46 F.3d 1064

(10th Cir. 1995), a case factually similar to Lopez. In

that case, the Tenth Circuit analogized that, “though

not directly on point in the context of this case, the

Tenth Circuit has consistently held that the undue

retention of an individual’s driver’s license during a

traffic stop renders the encounter nonconsensual.”

Id. at 1068 (citing United States v. Gonzalez-Lerma,

14 F.3d 1479, 1483 (10th Cir. 1990) (“This Circuit

follows the bright-line rule that an encounter

initiated by a traffic stop may not be deemed

consensual unless the driver’s documents have been

returned to him.”)). The Lambert court thus

recognized a universal rule applicable to both the

vehicle and pedestrian contexts and echoed in the

D.C. Circuit: “when law enforcement officials retain

an individual’s drivers license in the course of

questioning him, the individual, as a general rule,

will not reasonably feel free to terminate the

encounter.” Jd. at 1068.

In a similar situation involving a non-consensual

encounter arising out of a traffic stop, the Fifth

Circuit reached the same conclusion. See United

States v. Chavez-Villarreal, 3 F.3d 124 (5th Cir.

1993). In Chavez-Villarreal, the Fifth Circuit found

that where an officer had stopped a vehicle, taken

and retained the driver’s alien registration card, and

then asked for permission to search the vehicle, the

officer violated the Fourth Amendment. /d. at 128.

In reaching this holding, the court highlighted the

officer’s unwarranted’ retention of Chavez-

Villarreal’s identification during subsequent

questioning as the critical coercive element:

After he had _ ascertained the legal

immigration status of Chavez-Villarreal and

his passenger, [the agent] retained

possession of their alien registration cards.

He still held the cards when he asked for

permission to search. The card was vital to

Chavez-Villarreal ...; without it, his dispo-

sition, if indeed not ability, to decline [the

agent's] request expectedly was significantly

impaired.

Id. The Fifth Circuit thus recognized the same rule

applied in both the Tenth and D.C. Circuits. See id.

at 128 n.16 (citing Jordan, 958 F.2d at 1087).

In a variety of contexts, then, the Fifth, Tenth,

and D.C. Circuits have all reaffirmed a common,

universal legal rule: retention of an individual’s

identification during’ unrelated investigatory

questioning transforms an encounter into an

investigative detention, and thus, a “seizure” under

the Fourth Amendment. Accordingly, the decision

below in the First Circuit conflicts with these circuit

decisions.

B. The First Circuit Below Joins the

Second, Fourth, and Eighth Circuits

in Holding that an Individual is Not

Seized When an Officer Engages in

Unrelated Investigatory Question-

ing While Retaining the Individual’s

Identification.

The First Circuit is not the only court of appeals

to have rejected the rule described above. The

Second, Fourth, and Eighth Circuits have similarly

refused to find a seizure in factually similar

circumstances.

1. In United States v. Weaver, 282 F.3d 302 (4th

Cir. 2002), the Fourth Circuit refused to hold that

retention of identification during’ unrelated

investigatory questioning necessarily transforms a

voluntary police encounter into an investigatory

detention. In that case, a police officer approached

and initiated a conversation with Weaver, who was

walking nearby a bank where the officer believed a

“suspicious individual” had recently been spotted.

Id. at 306-307. During this conversation, the officer

asked for Weaver's driver’s license so that he could

run a computer check for any outstanding warrants.

Id. at 307. Yet rather than return the license after

determining that there were no such warrants, the

officer retained the license and asked Weaver to

accompany him to several nearby banks, where

Weaver was ultimately identified as a person wanted

in connection with a recent bank robbery. /d.. A

subsequent search revealed additional evidence that

tied Weaver to several robberies. Jd.

On appeal, the Fourth Circuit “expressly

refuse[d] to adopt a bright-line rule that when an

officer retains an individual’s identification beyond

its intended purpose .. . the individual whose identi-

fication is retained is effectively seized for purposes

of the Fourth Amendment.” Jd. at 310. Although

the court of appeals acknowledged that several

circuits had adopted such a rule, it rejected them as

“contrary to the Supreme Court's teachings

because they elevate one factor above all others in

determining whether a seizure has occurred.” Jd. at

313 (dismissing decisions of the Fifth, Seventh,

Eleventh, and D.C. Circuits). Instead, the Fourth

Circuit relied upon a series of its prior traffic stop

decisions, which approved of questioning or searches

that occurred after a driver’s identification was

returned. Jd. at 310-312. In doing so, the Fourth

Circuit focused heavily on the nature of the police

encounter at its inception, rather than addressing

whether the encounter transformed into an

investigative detention after Weaver's license was

retained. Jd. at 311-312 (noting Weaver “could have

refused to cooperate when [the officer] asked him for

his identification”).

The Fourth Circuit has thus adopted the same

approach espoused by the First Circuit below— that

unwarranted retention of an individual's lcense

during unrelated investigatory questioning does not

necessarily constitute a Fourth Amendment seizure.

See Pet. App. 12a (citing Weaver for refusal to adopt

D.C. Circuit’s categorical rule).

2. The Second and Eighth Circuits have also

held that asking to search an_ individual’s

belongings, while holding onto their identification,

does not constitute a seizure—albeit in cases where

they ultimately found a seizure triggered by

subsequent events.

In United States v. Glover, 957 F.2d 1004 (2d

Cir. 1992), the Second Circuit considered a case

wherein officers approaching Glover in a_ bus

terminal requested his identification and then, while

holding that identification, asked repeatedly to

search his bags. Jd. at 1006-1007. After Glover

refused, the officers asked Glover to accompany

them to a security office for further questioning,

where they informed him that his bags would be

detained pending review by a drug-sniffing dog. Jd.

at 1007.

Although the court of appeals ultimately

concluded that Glover and his bags had been

constitutionally seized, the court's logic contradicts

that of the Fifth, Tenth, and D.C. Circuits.

Critically, the Second Circuit determined that “prior

to the time [the officer] asked Glover to return to the

NFTA security office, the encounter was consensual.”

Id. at 1009. In reaching this holding, the court thus

indicated that the request by the officers to search

Glover’s bag, made while in possession of his

identification, did not constitute a seizure. The court

instead concluded that:

[When Terranova requested Glover to leave

the public area of the terminal and to return

to the NFTA security office for further

questioning, without returning Glover's

identification and without telling Glover

that he was free to leave, we believe that

Glover and his bags were seized.

Id. Such a holding accords with the Weaver rule by

requiring more than retention of identification to

transform an encounter into an _ investigatory

detention.

Similarly, in United States v. Carpenter, 462

F.3d 981 (8th Cir. 2006), the Eighth Circuit reached

the same conclusion as the Second Circuit in Glover.

In Carpenter, the court held that when an officer

approached a vehicle on the side of the road, asked

the driver for identification and, while holding that

identification, asked to search the boxes in the

vehicle, this did not constitute a seizure. Jd. at 985

986. The court instead found that a seizure did not

occur until later, when the officer had Carpenter exit

the vehicle, patted him down, and told him if he did

not consent to the search the officer would call for a

drug dog. Jd. at 986. In the process of reaching this

holding, the Eighth Circuit rejected Glover's

argument that the he was seized at an earlier time

due to the collection of his identification papers.

In both of these cases, the police request to

search the luggage or vehicle was made while the

officer retained the individual’s driver’s license, yet

was unrelated to the officer’s original request for

that identification. The Second and Eighth Circuit's

holding of no seizure under these circumstances is

therefore consistent with the Fourth Circuit's

approach in Weaver, but contradicts the more bright-

line analytical rule adopted in the Fifth, Tenth, and

D.C. Circuits.

C. The Seventh and Eleventh Circuits

Have Inconsistently Applied Both

Approaches.

Further complicating the issue, the Seventh and

Eleventh Circuits have failed to consistently apply a

single legal rule regarding the Fourth Amendment

ramifications of license retention. Rather, although

both have previously adopted the bright-line rule

advanced by petitioners, both have also departed

from that rule in recent cases. This lack of

consistency is further evidence of the uncertainty

among, and within, the circuits on how to

appropriately interpret and apply the Fourth

Amendment's requirements.

1. For a long time, the Seventh Circuit had been

recognized as a pioneer for holding that the

unnecessary retention of a person’s identification

transforms a consensual police encounter into an

investigatory detention. See United States v.

Cordell, 723 F.2d 1283 (7th Cir. 1983). In Cordell,

the Seventh Circuit held that a seizure occurred

when police officers stopped an individual exiting a

flight, requested his identification and plane ticket

and then, while retaining his identification, told him

they were conducting a narcotics investigation,

asked if he was carrying narcotics, and requested to

search his bag.

Critically for present purposes, the Seventh

Circuit determined that when the police retained

Cordell’s identification while telling him they were

conducting a narcotics investigation, that alone

transformed the consensual encounter into a seizure.

Id. at 1285. In so holding that the seizure occurred

at a point even before the police asked Cordell

additional questions, the Seventh Circuit laid the

foundation for later decisions such as Jordan, Lopez,

and Chavez-Villarreal. Cordell acknowledged that

retention of an individual’s license was a tool that

could be used to allow an officer to pressure an

individual to answer’ additional unrelated

investigatory questions, in this case regarding the

narcotics investigation, which transforms a

consensual encounter into a seizure. See, ¢€.g.,

Jordan, 958 F.2d at 1087 n.2 (following Cordell). But

see Weaver, 282 F.3d at 313 (rejecting Cordell).

Yet in United States v. Goodwin, 449 F.3d 766

(7th Cir. 2006), the Seventh Circuit failed to apply

its own precedent. In Goodwin, the court of appeals

found no seizure when officers approached an

individual on a train, asked for his identification and

then, while retaining the identification, asked if the

individual had any weapons or narcotics and for

permission to search his bags. /d. at 768. The

Goodwin court made no mention of Cordell’s

contrary rule. Instead, Goodwin merely reasoned

that:

It is true that the police officer to whom the

defendant had handed his identification and

ticket was still holding these items when the

defendant [was questioned] .... But the

interval was too brief to amount to seizure.

Id. Such a rule cannot be reconciled with Cordell’s

prior holding, leaving the state of the law in the

Seventh Circuit unclear.

