DC: Def was stopped, name run, then his cigarette pack requested; not consensual

Officer’s stop of defendant, running his name for warrants, and then requesting his cigarette box was coercive and not consensual. Jones v. United States, 2017 D.C. App. LEXIS 17 (Feb. 23, 2017)*:

Even so, an encounter in which a visibly armed police officer in full uniform and tactical vest emerges without warning from a police cruiser to interrupt a person going about his private business is not an encounter between equals. “[O]ur precedents direct [us to] take an ‘earthy’ and realistic approach to such street encounters.” The officer, however well-intentioned and polite, initiates the meeting with an undeniable air of authority that ordinary persons do not presume to possess when interrupting strangers on the street. Where, as here, the questioning is at least implicitly accusatory (if not explicitly so), a reasonable person’s natural reaction is not only to show respect for the officer’s authority, but also to feel vulnerable and apprehensive. The circumstances are more intimidating if the person is by himself, if more than one officer is present, or if the encounter occurs in a location that is secluded or out of public sight. This court accordingly has recognized that a police officer’s “questioning d[oes] not have to assume an intensity marking a shift from polite conversation to harsh words to create an intimidating atmosphere.” In such an atmosphere, a reasonable person who can tell from the inquiries that the officer suspects him of something, and who cannot know whether the officer thinks there is sufficient reason to detain him, may well doubt that the officer would allow him to avoid or terminate the encounter and just walk away.

We do not say that these considerations, without more, rendered the encounter in this case a Fourth Amendment seizure of appellant’s person. But they provide important context for two additional circumstances present in appellant’s interaction with Officer Blier that we think materially increased its coerciveness.

. . .

Like the trial judge, we view it as a close legal question whether appellant was seized within the meaning of the Fourth Amendment. Nevertheless, despite the brevity, cordiality, and absence of physical restraint in appellant’s encounter with Officer Blier, the other circumstances we have discussed persuade us that a reasonable person in appellant’s shoes would not have felt at liberty to terminate the encounter unilaterally by the time the officer asked for the cigarette box. We hold that appellant was seized within the meaning of the Fourth Amendment.

The government concedes that the police lacked the reasonable articulable suspicion of criminal activity on appellant’s part necessary to make his seizure lawful. …

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