Opinion
handed down November 22, 2016
In United States v. Cook, the Eighth Circuit Court of Appeals held
that defendant Lamar Cook was not seized for Fourth Amendment purposes when
police officers pulled up behind the parked car Cook was sitting in and
activated their cruiser’s “wig wag” lights, because “a reasonable person seeing
the wig wag lights under these circumstances would
have thought that he was still ‘at liberty to ignore the police presence and go
about his business.’”[1]
This conclusion is strikingly
inconsistent with the common understanding of the meaning of police emergency
lights.
I.
Facts and Holding
Just after 2:00 AM on November 25,
2013, Officer Kelley and his partner were on patrol in a high crime
neighborhood of south Minneapolis when they noticed an Oldsmobile parked on the
side of the street, with two men inside and the engine running.[2] “Based on the time of night and the nature of
the neighborhood,” the officers determined that they should make contact with
the occupants of the vehicle, so they parked a little less than a car’s length
behind the Oldsmobile and activated the wig wag setting of their cruiser’s emergency
lights.[3]
Officer Kelley then approached the driver’s
side window of the Oldsmobile on foot, at which point the driver – Lamar Cook – rolled down the window.[4] Officer Kelley immediately smelled marijuana
inside the Oldsmobile and initiated an arrest; a subsequent search of the
vehicle revealed marijuana, cocaine, and a handgun.[5]
Cook was charged in the U.S.
District Court for the District of Minnesota with being a felon in possession
of a firearm.[6] At trial, he moved to suppress the evidence
found during the search of his car on the grounds that it was the result of an
unlawful seizure without reasonable suspicion of criminal activity, but the motion
to suppress was denied and Cook was convicted at trial.[7] Cook appealed, arguing primarily that the
district court erred in denying his motion to suppress the evidence resulting
from the search of his car.[8]
On appeal, the Eighth Circuit
affirmed Cook’s conviction, finding that the district court did not err in
denying Cook’s motion to suppress evidence.[9] The crux of the decision was the court’s
determination that Cook was not seized when the police officers parked behind
their car behind his and activated the emergency lights; in the court’s view,
Cook’s interaction with the police only became a seizure when he was ordered to
exit his vehicle and placed in handcuffs, at which point the seizure was
adequately supported by Officer Kelley’s observation of the odor of marijuana.[10]
II.
Legal Background
Not every encounter with the police
involves a seizure.[11] The Supreme Court has held that a seizure
does not occur when police approach and question an individual on the street – or in an airport terminal, on a public bus,
etc. – as long as “a reasonable person would feel free to decline the
officers’ requests or otherwise terminate the encounter.”[12] Thus, even when police have no basis
for suspecting an individual of a crime, they are free to “ask questions of that individual; ask to examine the
individual’s identification; and request consent to search his or her luggage –
as long as the police do not convey a message that compliance with their
requests is required.”[13] In each case, “the crucial test is whether,
taking into account all of the circumstances surrounding the encounter, the
police conduct would ‘have communicated to a reasonable person that he was not
at liberty to ignore the police presence and go about his business.’”[14]
However, in contrast
to pedestrian encounters, the law is well settled that “a traffic stop entails a seizure of the driver even
though the purpose of the stop is limited and the resulting detention quite
brief,”[15]
and the Supreme Court has occasionally explained this distinction in a way that
implies that police encounters with individuals in parked automobiles may be
more likely to result in a seizure than police encounters with pedestrians. In United
States v. Mendenhall, for instance, the court stated that
stopping or diverting an automobile in
transit, with the attendant opportunity for a visual inspection of areas of the
passenger compartment not otherwise observable, is materially more intrusive
than a question put to a passing pedestrian, and the fact that the former
amounts to a seizure tells very little about the constitutional status of the
latter.[16]
By recognizing that the invasion of privacy that results from
the visual inspection of a vehicle contributes to a traffic stop being
materially more intrusive than a pedestrian encounter, Mendenhall suggests that the special consideration given traffic
stops in the Court’s seizure jurisprudence should extend, at least partially,
to cases involving individuals in parked cars.
Nonetheless, lower
courts have generally decided that police encounters with individuals in parked
cars are more analogous to encounters with pedestrians than to ordinary traffic
stops.[17] Thus, in United
States v. Barry, the Eighth Circuit held that approaching a parked car does
not necessarily effect a seizure for Fourth Amendment purposes.[18]
In Barry,
police decided to investigate a car parked in an alley behind a shopping mall
late at night, so they parked their cruiser in front of the vehicle and
approached on foot, with their flashlights pointed at their uniforms and their
hands on their holstered weapons; the driver then rolled down his window and
the officers could smell marijuana, at which the officers determined there was
probable cause to detain the individual.[19] The Eighth Circuit held that the defendant
was not seized until he was ordered to exit the vehicle, because the officers’
conduct in “approaching [the defendant’s] parked vehicle and knocking on the
window did not amount to a show of authority such that a reasonable person
would believe he was not at liberty to ignore [the police’s] presence and go
about his business.”[20]
In determining that a seizure had not
occurred, the court considered it significant that the officer “never raised
his voice, . . . never drew his holstered weapon, . . . never activated his
emergency lights, and . . . never ordered Barry to exit his vehicle.”[21]
III. Instant
Decision
In United States v. Cook, the Eighth Circuit determined that the facts
were “not meaningfully different from the facts in Barry,” and therefore a seizure did not occur until Cook was
ordered to exit his vehicle and placed under arrest.[22] Just as in Barry, “(1) the car Cook was in was parked when the officers
decided to investigate, (2) the
interaction between Cook and the officers took place late at night in a high
crime area, and (3) there is no indication the officers ordered Cook to roll
down his window or engage with them in any way.”[23] Under these circumstances, according to the
court, “A reasonable person seeing the wig wag lights . . . would have thought
that he was still ‘at liberty to ignore the police presence and go about his
business.’”[24]
Significantly, the court appeared to
place little weight on the fact that the police activated their emergency
lights when they parked behind Cook,[25] even though the court had
cited the non-use of emergency lights in Barry
as evidence that a seizure had not occurred.[26] Addressing the use of emergency lights in Cook, the Eighth Circuit thought it was
significant that the police had only activated their wig wag emergency lights,
which the court explained “are different from the full light bar which is used
to notify motorists in moving vehicles that they are required to stop.”[27]
However, the court did not explain the
difference between the types of emergency lights any further, nor did it
indicate that a reasonable person would recognize the difference.[28]
IV.