2. Similar confusion has arisen in the Eleventh

Circuit. In United States v. Thompson, 712 F.2d

1356 (11th Cir. 1983), the court of appeals arrived at

the “common-sense conclusion” that a police officer’s

unnecessary retention of a license transformed a

consensual encounter into an _ investigative

detention. The court of appeals held the officer’s

conduct constituted a seizure because the officer “did

more than simply request and examine Thompson’s

driver's license.” /d. at 1359. Rather, because the

officer retained the license during subsequent

questioning, “the encounter matured into an

investigative stop protected by the Fourth

Amendment” Jd. at 1359. In so holding, the

Eleventh Circuit apphed the same rule later adopted

by the Fifth, Tenth, and D.C. Circuits, consistent

with prior Eleventh Circuit precedent. See United

States v. Elsoffer, 671 F.2d 1294, 1297 (11th Cir.

1982) (identifying retention of personal papers as

moment where encounter transformed into seizure).

Yet, nine years later, in a factually similar case,

the same court held that where a police officer

stopped an individual who had exited his vehicle,

requested his identification and, while retaining that

identification, asked for permission to search his car,

no seizure had occurred. United States v. De La

Rosa, 922 F.2d 675 (11th Cir. 1991). The De La Rosa

court insisted that the case was distinguishable from

Thompson because:

[U]nlike the defendant in Thompson, [De La

Rosa] had already exited his vehicle and was

proceeding towards his home for the

evening. Thus, temporary retention of the

license did not preclude [De La Rosa] from

terminating the encounter by going into his

apartment.

Id. at 678 n.3. But nothing in the Thompson rule—

the same rule applied in the Fifth, Tenth, and D.C.

Circuits—supports the drawing of such a distinction.

As a result, ordinary persons in the Eleventh

Circuit, like the Seventh, are left without clear

guidance regarding the scope of their constitutional

nghts during police encounters.

D. The State Courts Are Similarly

Divided.

Adding to the confusion, state courts also apply

different rules regarding license retention when

applying the Fourth Amendment. Mirroring the

split among the federal circuits, some states have

reasoned that unnecessary retention of a lcense

converts a consensual encounter into a seizure, while

others have handed down decisions rejecting such a

rule.

1. Courts in Georgia, Indiana, Tennessee, and

Virginia have each held that a Fourth Amendment

seizure occurs when a police officer retains an

individual’s license while investigating issues

unrelated to the officer’s purpose for retaining the

identification.

In Rogers v. State, 426 S.E.2d 209 (Ga. Ct. App.

1992), the Georgia Court of Appeals concluded that

an individual was seized when an officer, while

retaining his license, questioned the person about

having drugs or weapons. /d. at 212-214. In doing

so, the court acknowledged that, while an officer may

“request and examine a driver’s license and vehicle

registration and run a check on the documents,” in

this case the officer also proceeded to “{ask]

questions of [Rogers] that did not relate to any traffic

or parking violations but instead probed into

[Roger’s] possession of contraband or weapons.” Jd.

at 212. The court thus adopted the common-sense

rule that, “if the police officer retains the driver’s

license, he or she must have reasonable and

articulable suspicion to question the driver about

drugs or weapons.” Jd.

The Supreme Court of Indiana reached a similar

conclusion in Finger v. State, 799 N.E.2d 528 (nd.

2003), ruling that an officer unlawfully seized two

individuals by retaining their identification after

running an unsuccessful warrant and license check,

while continuing to question them about other

matters. Id. at 530-535. In reaching that

conclusion, the court recognized that, “the only factor

Finger identifies as restraining him after his initial

exchange with [the officer] was the fact that [the

officer] obtained and then retained Finger’s driver’s

license” as he continued to speak with them. Jd. at

533. The court nevertheless recognized the

importance lhcense- retention plays in 4a

constitutional analysis, by holding that, “when [the

officer] returned to Fing>r’s car after running license

checks and did not return his identification, what

arguably began as a consensual encounter evolved

into an investigative stop.” Jd. The Finger Court

thus reached a similar common-sense rule as the

Georgia Appellate Court did in Rogers.

The Supreme Court of Tennessee and the Court

of Appeals of Virginia adopted similar rules in State

v. Daniel, 12 S.W.3d 420 (Tenn. 2000) and Piggott v.

Commonwealth, 537 S.E.2d 618 (Va. Ct. App. 2000),

two cases raising the common question of whether a

seizure occurs when an officer retains an individual’s

identification to run a warrant check. On appeal,

both courts determined that a seizure had occurred.

Daniel, 12 S.W.3d at 427; Piggott, 537 S.E.2d at 619.

The Piggott court noted, “the consensual aspect of

the encounter ceased when [the officer] retained

Piggott’s identification while he ran a warrant check

.... By retaining [his] identification, [the officer]

implicitly commanded Piggott to stay.” 537 S.E.2d

at 619. Similarly, the Daniel court found, “when an

officer retains a person’s identification for the

purpose of running a computer check for outstanding

warrants, no reasonable person would believe that

he or she could simply terminate the encounter.” 12

S.W.3d at 427. In these cases, the warrant check

amounted to the functional equivalent of an officer

asking additional investigatory questions.

Therefore, just as retention combined with

investigatory questioning in Rogers and Finger

compelled the conclusion that a _ seizure had

occurred, the combination of license retention and

the running of the warrant check similarly

constituted a seizure in Piggott and Daniel.

The courts of at least four states have thus

adopted the same approach of the Fifth, Tenth, and

D.C. Circuits—that retention of an individual’s

license during unrelated investigatory questioning

constitutes a seizure under the Fourth Amendment.

2. Courts in Florida and Michigan, by contrast,

have held that no seizure occurs where a police

officer, while retaining an _ individual’s license,

engages in unrelated investigatory conduct.

a. In Golphin v. State, 945 So. 2d 1174 (Fla.

2006), the Supreme Court of Florida rejected the

claim that an individual was seized when an officer

retained his identification in order to run a warrant

check, rather than returning it. ju. at 1190. In

reaching this holding, the Court relied, in part, on

the rationale that since the defendant could not have

been legally penalized for walking away without his

license, “retention of Golphin’s identification would

not have constrained his ability” to end the

encounter. Jd. at 1188. The court acknowledged

that several other jurisdictions had “determined that

retention of identification for the purposes of

conducting a warrants check elevates an otherwise

consensual encounter into an investigatory stop.” Id.

at 1189. Nevertheless, the court rejected the

holdings of these other courts that found retention of

even a pedestrian’s license, when coupled with

additional investigatory action, constitutes seizure.

Id.

In a factually-similar case, the Supreme Court of

Michigan arrived at the same conclusion. People v.

Jenkins, 691 N.W.2d 759 (Mich. 2005). The Jenkins

court determined that retention of identification

during a warrant check did not affect the consensual

nature of a police encounter. Jd. at 764. The court

instead concluded that “[t]he Fourth Amendment

was not implicated” until later in the encounter,

when the officer “actually hindered defendant's

attempt to leave the scene” by telling him he could

not do so. Id. at 765. Such a holding contradicts the

legal rule adopted by other federal and state courts

in factually indistinguishable circumstances.

This disagreement among the state courts,

mirroring the split among the circuits, further

demonstrates the confusion that exists regarding the

proper interpretation and application of the Fourth

Amendment in license-retention cases. Absent

further guidance from this Court, such uncertainty

will only increase.

Il. Under This Court’s Precedent, an

Officer Who Retains an _ Individual’s

License While Proceeding with Un-

related Investigatory Questioning Has

“Seized” That Individual Within the

Meaning of the Fourth Amendment.

This Court has long recognized that police-

citizen interactions that begin as_ consensual

encounters may transform into _ investigative

detentions subject to Fourth Amendment

protections. See Bostick, 501 U.S. at 438 (noting

that Fourth Amendment scrutiny is triggered when

an encounter “loses its consensual nature’);

Mendenhall, 446 U.S. at 554. Such a transformation

occurs at the point at which, “in view of all the

circumstances surrounding the incident, a

reasonable person would have believed that he was

not free to leave.” INS v. Delgado, 466 U.S. 210, 215

(1984) (quoting Mendenhall, 446 U.S. at 554). This

test is an objective one, based on how a reasonable

person would view the encounter. See California v.

Hodari D., 499 U.S. 621, 628 (1991). To constitute a

seizure, the totality of the circumstances must

illustrate that the encounter between the officer and

citizen involved such a show of authority on the part

of the officer, that a reasonable person would not

have felt free to decline the officer's requests or

terminate the encounter. Bostick, 501 U.S. at 434.

Applying these standards, several circuits have

correctly recognized that no objective, reasonable

person would feel free to terminate a_ police

encounter once the police have retained that person’s

identification as leverage to inquire into unrelated,

potentially criminal matters.

1. This Court’s opinions in Royer and Menden-

hall provide the clearest evidence that, under the

Fourth Amendment, unwarranted retention of an

individual's identification transforms a_ police

encounter into a constitutionally protected seizure.

Royer represents this Court’s most recent

exploration of the constitutional ramifications of

retained identification. In that case, two police

detectives approached an individual, Royer, in the

concourse of a Florida airport. 460 U.S. at 493-494.

Upon their request, Royer provided the police with

his driver’s license and airplane ticket. Jd. at 494.

After reviewing the license and asking Royer a few

questions about it, the police did not return Royer’s

identification. Jd. Instead, the detectives informed

Royer that they suspected him of transporting

narcotics and asked Royer to accompany them to a

nearby room adjacent to the concourse. /d. Royer

silently followed the officers and waited as they

retrieved his luggage from the airline. Jd. The

officers then requested Royer’s consent to search the

luggage, to which Royer responded by opening one of

the bags. Jd. The ensuing search of both bags

yielded drugs, for which Royer was subsequently

charged with and convicted of felony possession of

marijuana. Id. at 494—495.

Royer’s conviction was reversed by the Florida

District Court of Appeal, which determined that

Royer had been unlawfully detained when his

consent to search the bags was secured, rendering

the search unconstitutional under the Fourth

Amendment. Jd. at 495-496. As a result, the

central issue in the government’s appeal to the

Supreme Court mirrored the issue in this case:

whether, under the circumstances, the interaction

between an individual and the police had escalated

into an involuntary detention. /d. at 495-497.

The Royer plurality began by enunciating the

general premises that “law enforcement officers do

not violate the Fourth Amendment by merely

approaching an individual on the street or in

another public place, by asking him if he is willing to

answer some questions, by putting questions to him

if he is willing to listen, or by offering in evidence in

a criminal prosecution his voluntary answers to such

questions”’—premises petitioner does not dispute.

