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 — [the first officer's] authoritative manner and direction of [the defendant] away from [his] car to another location, the publicized shootings by white Portland police officers of African- Americans, the widely distributed pamphlet with which Washington was familiar, instructing the public to comply with an officer's instructions, that [the officers] outnumbered Washington two to one, the time of night and lighting in the area, that [one officer] was blocking [the defendant's] entrance back into his car, and that neither [officer] informed [the defendant] he could terminate the encounter and leave — we conclude that a reasonable person would not have felt free to . . . leave the scene.

  Second, based on a totality of the circumstances, it was clearly erroneous for the district court to conclude that the defendant's consent was voluntary. The defendant had been seized when he was asked to consent to a search of the car, and that weighs heavily in favor of finding the consent involuntary. Further, the context was significant:

[Consent was granted] (1) at night, (2) [when the defendant was] outnumbered two-to-one, (3) in the unique situation in Portland between the African-American community and the Portland police, and (4) after complying with [the first officer's] detailed instructions, (5) and being searched under [the officer's] direction, at [the] squad car with his hands on the top of the squad car, (6) with the return to his car blocked by [the second officer], so that (7) a reasonable person in Washington's circumstances would not have felt free to terminate the encounter and leave.

The court concludes:

Given that it was late at night on a dark street, that [the defendant] had been led away from his car and seized by two police officers, and the tension between the African-American community and police officers in Portland in light of the prior shootings above-mentioned, we have no confidence that [the defendant's] assent to the car search was voluntary under the total circumstances.

Further, even if the district court's factual finding that the defendant consented was not clearly erroneous, the consent was a fruit of the illegal seizure. Thus the consent was invalid and the search of the car violated the defendant's rights.

  My quick reaction: These are sympathetic facts for the defense, as the police officer was just fishing and had no reasonable suspicion or cause at all. But were the district court's factual findings really clearly erroneous? The panel's opinion doesn't tell us much about the testimony at the suppression hearing, or what factual findings the district court made beyond the ultimate factual questions of custody and voluntariness. (This makes it hard to distinguish some of the factual issues from mixed issues of law and fact.) But based on my read of the opinion, the evidence that the district court's findings were "clearly erroneous" seems pretty thin. Readers, what do you think? Am I misjudging the case?

  Oh, and I should add that I had to take out some details of the opinion just to keep it a reasonable length; needless to say, the best way to weigh in here is to read the opinion first.