Comment
The case is noteworthy for its
conclusion that a reasonable person in Cook’s situation – that is, a person who sees a police car
activate its wig wag emergency lights and then park behind his vehicle – would have thought
that he was “at liberty to ignore the police presence and go about his
business.”[29]
Taken literally, that statement cannot
possibly be true; only a very unreasonable person would think he was free to
ignore the police presence in Cook’s situation.
Of course, many
commentators have recognized that Mendenhall’s
“free to leave” test should not be taken too literally.[30] After all, “[i]mplicit in the introduction of
the [officer] and the initial questioning is a show of authority to which the
average person encountered will feel obliged to stop and respond.”[31] Thus, “if the ultimate issue is perceived as
being whether the suspect ‘would feel free to walk away,’ then virtually all
police-citizen encounters must in fact be deemed to involve a Fourth Amendment
seizure.”[32]
In order to avoid this result, it has
been suggested that the “critical factor is whether the policeman, even if
making inquiries a private citizen would not, has otherwise conducted himself
in a manner which would be perceived as a nonoffensive contact if it occurred
between two ordinary citizens.”[33] But even according to this looser formulation
of the “free to leave” test, an officer’s use of emergency lights would likely
convert an encounter into a seizure.[34]
Perhaps the
Eighth Circuit’s decision in Cook
represents good policy: Police should be able to approach a parked vehicle to
ask questions without effecting a seizure, and if that encounter happens at
night, then maybe police should be allowed to use their emergency lights to
identify themselves beforehand. But
anyone who has ever seen red and blue police lights in his or her rearview
mirror should be uncomfortable with the court’s conclusion that a “reasonable
person seeing the wig wag lights under [Cook’s] circumstances would have
thought that he was still ‘at liberty to ignore the police presence and go
about his business.’”[35] As stated by a different court, “It is difficult
to imagine a situation where a reasonable person would feel free to leave in
response to an officer stopping and activating red-and-blue emergency lights
behind the person’s vehicle.”[36]
- Bill Kistner
[1] United States v. Cook, 842 F.3d 597, 601 (8th Cir. 2016)
(quoting Florida v. Bostick, 501 U.S. 429, 437 (1991)).
[2] United States v. Cook, No.
14–221 ADM/JJK, 2015 WL 224721, at *1 (D. Minn. Jan. 15, 2015), aff’d, 842 F.3d 597.
[3] Id.
[4] Id.
[5] Id. at *1–2.
[6] Id. at *2.
[7] Id.
[8] United States v. Cook,
842 F.3d 597, 600 (8th Cir. 2016).
[9] Id.
[10] Id.
[11] United States v.
Mendenhall, 446 U.S. 544, 552 (1980).
[12] Florida v. Bostick, 501
U.S. 429, 434 (1991).
[13] Id. at 434–35.
[14] Id. at 437 (quoting Michigan v. Chesternut, 486 U.S. 567, 569
(1988)).
[15] Brendlin v. California,
551 U.S. 249, 255 (2007).
[16] Mendenhall, 446 U.S. at 556.
[17] See generally 4 Wayne R.
LaFave, Search & Seizure § 9.4(a) (5th ed. 2016).
[18] United States v. Barry,
394 F.3d 1070, 1075–78 (8th Cir. 2005).
[19] Id. at 1072.
[20] Id. at 1075.
[21] Id.
[22] United States v. Cook,
842 F.3d 597, 600 (8th Cir. 2016).
[23] Id. at 600–01.
[24] Id. at 601 (quoting Florida v. Bostick, 501 U.S. 429, 437 (1991)).
[25] Id.
[26] Barry, 394 F.3d at 1075.
[27] Cook, 842 F.3d at 601.
[28] Id.
[29] Id.
[30] LaFave, supra note
17, § 9.4(a).
[31] Id.
[32] Id.
[33] Id.
[34] Id.
[35] United States v. Cook, 842
F.3d 597, 601 (8th Cir. 2016) (quoting Florida v. Bostick, 501 U.S. 429, 437
(1991)).
[36] State v. Gottschalk, 830 N.W.2d 723, ¶ 9 (Wis.
Ct. App. 2013).
