by Don Samuel

Judge Rosenbaum authored a particularly thoughtful concurrence in the Knights decision on March 11.  The question posed to the panel was whether the police had detained the defendant when they pulled their vehicles adjacent to the defendant’s vehicle on the side of the road.  All three judges on the panel agreed that this did not amount to a seizure and therefore, the police did not need an articulable suspicion to start the encounter in this way.  
 
Judge Rosenbaum’s concurring opinion explains the dilemma facing the suspect.  Assuming there is no basis for a detention (i.e., there is no reasonable suspicion justifying a restraint on the person’s liberty), then the police may initiate a consensual encounter.  But correspondingly, the citizen is free to terminate the encounter and walk or run away.  But how does the citizen know whether the police are engaging in a consensual encounter or are detaining the citizen, albeit in a polite way?  One can be detained and “not free to leave” even if the police have not pointed a gun at the person, or handcuffed him.  The Supreme Court insists that determining whether a citizen has been detained is measured by a purely objective standard:  “Does the citizen reasonably believe that he is not free to leave.” United States v. Drayton, 536 U.S. 194, 200 (2002); Michigan v. Chesternut, 486 U.S. 567 (1988); Florida v. Royer, 460 U.S. 491 (1983).  There are numerous factors that the court may consider in deciding whether the suspect was detained, including the number of officers involved in the encounter, the use of weapons, any physical restraint, words spoken by the police that explain that the suspect is not free to leave, the age of the suspect. 
 
The suspect, however, while possibly aware of all the existing objective facts, may or may not reach the same conclusion as the police (or the court) in determining whether a “reasonable person” would feel free to leave.  
 
Consider the four possible scenarios that might exist:
  

1. If the citizen believes it is a consensual encounter and he is right, he can go about his business and leave the police in the dust. 
2. But if the citizen is wrong and the police were detaining the citizen, then “going about his business” would amount to obstruction of justice and could lead to a violent encounter when the police try to recapture the fleeing suspect. 
3. If the encounter is (objectively speaking) consensual, but the defendant believes he is being detained, he will be “restrained” in his own mind without any basis. 
4. If the police were detaining the defendant and the defendant stays put, the investigation proceeds apace.  

 
In her concurring opinion, Judge Rosenbaum suggests that the police should be required to announce to the suspect whether he or she is free to leave or not.  That warning should be mandatory.  Adopting this rule will remove any uncertainty in the mind of the suspect.  If he is told he is being detained, he better not risk fleeing (though if the court later decides that there was no basis for the detention, he might be able to avoid any legal consequences of fleeing).  If he is told he is free to leave, there is no risk in leaving. 

by Don Samuel

When the police chase a suspect, this, alone, does not amount to a seizure. In California v. Hodari D., 499 U.S. 621, 111 S. Ct. 1547 (1991), the Supreme Court held that a mere show of authority does not amount to a seizure. The police were patrolling a high-crime area. Several youths fled immediately upon seeing the officers. The officers pursued the youths and after observing one youth throw down a plastic bag, an officer tackled him. The Supreme Court held that the initial pursuit of the youths did not amount to a seizure. The mere show of authority, the Court held, is not tantamount to a seizure absent some actual physical force being applied and absent compliance with an order to stop.  
 
This issue returned to the Supreme Court in Torres v. Madrid, --- S. Ct. --- (2021), decided on March 25, 2021. Torres is a civil § 1983 case in which the plaintiff was parked in her car in a parking lot.  Police officers approached the car but did not identify themselves.  The plaintiff sped off, fearful that she was being carjacked.  The police shot at the car, wounding the plaintiff twice. She continued to drive to a hospital.  She sued the police for the improper Fourth Amendment seizure.  But was she seized?  Is the Fourth Amendment implicated when the police do not put their hands on the subject and do not actually detain the subject?  Unlike Hodari D., the police did more than simply command her to stop; they shot her. But like Hodari D., she did not stop, she fled. The Fourth Amendment requires that all searches and seizures must be reasonable. The oral argument revealed the Justice’s concern with the semantics of concluding that shooting somebody is what the Fourth Amendment authors had in mind when they used the term “seize.” Justice Alito questioned whether even contemporary language supports the notion that hitting somebody amounts to a seizure: If a baseball pitcher intentionally “beans” a batter, would that be described as a “seizure?” (Oral argument, page 11). Justice Thomas asked, what if the police throw a snowball at a fleeing subject?  (Oral argument, page 8).  Is that a seizure? 
 
In a civil § 1983 case, this is important, because if shooting somebody who continues to flee is not a seizure, then the fleeing person cannot sue the police for violating the Fourth Amendment’s guarantee against unreasonable seizures (the victim could still sue for civil assault, or battery, but not a federal constitutional violation).  In criminal cases, the issue is somewhat less consequential, because if the person flees, what is the consequence in a criminal case?  What is the fruit of the poisonous tree, assuming the shooting was an unlawful seizure?  If the suspect continues to flee and escapes, there is no evidence to suppress.  If the defendant continues to flee and an hour later, as the police are closing in, the suspect throws a bag of drugs on the ground, is that the “fruit” of the unlawful shooting?  If the suspect is captured twenty minutes after being shot and wounded and when apprehended the suspect confesses to a crime, is that confession the fruit of the unreasonable seizure (shooting)?
 
Putting aside, for now, the consequence of the Torres holding, the Court held that the shooting in Torreswas, indeed, a Fourth Amendment seizure.  Here are the quick take-aways.
 

