To activiate the protections of the Fourth Amendment, it matters whether you’ve been “seized” by the police. So when exactly does a “seizure” occur?
Other entries on this blog have discussed the important distinction of when a person is “seized” by the police, and a recent Iowa Supreme Court case, State v. Wilkes, sheds a little more light on the issue. The reason this distinction is important is because the Fourth Amendment protects individuals from “unreasonable searches and seizures” – a clause that is aimed at protecting the “privacy and security of individuals against arbitrary intrusion by government officials.” (See State v. Brecunier, Iowa Supreme Court.) If no “seizure” occurred, the protection the Fourth Amendment provides does not come into play, and a defendant’s attempts to exclude evidence obtained in violation of this provision will fail.
Wilkes involved a defendant charged with driving while intoxicated. He was spotted by police while parked at a quarry shortly after midnight, in a truck with its lights on and engine running. The police officers pulled into the quarry “to make sure everything was okay with the driver.” They did not activate the emergency lights or siren on the patrol car, and pulled about ten or fifteen feet behind the defendant’s truck. Although the quarry had only one entrance, the patrol car did not block that entrance.
After pulling up behind the truck, Officer Wood and his reserve officer exited their car and approached the truck. Wood approached on the driver’s side, and the reserve officer walked toward the passenger side, but stayed behind the vehicle. Through the open driver’s window, Wood smelled the strong odor of an alcoholic beverage coming from the defendant.
Wood got the defendant’s identification, and after making sure the driver’s license was valid and there were no outstanding warrants, he requested the defendant step out of his truck. Wilkes complied and admitted to having consumed a glass of wine. Officer Wood then administered field sobriety tests and concluded there was a strong likelihood that his BAC would be over the legal limit. He administered a preliminary breath test, which was indeed over the limit, and arrested the defendant for operating a motor vehicle while intoxicated.
Wilkes initially won his motion to suppress at both the district and appellate court levels, and the results of his sobriety and breathalyzer tests were excluded. However, when the matter reached the Iowa Supreme Court, the prior decisions were reversed. That court held Wilkes had not been “seized” prior to Officer Wood’s smelling alcohol on his person – and once the officer smelled alcohol, he had “reasonable and articulable suspicion of criminal activity” to detain the defendant and administer sobriety tests.
The court came to this conclusion by reviewing how the U.S. Supreme Court and prior Iowa Supreme Court decisions have defined a “seizure.” The court in Wilkes noted that the U.S. Supreme Court emphasized almost forty years ago that not all personal intercourse between the police and citizens involve seizures, and further: “Only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a `seizure’ has occurred.” (See Terry v. Ohio.)
Whether a “seizure” occurred is determined by the totality of the circumstances. Factors that suggest a seizure include: the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person, or the use of language or tone of voice indicating that compliance with the officer’s request might be compelled. According to the U.S. Supreme Court, a seizure does not occur if “a reasonable person would feel free `to disregard the police and go about his business.” Although the Court has noted that most citizens will respond to a police request, “the fact that people do so, and do so without being told they are free not to respond, hardly eliminates the consensual nature of the response.”
The Iowa Supreme Court in Wilkes concluded that objective indications of police coercion must be present to convert an encounter between police and citizens into a seizure. Coercion is not established by “ordinary indicia of police authority,” which include the showing of a badge, or the fact that an officer is in uniform or visibly armed.
Regarding the specific situation in Wilkes, the court placed a lot of weight on the fact that there was no threat of physical force, no use of sirens, and no forced stop. The officer, like any other citizen, had a right to look into the car. The fact that Officer Wood was in uniform was a factor, however “the United States Supreme Court has downplayed the significance of a police uniform as a factor in determining whether an encounter is a seizure.” The court also found “the use of ordinary headlights at night is simply not coercive in the same manner as the activation of emergency lights, which invoke police authority and imply a police command to stop and remain.” And although there were two officers involved in the incident in Wilkes, the reserve officer remained behind the truck, and did not use physical force or show authority in any manner. The fact that Officer Wood parked behind the defendant also did not convert the encounter into a seizure. Wilkes himself testified at the suppression hearing that there were at least two ways for him to turn his truck around and leave the quarry, had he chosen to do so.
The court concluded: “Simply put, neither of the officers displayed coercive or authoritative behavior to transform this encounter into a seizure for Fourth Amendment purposes. Prior to smelling alcohol on Wilkes’ person, the stop was consensual.” One could question how free Wilkes felt to “disregard the police and go about his business” once the police pulled their car behind his – or question what would have happened if he did turn around and the leave the quarry. Would that provide articulable suspicion of criminal activity?