Id. at 497. The Court then observed that the police

officers’ “[a]sking for and examining Royer’s ticket

and his driver’s license were no doubt permissible in

themselves,” id. at 501i, a position this Court has

since reaffirmed. See, e.g., Hiibel v. Sixth Judicial

Dist. Court, 542 U.S. 177, 185 (2004) (citing Delgado,

466 U.S. at 216). Nevertheless, the Court held that

at the time the officers “asked Royer to accompany

them to the police room, while retaining his ticket

and driver’s license and without indicating in any

way that he was free to depart, Royer was effectively

seized for the purposes of the Fourth Amendment.

460 U.S. at 501-502 (emphasis added). In such

circumstances, the Court recognized, no reasonable

person would feel free to leave. Jd. at 502 (citing

Mendenhall, 446 U.S. at 554).

To reach such a holding, the Court was forced to

distinguish its decision in Mendenhall, which found

no Fourth Amendment seizure in a factually-similar

case. In order to do so, the Court relied heavily upon

the factors that have led several circuits to adopt

petitioners categorical rule—police questioning

during the retention of personal identification,

coupled with the failure to inform the individual that

they remain free to leave, transformed the initially-

voluntary encounter into a seizure. Several times,

the Court highlighted the central importance of

these factors. Jd. at 501—502 (identifying moment of

transformation based on police requests made “while

retaining [Royer’s] ticket and driver’s license and

without indicating in any way that he was free to

depart”); Jd. at 503 n.9 (distinguishing Mendenhall

because “Royer’s ticket and identification remained

in the possession of the officers throughout the

encounter” and the officers “made no effort to advise

him that he need not consent to the search”).

Indeed, the Court expressly noted that “by returning

his ticket and driver’s license, and informing him

that he was free to go if he so desired, the officers

might have obviated any claim that the encounter

was anything but a consensual matter from start to

finish.” Jd. at 504.

Placing such primacy upon retention of a

person’s identification reflects the common-sense

fact that no objective, reasonable person will feel free

to terminate a police encounter if the police retain

the person’s identification rather than returning it

after establishing the person’s identity. As the D.C.

Circuit explained, Royer is rooted in the recognition

that “abandoning one’s driver’s license (or other

papers such as a passport, green card, or ticket if

still in transit) is simply not a practical or realistic

option for a reasonable traveler in this day and age.”

Jordan, 958 F.2d at 1087. Thus, if the police proceed

with an investigation while they retain, rather than

return, an individual’s license, then a reasonable

person in those circumstances will simply not believe

themselves free to leave. See, e.g., Thompson, 712

F.2d at 1359. Perhaps the police can obviate that

conclusion by explaining that the individual retains

the freedom to terminate the encounter, see Royer,

460 U.S. at 504, but absent such an explanation, the

reasonable person will believe himself to be

detained.

Thus, this Court's decision in Royer, when

considered in contrast to its holding in Menldenhall,

strongly support the rule advocated ye by the

petitioner and already adopted in several eircuits.

2. Finally, adoption of petitioner’s position in no

way contradicts this Court’s instruction in Bostick

that courts must consider all the circumstances

surrounding an encounter, rather than “elevat[ing]

one factor above all others in determining whether a

seizure has occurred.” Contra Weaver, 282 F.3d at

313. Petitioner agrees that any seizure inquiry

necessarily requires consideration of multiple

factors, and that it will be rare that any one factor

will produce “an inexorable conclusion that a seizure

has occurred.” Jordan, 958 F.2d at 1086. But see id.

at 1086 n.1 (noting that drawn firearms, standing

alone, would likely communicate to any reasonable

person that he is not free to leave).

Petitioner’s test, however, is not based on any

single factor. Rather, it is based on the reasonable

observer’s response to a repeatable combination of

factors: (1) the police’s retention of an individual’s

identification, coupled with (2) the police’s decision

to engage in unrelated investigatory acts. It is the

interoperation of these factors, not any one of them

in isolation, that has inspired courts to find seizures:

Asking for and examining [a detainee’s]

ticket and his driver’s license were no doubt

permissible in themselves, but when the

officers ... asked him to accompany them to

the police room, while retaining his ticket

and driver’s license and without indicating

in any way that he was free to depart, [the

detainee] was effectively seized for the

purposes of the Fourth Amendment.

Jordan, 958 F.2d at 1087 (quoting Royer, 460 US. at

501). The manner in which these factors interrelate

is objective and predictable, such that whenever they

are present a Fourth Amendment seizure has

occurred.

Ill. The Instant Case Provides an Effective

Vehicle Through Which the Court Can

Resolve a Question of National

Importance.

1. Standing alone, the substantial disagreement

among the lower courts is enough to warrant this

Court’s intervention. Over twenty-five years have

passed since Royer, when this Court last addressed

the issues presented by this petitioner in meaningful

detail. During that time, the courts of appeals have

candidly acknowledged that they stand in conflict.

See, e.g., Pet. App. 12a (joining Fourth Circuit in

rejecting D.C. Circuit rule); Weaver, 282 F.3d at 313

(rejecting then-current rule of Fifth, Seventh,

Eleventh, and D.C. Circuits). Various district courts

have similarly noted the persistent contours of this

circuit split. See, eg., United States v. Maine,

No. 3:01-00096, 2008 WL 686215, at *13 (M.D. Tenn.

Mar. 5, 2008); Franklin v. Montgomery County,

No. 2005-0489, 2006 WL 2632298, at *9—10 (D. Md.

Sept. 13, 2006).

Although the test for determining whether an

individual has been seized is flexible, it nevertheless

“calls for consistent application from one _ police

encounter to the next.” Michigan v. Chesternut, 486

U.S. 567, 574 (1988). Therefore, this Court should

provide guidance in order to assure that the Fourth

Amendment is uniformly applied throughout the

country. With a majority of circuits having weighed

in on the question, and with no clear resolution in

sight, it is unreasonable to expect a resolution in this

debate unless this Court chooses to provide it.

2. The need for this Court’s review is heightened

given the importance of the question presented.

Unlike many Fourth Amendment issues, which raise

concerns only relevant in cases involving persons

whom the police, at minimum, reasonably suspect to

be involved in criminal activity, the instant case

seeks to further define the permissible boundaries of

“voluntary” or “consensual” encounters between

ordinary persons and the police.

In many of the cases weighing in on this issue,

including the court below, the government has

conceded or the court has held that the officers

initially approached the subjects without any

reasonable suspicion of criminal activity. See Pet.

App. 5a (“The Government concedes .. . that the

Officers lacked the reasonable suspicion required for

a seizure.”); Jordan, 958 F.2d at 1088-1089 (“[T]he

police acknowledged they lacked even that quantum

of articulable suspicion that would have made a brief

Terry-style detention reasonable.”); Lopez, 443 F.3d

at 1283 (“([T]he government has conceded Jackson

did not have reasonable articulable suspicion to

support an investigative detention.”); see also

Thompson, 712 F.2d at 1361 (“Applying an objective

test, we conclude that the facts of which [the officer]

was aware when he retained Thompson's driver's

license were insufficient to support a reasonable

suspicion of criminal activity.”); Chavez- Villarreal, 3

F.3d at 127. The Fourth Amendment cannot

countenance a rule that permits ordinary persons to

be detained without legal basis and permits the

police to use voluntarily offered identification as

leverage to induce or coerce participation in more

prolonged questioning.

This concern is exacerbated by the central

importance personal identification—the driver’s

license, in particular—plays in modern society.

Under the rule adopted by the First Circuit below,

ordinary persons are expected to willingly abandon

such papers if they wish to terminate a “voluntary”

police encounter after the police have chosen to

retain them. Indeed, petitioner expressly requested

the return of his license and was rejected. Pet. App.

A7a. Yet, as the D.C. Circuit recognized over a

decade ago, abandonment of a driver’s license or

other similar papers “is simply not a practical or

realistic option ...in this day and age.” Jordan, 958

F.2d at 1087; see also People v. Jackson, 39 P.3d

1174, 1189 (Colo. 2002) (“The need for identification

is pervasive in today’s society, and a reasonable

person would not consider abandoning his

identification a practical option[.]”). Photo

identification is required for any number of common

everyday tasks, from cashing checks or using credit

cards to boarding planes or entering government

buildings. Indeed, possession of identification is so

central to modern lfe that this Court recently

permitted the states to require it as a precondition to

exercising the right to vote. See Crawford v. Marion

County Elec. Bd., 533 U.S. __, 128 S. Ct. 2897

(2008).

The ubiquitous need for personal identification

renders it mcreasingly unreasonable for police to

manipulate such identification, when voluntarily

provided, in order to further police questioning. For

the same reasons, it makes prompt resolution of the

question presented increasingly valuable to the

general population, who presently lack guidance

regarding the scope of their rights when police

appear to present them with the untenable choice of

either “consenting” to an investigation or losing their

license.

3. Finally, this case provides the Court with a

clean vehicle for resolving the conflict among the

circuits and answering the question presented. All

parties stipulated before the district court that the

police lacked even the reasonable _ suspicion

necessary to justify a hmited investigatory

detention. Pet. App. 5a. Therefore, unless the

interactions between Mr. Ford and the police never

escalated into a Fourth Amendment seizure, Mr.

Ford’s conviction must be set aside. The question

presented is thus squarely presented by, and wholly

controls, this case.

CONCLUSION

For the reasons provided above, the petition for

a writ of certiorari should be granted.

ALLISON J. KOURY

ATTORNEY AT LAW

297 Boston Post Road

#301

Wayland, MA 01778

(508) 358-7174

Respectfully submitted,

PAUL M. THOMPSON

Counsel of Record

JEFFREY W, MIKONI

KELLY M. FALLS

JUSTIN M. HOLMES

KENDRA C. KINNAIRD

ELIZABETH P. PHILPOTT

MCDERMOTT WILL &

EMERY LLP

600 Thirteenth Street, N.W.

Washington, D.C. 20005

(202) 756-8000

Attorneys for Petitioner

March 20, 2009

APPENDIX

APPENDIX A

Opinion of the United States Court of Appeals

for the First Circuit

UNITED STATES,

Appellee,

Tyson FORD,

Defendant, Appellant.

No. 07-2613.

UNITED STATES COURT OF APPEALS FOR THE

FIRST CIRCUIT

548 F.3d 1

Heard Oct. 6, 2008.

Decided Nov. 5, 2008.

Allison J. Koury was on brief, for appellant.

