Court: Officer’s Words and Conduct Matter When Determining Lawful Detention

by | March 22, 2019

United States v. Tanguay, 2019 (1st Cir. 2019)

An officer saw Eric Tanguay and a woman parked in a strip mall parking lot just after midnight. The officer passed through the area 20 minutes later and saw they hadn’t moved. He approached the car, saw Tanguay and the woman were eating food from a nearby Taco Bell, and asked for their names. When Tanguay identified himself, the officer recognized his name as one associated with drug trafficking.

The officer asked for identification and both replied they were not carrying any. The officer asked who owned the vehicle and Tanguay said it was not his. The officer asked Tanguay if he could walk back to his patrol car and run a records check on Tanguay; Tanguay agreed. A second officer arrived to assist.

When the officer saw the woman crouch down and reach for something under the front passenger seat, he immediately approached the couple again and once again asked Tanguay for identification. Tanguay gave a different story, saying his license was in a backpack in the trunk of the vehicle. He offered to retrieve it, but the officer told Tanguay he could show the officer where to find the license, but for safety purposes, the officer would retrieve it.

When Tanguay opened the driver door, the officer saw the butt end of a gun stashed in the driver-side door. The officer walked with Tanguay to the trunk and retrieved Tanguay’s license from a wallet stowed in a small pocket of the backpack. The officer saw a large sum of cash in the wallet and he noted the main compartment of the backpack was padlocked.

The officer asked Tanguay about the gun. Tanguay claimed it was a BB gun, a fact confirmed by the officer. The officer then obtained Tanguay’s consent to search the vehicle. Under the passenger seat, he found a partially open sunglasses case containing a loaded hypodermic needle, a pill, and Narcan. The officer asked Tanguay about the backpack; Tanguay claimed someone else put it in the vehicle.

The officer arrested Tanguay and took him to the station. When asked again about the backpack, Tanguay admitted it was his, but he said someone else had padlocked it. He also claimed some other person could have put illegal items in the bag. Tanguay consented to a search of the backpack and the officer found prescription pills, fentanyl, methamphetamine, a scale, baggies, rubber bands, a marker, and mail posted to Tanguay.

The court considered the point at which the officer’s conversation with Tanguay became a nonconsensual, investigatory stop. Further, when did the officer uncover reasonable suspicion to continue the investigatory detention?

Tanguay asked the court to suppress the evidence from the vehicle and the backpack. He argued the officer initiated and continued a detention without reasonable suspicion. The court considered the point at which the officer’s conversation with Tanguay became a nonconsensual, investigatory stop. Further, when did the officer uncover reasonable suspicion to continue the investigatory detention?

At the point the officer initially approached Tanguay and the woman, he had no reasonable suspicion of criminal activity. They were lawfully parked in the parking lot, eating food from the nearby fast-food joint. That raises the question of whether the officer made any show of authority as he approached Tanguay to ask what he was doing in the parking lot. If there was a show of authority, that would support Tanguay’s contention that he was involuntarily detained and questioned.

The court focused on what the officer didn’t do as he approached Tanguay:

  • The officer didn’t order Tanguay to turn off the motor.
  • The officer didn’t have his hand on his firearm.
  • The officer didn’t use “intimidating language or tone of voice.”
  • The officer didn’t order Tanguay to produce a license or identify himself; he merely asked.

The court balanced those facts with the activation of police lights (but only to the rear, facing away from Tanguay) and the use of a flashlight to illuminate the inside of Tanguay’s vehicle. The court then concluded the officer’s “words and conduct as manifest to Tanguay” did not show the officer used his authority to restrain Tanguay’s liberty before finding reasonable suspicion of criminal activity. The court cited prior decisions that a “driver’s inability to provide identification and a legible vehicle registration provides a sufficient basis for an officer to suspect that the vehicle was stolen.” Thus, when Tanguay initially failed to produce a license and told the officer he was not the vehicle owner, the officer could lawfully conduct a nonconsensual, investigative detention.

The court refused to find the officer unlawfully approached and detained Tanguay. First, the officer began the contact in a friendly tone that communicated it was a voluntary encounter. Remember, talk nice, think mean. Second, the officer built reasonable suspicion by asking casual, sequential questions and making observations about the gun. Though he might have been justified in a forcible visual sweep of the vehicle, he stayed the course of talking nice and obtained consent. Just solid policing.

KEN WALLENTINE is the Chief of the West Jordan (Utah) Police Department and former Chief of Law Enforcement for the Utah Attorney General. He has served over three decades in public safety, is a legal expert and editor of Xiphos, a monthly national criminal procedure newsletter. He is a member of the Board of Directors of the Institute for the Prevention of In-Custody Death and serves as a use of force consultant in state and federal criminal and civil litigation across the nation.

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