D.C. Cir. holds that impoundment of vehicle in accord with unwritten addition to “standard policy” but contrary to the written policy was unreasonable. United States v. Proctor, 376 U.S. App. D.C. 512, 489 F.3d 1348 (2007):
We believe that if a standard impoundment procedure exists, a police officer’s failure to adhere thereto is unreasonable and violates the Fourth Amendment. Cf. United States v. Maple, 358 U.S. App. D.C. 260, 348 F.3d 260, 263-64 (D.C. Cir. 2003) (search of vehicle relocated by police after traffic arrest unreasonable because contrary to [policy] GO 602.1). GO 602.1 provides that a vehicle “classified as prisoner’s property shall be disposed of in any lawful manner in which the person arrested directs.” GO 602.1, AA at 42 (emphasis added). Thus, before impounding the vehicle, an officer should provide the arrestee with the opportunity to arrange for its removal. See Hill v. United States, 512 A.2d 269, 274 n.10 (D.C. 1986) (“As ‘prisoner’s property’ [under GO 602.1] … a vehicle cannot be impounded without first giving the prisoner an opportunity to make other lawful arrangements for its disposition.”); Arrington v. United States, 382 A.2d 14, 18 (D.C. 1978) (“[P]olice are authorized to impound a motor vehicle as prisoner property [under GO 602.1] only where the prisoner consents thereto or is incapable of making other arrangements for its disposition.”). Proctor, however, was afforded no such opportunity. On the contrary, Shegan testified that the officers were required to impound Proctor’s vehicle because no one was present to remove it, see Tr. 11/23/04 at 24, Proctor was not the owner and they “weren’t going to wait” for the owner to remove it, id. at 38; see also id. (“I don’t believe I had a choice.”). Accordingly, the officers’ impoundment (seizure) decision violated GO 602.1.
The officers’ impoundment decision led to an inventory search that also violated GO 602.1. As noted earlier, Shegan testified that due to a lack of impoundment space at MPD facilities, MPD’s “new procedure” necessitated that a ROC crane tow Proctor’s vehicle to a private impoundment lot rather than to an MPD facility. Id. at 24-25, 52-53. According to Shegan, the officers were thus required to search “[t]he entire vehicle” before it was towed, id. at 26, “[t]o reduce liability on the police department and to preserve any property that the owner of the vehicle or the occupants of the vehicle may have,” id. at 25. GO 602.1, however, expressly prohibits an inventory search of a vehicle not taken to an MPD impoundment lot. GO 602.1, AA at 43 (“If a vehicle classified as prisoner’s property is disposed of so that it is not taken to a police facility, it shall not be inventoried in any way.”).
Consensual stop escalated into a detention without reasonable suspicion, and defendant was just going along. United States v. Washington, 490 F.3d 765 (9th Cir. 2007):
Recent relations between police and the African-American community in Portland are also pertinent to our analysis: According to testimony at the suppression hearing, in the one and a half years before Shaw initiated contact with Washington, there were two well-publicized incidents where white Portland police officers, during traffic stops, shot, and in one instance killed, African-American Portland citizens. As a result of these incidents, the Portland Police Bureau published and distributed several pamphlets advising the public how to respond to a police stop. Washington testified that he knew of and discussed with a friend one of the pamphlets, n3 which contained advice to citizens such as “follow the officer’s directions” when stopped, and “if ordered, comply with the procedures for a search.” Additionally, in a message from the Chief of Portland’s Police Department, the pamphlet listed common reasons police will stop a person, such as a person “committed a crime,” or “is about to commit a crime.”
. . .
Washington’s voluntary consent to the search of his person, however, does not preclude the possibility that officer Shaw improperly seized Washington as events unfolded. See Mendoza-Cepeda, 250 F.3d at 628 (recognizing that a consensual encounter may become a seizure); United States v. Ayarza, 874 F.2d 647, 650 (9th Cir. 1989) (stating that a consensual encounter “may evolve into a situation where the individual’s ability to leave dissipates”). If Shaw and Pahlke’s actions exceeded the scope of Washington’s consent to the search of his person, such that a reasonable person in Washington’s situation would not have felt free to depart if he so chose, then Shaw and Pahlke seized Washington. See Terry v. Ohio, 392 U.S. 1, 18, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968) (recognizing that “a search which is reasonable at its inception may violate the Fourth Amendment by virtue of its intolerable intensity and scope”); United States v. $25,000 U.S. Currency, 853 F.2d 1501, 1506 (9th Cir. 1988) (reasoning that even if the suspect voluntarily consented to a search of his bag, the law enforcement officers could have “seized [him] for purposes of the fourth amendment at a later point”).
We have identified several non-exhaustive situations where an officer’s actions escalate a consensual encounter into a seizure: “when a law enforcement officer, through coercion, physical force, or a show of authority, in some way restricts the liberty of a person,” Washington, 387 F.3d at 1068 (internal quotation marks omitted), or “if there is a threatening presence of several officers, a 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.” Mendoza-Cepeda, 250 F.3d at 628 (internal quotation marks omitted) (alteration omitted). In Orhorhaghe, we identified several factors to consider in determining if a person was seized, any one of which, if present, could constitute a seizure: (1) the number of officers; (2) whether weapons were displayed; (3) whether the encounter occurred in a public or non-public setting; (4) whether the officer’s tone or manner was authoritative, so as to imply that compliance would be compelled; and (5) whether the officers informed the person of his right to terminate the encounter. Orhorhaghe, 38 F.3d at 494-96.
Applying these factors, we conclude that under the total circumstances present in Washington’s case, Shaw and Pahlke’s encounter with Washington escalated into a seizure.
Hudson forecloses inquiry into a knock-and-announce violation. The defendant argued, and the district court found, that the brevity of time between the knock and entry was so short as to constitute a no-knock warrant. United States v. Ankeny, 490 F.3d 744 (9th Cir. 2007):
Turning first to the alleged knock-and-announce violation, see Wilson v. Arkansas, 514 U.S. 927, 930, 115 S. Ct. 1914, 131 L. Ed. 2d 976 (1995) (“[The] common-law knock and announce principle forms a part of the reasonableness inquiry under the Fourth Amendment.”), we hold that suppression is foreclosed by the Supreme Court’s decision in Hudson v. Michigan, 126 S. Ct. 2159, 165 L. Ed. 2d 56 (2006).
The federal DNA collection statute does not violate the Fourth Amendment. Banks v. United States, 490 F.3d 1178 (10th Cir. 2007).*