Jack W. Pirozzolo, Assistant United States Attorney,

with whom Michael J. Sullivan, United States

Attorney, was on brief, for appellee.

Before BOUDIN, STAHL, and HOWARD, Circuit

Judges.

STAHL, Circuit Judge.

Defendant-Appellant Tyson Ford appeals his

conviction under the felon-in-possession statute, 18

U.S.C. § 922(g)(1). His main complaint is that the

district court erred in denying his motion to suppress

a firearm found on his person because it was

obtained during an unconstitutional search and

seizure. Finding no error, we affirm the conviction.

I. Background

We relate the facts “as the trial court found

them, consistent with record support.” United States

v. Ruidiaz, 529 F.3d 25, 27 (1st Cir. 2008) (quoting

United States v. Lee, 317 F.3d 26, 30 (1st Cir. 2003)).

On September 8, 2005, Officers Daran Edwards an¢

Daniel Griffin (“the Officers”) of the Boston Police

Department (“BPD”) were on a routine patrol in a

high-crime area of Dorchester, Massachusetts. The

Officers were in uniform and in a marked police

cruiser. They regularly patrolled the Dorchester area

and were familiar with many of the area's residents.

At approximately 3:00 p.m., the Officers observed

Ford, who they did not recognize, walking alone

down Harvard Street. Ford looked over his shoulder,

observed the cruiser and then lowered his head.

began walking rapidly, and turned might onto

Gleason Street. The Officers followed Ford the wrong

way up Gleason Street for a short distance,

ostensibly to conduct a Field Intelligence and

Observation Report (FIO), used by BPD police

officers for intelligence collection.

Upon coming abreast of Ford, Officer Griffin

leaned out of the passenger side window and asked

him, “Can J speak to you for a minute?” Ford stopped

walking, took his identification out of his front

pocket, and voluntarily handed it to Officer Griffin.

He told the Officers he had no outstanding warrants

and was not on probation. While Officer Edwards

ran a search for warrants using the BPD database,

Officer Griffin continued to ask Ford questions like

“where do you live?” and “where are you headed?”

Officer Griffin observed that Ford appeared annoyed,

nervous, and hostile at times and that he was

breathing rapidly, stuttered his words, and his

hands shook. Officer Griffin asked Ford whether he

had anything on him that the Officers needed to

know about. Ford answered in the negative.

Roughly 45 seconds after taking Ford's driver's

license, Officer Griffin exited the cruiser to complete

the FIO. Following BPD protocol, Officer Edwards

also exited, walked behind the cruiser, and

approached Ford from the same direction as Officer

Griffin. Neither Officer unholstered his weapon.

Ford raised his hands into the air and said, “Come

on man, what's this all about?” Officer Griffin asked

whether Ford had any weapons on his person. Ford

responded, “Yeah, I got a gun in my pocket, but it

don't fire.” The Officers then placed Ford in

handcuffs, and Officer Griffin frisked him,

discovering and seizing a Grendel, Inc., P-12 .380

semiautomatic handgun from the pocket of Ford's

pants. The Officers arrested Ford, the entire

encounter lasting approximately two to three

minutes from interception to arrest. Before placing

Ford in handcuffs, neither Officer had touched Ford,

drawn his weapon, or told Ford he was not free to

leave nor had the Officers activated the police

cruiser's siren or flashing lights.

On November 1, 2005, a single-count complaint

charged Ford as a felon-in-possession of a handgun

in violation of 18 U.S.C. § 922(g)(1). On March 3,

2006, Ford moved to suppress the evidence seized in

the warrantless search of his person, contending he

was seized at the time the Officers exited the vehicle

in violation of his Fourth Amendment rights. On

July 20, 2006, the district court denied the motion

and issued a well-reasoned rescript, finding that the

Officers had not seized Ford prior to _ his

incriminating statement. See United States v. Ford,

440 F.Supp.2d 16 (D. Mass. 2006).

On October 4, 2006, Ford entered a conditional

plea of guilty, see Fed. R. Crim. P. 11(a)(2), reserving

his right to appeal the denial of his suppression

motion. On October 11, 2006, the district court

sentenced Ford to a term of imprisonment of 15

years under the Armed Career Criminal Act, 18

U.S.C. § 924(e)(1). Ford now appeals the denial to

suppress the handgun and his conviction. !

II. Discussion

A. The Motion to Suppress

This appeal primarily concerns the boundary

delineating casual encounters with police, as when

officers question persons in public places, from

! Ford dropped his appeal of his_ sentence

enhancement under Armed Career Criminal Act, 18

U.S.C. § 924(e)(1).

seizures requiring probable cause or articulable

suspicion. See United States v. Young, 105 F.3d 1, 5-

6 (ist Cir. 1997). Ford challenges the lower court's

denial of his motion to suppress in which he argued

the Officers seized him before possessing the

requisite reasonable suspicion. The Government

concedes, and we accept for the purposes of this

review, that the Officers lacked the reasonable

suspicion required for a seizure and that, if a seizure

occurred, the handgun found on Ford's person “must

be suppressed as tainted fruit.” See Florida uv.

Bostick, 501 U.S. 429, 433-34, 111 S.Ct. 2382, 115

L.Ed.2d 389 (1991).

“Our review of a district court's denial of a

suppression motion is bifurcated.” United States v.

Cardoza, 129 F.3d 6, 13 (1st Cir. 1997). We review

the court's factual findings for clear error and its

legal conclusions Gncluding constitutional

determinations) de novo. Ruidiaz, 529 F.3d at 28.

Clear error “exists only if, after considering all of the

evidence, we are left with a definite and firm

conviction that a mistake has been made.” Young,

105 F.3d at 5 (quoting United States v. McCarthy, 77

F.3d 522, 529 (1st Cir. 1996)). This deference

“reflects our awareness that the trial judge... sits

in the best position to determine what actually

happened.” Jd.

The Fourth Amendment provides that “[t]he

right of the people to be secure in their persons,

houses, papers, and effects, against unreasonable

searches and seizures, shall not be violated.” U.S.

Const., amend. IV. The primary purpose of the

Fourth Amendment is “to prevent arbitrary and

oppressive interference by enforcement officials with

the privacy and personal security of individuals.”

ILN.S. v. Delgado, 466 U.S. 210, 215, 104 S.Ct. 1758,

80 L.Ed.2d 247 (1984) (quoting United States v.

Martinez-Fuerte, 428 U.S. 543, 554, 96 S.Ct. 3074, 49

L.Ed.2d 1116 (1976)).

Not every interaction between a police officer

and a citizen constitutes a seizure triggering Fourth

Amendment protections. Bostick, 501 U.S. at 434,

111 S.Ct. 2382; Cardoza, 129 F.3d at 14; Young, 105

F.3d at 5. While per se rules are inappropriate in

determining when a seizure occurs for Fourth

Amendment purposes, United States v. Drayton, 536

U.S. 194, 201, 122 S.Ct. 2105, 153 L.Ed.2d 242

(2002) (citing Bostick, 501 U.S. at 439, 111 S.Ct.

2382), we have observed that encounters “between

law enforcement officials and citizens generally fall[

] within three tiers of Fourth Amendment analysis,

depending on the level of police intrusion into a

person's privacy.” Young, 105 F.3d at 5. Because

there are no bright-line distinctions between the

tiers, we look to the totality of the circumstances to

determine where a police encounter falls. Drayton,

536 U.S. at 207, 122 S.Ct. 2105; Michigan v.

Chesternut, 486 U.S. 567, 572, 108 S.Ct. 1975, 100

L.Ed.2d 565 (1988); United Staies v. Smith, 423 F.3d

25, 29-30 (1st Cir. 2005); Cardoza, 129 F.3d at 15.

See also Bostick, 501 U.S. at 439-40, 111 S.Ct. 2382

(rejecting per se rule for seizure in favor of totality

inquiry).

The lowest tier, which does not implicate the

Fourth Amendment, involves minimally intrusive

interactions such as when police officers approach

individuals on the street or in public places to ask

questions. Young, 105 F.3d at 5-6; Bostick, 501 U.S.

at 434, 111 S.Ct. 2382. See Drayton, 536 U.S. at 201,

122 S.Ct. 2105 (observing that law enforcement

agents may question and ask a citizen for

identification even when they have no basis to

suspect the individual so long as they “do not induce

cooperation by coercive means’). If the encounter

amounts to more than a minimally intrusive

interaction, a seizure occurs, either a de facto arrest

requiring probable cause or an investigative (or

Terry) stop necessitating reasonable suspicion.

Young, 105 F.3d at 6.

The Supreme Court has adopted the standard

set forth by Justice Stewart's plurality opinion in

United States v. Mendenhall, 446 U.S. 544, 554, 100

S.Ct. 1870, 64 L.Ed.2d 497 (1980), that “a person has

been ‘seized’ within the meaning of the Fourth

Amendment only if, in view of all the circumstances

surrounding the incident, a reasonable person would

have believed that he was not free to leave.”2 See

Drayton, 536 U.S. at 202, 122 S.Ct. 2105; California

v. Hodari D., 499 U.S. 621, 627-28, 111 S.Ct. 1547,

113. L.Ed.2d 690 (1991) (compiling cases). To

constitute seizure, this Circuit requires one's liberty

be restrained by either physical force or an assertion

of authority. /d. at 626, 111 S.Ct. 1547; United

2 The Court has explained the reasonable person

test presumes an innocent person. Bostick, 501 U.S.

at 438, 111 S.Ct. 2382; Smith, 423 F.3d at 31, n. 5.

States v. Sealey, 30 F.3d 7, 9 (Ist Cir. 1994); see

Smith, 423 F.3d at 28 (finding seizure can occur

without physical restraint if compliance is coerced

and not voluntary).

Under the objective totality of the circumstances

standard, we look not to “whether the citizen

perceived that he was being ordered to restrict his

movement, but whether the officer's words and

actions would have conveyed that to a reasonable

person.” Hodari D., 499 U.S. at 628, 111 S.Ct. 1547;

Chesternut, 486 U.S. at 574, 108 S.Ct. 1975 (noting

objective standard does not vary with mind of each

individual). Thus, there is less reason to inquire into

a defendant's subjective mindset when considering

whether there is a submission to authority, see

Cardoza, 129 F.3d at 14 n. 4, particularly as all

persons feel “some degree of compulsion” and

“discomfort” when approached by police officers.

