CA3: Direction to “show your hands” not a seizure

Officer’s mere direction to the defendant to “show your hands” did not constitute a seizure under the Fourth Amendment. Defendant then fled and abandoned a gun. United States v. Grant, 459 Fed. Appx. 154 (3d Cir. 2012) (unpublished):

The Fourth Amendment of the U.S. Constitution protects against unreasonable searches and seizures. U.S. Const. amend. IV. An encounter between a police officer and a citizen will only trigger Fourth Amendment protections when “it loses its consensual nature.” United States v. Smith, 575 F.3d 308, 312 (3d Cir. 2009). Thus a “seizure” for Fourth Amendment purposes occurs only when “the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen.” Id. (quoting Florida v. Bostick, 501 U.S. 429, 434 (1991)). “[T]he test for existence of a ‘show of authority’ is an objective one: not whether the citizen perceived that he was being ordered to restrict his movement, but whether the officer’s words and actions would have conveyed that to a reasonable person.” United States v. Brown, 448 F.3d 239, 245 (3d Cir. 2006) (quoting California v. Hodari D., 499 U.S. 621, 628 (1991)). To trigger a “seizure” a citizen must submit to an officer’s show of authority and do so beyond mere momentary compliance. See United States v. Valentine, 232 F.3d 350, 359 (3d Cir. 2000). See also Smith, 575 F.3d at 316 (“Two steps towards the hood of a car does not manifest submission to the police officers’ show of authority”).

As the officers did not use physical force until after the gun had been abandoned, Grant contends the officer’s instructions to “show your hands” constituted a show of authority to which Grant complied to by raising his hands. We disagree. As the District Court determined, Grant raised his hands at practically the same time as his flight. Thus, at most, he did nothing more than momentarily comply with the officer’s show of authority. This is not a “seizure” under our Fourth Amendment jurisprudence. See Valentine, 232 F.3d at 359. Because no Fourth Amendment seizure occurred, we do not need to consider whether the seizure was reasonable. Smith, 575 F.3d at 313 (“As such, any seizure inquiry has two steps: Was there in fact a seizure? If so, was that seizure reasonable?”).