Telling defendant to “hold on a sec” was a seizure. That’s how the defendant perceived it. Just because he didn’t run away didn’t mean he didn’t think he was seized. United States v. Hood, 2020 U.S. Dist. LEXIS 9514 (D.D.C. Jan. 21, 2020):
II. HOOD WAS SEIZED WHEN OFFICER JACOBS TOLD HIM TO “HOLD ON A SEC”
The narrow issue in dispute is when did the police seize Hood. Hood argues that “[t]he officers’ initial interaction with Mr. Hood was so overpowering” that he was seized at the time Officers Jacobs and Torres exited their vehicle and Officer Jacobs told him to “hold on a sec.” (See Def. Mot. at 4.) The government, on the other hand, argues that Hood was not seized until, at the earliest, Officer Jacobs told Hood to “stop backing away” and Hood stopped. (See Gov’t Supp. Br. at 1 [ECF 25].)
The Court acknowledges that this is an extremely close question. As noted above, a seizure occurs as a result of a “show of authority,” when “a reasonable person would not have believed he was free to leave.” United States v. Gibson, 366 F. Supp. 3d 14, 28 (D.D.C. 2018). Like Gibson, another decision from this Court, the officers engaging Hood were “in an unmarked vehicle late at night while wearing tactical vests.” Id. They quickly exited their vehicle, with guns and handcuffs showing and wearing identifiable MPD vests and badges. (See Jan. 10 Tr.) Furthermore, Officer Torres shone a flashlight at Hood upon exiting his car, the use of which was also deemed probative in Gibson. See Gibson, 366 F. Supp. 3d at 28 (finding a seizure when a police vehicle “pulled up next to [the defendant], … immediately shined a bright flashlight at him, and issued two, successive directives”). And Officer Jacobs is gesturing with his arms at Hood from the moment he exits the car, although he did not touch the defendant or restrict his movement. (See Video at 2:02.)
The characterization of the language used by Officer Jacobs is significant. It is well-settled that “a seizure does not occur simply because a police officer approaches an individual and asks a few questions.” Florida v. Bostick, 501 U.S. 429, 434, 111 S. Ct. 2382, 115 L. Ed. 2d 389 (1991). However, Officer Jacobs’ initial statement to Hood was not phrased as a question or a request, but as a statement. And there is little discernible difference between the phrase “hold on a sec” and “stop”—both command that the target stop moving. …
The government argues in the alternative that if “hold on a sec” constituted a “show of authority,” Hood cannot rely on that show of authority because he did not submit. (See Gov’t Supp. Br. at 3 (citing California v. Hodari D., 499 U.S. 621, 111 S. Ct. 1547, 113 L. Ed. 2d 690 (1991)).) The Court rejects this line of attack based on its review of Officer Jacobs’ body-worn camera footage. While Hood took several steps after being told to “hold on a sec,” he clearly stopped and turned to face the officers almost immediately after Jacobs’ first statement. Prior to being stopped, he was crossing from the north to the south side of Foote Street, and by the time he stopped walking he was still in front of the police car, which had stopped in the right lane of traffic. (See Video at 2:02-2:12.) Upon Officer Jacobs’ approach, Hood took another several steps back, but after Officer Jacobs’ command to “stop backing away,” he promptly stopped. (See id. at 2:10-2:14.)
These several steps are insufficient to constitute a refusal to submit to the officers’ show of authority. It is not equivalent, for example, to the headlong flight that is described as the paradigm of non-submissiveness in California v. Hodari D. See 499 U.S. at 626 (“[The word ‘seizure’] does not remotely apply, however, to the prospect of a policeman yelling ‘Stop, in the name of the law!’ at a fleeing form that continues to flee. That is no seizure.”). Considering the totality of the circumstances, the Court concludes that Hood’s actions are consistent with those of an individual who understood himself to be unable to leave. See Castle, 825 F.3d at 634 (concluding that defendant who walked further after being told to “hold on” by a police officer was nonetheless seized, as he was still “exhibit[ing] complete submission”); see also Brendlin v. California, 551 U.S. 249, 262, 127 S. Ct. 2400, 168 L. Ed. 2d 132 (2007) (“[W]hat may amount to submission depends on what a person was doing before the show of authority: a fleeing man is not seized until he is physically overpowered, but one sitting in a chair may submit to authority by not getting up to run away.”).
