Thursday, February 9, 2017

Police: "Will you stop walking?" Tenth Circuit: That's a seizure.

You are walking home on a cool October evening. The days are getting shorter, and so it is already dark by 7:45 p.m. The street is unlit, and you are wearing black clothes and carrying two backpacks. As you pass a construction site near a housing project, a police cruiser carrying two cops pulls up alongside you. Nobody else is around.

Can we talk to you?

Yeah, what's up?

Where are you coming from? What are you doing?

I'm coming from my grandmother's house. I'm just trying to get home.

What is your grandmother's address?

I don't know her address.

Maybe you're cold. Maybe you're tired. Maybe it's been a long day. Maybe you just don't like being pestered by the police as you're minding your own business trying to get home. Maybe, having been inundated with stories of police shootings in recent years, you feel intimidated being alone on a dark street with two police officers following you. You keep walking, and the cruiser keeps cruising alongside.

Will you stop so we can talk to you?

. . .

This was a seizure, said the Tenth Circuit this week in United States v. Hernandez, affirming the district court's suppression order:

"Considering the totality of the circumstances here, that there were [1] two [2] uniformed police officers [3] driving closely alongside Mr. Hernandez [4] in the dark with [5] no one else around, and that Mr. Hernandez [6] did not stop walking until one officer asked him to stop even though he was answering the officers’ questions, the district court did not err in concluding there was a show of authority by Officers Morghem and Walton sufficient to constitute a seizure under the Fourth Amendment."

And the officers had no reasonable suspicion to support the seizure. The Tenth Circuit agreed with the district court's meticulous rebuttal of all of the government's arguments on this point:

But high-crime area! "The location of the stop in a high-crime area is ‘not sufficient by itself to support a reasonable suspicion’ that the individual himself is engaged in criminal activity."

But he wasn't using the sidewalk! "Mr. Hernandez might well have decided to take a shorter route to his destination, or to see the progress of the neighborhood’s latest highrise development . . . [t]he government did not explain why suspicious persons are less likely to choose the sidewalk."

But his clothing was black! And he had backpacks! If "black clothing were sufficient to confer reasonable suspicion, it could subject the ambling public (or, at least its Hispanic members) ‘to virtually random seizures, inquisitions to obtain information which could then be used to suggest reasonable suspicion, and arbitrary exercises of police power.'"

But he didn't know his own granny's address! "Ordinary experience tells us that a grandchild who knows the familiar way to his grandmother's house may well not know her exact street address."

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