VA: Direction to assume the “position” is a seizure

Officers came onto defendant’s porch. After defendant gave his name, the officer told him to assume the “position,” and this was a seizure without reasonable suspicion. Roberts v. Commonwealth, 55 Va. App. 146, 684 S.E.2d 824 (2009).*

“In this case, we decide that the exigent circumstance of officer safety justified Officer Charles Kruse’s actions in opening wider Joshua P. Lindsey’s car door and visually inspecting the car’s interior. Officer Kruse saw Lindsey run into a store, brandish a weapon, and leave the store heading in the direction of the car, which had its driver’s side door ajar. Given these facts, it was reasonable for Officer Kruse to believe that the car may have been Lindsey’s getaway car and that an accomplice, possibly also armed, may have been inside. Because the contents of the car were concealed by its tinted windows and the door was ajar, it was not unconstitutional for the officer to open the door wider and look inside.” Lindsey v. State, 916 N.E.2d 230 (Ind. App. 2009).*

Use of emergency lights when parking behind an already stopped car is not per se a stop. It is primarily for safety purposes. R.H. v. State, 916 N.E.2d 260 (Ind. App. 2009)*:

While Officer Holmes may have activated his emergency lights in order to identify himself to other motorists, we are not persuaded that it constituted an order to stop.

Given the objective and articulable facts of this case, we do not find that Officer Holmes’ approach and initial contact with R.H. amounted to a seizure under the Fourth Amendment where he was responding to a report from concerned citizen regarding a strange vehicle parked in front of the citizen’s residence; it was late at night; the vehicle already was stopped; and Officer Holmes displayed no force. See Huey, 503 N.E.2d at 625 (finding no “seizure which required specific, articulable facts indicating a crime had been committed or was about to be committed” where the defendant was in his own car, the officer did not stop the defendant and the officer’s initial question did not accuse the defendant of a crime); see also Overstreet v. State, 724 N.E.2d 661, 664 (Ind. Ct. App. 2000) (discussing examples of circumstances under which a reasonable person would have believed he was not free to leave, including “the threatening presence of several officers, the 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”), trans. denied.