No Seizure When Suspect Ran

by | December 12, 2023

United States v. Amos, 2023 WL 8636910 (3rd Cir. 2023)

Officers responded to a report of a person screaming at an intersection and a man assaulting a woman in the road. The officers arrived within two minutes, seeing no one in the road or immediate area. As the officers drove through the area, they saw Shiheem Amos, walking alone in an alleyway across the street. Amos was “stomping his feet, and kind of throwing his arms around.”

The officers circled the block, drove the wrong way down a one-way street and blocked the alleyway with the patrol car. Amos continued to walk toward them. One officer got out and told Amos to stop and put his hands up. Amos placed his hands at a “halfway point” and stopped for “maybe a second” before running away. An officer quickly caught up with Amos, handcuffing him as a handgun fell from Amos’ pocket.

Amos was charged with one count of possession of a firearm as a felon. He asked the trial court to suppress the gun, arguing he was seized without reasonable suspicion before he ran. The court denied the suppression motion; Amos appealed.

Amos was stopped in a classic Terry investigative detention. In Terry v. Ohio (392 U.S. 1 (1968)), the Supreme Court held that a “seizure” occurs when an “officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen.” Later, the Court held a person is seized “only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave” (United States v. Mendenhall, 446 U.S. 544 (1980)). The underlying question pertains to reasonable suspicion, which “is a less demanding standard than probable cause and requires a showing considerably less than preponderance of the evidence” (Illinois v. Wardlow, 528 U.S. 119 (2000)).

However, a show of authority, by itself, doesn’t amount to Amos’ submission to that authority. Clearly, he didn’t; he ran from it.

Because reasonable suspicion is measured at the moment a person is seized, determining exactly when the seizure occurred is important. A seizure can occur in one of two ways: first, when an officer “lays on hands or physical force to restrain movement, even when it is ultimately unsuccessful,” or second, by “submission to a show of authority” (California v. Hodari D., 499 U.S. 621 (1991)). Neither of the officers touched Amos before he ran, and he certainly didn’t submit to the officer’s command to stop and raise his hands.

The trial court ruled there was no show of authority because the officers did not activate their emergency lights or sirens, draw their guns, block Amos in the alley, touch Amos, or make any threats or intimidating movements. Disagreeing, the appellate court held the officers “showed authority” by driving the wrong way down the street and blocking the alley entrance. The court opined that a reasonable person would have believed he was not free to leave when being approached by a car driving the wrong way and commanded to stop.

However, a show of authority, by itself, doesn’t amount to Amos’ submission to that authority. Clearly, he didn’t; he ran from it. Amos claimed his “one-or two-second pause and halfway hand raise” amounted to submission. The court disagreed. “A police officer may make a seizure by a show of authority and without the use of physical force, but there is no seizure without actual submission; otherwise, there is at most an attempted seizure, so far as the Fourth Amendment is concerned” (Brendlin v. California, 551 U.S. 249 (2007)). The court did not decide whether there was reasonable suspicion to seize Amos based on the information in the original call for service. Nonetheless, there was reasonable suspicion based on Amos’ “headlong flight” to seize him. Thus, the gun was properly admitted and his conviction stands.

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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