Here’s an interesting Fourth Amendment case from the Ninth Circuit written by Judge Gould and joined by Judges Paez and Rawlinson, via Decision of the Day.
Facts: A white Portland police officer approaches an African-American male (the defendant) sitting in his car one night and asks what he’s doing. The officer asks the defendant if he has anything on his person that he shouldn’t have; when the defendant says no, the officer asks if the defendant would consent to a search so the officer could check. The defendant agrees, and the officer asks the defendant to step out of the car and directs him away from the car so he can conduct the search away from the car.
A second white officer arrives, and the first officer searches the defendant and finds nothing. The officer then asks the defendant about whether there is anything in his car that he shouldn’t have; the defendant says no, the officer asks if he can check and, the defendant agrees. The officer searches the car, blocking the defendant’s access to the car during the search, and uncovers an illegal firearm. The defendant is charged with being a felon in possession of a firearm.
District court proceedings: The defendant moves to suppress the gun on the ground that it was discovered in violation of the Fourth Amendment. The district court holds a suppression hearing and rules that the search was lawful: the court finds that the defendant was not seized during the interaction and the consent to search the defendant’s person and car was voluntary. However, there is testimony at the hearing about two then-recent incidents in which white Portland cops shot African-American suspects during traffic stops. The Portland police had widely published pamphlets in response to the incidents about how to react during traffic stops; th pamphlets instructed citizens to “follow the officer’s directions” when stopped, and “if ordered, [to] comply with the procedures for a search.”
Held by the Ninth Circuit on appeal: The gun must be suppressed because the district court’s factual findings about custody and consent are both clearly erroneous. First, based on a totality of the circumstances, the officer’s interaction with the police was sufficiently intimidating that a reasonable person wouldn’t have felt free to leave ans was therefore “seized”:
[U]nder the totality of the circumstances