Fifth Circuit: Got 10 Seconds?

CRIMINAL COURT NEWS

That’s Sufficient Time for Reasonable Suspicion

BY DAN DWORIN

In a somewhat remarkable opinion, in July 2021, the Fifth Circuit Court of Appeals held that a defendant who sat in a parked car for 10-15 seconds after pulling into a parking spot was subject to seizure and questioning based solely on his delay in getting out of the car.

The case involved a “highcrime area” in Jackson, Mi., to which the Jackson Police Department had assigned a team of officers to patrol, looking for suspicious activity. The officers observed a Cadillac pull into the parking lot of a convenience store and park in a spot far from the entrance to the store. The Cadillac also parked facing a brick wall, not the window in front of the store. The officers decided to conduct a “field interview,” which involved pulling five or six patrol cars behind and around the Cadillac, preventing the car from leaving. When officers approached the vehicle, the passenger window opened, and they could smell marijuana smoke. The passenger threw an object in his mouth, and the police ordered both men to exit the Cadillac. Officers observed a pistol in the driver’s seat where Flowers had been sitting.

Flowers, a convicted felon, was charged with being a felon in possession of a firearm. Flowers filed a motion to suppress the evidence of the pistol, claiming that the basis for the encounter was a seizure that violated the Fourth Amendment. The trial court denied Flowers’ motion to suppress, and a jury then convicted him of possessing the weapon.

The appeals court, in affirming the conviction, noted that the Fourth Amendment must be “‘justified at its inception.’” The Fourth Amendment prohibits “unreasonable searches and seizures.” A temporary detention of a person is considered a seizure and may be only undertaken if an officer “has reasonable suspicion to believe that a crime has occurred or is in the offing.” At the point the officers smelled the odor of marijuana, they certainly had reasonable suspicion to detain the occupants of the vehicle to investigate further. The question was whether the action of pulling the multiple police vehicles around the Cadillac, preventing the car from leaving, was reasonable given the information the officers had at that time.

The Court addressed whether pulling the numerous police vehicles around the parked car could be considered a seizure at all. The majority noted that although a policer officer testified that the occupants of the vehicle were “free to leave” at the time the numerous police vehicles surrounded the Cadillac, the investigation of the car was “benign” until the officers smelled marijuana. The Court, in affirming the seizure as justified, noted the encounter occurred in a part of town in which many crimes had been reported, was at night, and that the stopping officer “was no novice[,]… possessed an undergraduate degree in justice administration and a master’s degree in criminology and had ten years of law enforcement experience.” The Court held that the numerous officers pulled around Flowers’s car “were either abusive or threatening,” and the smell of marijuana gave the police officers probable cause to seize Flowers. The conviction of firearm possession was affirmed.

In dissenting in part, Judge Elrod noted that in the seminal case involving reasonable suspicion, Terry v. Ohio, the United States Supreme Court held that officers watching two men pacing around in front of a store for 10-12 minutes developed reasonable suspicion to stop and question the men. “How far we have come[,]” Judge Elrod noted, pointing out that the majority opinion had just cut the required time for observation down to 10-15 seconds. The dissent further noted that the numerous police vehicles trapped Flowers from exiting a parking lot in an “unsavory part of town” and that with the majority’s holding, “our law “comes dangerously close to declaring that persons in ‘bad parts of town’ enjoy second-class status in regard to the Fourth Amendment.’” AL

Dan Dworin is a criminal defense attorney licensed in the Western District of Texas since 1997. He is board certified in criminal law by the Texas Board of Legal Specialization. dworinlaw.com.