Smith, 423 F.3d at 28.4

3 Both the Supreme Court and this Circuit have

observed that exchanges do not lose their consensual

nature simply because people generally answer

police officers’ questions. Drayton, 536 U.S. at 205,

122 S.Ct. 2105 (citing Delgado, 466 U.S. at 216, 104

S.Ct. 1758); Cardoza, 129 F.3d at 16 (agreeing with

defendant that “few people ... would ever feel free

to walk away from any police question”). See td.

(“The ‘free to walk away’ test... must be read in

conjunction with the Court’s frequent admonitions

(continued _ )

Employing this objective test, the inquiry before

us today is not whether the Officers could approach

and question Ford, but, instead “whether they did so

in a manner that would have communicated to a

reasonable person that he was not free to refuse to

answer and walk away.” Smith, 423 F.3d at 29. To

elucidate this test, the Supreme Court has provided

circumstances that may indicate a seizure including

“the threatening presence of several officers, the

display of a weapon by an officer, some physical

touching of the person of the citizen, or the use of

language or tone of voice indicating that compliance

with the officer's request might be compelled.”

Mendenhall, 446 U.S. at 554, 100 S.Ct. 1870. “[T]his

list of factors is not exhaustive and no single factor is

dispositive in any case.” Smith, 423 F.3d at 29. See

Chesternut, 486 U.S. at 575, 108 S.Ct. 1975

(considering also non-use of patrol car's siren or

flashers); United States v. McKoy, 428 F.3d 38, 40

(Ist Cir. 2005) (adding neighborhood as “only one

factor that must be looked at alongside all the other

circumstances’).

To evaluate the circumstances leading to Ford's

arrest, our case law provides guidance for discerning

the Fourth Amendment's parameters. In Cardoza,

that ‘a seizure does not occur simply because a police

officer approaches an individual and asks a few

questions”) (quoting Bostick, 501 U.S. at 434, 111

S.Ct. 2382, and Terry v. Ohio, 392 U.S. 1, 19 n. 16,

88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)).

10a

police officers drove the wrong way on a one-way

street to ask the defendant pointed questions

including “Why are you out at this time of night?”

129 F.3d at 15. We found no seizure, noting the

police had not used the cruiser's siren or lights, had

stopped at the curb before calling out to the

defendant, and did not exit the car until they

observed the defendant's ammunition round. /d. at

16. Cf. Chesternut, 486 U.S. at 575, 108 S.Ct. 1975

(no seizure where police did not activate siren or

lights, did not order defendant to halt, drew no

weapons, and did not block defendant's course).

In Smith, the police officers framed general,

nonthreatening questions to ask why the defendant

was sitting on the wall of a stranger's house and did

not command the defendant to remain on his walled

perch. 423 F.3d at 30. Even after the officers exited

their vehicle to conduct an FIO and approached the

defendant from both sides, we found no seizure

because the officers never summoned Smith to the

cruiser, did not employ the car's siren or lights, and

did not expose their weapons or touch Smith. Jd.

Additionally, because Smith attempted to flee from

the officers after he disclosed that he had an

outstanding warrant, we noted his action indicated

he had not submitted to an assertion of authority. Jd.

at 31.

Applying this precede: ' to the instant case, we

decline to hold that the Officers seized Ford before

he disclosed that he was in possession of a firearm.

See Mendenhall, 446 U.S. at 555, 100 S.Ct. 1870

(rejecting proposition that making’ statements

contrary to one's self-interest necessarily indicates

lla

involuntary submission). The Officers, like those in

Cardoza, drove a short distance the wrong way on

Gleason Street for the purpose of asking Ford

questions but activated neither the cruiser's siren or

flashing lights. Their questions were largely general

and non-threatening, like those in Smith.

Throughout the brief encounter, until Ford's

incriminating statement, the Officers did not draw

their guns or touch Ford.

At the onset of the interaction, Ford approached

the cruiser and provided his driver's license

voluntarily. While the Officers retained the license

during the tw.- to three-minute exchange, they did

not otherwise restrict Ford's movement. Contrast

Smith, 423 F.3d at 27, 30 (finding no seizure where

officers approached the defendant from both sides,

telephone pole was directly in front of defendant,

and wall directly behind). As in Smith, where we

found no seizure, the Officers exited the cruiser to

complete the FIO.

Ford relies on the Supreme Court's Florida v.

Royer decision where two detectives retained the

defendant's driver's license and airplane ticket while

commanding him to accompany them to a private

room because they believed he fit the drug courier

profile. 460 U.S. 491, 493-94, 103 S.Ct. 1319, 75

L.Ed.2d 229 (1983). The Court held these actions

constituted an illegal seizure, id. at 501-02, 103 S.Ct.

1319, and distinguished Mendenhall in part because

the government agents there immediately returned

the driver's license and airplane ticket before

continuing the encounter. Jd. at 503 n. 9, 103 S.Ct.

1319.

12a

Ford argues Royer indicates that the retention of

his driver's license during the encounter is

compelling evidence of a seizure. We think the

concerns of the airport cases, where citizens need

documentation to move from place to place, differ

from the instant case where Ford was on foot on a

public street. See Drayton, 536 U.S. at 204, 122 S.Ct.

2105 (noting that if the encounter had occurred on

the street rather than on a bus, “i]t is beyond

question that ... it would be constitutional”).

Moreover, Ford produced his license voluntarily, not

at the request of one of the Officers, and was not

removed from the street to a confined space while

the Officers ran the background check.

While the retention of Ford's license is an

important factor in our analysis, we decline to

elevate it above other considerations. See United

States v. Weaver, 282 F.3d 302, 313 (4th Cir. 2002)

(refusing to adopt D.C. Circuit's per se_ rule

regarding license retention). Ford also asserts that a

seizure can be evidenced by his raising his hands

into the air after the Officers exited the cruiser. But

one can draw different inferences from this gesture;

while it could reflect submission, raised hands also

can be a symbol of protest. On the cold record before

us,! we cannot recreate the actual gesture

* At the suppression hearing, Officer Edwards

demonstrated the exact manner in which Ford

raised his hands and later explained that Ford

“raised his hands in the air.” Officer Griffin

(continued...)

13a

demonstrated to the district court. Instead, this type

of inquiry recommends our deferential review of the

lower court's factual findings.®

Evaluating the totality of circumstances, we hold

that Ford was not seized for purposes of the Fourth

Amendment protections when he told the Officers he

possessed a handgun. Assessments of this type “are

highly fact-specific and must be performed on a case-

similarly testified twice that Ford “raised his

hands.” Ford did not testify. We note that this record

does not support the suggestion initially posited by

Ford that he raised his hands above his head.

5 Ford also suggests that the Officer's failure to

inform him of his right to refuse to answer questions

and to leave rendered the encounter nonconsensual.

While it is true that such statements generally make

an encounter consensual, Mendenhall, 446 U.S. at

558-59, 100 S.Ct. 1870, the Supreme Court has

explained that a seizure determination “is not

affected by the fact that the respondent was not

expressly told by the agents that she was free to

decline to cooperate with their inquiry, for the

voluntariness of her responses does not depend upon

her having been so informed.” Jd. at 555, 100 S.Ct.

1870. See also Drayton, 536 U.S. at 206, 122 S.Ct.

2105 (“The [Supreme] Court has rejected in specific

terms the suggestion that police officers must

always inform citizens of their right to refuse when

seeking permission to conduct a warrantless consent

search.”).

14a

by-case basis.” United States v. Taylor, 511 F.3d 87,

92 (1st Cir. 2007). We acknowledge this method of

analysis does not produce a crystalline landscape in

our Fourth Amendment jurisprudence. But it

reflects most realistically the contextual nature of

these encounters. See Chesternut, 486 U.S. at 573,

108 S.Ct. 1975 (“The test is necessarily imprecise,

because it is designed to assess the coercive effect of

police conduct, taken as a whole, rather than to focus

on particular details of that conduct in isolation.”).

B. Other Issues

Ford contests his conviction under 18 U.S.C.

§ 922(g)(1), asserting that the handgun on his person

did not fall under the statutory definition of

“firearm” because it was’ inoperable. The

Government argues that Ford waived this argument

by entering a conditional plea of guilty, reserving

only his objection to the suppression order. Fed. R.

Crim. P. 11(a)(2). Regardless of the standard of

review we employ, Ford's claim is without merit.

“The term ‘firearm’ means (A) any weapon...

which will or is designed to or may readily be

converted to expel a projectile by action of an

explosion.” 18 U.S.C. at §921(a)(2). We have

recognized that, in order to convict, “the gun must be

real, but it ‘need not be prove[d] to be loaded or

operable.” United States v. Taylor, 54 F.3d 967, 975

(1st Cir. 1995) (quoting United States v. Kirvan, 997

F.2d 963, 966 (1st Cir. 1993)). See also United States

v. Alston, 112 F.3d 32, 38 (1st Cir. 1997). No one,

including Ford, suggests the handgun he carried was

l5a

not real or that it was not designed to expel a

projectile. Ford's argument thus fails.

Finally, Ford's argument that his_ prior

convictions should be treated as an element of the

enhanced offense, and thus proven by the

Government beyond reasonable doubt, is foreclosed

by Almendarez- Torres v. United States, 523 U.S.

224,118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), and our

Circuit's subsequent case law.

Ill. Conclusion

For the foregoing reasons, we affirm the district

court's denial of Ford's motion to suppress and

Ford's conviction under 18 U.S.C. § 922(g)(1).

16a

APPENDIX B

Opinion of the United States District Court for

the District of Massachusetts

UNITED STATES of America,

Tyson FORD,

Defendant.

Criminal No. 05—10326—JLT.

UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF MASSACHUSETTS

440 F. Supp. 2d 16

July 20, 2006.

Albert F. Cullen, Jr., South Boston, MA, for Tyson

Ford.

Jack W. Pirozzolo, United States Attorney’s Office,

Boston, MA, for United States of America.

MEMORANDUM

TAURO, District Judge.

17a

Defendant Tyson J. Ford is charged with being a

convicted felon in_ possession of a firearm.!

Defendant has moved to suppress the firearm seized

by Officers Daran Edwards and Daniel Griffin of the

Boston Police Department and to suppress certain

statements that Defendant made to the officers. For

the following reasons, Defendant's Motion to

Suppress is DENIED.