1. The majority opinion, written by Chief Justice Roberts summed it up this way:   “An arrest requires eitherphysical force or where that is absent, submission to the assertion of authority.”
2. The “force” must be accompanied by an intention (objectively considered) to restrain.  Thus, a “tap on the shoulder” is not the type of “force” that constitutes a seizure.
3. The Court did not decide whether the holding applies to the use of pepper spray, flash-bang grenades and lasers.
4. The suspect’s subjective beliefs are not relevant.  In other words, the suspect’s belief that he or she has been detained is not what counts: what matters is whether the circumstances would reasonably be construed (objectively) as restraint.
5. The “seizure” which occurs by being shot – assuming the suspect continues to flee – is not continuing.  (Thus the problem of determining in a criminal case, “What is the fruit of the poisonous tree?”)

Justice Alito, Justice Thomas and Justice Gorsuch dissented.  If the suspect does not submit, the suspect has not been seized.  Period.

by Don Samuel

Can the police go into a house without a warrant, not to investigate a crime, but to determine if somebody is in need of assistance?  Assume there is not probable cause to believe that someone is in need of emergency/immediate assistance (as in the exigent circumstances cases, such as Brigham City, Utah v. Stuart, 547 U.S. 398, 126 S. Ct. 1943 (2006)).
 
The issue arises in the context of what is known as the “community caretaking function” exception to the search warrant requirement, which was first recognized in Cady v. Dombrowski, 413 U.S. 433 (1973), a case in which the Court described certain functions of the police that have nothing to do with the detection or investigation of crimes. In Cady, the defendant, a police officer, was in a serious car accident and his car was towed to a garage. The police later went to the garage to secure the officer’s weapon that they believed was left in the vehicle. While looking through the vehicle, evidence of a murder was discovered. The Supreme Court held that the “caretaking” search was not unreasonable and did not require the police to secure a search warrant.
 
In Coniglia v. Strom, the Supreme Court is asked to decide whether the community caretaking exception applies to a home.  Coniglia was possibly suicidal.  The police went to his house and after talking with him on the front porch, had him transferred to a mental health facility.  They later entered his house to retrieve guns that they feared he might use to harm himself when he was released.  He sued for the warrantless entry into his house and seizure of his guns.
 
Four questions addressing the scope of the Fourth Amendment requirements in this situation confronted the litigants:
 

1. Do the police need probable cause to enter the house?  Assuming no criminal investigative purpose, do the police need probable that somebody is injured or in need of help or psychiatric intervention?  Is reasonable belief enough?  
2. How imminent need the threat of injury be?  If it is truly imminent, the exigent circumstances exception applies.  If it is too remote, why not get a search warrant?
3. What if it is a social worker and not a police officer who is making the entry?  Or an EMT? What if the state agent has no arrest power?  Does a social worker need probable cause?
4. What if the jurisdiction enacts a policy (like the inventory search policy) that has no criminal investigative purpose, but which empowers police to enter a house if there is an objectively reasonable basis to fear a suicide may occur?  Or if there is a reasonable basis to believe that an elderly person is in need of assistance?

 
The oral argument (characteristically) also tested the resolve of the lawyers to justify when, exactly, it was ok to enter a house in these circumstances:
 

1.  Chief Justice Roberts:  What if an elderly woman accepts an invitation to go to her neighbor’s house for dinner but does not show up on time.  She is an hour late and she has never been late before.  The neighbor calls the police, fearful that the woman is sick or incapacitated.  After all, the neighbor explains, she is never late to dinner.  Can the police enter the woman’s house?  If the answer is no, what about entering the house the next day, 24 hours later, when she has still not appeared or answered her phone? (the plaintiff’s lawyer said those facts do not justify a warrantless entry).
2. Justice Thomas:  If the police do go in and see the woman lying on the floor with a broken hip, they rescue her and save her life, can she sue them for the illegal entry?  (Answer:  Yes).
3. Justice Breyer:  Can the police go into a house if a baby is heard crying for five hours?
4. Justice Kavanaugh:  There are 65 suicides on average every day in the U.S. by gunshots.  Can the police not go into a house to try to prevent a suicide?  They don’t have time to decide on the spur of the moment, after receiving a call from a neighbor, whether they have sufficient “cause” to enter.  The same with elderly people falling and dying because the police are fearful that they will be sued if they enter the house.
5. Justice Barrett:  How about a social worker, rather than the police.  In a “welfare check” situation, can the local community have a social worker check on the welfare of someone who might have fallen?  Do you really want to insist on “probable cause” that somebody needs help?  (As opposed to “probable cause” to believe a crime has been committed)?
6. Chief Justice Roberts:  Can the police, in response to a call from a neighbor go to the home of people who are on vacation, climb over a fence into the curtilage of the home to rescue a cat from a tree?
7. Justice Barrett:  What if the police are walking in the neighborhood and look in the window and see many people not wearing masks (during pandemic)?  Can they go in for community caretaking purposes?
8. Chief Justice Roberts:  The family is away on vacation.  It appears to the neighbors that the house has a leak and water is dripping into the room where there is a very expensive original Van Gogh.  Can the police enter to save the property?
9. Justice Breyer:  How imminent must the harm be?  If it is really imminent, then “exigent circumstances” is the exception to the warrant requirement that applies.  But if it is not imminent, it is “community caretaking” – how “not imminent” can the threat be (in suicide cases, for example) before community caretaking is not a permissible basis for a warrantless entry?
10. Justice Sotomayor: In this case, the police went into the house and seized the gun, because of the suicide threat. How long can they keep the gun?