No Seizure Without Submission, Applying the New Torres Seizure Doctrine

by | April 20, 2021

United States v. Cloud, 2021 WL 1342917 (4th Cir. 2021)

Officers in an area known for a high volume of drug-and gun-related crimes saw a car in a motel parking lot stall. The car was running with its lights on and was occupied by four people, one in the front passenger seat and one in each of the three rear passenger seats. No one was in the driver seat. When the occupants saw the patrol car drive by, they rolled up the car windows.

The officers stopped behind the car, partially blocking it. As the officers walked up to the car, the officer on the driver side saw a rear seat passenger “holding what I believed to be the – a firearm and I could see the butt end of the firearm.” As the officer got closer, shining his flashlight on the man, the man began acting “really nervous” and “feverishly,” “trying to conceal the firearm under the driver seat under the floor mat.” The officer concluded that there was reasonable articulable suspicion the man was unlawfully carrying a concealed weapon, which the officer believed to be an established probable cause to search the car for the weapon.

As the officer on the passenger side began to converse with the other occupants, Timothy Cloud and his girlfriend exited a motel room. Cloud walked to the driver side and interrupted the officers, saying the woman in the front seat was his daughter, and got into the driver seat. Cloud “turned his head and acted like he wanted to back out. He looked over his right shoulder and then he looked out the driver’s side window,” but didn’t try to back out of the space.

The officer asked the rear seat passenger what he dropped on the floor. The man said it was a cigarillo. The officer asked Cloud whether there were any drugs or guns in the car. Cloud responded, “Drugs or guns?” Four more officers arrived and Cloud got out of the car, beginning to walk back toward the motel. When an officer called out for him to come back, Cloud ignored the officer. Another officer said, “Actually, no, he’s good,” indicating Cloud did not need to come back to the car.

The officers directed the occupants to get out of the car. An officer asked Cloud, who was pacing under the motel’s covered portico, who owned the vehicle and Cloud replied it belonged to his mother. The officer asked for consent to search the vehicle and Cloud immediately refused. When the officer said he intended to “frisk” the car, Cloud repeated the officer could not search it. The officer opened the rear driver side door, reached down and retrieved the handgun that he had seen.

The court noted a seizure “occurs when officers employ ‘physical force’ or a ‘show of authority’ that ‘in some way restrains the liberty’ of the person.”

At that point, the officer radioed to the others that he found a gun and ordered for Cloud to be detained. Cloud resisted as officers reached for him, attempting to flee. The subsequent struggle required multiple officers to subdue him. Officers found a stolen handgun in Cloud’s front right pocket. He was charged with being a felon in possession of a firearm.

Cloud asked the court to suppress discovery of the stolen gun, claiming he was “seized” when the officers partially blocked the car in the parking stall. The trial court denied his motion. The appellate court held there was no Fourth Amendment seizure because Cloud never acquiesced to a show of authority. Even if there was “at best, an attempted seizure,” there was reasonable, articulable suspicion to detain Cloud.

Citing the recent Supreme Court ruling in Torres v. Madrid, the court noted a seizure “occurs when officers employ ‘physical force’ or a ‘show of authority’ that ‘in some way restrains the liberty’ of the person.” The court agreed with Cloud that the officers made a show of authority at least at the point that he got into the car and the officers directed questions at him. However, Cloud never acquiesced to the show of authority. He ignored some of the officers’ directions and walked away from them—twice.

The officers physically restrained Cloud once they found the gun in the car. At that point, the officers had a reasonable, articulable suspicion that Cloud was engaged in criminal activity. They had seen a passenger hide a firearm under Cloud’s seat. He claimed control over the car. He was the only adult associated with the car. Moreover, Cloud and his companions were in a very high-crime area late at night. Thus, the seizure (occurring at the point the officers physically restrained Cloud) was justified and the stolen gun was properly admitted into evidence.

This blog was featured in our Xiphos newsletter, a monthly legal-focused law enforcement newsletter authored by Ken Wallentine. Subscriptions are free for public safety officers, educators and public attorneys.

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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