CA7: Cop detained by supervisor at scene after theft allegation was not seized for 4A purposes

Plaintiff Carter is a police officer for the City of Milwaukee. After a search of a house, the owner of the house claimed money was missing. His superior wouldn’t let him leave without being searched. The search was employment related, not criminally related, and it was reasonable under the Fourth Amendment because compulsion was a result of the employment relationship, not a criminal investigation. Montell v. City of Milwaukee, 2014 U.S. App. LEXIS 3048 (7th Cir. February 19, 2014):

The Third Circuit’s decision in Gwynn contains circumstances similar to this case. There, a man whom two police officers had frisked accused them of stealing money from him. Gwynn, 719 F.3d at 297. When the officers returned to headquarters, their superior officer ordered them into an office, where they were told a complaint had been made about them to the Internal Affairs Bureau. They were then ordered to report to the captain’s office and to stay there until officers from Internal Affairs arrived, and they were not allowed to use their cell phones. The officers were questioned about the missing money, asked to remove their jackets, told to pull down their socks, directed to open their wallets, and told that cooperation would be in their “best interest.” They did as they were told the whole time because the orders came from their superiors, and also because they feared discipline and possible loss of employment. Id. at 298. When the officers were allowed to leave and returned to their lockers, it appeared that their lockers had been searched. Id.

The Third Circuit concluded that the officers had not been seized. Id. at 302. It reasoned that to the extent the officers felt compelled to obey their superiors’ commands, that compulsion was the result of their employment relationship, not the fear of arrest or detention. Id. The court found no suggestion that the officers were under a criminal investigation, and it pointed out that the officers were asked to wait to speak to Internal Affairs representatives. Under the circumstances, the court found the officers did not reasonably fear detention and were not seized. Id.

Similarly here, no seizure occurred. Although Carter contends he was under criminal investigation, the record does not support him. Carter asserts that Eccher admitted in his deposition that Carter was under criminal investigation. But a full read of the deposition transcript reflects otherwise. When asked whether Carter was under internal or administrative investigation, Eccher initially stated that it was a criminal investigation as far as he was concerned. But Eccher then qualified his statement, stating, “Well, there [were] criminal allegations being made.” When he was next explicitly asked to say that “yes,” Carter was under criminal investigation, Eccher replied that he could not answer “yes” or “no.” He later explained, “Again, I guess I’m walking a fine line here. I don’t think this was an investigation as much as it was — as — I was trying to remove them from suspicion.” Eccher did not, therefore, testify in his deposition that Carter was under criminal investigation. Nor is there any other suggestion in the record to support that position. Eccher did not read Carter his rights or inform him he was under criminal investigation. Eccher did not perform other activities consistent with a criminal investigation such as interviewing witnesses. Instead, at the time, Eccher was in a holding pattern, waiting for PPD to arrive.

While Carter is not maintaining that he feared only job consequences, the bottom line is that a reasonable person in Carter’s position would not have feared arrest or detention if he had declined to be patted down or searched. Cf. Feirson v. District of Columbia, 506 F.3d 1063, 1067, 378 U.S. App. D.C. 310 (D.C. Cir. 2007) (“The relevant inquiry is whether a reasonable person would have believed he would be detained if he disobeyed his supervisor ‘s order—not whether he feared negative consequences for his job.”). As we discussed, Eccher did not tell Carter he was the subject of a criminal investigation, nor is there any indication that he was. He did not read Carter his rights. He did not threaten arrest if Carter refused to be searched. He did not touch Carter to stop him from leaving. (He only came into contact with Carter during the pat-down.) There is also no evidence to support a finding that had Carter asked him to stop, the lieutenant would not have done so. In fact, when Officer Lopez told Lieutenant Eccher he would not take his boots off, the lieutenant did not make him do so.