CA3: Orders to a police officer by his superiors conceivably could amount to a seizure, but not here

Orders to a police officer by his superiors conceivably could amount to a Fourth Amendment seizure, but not here. Gwynn v. City of Phila., 719 F.3d 295 (3d Cir. 2013):

Appellants’ constitutional arguments are founded upon the Fourth Amendment’s prohibition against unreasonable searches and seizures, as applied to the States through the Fourteenth Amendment. Specifically, Gwynn and Ryan claim they were unreasonably seized when they were ordered to wait in Captain Singleton’s office until the Internal Affairs officers arrived, and that they were unreasonably searched when their superiors asked them to turn out their pockets, take off outer layers of clothing, and reveal the contents of their socks and wallets. Although it is not entirely clear from their brief, Appellants seem also to contend that Appellees conducted an unreasonable search of their lockers. Viewing the record in the light most favorable to Appellants, the District Court did not err when it granted summary judgment because Appellants failed to establish either that they were seized or that they were subjected to an unreasonable search.

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The facts in Driebel, Pennington, and Aguilera stand in contrast to those presented to the Court of Appeals for the Second Circuit in Cerrone v. Brown. There, the officer was stopped by the investigative team, who “asked whether he was carrying a weapon, allegedly placed him in the felony position, placed him in the back of an unmarked police car (where he was guarded), transported him to a hotel room, read him his Miranda rights, and informed him that he was the target of a criminal investigation.” Cerrone, 246 F.3d at 198 (internal quotation marks and alteration omitted). The police officers conceded that their actions amounted to a seizure, so the court did not reach the issue. Nevertheless, these are the kinds of circumstances that would make an officer feel he was not free to leave—not by virtue of being an employee of the police department, but as a citizen who was being detained. See Driebel, 298 F.3d at 649 (explaining that a jury could find that a seizure occurred when an officer grabbed another officer, turned him around, and directed him toward the squad car).

We recognize that whether a police officer would reasonably have perceived his superior officer to be issuing orders as his supervisor or as a law enforcement agent during the course of an investigation will not always be clear. Here, however, the evidence demonstrated that, to the extent Appellants felt compelled to obey their superior officers’ commands, that compulsion was borne out of their employment relationship. There was no suggestion that Appellants were under criminal investigation; they were asked to wait in Captain Singleton’s office so they could speak with Internal Affairs agents. Additionally, the circumstances surrounding the investigation were not particularly coercive. Although Appellants were not able to use the phone while waiting for Captain Singleton to return, they were offered drinks, they were asked if they wanted to watch television, and they retained all of their police-issued equipment. Moreover, Appellants admitted in their affidavits and deposition testimony that they followed the orders of their superior officers because they were concerned that they would suffer work-related consequences if they did not do so. For these reasons, we hold there was no Fourth Amendment seizure of Gwynn and Ryan.