Officer’s commands communicated that the defendant was not free to leave

Defendant was seized because he was not free to leave after the officer handed back the paperwork but told him that he was going to ask questions. The officer’s commands communicated that the defendant was not free to leave. (But, there was reasonable suspicion, and the defendant finally validly consented.) State v. Case, 2007 MT 161, 338 Mont. 87, 162 P.3d 849 (2007):

[*P29] Before receiving the traffic ticket, a reasonable person in Case’s shoes would have assumed that the officers were investigating more than just a traffic violation. Case was initially ordered to get back in the car. After he had handed over his license, paperwork, address and phone number, Case was questioned as to whether he knew anything about Ronald Case and was asked to provide his social security number. Case was then ordered to step out of the car and asked if he had any weapons on him.

[*P30] Next, and most importantly for the “free to leave” analysis, when Reid returned Case’s paperwork he said, without pausing, “I do have a question for you before you take off here.” When a police officer states that he has a question before you take off, that means, to the reasonable person, you have to stay and answer the question before you are free to leave, especially when the officer’s patrol car is parked directly behind your car. Further, the series of questions leading up to Case’s consent, the position of the two officers and Officer Tucker’s investigation of Case’s arm were objective signs that the investigation was ongoing and concerned more than mere traffic offenses.

[*P31] Finally, just prior to asking Case if there was anything in his vehicle, Reid gave him a command, “go ahead and put your coat back on,” indicating that Case remained under police control. As such, Case was effectively ordered to stay and was then prevented from leaving until he answered the officer’s questions. In view of all the circumstances surrounding the incident, a reasonable person in Case’s situation would not have felt free to leave.

[*P32] Consequently, we conclude that Case was not involved in a voluntary exchange but was in fact “seized” when he gave Reid consent to search his car. We now turn to whether the officers’ detention of Case was lawful; that is, was there particularized suspicion to continue the investigation.

IRS met its “slight” burden for showing that the summons for the respondent’s tax records should be enforced. United States v. Laguardin, 2007 U.S. Dist. LEXIS 49099 (N.D. Cal. June 29, 2007):

The Supreme Court held in United States v. Powell that to obtain enforcement of a summons, the IRS must first establish its “good faith” by showing that the summons: (1) is issued for a legitimate purpose; (2) seeks information relevant to that purpose; (3) seeks information not already within the IRS’ possession; and (4) satisfies all administrative steps required by the United States Code. 379 U.S. 48, 57-58 (1964). The government’s burden is “a slight one” and typically is satisfied by the introduction of the sworn declaration of the revenue agent who issued the summons establishing that the Powell requirements have been met. United States v. Dynavac, Inc., 6 F.3d 1407, 1414 (9th Cir. 1993). Once a prima facie case is made, a “heavy” burden is placed on the taxpayer to show an abuse of process or lack of good faith. Id.