Ever watch “Live PD”? You hear that all the time. But the person knows they can’t leave. Usually the officer has their ID, which reinforces that..
by John Wesley Hall
Criminal Defense Lawyer and
Search and seizure law consultant
Little Rock, Arkansas
Contact: forhall @ aol.com / The Book www.johnwesleyhall.com
"If it was easy, everybody would be doing it. It isn't, and they don't." —Me
"Life is not a matter of holding good cards, but of playing a poor hand well." –Josh Billings (pseudonym of Henry Wheeler Shaw), Josh Billings on Ice, and Other Things (1868) (erroneously attributed to Robert Louis Stevenson, among others)
“I am still learning.” —Domenico Giuntalodi (but misattributed to Michelangelo Buonarroti (common phrase throughout 1500's)).
"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud
"It is a pleasant world we live in, sir, a very pleasant world. There are bad people in it, Mr. Richard, but if there were no bad people, there would be no good lawyers."
—Charles Dickens, “The Old Curiosity Shop ... With a Frontispiece. From a Painting by Geo. Cattermole, Etc.” 255 (1848)
"A system of law that not only makes certain conduct criminal, but also lays down rules for the conduct of the authorities, often becomes complex in its application to individual cases, and will from time to time produce imperfect results, especially if one's attention is confined to the particular case at bar. Some criminals do go free because of the necessity of keeping government and its servants in their place. That is one of the costs of having and enforcing a Bill of Rights. This country is built on the assumption that the cost is worth paying, and that in the long run we are all both freer and safer if the Constitution is strictly enforced."
—Williams
v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold,
J.), rev'd Nix v. Williams, 467 US. 431 (1984).
"The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws,
or worse, its disregard of the charter of its own existence." —Mapp
v. Ohio, 367 U.S. 643, 659 (1961).
"Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment."
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).
"There have been powerful hydraulic pressures throughout our history that
bear heavily on the Court to water down constitutional guarantees and give the
police the upper hand. That hydraulic pressure has probably never been greater
than it is today."
— Terry
v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
"The great end, for which men entered into society, was to secure their
property."
—Entick
v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)
"It is a fair summary of history to say that the safeguards of liberty have
frequently been forged in controversies involving not very nice people. And
so, while we are concerned here with a shabby defrauder, we must deal with his
case in the context of what are really the great themes expressed by the Fourth
Amendment."
—United
States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)
"The course of true law pertaining to searches and seizures, as enunciated
here, has not–to put it mildly–run smooth."
—Chapman
v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).
"A search is a search, even if it happens to disclose nothing but the
bottom of a turntable."
—Arizona
v. Hicks, 480 U.S. 321, 325 (1987)
"For the Fourth Amendment protects people, not places. What a person knowingly
exposes to the public, even in his own home or office, is not a subject of Fourth
Amendment protection. ... But what he seeks to preserve as private, even in
an area accessible to the public, may be constitutionally protected."
—Katz
v. United States, 389 U.S. 347, 351 (1967)
“Experience should teach us to be most on guard to
protect liberty when the Government’s purposes are beneficent. Men born
to freedom are naturally alert to repel invasion of their liberty by evil-minded
rulers. The greatest dangers to liberty lurk in insidious encroachment by men
of zeal, well-meaning but without understanding.”
—United
States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)
“Liberty—the freedom from unwarranted
intrusion by government—is as easily lost through insistent nibbles by
government officials who seek to do their jobs too well as by those whose purpose
it is to oppress; the piranha can be as deadly as the shark.”
—United
States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)
"You can't always get what you want /
But if you try sometimes / You just might find / You get what you need."
—Mick Jagger & Keith Richards
"In Germany, they first came for the communists,
and I didn't speak up because I wasn't a communist. Then they came for the Jews,
and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists,
and I didn't speak up because I wasn't a trade unionist. Then they came for
the Catholics and I didn't speak up because I wasn't a Catholic. Then they came
for me–and by that time there was nobody left to speak up."
—Martin Niemöller (1945) [he served seven years in a concentration
camp]
“You know, most men would get discouraged by
now. Fortunately for you, I am not most men!”
---Pepé Le Pew
"The point of the Fourth Amendment, which often is not grasped by zealous officers,
is not that it denies law enforcement the support of the usual inferences which
reasonable men draw from evidence. Its protection consists in requiring that
those inferences be drawn by a neutral and detached magistrate instead of being
judged by the officer engaged in the often competitive enterprise of ferreting
out crime."
—Johnson
v. United States, 333 U.S. 10, 13-14 (1948)