Background

On September 8, 2005, Boston Police

Department (“BPD”) Officers Daran Edwards

(“Edwards”) and Daniel Griffin (“Griffin”) were on

routine patrol in the Dorchester section of Boston,

Massachusetts. Both officers were in uniform and

driving a marked Boston police cruiser.* Around

3:00 p.m. in the afternoon, the officers drove towards

the intersection of Harvard Street and Gleason

| See 18 U.S.C. § 922(g)(1) (‘It shall be unlawful for

any person ... who has been convicted in any court

of, a crime punishable by imprisonment for a term

exceeding one year ... [to] possess in or affecting

interstate commerce, any firearm or ammunition; or

to receive any firearm or ammunition which has

been shipped or transported in interstate or foreign

commerce. ’).

2 A “marked cruiser” is a police vehicle labeled on

both sides with “Boston Police Department” and

which is equipped with a siren and flashing blue

lights.

18a

Street in Dorchester. The BPD has deemed this

neighborhood a “hot spot” for criminal activity. The

neighborhood has a high rate of firearm arrests,

violent crime arrests, drug arrests, gang activity,

and “shots fired” incidents. Officers Edwards and

Griffin regularly patrolled this area and were

familiar with most of the residents of the

neighborhood.

As Officers Edwards and Griffin approached the

Harvard—Gleason area, they observed Defendant

walking alone down Harvard Street towards Gleason

Street. Neither Officer Edwards or Officer Griffin

recognized Defendant. Defendant, looking over his

shoulder, observed the officers’ police cruiser

traveling in his direction. Defendant immediately

looked down, sped up, and then quickly changed his

direction, turning off of Harvard Street and on to

Gleason Street. The officers, still in their marked

cruiser, followed Defendant on to Gleason Street and

pulled the cruiser to the curb alongside Defendant in

order to conduct a Field Intelligence and

Observation Report (“FIO”).° The officers did not

physically block Defendant’s path.

3 An FIO is routinely compiled by patrol officers,

during which the officers record a person’s name,

nickname, address, date of birth, social security

number, physical characteristics, and other relevant

information. Complhance with an officer’s request for

(continued... )

19a

Officer Griffin leaned out of the cruiser’s

passenger side window and asked Defendant “{c]lan I

speak to you for a minute?” Defendant stopped

walking, took his identification out of his front

pocket, and voluntarily handed his identification to

Officer Griffin. Defendant then told the officers that

he had no outstanding warrants and that he was not

on probation. Officer Edwards took Defendant’s

identification and initiated a search of the BPD

computer database to determine whether Defendant

had any outstanding warrants. While Officer

Edwards waited for the results of the search, Officer

Griffin continued to ask Defendant various routine

questions, such as “[w]here do you live?” and

“[wlhere are you headed?” During this brief

interaction, the officers observed Defendant's rapid

breath, stuttered words, and trembling hands.

Although Defendant answered all of Officer Griffin’s

questions, the officers described Defendant as

annoyed, hostile, and, on the basis of the above

mentioned observations, extremely nervous. Officer

Griffin then asked Defendant “[d]o you have

anything on you we need to know about?” Defendant

replied “no.”

Officer Griffin then exited the cruiser to

complete the FIO. Officer Edwards also exited,

walked around the back of the car and approached

Defendant from the same side as Officer Griffin.

FIO information is voluntary. See United States v.

Smith, 423 F.3d 25, 27 n.1 (1st Cir. 2005).

20a

Defendant, at this point, began shaking more

severely and raised his hands above his head, asking

“fcjlome on man, what's this all about?’ Officer

Griffin again asked Defendant whether he had any

weapons on him. Defendant answered “[yJeah, I got

a gun in my pocket, but it don’t fire.” Officers

Edwards and Griffin then placed Defendant in

handcuffs and Officer Griffin frisked him. Officer

Griffin discovered and seized a Grendel, Inc., P—

12.380 semiautomatic handgun from the pocket of

Defendant’s pants. The officers then arrested

Defendant. The firearm was not loaded and

subsequent testing confirmed that the firearm was

in fact inoperable.‘

The entire encounter between the officers and

Defendant lasted approximately two to three

minutes. Neither officer physically touched

Defendant before placing him in handcuffs, neither

officer drew his weapon, and neither officer told

Defendant that he was not free to leave. The officers,

furthermore, never activated the police cruiser’s

siren or its flashing blue hghts.

On August 18, 2005, the BPD posted a message

on the BPD internal intranet “weblog” bulletin

stating that Defendant may be in possession of a

.380 caliber handgun. All Boston Police Officers had

4 Although the firearm was inoperable, the firearm

seized from Defendant satisfies the requirements of

18 U.S.C. § 922.

2la

access to this bulletin through computers in the

Boston Police Stations. Officer Edwards saw this

bulletin at some point before his September 8, 2005

encounter with Defendant. Officer Edwards testified,

however, that he did not remember the bulletin at

any time before or during the encounter with

Defendant.

Discussion

The issues presented by Defendant's motion are

two-fold. The first issue is whether Officers Griffin

and Edwards seized Defendant before he made the

incriminating statement and before they seized the

firearm. The second issue depends upon the

resolution of the first—that is, whether the officers,

if they did seize Defendant, had sufficient reasonable

suspicion to justify the seizure under the Fourth

Amendment to the United States Constitution.®

The Fourth Amendment protects all people

against unreasonable searches and seizures.® The

5 See, e.g., Terry v. Ohio, 392 U.S. 1, 27-28, 88 S.Ct.

1868, 20 L.Ed.2d 889 (1968) (holding that

reasonable suspicion of criminal activity is sufficient

to justify a brief investigatory stop).

6 U.S. Const. Amend. IV (“The right of the people to

be secure in their persons, houses, papers, and

effects, against unreasonable searches and seizures,

shall not be violated, and no Warrants shall issue,

but upon probable cause, supported by Oath or

(continued...)

22a

Fourth Amendment, however, is not implicated

every time a police officer encounters a citizen in a

public place.’ In fact, “[t]here is nothing in the

Constitution which prevents a policeman from

addressing questions to anyone on the streets.’”§

“Law enforcement officers do not violate the Fourth

Amendment's prohibition of unreasonable seizures

merely by approaching individuals on the street or in

other public places and putting questions to them if

they are willing to listen.”

affirmation, and particularly describing the place to

be searched, and the persons or things to be

seized.”).

7 See Smith, 423 F.3d at 28 (“While the Fourth

Amendment protects against unreasonable searches

and seizures, not all encounters between law

enforcement officers and _ citizens constitute

seizures.”).

8 United States v. Mendenhall, 446 U.S. 544, 553,

100 S.Ct. 1870, 64 L.Ed.2d 497 (1980) (quoting

Terry, 392 U.S. at 34, 88 S.Ct. 1868 (White, J.,

concurring)); see also Smith, 423 F.3d at 28; United

States v. Young, 105 F.3d 1, 5-6 (1st Cir. 1997)

(“Police may approach citizens in public spaces and

ask them questions without triggering’ the

protection of the Fourth Amendment.”).

° Smith, 423 F.3d at 28 (quoting United States v.

Drayton, 536 U.S. 194, 200-01, 122 S.Ct. 2105, 153

L.Ed.2d 242 (2002)).

23a

The hallmark of a Fourth Amendment seizure is

coercion.'° A police- citizen encounter rises to the

level of a seizure when the interaction is compelled

by physical restraint or a nonphysical show of

authority, rather than by the citizen’s voluntary

compliance.'! A certain degree of compulsion is

inherent when a law enforcement officer confronts

someone with questions.!2 Courts, therefore, apply

an objective standard to determine whether an

encounter was sufficiently coerced to rise to the level

of a seizure.!’ That standard is that “[n]Jo seizure

occurs when officers approach a citizen to ask a

question unless it was objectively reasonable for that

person to believe that he was compelled to stay and

answer the question.”'4 Stated another way, a

seizure occurs only when the totality of the

circumstances illustrates that a reasonable person

10 Td.

il Jd,

‘2 Td. (“{Sjince most tend to feel some degree of

compulsion when confronted by law enforcement

officers asking questions, such discomfort cannot be

the measure of a Fourth Amendment seizure.”).

3 Id. (citing Mendenhall, 446 U.S. at 553, 100 S.Ct.

1870).

l4 Jd. (citing Mendenhall, 446 U.S. at 553, 100 S.Ct.

1870).

24a

would not have felt free to terminate the

conversation and leave the encounter. !®

The United States Supreme Court has

designated several factors to guide a court’s

evaluation of whether a seizure occurred in a given

encounter from a voluntary conversation to a seizure

include the threatening presence of several officers,

the display of the officers’ weapons, any physical

touching of the defendant, and the use of language or

tone of voice that indicates that compliance with the

officers’ request is not discretionary.'? These factors

are not exclusive, however, and no single factor is

dispositive.!® Courts, instead, will examine all of the

facts surrounding a particular situation to determine

whether a reasonable person would have felt free to

leave.!9

15 See id. at 28-29 (citing INS v. Delgado, 466 U.S.

210, 216, 104 S.Ct. 1758, 80 L.Ed.2d 247 (1984));

Young, 105 F.3d at 6 (citing Florida vu. Bostick, 501

U.S. 429, 439, 111 S.Ct. 2382, 115 L.Ed.2d 389

(1991)).

16 Smith, 423 F.3d at 29 (citing Mendenhall, 446

U.S. at 554-55, 100 S.Ct. 1870).

17 Jd. (citing Mendenhall, 446 U.S. at 554, 100 S.Ct.

1870).

18 Id.

19 See id. (citing Bostick, 501 U.S. at 439, 111 S.Ct.

2382).

25a

The First Circuit Court of Appeals has

considered facts similar to the present case in two

cases which serve as useful guides in the resolution

of the instant motion.2° In United States v. Young,

two Boston Police officers on patrol in a marked

cruiser observed three men, who were standing

together, quickly disperse upon seeing the police

cruiser.2! The officers noted that the defendant

matched the description of a suspect in a robbery

that occurred in the area.22 The officers followed the

defendant, pulled their cruiser to the curb alongside

him, and stated “Boston Police, you got a minute?’2?

The defendant replied “[s]ure” and stepped towards

the cruiser.24 The First Circuit held that the officers

did not seize the defendant and that the encounter,

up to that point, did not trigger the protections of the

Fourth Amendment.25 The court explaimed that “in

the absence of an officer’s exertion of physical force

20 See id. at 26-32; Young, 105 F.3d at 4-8.

21 Young, 105 F.3d at 4.

22 Jd. at 5.

23 Td.

24 Td.

25 Jd. at 6. In this case, the Government conceded

that a Fourth Amendment seizure occurred when

one of the officers lunged at the defendant, after

observing a handgun in the defendant’s waistband,

and made brief contact with the defendant’s jacket.

