{"id":5219,"date":"2011-12-28T07:24:34","date_gmt":"2011-02-22T10:05:37","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2011-02-22T10:05:37","slug":"en-US","status":"publish","type":"post","link":"https:\/\/fourthamendment.com\/?p=5219","title":{"rendered":"CA4: Entry into bathroom was based on exigent circumstances"},"content":{"rendered":"

Officers were in plaintiff\u2019s house because of a domestic disturbance call. Entry into plaintiff\u2019s bathroom to seize him and potentially disarm him was justified by exigent circumstances. Trull v. Smolka<\/a>, 411 Fed. Appx. 651 (4th Cir. 2011) (unpublished)*:<\/p>\n

The officers were at the residence responding to a domestic situation, Trull refused to exit the bathroom to talk with them, and they were under the impression that there may have been a gun somewhere in the residence. The officers were justified in concluding that a person involved in a marital spat, who was refusing to speak with officers, could be a threat to them while they were in the home discussing the dispute with his wife. Under these circumstances, the officers were also correct in concluding Trull could be a threat to himself. Therefore, the entry into the bathroom was justified by the exigent circumstances.<\/p><\/blockquote>\n

An officer\u2019s statement to the defendant \u201cdon\u2019t do it\u201d when the defendant made a fist and took a fighting stance did not convert a stop into an arrest. Besides, he fled after that. United States v. Russ, 772 F. Supp. 2d 880 (N.D. Ohio 2011)*:<\/p>\n

It is undisputed that, after their initial communications, DUSM Boldin told Russ \u201cdon\u2019t do it.\u201d Despite Russ\u2019s contentions to the contrary, the Court finds that, under the circumstances, this statement did not qualify as language \u201cindicating that compliance with the officer\u2019s request might be compelled.\u201d See Mendenhall, 446 U.S. at 554. At that point in the encounter, DUSM Boldin had observed that Russ appeared startled, was acting nervous, had clenched his fist, and \u201cbasically took a fighting stance.\u201d (Doc. 29 at 42:1-5.) Boldin testified that, based on the circumstances, he believed that Russ might assault him, so he told Russ \u201cdon\u2019t do it.\u201d The Court finds that this statement, standing alone, did not transform the encounter into a seizure. A reasonable person could interpret Boldin\u2019s comment to mean \u201cdon\u2019t take a swing at me.\u201d Unlike a command or order, the phrase \u201cdon\u2019t do it\u201d is not the type of language that would have elevated the encounter into a seizure. Even if the statement \u201cdon\u2019t do it\u201d could somehow be characterized as a show of authority, Russ was not seized because he fled and thus did not submit to that authority. See Brendlin v. California, 551 U.S. 249, 262 (2007) (\u201c[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.\u201d).<\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"

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