The officer in this case approached a car with two sleeping occupants and ordered them out of the car for a frisk and search. This was without reasonable suspicion or consent. The USMJ\u2019s R&R is rejected. United States v. Mayfield, 2011 U.S. Dist. LEXIS 10078 (D. Neb. February 1, 2011)*:<\/p>\n
However, the court is very troubled by the next step taken by the officers. In this case the officers asked the driver and passenger to get out of the car so they could pat down the occupants and search the car. There is nothing consensual about that request, particularly given the fact that the car was surrounded and blocked off by other police vehicles and a number of police officers. See Florida v. Bostick, 501 U.S. 429, 434 (1983) (if reasonable person feels as though he need not answer question put to him and may go his own way then no Fourth Amendment violation; Fourth Amendment invoked when it loses its consensual nature); see also United States v. $231,930.00 in U.S. Currency, 614 F.3d 837, 843 (8th Cir. 2010) (same). The defendant clearly was not free to leave. See United States v. Mendenhall, 446 U.S. 544, 553 (1980) (person is seized by show of authority and when freedom of movement is restrained). The officers agreed that they positioned themselves to limit the movement of the defendant. That combined with the number of officers and the directives of the officers is sufficient to constitute a seizure in this case. See United States v. Villa-Gonzalez, 623 F.3d 526, 532 (8th Cir. 2010) (number of officers, limiting movement of suspect, use of language indicating necessity of compliance, and physical touching all factors that might indicate the encounter is not consensual).<\/p>\n
There was no gun in plain view when the officers first observed the sleeping suspects or when they initiated conversation with the occupants. It was not until after the police required that the occupants exit the vehicle that the officers saw the gun. The gun was only visible because of the open door which allowed the officers to peer in and see the bottom of the seat. There is no testimony of any kind that these occupants otherwise acted suspiciously. There is no testimony that these occupants attempted to put their hands or body in a position that would have created a fear of harm on the part of the officers. There is no evidence the occupants tried to escape. On the contrary, the two occupants appear to have been quite compliant with the directives given to them.<\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"
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