CA8: Officer holding DL for a few minutes wasn’t an unreasonable seizure

Where defendant turned over his DL when the officer requested it and it wasn’t returned right away while records were checked, it was [apparently] on defendant to ask for it back. This wasn’t a seizure. United States v. Lillich, 2021 U.S. App. LEXIS 22466 (8th Cir. July 29, 2021):

The other circumstances support the conclusion that the initial encounter was consensual. The officers did not activate their patrol car’s lights or siren, physically touch Lillich, brandish their weapons, or threaten arrest. See Oglesby, 929 F.3d at 533. The officers’ weapons were holstered and visible, and Lillich does not argue that the presence of weapons impacts the analysis. Even if he had, this fact does not compel a finding that the encounter was a seizure. See Drayton, 536 U.S. at 205 (explaining that, because it is well known to the public that most officers are armed, “[t]he presence of a holstered firearm … is unlikely to contribute to the coerciveness of the encounter absent active brandishing of the weapon”). The presence of three officers weighs in favor of finding a seizure, see United States v. Villa-Gonzalez, 623 F.3d 526, 533 (8th Cir. 2010), but it does not outweigh the other facts indicating that no seizure occurred, see United States v. White, 81 F.3d 775, 779 (8th Cir. 1996) (explaining that encounter was consensual despite presence of three officers because two of the officers, similar to this case, “were little more than passive observers prior to commencement of the search”). The record does not demonstrate that the officers restrained Lillich’s liberty “by means of physical force or show of authority.” See Bostick, 501 U.S. at 434 (quoting Terry, 392 U.S. at 19 n.16). Based on the totality of the circumstances, we conclude that the officers’ conduct would not have “communicated to a reasonable person that the person was not free to decline the officers’ requests or otherwise terminate the encounter.” See id. at 439. Accordingly, we find that the initial encounter between Lillich and the officers was consensual, and thus Lillich’s Fourth Amendment rights were not violated.