See td.

26a

or an individual's submission to a show of authority,

no seizure occurs.”2°

In United States v. Smith, two Boston Police

officers were on patrol in a marked Boston police

cruiser when they noticed the defendant, Smith,

sitting on a small wall behind a telephone pole.27 A

chain link fence stood directly behind the

defendant.2® Both officers regularly patrolled this

area and were familiar with the local residents.2°

Neither officer recognized the defendant.2° One of

the officers leaned outside of the cruiser’s passenger

side window and asked the defendant whether he

lived at the house behind him! The defendant

stated that he did not live there.°*? After a few more

questions, the officers exited their cruiser and

approached the defendant to complete a FIO.°? The

officers stood on either side of the telephone pole

that was directly in front of the defendant.*+ The

*6 Id. (citing United States v. Sealey, 30 F.3d 7, 10

(Ist Cir.1994) (finding no seizure occurred where

police officers in a cruiser simply approached

defendant and yelled “Hey Steven, what’s up?”)).

27 423 F.3d at 26. 28.

28 Jd. at 26-27.

29 Id. at 27.

30 Id.

3] Id.

32 Id.

5 Id.

34 Td.

27a

officers asked the defendant for his identification,

which the defendant produced.*° Then, as one of the

officers started back to the cruiser to run the

defendant’s name through the police database, the

defendant stated that he had an outstanding

arrested the defendant and found a firearm in his

possession.°?

The issue in Smith, as in the instant case, was

whether the defendant was seized before he

admitted to the outstanding warrant.*® On these

facts, the First Circuit held that the officers did not

seize the defendant prior to his arrest.°® Particularly

relevant to the court’s holding were the facts that

the officers did not activate the cruiser’s sirens or

lights, they did not affirmatively summon the

defendant to the cruiser, they did not draw their

weapons, they never physically restrained or touched

the defendant, they did not accuse the defendant of

committing a crime, they did not question the

defendant about any specific event, and their

questions were “general and non-threatening.”*” The

33 Id.

36 Id.

37 Td.

38 id. at 29.

39° Td. at 30.

40 Jd. at 30 (‘When they exited their car, the officers

merely approached Smith requesting his

identification, or even just his name. Such a non-

(continued. _)

28a

court also found that although the officers effectively

blocked the defendant's movement by standing on

either side of the telephone pole, the officers’

positioning was the only place the officers could have

stood to speak with the defendant.4! The court

explained that “even if the pole and the wall created

the illusion of being restrained, it must be

remembered that mere physical hLmitations on an

individual’s movement, not created by police, are

insufficient to turn an encounter with police into a

restraint of liberty.”42 The court, therefore, found

that “under all the circumstances of this encounter,

an objectively reasonable person would have felt free

to decline the officers’ requests or otherwise

terminate this encounter.”*°

In the present case, Officers Edwards and

Griffin pulled their cruiser along side of Defendant

and asked him if they could speak to him. Defendant

stopped walking, turned to the police cruiser, and

threatening request does not elevate an otherwise

consensual encounter between a citizen and the

police into a seizure.”).

41 See id.

42 See id. at 30—31 (“When the freedom of movement

of a person is limited by a physical obstruction not

created by the police, the correct test for seizure is

not ‘free to leave, but free to terminate the

encounter by refusing to answer questions.”) (citing

Bostick, 501 U.S. at 436, 111 S.Ct. 2382).

43 Td. at 31.

29a

voluntarily produced his identification. Defendant

voluntarily complied with the officers’ request to talk

and, therefore, the encounter to this point lacked any

elements of objective coercion. Officers Edwards and

Griffin did not activate their cruiser’s lights or siren,

they did not exit the cruiser, they did not draw their

weapons, they did not accuse or question Defendant

regarding any crime or specific event, their question,

“fcjan I speak to you for a minute,” was general and

non-threatening, and the officers did not physically

restrain or block Defendant’s movement. The most

important factor, of course, is that Defendant

voluntanly stopped walking and_ voluntarily

produced his identification.44 On these facts, as in

Young, an objectively reasonable person would have

felt free to terminate the encounter or refuse to

answer the officers’ question. This initial

interaction between the officers and Defendant,

therefore, did not rise to the level of a Fourth

Amendment seizure.

The next question is whether Officers Edwards

and Griffin seized Defendant when they exited the

police cruiser and approached Defendant, before he

admitted to possessing the firearm. Officers

Edwards and Griffin exited their vehicle to complete

the FIO after observing Defendant’s extreme

14 See td. at 29 (explaining that simply because

someone responds to a police request it does not

follow that a seizure occurs).

45 See Young, 105 F.3d at 6.

30a

nervousness. Both officers approached Defendant

from the same side, both facing Defendant, and

merely asked him whether Defendant had anything

in his possession that the officers should know

about. Neither officer drew his weapon, physically

touched Defendant, or verbally threatened or

accused Defendant of anything. The officers here,

unlike in the Smith case, did not physically block

Defendant’s ability to walk away. The officers

approached Defendant, asked one simple question,

and Defendant immediately admitted to having a

firearm in his possession. This encounter exhibits

none of the objective factors that traditionally raise

police encounters to the level of a seizure which

implicates the Fourth Amendment.‘¢

Defendant argues that he was seized because

Officers Edwards and _ Griffin’ retained his

identification throughout the entire encounter. The

United States Supreme Court has suggested that the

retention of a suspect’s identification is one factor

that weighs in favor of finding a seizure.*’7 In Florida

v. Royer, the Court held that:

[W]hen the officers identified themselves as

narcotics agents, told Royer that he was

16 See Smith, 423 F.3d at 30-31 (finding that no

seizure occurred in a case with facts similar to the

case herein considered).

47 Florida v. Royer, 460 U.S. 491, 501-02, 103 S.Ct.

1319, 75 L.Ed.2d 229 (1983).

gla

suspected of transporting narcotics, and

asked him to accompany them to the police

room, while retaining his ticket and driver’s

license and without indicating in any way

that he was free to depart, Royer was

effectively seized for the purposes of the

Fourth Amendment. These circumstances

surely amount to a show of official authority

such that “a reasonable person would have

believed he was not free to leave.”48

The facts in this case, however, are quite different

from those presented in Royer. In Royer, two

narcotics officers approached Royer, affirmatively

requested Royer’s driver’s license and ticket, asked

Royer specific questions regarding his suspicious

conduct, accused Royer of transporting narcotics,

and asked Royer to accompany the officers to a police

interrogation room.4? The encounter in Royer

occurred fairly slowly and over several minutes. The

officers in Royer did retain Royer’s driver’s license,

but that fact was merely one factor, among many,

that made the encounter a seizure.®°

Officers Edwards and Griffin did _ retain

possession of Defendant’s identification throughout

the encounter, including the time when the officers

48 Td. (citing Mendenhall, 446 U.S. at 554, 100 S.Ct.

1870).

49 See id. at 501, 103 S.Ct. 1319.

50 See id. at 501-02, 103 S.Ct. 1319.

32a

exited the cruiser and approached Defendant. The

entire encounter, however, occurred very quickly.

Officer Edwards testified that approximately two to

three minutes passed between the officers’ initial

contact with Defendant and Defendant's statement

regarding the firearm. Officer Edwards,

furthermore, retained Defendant's identification for

the purpose of searching the BPD’s computer

database to determine whether Defendant had any

outstanding warrants. Both officers, however, exited

the cruiser before Officer Edwards completed the

computer search. In short, the encounter happened

so quickly that Officers Edwards and Griffin never

had an opportunity to return Defendant’s

identification to him. The most important fact,

furthermore, is that Defendant voluntarily gave the

officers his identification without any request by the

officers. The retention of Defendant’s identification

in this case does not convert this otherwise

consensual encounter into a Fourth Amendment

seizure.

This court finds that under all the circumstances

presented in this case an objectively reasonable

person would have felt free to terminate the

encounter with Officers Edwards and Griffin. The

traditional objective factors that indicate coercion

and characterize a seizure are absent from this case.

Defendant voluntarily responded to the officers’

initial inquiry, voluntarily produced his

identification, and without coercion admitted to

possessing a firearm.

“While most citizens will respond to a police

request, the fact that people do so, and do so without

33a

being told they are free not to respond, hardly

eliminates the consensual nature of the response.”

Although a person may regret staying to answer an

officer’s questions .. . such regret does not transform

an otherwise consensual encounter into an

unconstitutional seizure.>!

The encounter between the two officers and

Defendant simply did not rise to the level of a Fourth

Amendment seizure. Defendant, therefore, was not

seized prior to making the incriminating statement

regarding his possession of the firearm.

The’ officers, once hearing Defendant’s

statement, had sufficient probable cause to search

and arrest Defendant, which they proceeded to do.

The officers properly searched Defendant with

probable cause and incident to the lawful arrest,

during which the officers discovered the firearm in

question and seized it.52 The conduct of Officers

51 Smith, 423 F.3d at 29 (quoting Delgado, 466 U.S.

at 216, 104S.Ct. 1758).

52 See, e.g., Chimel v. California, 395 U.S. 752 762-

63, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969) (“When an

arrest is made, it is reasonable for the arresting

officer to search the person arrested in order to

remove any weapons that the latter might seek to

use in order to resist arrest or to effect his escape

.... In addition, it is entirely reasonable for the

arresting officer to search for and seize any evidence

(continued...)

34a

Edwards and Griffin, therefore, did not violate the

Constitution at any time during their encounter with

Defendant. This court, having decided that a seizure

did not occur, need not consider or determine

whether Officers Edwards and Griffin had sufficient

reasonable suspicion or probable cause to initiate

their encounter with Defendant.

Conclusion

For the reasons stated above, the encounter

between the two Boston Police officers and

Defendant did not rise to the level of a Fourth

Amendment seizure. Defendant’s incriminating

statement occurred during a consensual encounter

with police and was not the product of a seizure. As a

result of that statement, the officers had sufficient

probable cause to arrest and to search Defendant.

Defendant’s Motion to Suppress is DENIED.

AN ORDER WILL ISSUE.

on the arrestee’s person in order to prevent its

concealment or destruction.”).

35a

APPENDIX C

Order of the United States District Court for

the District of Massachusetts

UNITED STATES OF AMERICA,

TYSON FORD,

Defendant.

