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When A Police Stop Is Not A Stop

Yesterday the Second Circuit, in United States v. Huertas (15-4014) weighed in on the question of when a suspect’s brief encounter with police can support a finding that the suspect was “seized” within the meaning of the Fourth Amendment.  Judge Jacobs, joined by Judge Winter, concluded that a suspect who briefly pauses to answer a police officer’s questions, but then proceeds to flee, has not been “seized.”  Judge Pooler dissented, pointing to out-of-Circuit precedent and arguing that a suspect’s encounter with police generally constitutes a seizure if it extends beyond a “momentary halt.”

The encounter at issue in Huertas began when a woman approached an officer and, pointing down the street, told the officer that there was a man nearby who had a gun.  The officer drove in the direction she indicated, saw the suspect—Mr. Huertas—standing on a street corner, and approached Mr. Huertas by driving the wrong way down a one-way street.  The officer then illuminated Mr. Huertas using his cruiser spotlight, and asked several questions, all of which Mr. Huertas answered without moving from his location.  However, when the officer began to get out of the cruiser, Mr. Huertas ran away.

In the district court and on appeal, Mr. Huertas argued that, by remaining in place and answering the officer’s questions, he “submitted to police authority”—one standard for determining whether a suspect has been seized.  He relied on a First Circuit case, United States v. Camacho, 661 F.3d 718, 726 (1st Cir. 2011), in which the court held that engaging with police and answering questions constitutes a “seizure” within the meaning of the Fourth Amendment—even if the suspect goes on to flee.  Mr. Huertas also relied on a D.C. Circuit case in which a suspect who initially complied with instructions to place his hands on a police cruiser, but later fled, was found to have been “seized.”  United States v. Brodie, 742 F.3d 1058, 1061 (D.C. Cir. 2014). 

Judge Jacobs and Judge Winter were unconvinced.  They rejected the First Circuit’s logic that answering a few brief questions constitutes “submission,” observing that the Third Circuit had also rejected that theory.  United States v. Valentine, 232 F.3d 350, 359 (3d Cir. 2000).  They concluded that Huertas’s behavior was indistinguishable from that of the suspect in United States v. Baldwin, 496 F.3d 215, 219 (2d Cir. 2000), in which the Second Circuit found that a seizure occurred.  There, the suspect complied when the police pulled him over, but ignored their instruction to raise his hands, and, once they got out of the cruiser, sped away.  The Second Circuit concluded that despite the suspect’s compliance with the initial pulling over of his car, his overall conduct amounted to “evasion of police authority, not submission.”  Id. at 219. 

Here, the panel concluded, Mr. Huertas’s actions “were likewise evasive.”  The panel found that Mr. Huertas’s initial cooperation did not constitute submission because it merely gave him the chance to “quiet suspicion and hope that [the officer] would drive away after being satisfied with answers to his questions.”  Thus, it held, the totality of the circumstances favored a finding that Mr. Huertas evaded police authority and never submitted to it.

Judge Pooler dissented, arguing that a distinction should be drawn “between initial, earnest submission followed by later flight, as opposed to an entire course of conduct undertaken to ensure a getaway.”  Because Mr. Huertas’s conduct was best interpreted as falling into the former category, she argued, it constituted submission to police authority. 

She concurred with those Courts of Appeals who, by her reading, had held that “when a suspect does nearly anything more than pausing briefly, including any significant verbal engagement with the officer, that action is strong evidence of submission.”  She counted among the Courts of Appeals that had adopted that view not only the First, in United States v. Camacho, but also the Ninth and Tenth.  See United States v. Hernandez, 27 F.3d 1403, 1407 (9th Cir. 1994); United States v. Morgan, 936 F.2d 1561, 1565 (10th Cir. 1991).  She argued that the panel had placed itself on “the wrong side” of the split by declining to adopt that interpretation.

Finally, she argued that an overly expansive conception of “evasive” behavior threatens to erode Fourth Amendment protections, since even momentary detention constitutes a seizure within the meaning of the Fourth Amendment. 

In a sense, the Court’s decision makes more sense when understood as an expression of policy than as a literal explanation of whether Mr. Huertas was stopped.  The Court determined that a short period of questioning, followed immediately by flight, is not a “constitutional moment” in which the safeguards attendant to a stop must be applied.  Thus, although Mr. Huertas’s belief that he “submitted” to authority when he stood in a police spotlight and answered questions is understandable, he still was not “stopped” within the meaning of the Fourth Amendment.  This is not an unusual result:  the law is filled with instances when a word means something in a dictionary that it does not mean as a matter of law.  Consider Yates v. United States, 135 S. Ct. 1074, 1088-89 (2015), in which the Supreme Court held that a fish was not a “tangible object.”  To be sure, a fish is something that can be held, but as a policy matter the Supreme Court did not want the document destruction prohibition in Sarbanes-Oxley to be read so broadly as to cover the act of throwing fish over-board. 

Here, the Court similarly does not want to unduly limit the ability of a police officer to question someone who was just identified by a bystander as someone up to no good.  At the same time, Judge Pooler’s argument —that the concept of “evasive” behavior should be narrowly defined, lest a suspect’s eventual flight turn into a “free pass” for an unconstitutional stop—also holds some weight.  If the Circuit split is as pronounced as the dissent believes, the issue may eventually reach the Supreme Court in order to refine this aspect of Fourth Amendment procedure.

-By Jane Metcalf and Harry Sandick