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..