The Fourth Amendment forbids unreasonable seizures, of both the person and of property. But we do not address the reasonableness of the seizure until there is an actual seizure. For a seizure of the person, the Supreme Court has said that this occurs when there is a full custodial arrest, as well as when the person is subjected to a brief investigative detention based on reasonable suspicion (a Terry stop). But a mere consensual encounter with the police is not a seizure, and thus not subject to any Fourth Amendment justification. A seizure can occur when there is a laying on of hands by the police, or when there is a sufficient show of authority to lead a reasonable person to believe he is not free to leave or otherwise terminate the encounter, and he actually submits to the non-physical show of authority. If the person is free to leave or terminate the encounter, there is no seizure.
The United States Court of Appeals for the First Circuit recently decided a case posing the question of when an increasing police presence becomes a sufficient show of authority to constitute a seizure, and therefore to require reasonable suspicion. How about five police officers? In United States v. Fields, Boston Police received information about potential drug activity by a group of people at a high school. Acting on the complaint, Officer Steven Dodd and his colleagues observed eight to ten people near the high school, but lost sight of them and radioed for additional help locating the group. Officer Joseph Fisher responded to the call and then observed six to eight people walking toward a park. Ernest Fields was with the group but separated from them and began walking toward Roxbury Street, and passed Officer Fisher’s cruiser.
Officer Fisher exited his car and asked Fields, “Hey, what’s going on tonight?” He asked Fields from where he was coming and where he was going, and some other general questions. Fields responded that he was uncomfortable around police and that the officer would need a reason if he wanted to conduct a search. Officer Fisher was concerned about Fields’ behavior and that he had become agitated, so he called for back-up. Four additional officers (including Officer Dodd) subsequently arrived on the scene. According to the officers, no one blocked Fields’s way and he was free to continue walking down Roxbury Street. But Fields became increasingly agitated and eventually lifted his shirt, revealing a knife. He was not commanded to do so. The officers then conducted a frisk of Fields, and found a firearm and ammunition.
Fields – who has prior convictions in Massachusetts for assault with a deadly weapon, assault and battery with a deadly weapon, assault and battery on a police officer, and resisting arrest – eventually pleaded guilty under the federal felon-in-possession statute, 18 U.S.C. 922(g)(1). He reserved his right to appeal denial of his motion to suppress the fruits of the frisk. Fields said this was a seizure for which the police lacked any reasonable suspicion. Although the subsequent frisk was arguably reasonable based on Fields’ possession of a knife, he argues that the frisk was the fruit of an unlawful seizure, and the evidence found was therefore inadmissible against him. The First Circuit disagreed, saying this was not a seizure at all.
There was, the court held, no show of authority here that would have led Fields to believe that he was not free to leave. Although the court seemed to acknowledge that some aspects of the case presented a close call, the court found that even among five officers, Fields was not prevented from continuing on his way. Officer Fisher did not lay hands on Fields, nor did he request Fields’ identification, and his firearm remained holstered. The backup officers did not “surround” Fields, as that term has been used in the case law, nor did they attempt to question Fields. Even Officer Fisher asked only general questions, and never indicated to his fellow officers that they needed to assist in investigating Fields. Merely calling for back-up did not transform a consensual encounter into a seizure, even when it included the arrival of four other officers; rather, it may have simply reflected Officer Fisher’s belief that he needed an additional police presence for his protection.
These cases involving the distinction between a consensual encounter and a seizure are not subject to useful generalizations. One case may not be a good guide for the next case. So they are almost always heavily fact-intensive inquiries, unique to each case. What if there had been seven officers? Or ten? What if instead of standing by the cruiser, the officers had lined up on the sidewalk? What if one of them had his hand on his firearm, even while holstered? In my view, the number of officers, while possibly relevant, matters less than the nature of their interactions with the suspect. But any number of changes in the given facts could have changed the outcome here. The First Circuit’s decision is defensible, though, on the existing case law, and giving appropriate credit to the testimony of the officers about how they were positioned in relation to Fields and how they interacted with him.
In some ways, this case brings to mind the Supreme Court’s decision in United States v. Drayton (cited by the First Circuit here), where police conducted a drug interdiction stop of a passenger bus in Florida, during which officers eventually found two passengers with large amounts of drugs adhered to their interior clothing with duct tape (a total of 778 grams of cocaine, between Drayton and Brown). With one officer in back and one in front, a third officer went up and down the aisle, approaching each passenger one by one, standing by the passenger so as not to block the aisle. As the Court noted, the officers did not brandish weapons, did not block the aisles or the exit if a passenger wanted to leave the bus, and did not speak in an authoritative tone of voice. This was not a seizure and required no Fourth Amendment justification, because each passenger, though not specifically told he or she could refuse to cooperate, was free to leave the bus at any time and a reasonable person would not have felt otherwise.
Still, although the First Circuit in Fields was not required to answer this question, I think it naturally arises from the facts and is worth considering: if the courts had found this to be a seizure, would the Boston Police have had reasonable suspicion to justify the stop anyway?