CA3: Defendant who failed to respond to officers’ show of authority is not seized

Defendant who fails to respond to a “show of authority” by the drawing of guns is not “seized.” United States v. Waterman, 2009 U.S. App. LEXIS 10179 (3d Cir. May 12, 2009) (unpublished):

Here, there was no application of physical force. The police drew their guns in a “show of authority.” While this act definitely constituted a display of force, we conclude that it fell short of the force or physical contact required under Hodari D.fn5

5. Couden, 446 F.3d at 493-94 (no “seizure” when defendant flees after police draw their weapons); Valentine, 232 F.3d at 358-59 (citing Johnson, 212 F.3d at 1315 for the proposition that no “seizure” occurs when police, drawing their weapons, order a defendant to raise his hands, but he refuses); Fontenot v. Cormier, 56 F.3d 669, 674 (5th Cir. 1995) (no “seizure” when police, rushing the defendant’s car with their guns drawn, order him out of the vehicle, but he flees); Edwards v. Giles, 51 F.3d 155, 156 (8th Cir. 1995) (no “seizure” when police point gun at defendant, but he refuses to submit to officer’s authority).

Similarly, there was no “submission” by Waterman. While the others on the porch raised their hands in compliance with the officers’ directive, Waterman failed to do so. Instead, he moved his hands toward his waistband, and ultimately retreated into the house.

Defendant consented to a search of a computer in his house, which officers then discovered had been stolen from NASA. The defendant had no expectation of privacy in a stolen computer. United States v. Smith, 2009 U.S. Dist. LEXIS 39665 (W.D. Wash. April 27, 2009).*

Officers obtained third party consent but waited for a search warrant to search defendant’s bedroom. [So what is the real suppression issue?] United States v. Rodgers, 2009 U.S. Dist. LEXIS 39680 (W.D. Mich. April 15, 2009).*

A receivership order was all that was required to seize assets and papers of defendants’ ponzi scheme, and it was not subject to the particularity requirement. “[T]he receiver was authorized to seize all the named categories of assets and records of the identified defendants. Because the receiver was taking possession of everything in those categories that had been the property of the defendants for whom the receivership was authorized, further particularity would have served no purpose. After the seizure, the receiver had possession of the property only because he had been authorized by court order.” United States v. Setser, 568 F.3d 482 (5th Cir. 2009).