Friday, December 16, 2016

United States v. Cook

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).