No ‘Seizure' Until Driver Obeyed Cop's Command

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By Lance J. Rogers

Dec. 21 — A motorist who got out of his truck and tossed a pistol into the grass before complying with a police command to return to the vehicle effectively abandoned the weapon before he was “seized” for purposes of the Fourth Amendment, a divided U.S. Court of Appeals for the Fourth Circuit ruled Dec. 18 (United States v. Stover, 2015 BL 416751, 4th Cir., No. 14-4283, 12/18/15).

In an opinion by Judge Diana Gribbon Motz, the court rejected Lavelle Dewayne Stover's argument that he was seized the moment the police—without reasonable suspicion—pulled up behind Stover's parked truck and activated their lights.

Show of Authority

A seizure doesn't occur until a suspect actually capitulates to a show of authority, the court said, and Stover didn't submit until after he had already ditched the gun.

Stover argued that the gun was the fruit of an illegal seizure because the police seized him, without reasonable suspicion, the instant they pulled up behind his parked truck, activated their lights and blocked him from driving away.

Although California v. Hodari D., 499 U.S. 621 (1991), stands for the proposition that a police officer's command to halt or exhibition of some other “show of authority” does not, alone, constitute a Fourth Amendment seizure unless and until the suspect submits, Stover contended that he acquiesced to police authority by remaining at the scene.

But the court rejected the idea that anything short of headlong flight qualifies as submission.

The problem for Stover is that he gave no indication that he was submitting until after he discarded his pistol, it said.

“Rather, as soon as the police blocked his Silverado, he left the car, disobeyed a police order to return to the car, and instead walked away from the police with a loaded gun in his hand,” the court said. “Only after he discarded that gun and was confronted by an armed police officer did Stover submit to police authority.”

Judge Robert B. King joined Motz's opinion.

Not Running Away

In dissent, Judge Roger L. Gregory argued that Stover was already seized by the time that the officers ordered him back into the truck. Their command, he said, was not an initiation of a seizure, but rather an affirmation that Stover wasn't free to leave.

Gregory also argued that the case Brendlin v. California, 551 U.S. 249 (U.S. 2007), was more on point than Hodari, because Brendlin made clear that although a fleeing suspect isn't seized until he is physically overpowered, a suspect sitting in a chair may submit to authority simply by not getting up to run away.

It defies logic to think Stover's movement to the front of the truck was an attempt to escape, Gregory said.

The U.S. Attorney's Office in Baltimore argued for the government. Venable LLP, Baltimore, argued for Stover.

To contact the reporter on this story: Lance J. Rogers in Washington at lrogers@bna.com

To contact the editor responsible for this story: C. Reilly Larson at rlarson@bna.com