The Court of Appeals in Dozier v. U.S., decided on December 5, 2019, reversed and remanded conviction for Possession with Intent to Distribute (PWID) due to constitutional violations.

Appellant was observed in a high crime area and at night emerging from a dark ally, four Officers in a cruiser entered the ally and two approached asking if they could speak to the appellant, as appellant walked away ignoring the question, the officers persisted asking him if he had any weapons on him which he replied no and whether he would lift his shirt for a visual inspection which the appellant complied with.

With no weapons in sight, the officers then asked whether the appellant would consent to a pat down search, which the appellant complied with, with his hands on the wall, the pat down search revealed a bulge in the appellant’s sock which also triggered the appellant running away from the Officers.  The appellant was apprehended later and drugs seized.

The trial court denied the motion to suppress.

The Court of Appeals in short disagreed holding that the appellant was in fact seized within the meaning of the Fourth Amendment by the time he complied with the officers’ request to put his hands against a wall so that the officers could pat him down.  There was no reasonable, articulable suspicion to seize appellant and the pat-down was conducted in violation of the Fourth Amendment.  Thus, as drugs and other evidence used to convict appellant were fruits of that violation, the motion to suppress should have been granted.

The Fourth Amendment protects:

“the right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures.” U.S. Const. amend. IV. A constitutionally permissible encounter between a police officer and an individual can either be a “consensual encounter[], which do[es] not require any level of suspicion prior to initiation”; an “investigative detention[], which if nonconsensual, must be supported by a reasonable, articulable suspicion of criminal activity prior to initiation”; or an “arrest[], which must be supported by probable cause prior to initiation.”

Although the investigative detentions and arrests are seizures under the Fourth Amendment, mere consensual encounters are not  — however, here the totality of the circumstances shifted the balance in favor of 4th Amendment violation.

The quick test is whether the police conduct would have communicated to a reasonable person that the person was not free to decline the officers’ requests or otherwise terminate the encounter.

Here the Court held that an innocent person in the appellant’s position would not have felt free to decline the request to speak with the Officers after he had been approached by two uniformed and armed police officers who engaged in repeated questioning and escalating requests, culminating with a request to put his hands on the wall for a pat-down, at a time when he was alone, at night, in a secluded alley partially blocked by a police cruiser with two additional officers standing by and ready to jump in.  The totality of the circumstances created a custodial stop, search and the eventual seizure all with virtually no articulable suspicion.

The Court expounded: The Fourth Amendment calculus tolerates a measure of official pressure in exchange for needed cooperation from the public with police activities in safeguarding safety and assisting with law enforcement.  The question is how much and what kind of pressure will tip that calibrated balance from the type of encounter an ordered society encourages to one that infringes too much into the private space the Fourth Amendment protects from unjustified government intrusion.

Here the scale was tipped in favor of the appellant as significantly the officers had observed no criminal or suspicious activity other than an African-American male, at night, in the ally and wearing all black – not nearly enough for a custodial interaction that ensued.

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