The courts logic that because it was possible for Douglass to leave the scene, a reasonable person would feel free to leave, and therefore, there was no seizure is suspect.
Suppose, for example, that a police officer turned on his blue-and-red rolling flashing lights and siren, and attempted to pull over a motorist.
It would be inaccurate to say that, because it was physically possible for the motorist to keep driving, therefore, no seizure occurred.
As it is, the law holds that no seizure occurs until the motorist actually does pull over. However, that is pursuant to California v. Hodari D., 499 U.S. 621 (1991), which holds that, until a suspect submits to an officers show of authority, no seizure occurs.
However, it would be plainly inaccurate to say that, merely because it was possible for such a motorist to keep driving, a reasonable motorist would believe himself free to actually do so.
However, that is the logical conclusion that the courts reasoning in the case at bar, applied to such a case, leads to.
Consider, also, U.S. v. Burton, 441 F.3d 509 (7th Cir. 2006)(holding that suspect was seized when surrounded by bicycle cops on three sides of car), which the court cites. If a motorist really wanted to, he certainly could flee under those circumstances. However, the court in Burton sensibly held that such an encounter is a seizure.
Without question, where police officers position their squad cars in such a way that it is physically impossible for the driver to leave, a stop occurs. See U.S. v. Packer, 15 F.3d 654 (7th Cir. 1994). Where it is physically impossible for a motorist to leave, no reasonable motorist would feel free to do so.
However, it does not necessarily follow that, just because it is possible to leave, therefore a reasonable person would feel free to.
Another interesting aspect of the case, to which the court gives no attention, is that the officers shined their flashlights into the vehicle during the encounter.
Most of the cases that consider whether a seizure occurs follow a relatively similar pattern: a person or persons are sitting in a parked car for an unknown reason that may or may not be legal; an officer or officers position their vehicles near the parked car, either blocking its means of egress, or not; and the officers shine a spotlight on the car. See State v. Baker, 107 P.3d 1214 (Idaho 2004)(discussing a litany of cases from around the country with variations on the fact pattern).
Here, the officers did more than shine a spotlight on the car. Shining flashlights, while standing on both sides of the car, would be regarded as more intrusive by most people.
Presumably, most reasonable motorists would not feel free to leave, with officers standing on each side of the car, examining the interior of his car with flashlights.
The spotlight could be interpreted by the motorist as a sign that it is time to move on; officers right next to the car, looking in, could not be interpreted that way.
However, the court makes no distinction whatsoever between the case at bar, and those cases involving spotlights. Perhaps the distinction is irrelevant, but it is nevertheless a distinction worth exploring.
– David Ziemer
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David Ziemer can be reached by email.