Criminal No, 05-10326-JLT

UNITED STATES DISTRICT COURT DISTRICT

MASSACHUSETTS

ORDER

July 20, 2006

TAURO, J.

This court hereby orders that:

1. Defendant’s Motion to Suppress |[# 16] is

DENIED.

IT IS SO ORDERED.

/s/ Joseph _L. ‘l‘auro

United States District Judge

36a

APPENDIX D

Excerpts from Transcript of Proceedings

Before the United States District Court for the

District of Massachusetts on Defendant’s

Motion to Suppress

UNITED STATES of America,

Vv.

Tyson FORD,

Defendant.

Criminal No. 05—10326—JLT.

UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF MASSACHUSETTS

BEFORE THE HONORABLE JOSEPH L. TAURO

UNITED STATES DISTRICT JUDGE

MOTION TO SUPPRESS EVIDENCE AND

STATEMENTS

Apri 25, 2006

APPEARANCES

OFFICE OF THE UNITED STATES ATTORNEY

1 Courthouse Way, Suite 9200

Boston, Massachusetts 02210

for the United States

By: Jack W. Pirozzolo, AUSA

37a

ALBERT F. CULLEN, JR. LAW OFFICE

60 K Street

South Boston, Massachusetts 02127

for the Defendant

By: Albert F. Cullen, Jr., Esq.

Albert F. Cullen, III, Esq.

Court Reporter: Carol Lynn Scott, CSR, RMR

Official Court Reporter

One Courthouse Way, Suite 7204

Boston, Massachusetts 02210

(617) 330-1377

DIRECT EXAMINATION OF DARAN EDWARDS

[TR. 19:11-21:9]

BY MR. PIROZZOLO

Q: Please describe what you saw.

A: I observed an individual, he was walking on the

sidewalk on Harvard Street approaching Gleason

Street.

Q: Did you observe him --

THE COURT: Does that mean he was

walking towards you or away from you?

THE WITNESS: He was walking in front of

us because he was already on Harvard Street

approaching Gleason. So we were coming up sort of

behind him in our cruiser.

38a

THE COURT: So you were both going in the

same direction?

THE WITNESS: Same direction.

BY MR. PIROZZOLO

@: Now, in your police report — did you prepare a

police report?

A: Yes, I did.

Q: In your police report you described Mr. Ford’s

direction in two different ways. At one point you

said it was outbound; do you recall?

A: Yes.

@: And another point in the report you said it was,

he was walking inbound?

A: That was aclerical error. It was all outbound.

Q: Now, what did you observe Mr. Ford do?

A: As we were approaching him to his, | believe it

was to his left side, he looked over at our cruiser. He

looked over his shoulder. Upon observing us he

immediately looked down as if he was trying to

conceal his identify. He had on like a black baseball!

cap so we couldn't really see his face.

@: Did he change the direction in which he wa

walking?

A: Yes, he did

39a

Q: What did you observe him do?

A: At that point, upon observing us he was sort of

right at the corner of Harvard and Gleason Street so

he immediately changed — made a change in

direction onto Gleason Street and started to pick up

his pace walking a little faster.

Q: Gleason Street is a one-way street?

A: Yes, it is.

Q: A one-way street —

A: Coming cut to Harvard Street.

Q: What then did you do?

A: At that point we immediately, we sort of stopped

at the corner of Harvard and Gleason. And he was

like — I may have said to my partner do you know

this kid and I believe he said something Lke no.

So, you know, we just proceeded to pull up

alongside him just to speak to him.

a —— — $$

CROSS-EXAMINATION OF DANIEL GRIFFIN

(TR. 66:2-67:23, 68:20-70:18, 71:3-71:13]

BY MR. CULLEN

Q: Where did he get his ID?

A: I believe out of his pocket, his right pocket.

40a

: His right pocket?

: I believe.

Right front pocket?

: I believe so.

: And he handed it to you?

: He did.

: Was he annoyed?

: Vd say so, yes.

: He didn't like being stopped?

He didn’t like speaking to the police I guess.

: And then you asked him his name; didn’t you?

: No, I looked at his license and got his name.

: Okay. Did you ask him where he lived?

: I asked him if he was from around there, based

that I hadn’t seen him in the neighborhood before

and I knew most of the kids in that neighborhood.

: What was the address on his license?

: 1 don’t recall. It was a Mattapan address though.

: So it was consistent with what he told you? His

address on his hcense was consistent with his

response to your question?

4la

A: You mean was he lying to us about where he

hved?

Q: Right.

A: Yeah, you're cor-ect.

Q: Did you ask him any other questions?

A: Again, it was small talk.

Q: Such as?

A: You know, | said where you from, that type of

thing, nothing memorable (ph.).

@: Did you ask him where he was coming from or

where he was going?

A: I don’t recall.

Q: Did you ask him what he was doing in the

neighborhood?

A: | don’t recall that question, no.

Q: That’s the reason why you stopped him though,

wasn’t it, is because you didn’t recognize him as

being from the neighborhood?

A: No, I said I don’t remember asking him that sort

of question is what I’m saying.

Q: But you didn’t ask him what he was doing there?

A: No, I asked him where he was from.

42a

Q: Anything else that you can recall you asked him?

A: No.

Q: Did he respond to all your questions?

A: I believe so.

Q: And you said you got out of the cruiser because

you were going to complete the FIO?

A: That’s correct.

Q: Did you have the FIO in your hand?

A: I had my notebook and my pen.

Q: And what information did you need to complete

that you hadn't already learned?

A: It could be anything. Shoes, whether or not he

had jewelry on, it could be several different items.

That’s all required in the FIO.

Q: But you could see him from the window, couldn't

you? He was standing four feet from you?

A: His height, his weight, a lot of different

characteristics I could get by getting, you know, a

level eye view of him than sitting in the cruiser.

Q: You mean sitting in the cruiser you couldn't tell

us how tall he was?

A: No.

43a

Q: No?

A: No.

Q: And you can’t tell us what his approximate weight

is?

A: No.

Q: You couldn’t tell whether he was wearing jewelry?

A: No.

Q: All of that is necessary for you to get out of the

cruiser to get?

A: I like to be thorough.

Q: You like to be thorough.

So you have to get out to make those

observations because you can’t make them from the

cruiser sitting down?

A: No. I chose to get out and to be accurate on my

information gathering.

Q: Is that the only reason you got out?

A: That’s correct, sir.

Q: What did Mr. Ford do when you got out?

A: Like I stated before, he raised his hands and said

what's this all about.

Q: And what did you respond to him?

44a

A: [im not required to answer his questions.

Q: Did you say to him, well, I just want to get some

information from you?

A: No. Again, I’m not required to give him answers

to his questions.

Q: But ’m asking you — I understand you are not

required. Did you say I am just getting some

information, I have to fill out this form (indicating)?

A: No. Based on his hands trembling and him

shaking and sweating, I asked him are you sure you

have nothing on him. That’s when he said to me,

Yeah, I have a gun on me.

* * We

Q: But you got out and when you say you weren't

suspicious but did you suspect or think he may have

had something on him, either firearms or drugs?

A: At that point, no, I just observed him being

nervous for some reason.

Q: So the mere fact that he was nervos, is that one

of the reasons why you got out of the car?

A: No.

Q: It wasn’t because he was nervous, it was because

you wanted to complete the FIO?

A: That is correct, sir.

45a

DIRECT EXAMINATION OF TYSON FORD

[TR. 88:23-90:9, 94:10-95:3, 97:1-97:15]

BY MR. CULLEN:

Q: Now, could you tell us what happened on

September 8th when you were stopped by the police?

A: Well, I was coming from my girlfriend’s house. I

was walking up Bernard Street which is off of

Harvard Street. I crossed the street. It was normal

for an average person to look both ways before

crossing the street. I crossed over.

And at that particular time the marked cruiser

happened to be coming up the street. Gleason Street

is not far from Bernard Street but it’s on the

opposite side of the street.

As I was turning up Gleason Street, I heard a

car behind me. And I was walking up a one-way

street. So I turned around and looked, I see the

marked cruiser.

As I was, I still continued walking, they pulled

up alongside me. Officer Griffin stuck his arm, his

forearm out the window and his head outside the

window, and asked me, he said, hey, James, where

you been. I said my name is not James, my name is

Tyson Ford. So I took it upon myself to get my

identification which was my driver's license.

And from that point he asked me did I lve

around here, which I told him no. And the

questioning continued on to the point where he

asked me where was I going. I explained to him |

46a

was coming from the address which is on my driver’s

license. I was heading up to friend’s house on

Charlotte Street which is in the same route that I

was walking.

In order to get to Charlotte Street, I would have

to walk up, you know, geographically I would have to

walk up Gleason Street. From that point he asked

me, I believe he asked me why was I — what was I

doing in the area. I answered that question, which I

did.

From that point he got out of the car and he

asked me was | — actually while in the car he asked

me did I have anything I needed to tell him about. I

told him no.

From that point, that’s when he was running my

name and all that and I told him I don’t have no

warrants, no probation or nothing.

* * *

Q: Would you describe what your attitude was at

that time?

A: Well, from the point that I gave them my ID,

actually I was a little uneasy at the time they called

me by James which I[ know is not my name.

You know, from experience I understand that,

you know, tf somebody called you by another name,

there’s a chance they might think you’re somebody

else and I didn’t want to be in that position so I

offered my ID. I was uneasy at the time. |] wasn't

visibly shaking or stuttering.

47a

So I gave them my ID to clarify that. And then

from that moment when they jumped out of the car,

I felt like, okay, this is going in a whole different

direction from a normal FIO.

So I felt like they were overstepping their

boundaries at the time. At the time I felt like I

couldn’t walk away. They had my identification. So

if I was free to leave, I could never leave. I paid for

that driver’s license. I was trying to obtain it but I

couldn’t. It was in their possession.

* * *

Q: Did the car block your ability to go forward on

Gleason Street:

A: No, but once they had my ID in their possession, |

couldn’t leave. I did ask for it at one point.

Q: You asked them for your ID?

A: Yes, I did.

Q: And when was that?

A: That was after the fact. That was — once they got

out of the car, that’s when I said what about my ID.

And I said what's this all about.

I did ask for my ID because I felt that I didn’t

commit no crimes. They didn’ approach me with

caution meaning that if | was committing a crime,

I’m sure they would take precaution approaching

me. Sol felt like I didn’t do nothing wrong. They

48a

know I did nothing wrong, give me my ID and let me

go mind my business.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.