NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued March 5, 2013
Decided April 11, 2013
Before
RICHARD A. POSNER, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
ANN CLAIRE WILLIAMS, Circuit Judge
No. 12‐3000
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Southern District of Indiana,
Terre Haute Division.
v.
No. 11‐CR‐2
SETH BRISSEY,
Defendant‐Appellant. Jane Magnus‐Stinson,
Judge.
O R D E R
A police officer walked up to a pickup truck parked in a parking lot and looked into
the window; he saw Seth Brissey sleeping in the driver’s seat, knocked on the window to
wake him up, and asked him to roll the window down. Once awakened, Brissey ignored the
request, made sudden movements, and attempted to grab for unidentified objects. Fearing
for his safety, the officer ordered Brissey out of the pickup and noticed a pocketknife in his
hand. The officer restrained him, patted him down, and discovered marijuana on him; a
later search of the pickup revealed more drugs and a stolen pistol.
Brissey was charged as a felon in possession of a firearm. See
18 U.S.C. § 922(g).
Before trial he moved to suppress the gun, arguing that the officer seized him and searched
No. 12‐3000 Page 2
the truck without reasonable suspicion, contrary to Terry v. Ohio,
392 U.S. 1 (1968). The
district court denied the motion. Brissey pleaded guilty and was sentenced to 105 months’
imprisonment. On appeal Brissey challenges the denial of the motion to suppress, a right he
reserved in his plea agreement. We affirm the judgment. Brissey was not seized until he
submitted to the officer’s demand to exit the pickup, by which point he had given the officer
reasonable fear for his safety, thereby justifying the pat‐down and search.
In late 2010 Cory Hutchins of the Parke County Sheriff’s Office in Indiana responded
to a dispatcher’s report about a suspicious vehicle parked at a church. There the officer saw
a pickup truck, and though the record does not reveal why the truck was described as
suspicious, Hutchins saw damage to its frame and thought that it must have been in an
accident recently. Hutchins approached the driver’s window and saw Brissey alone in the
car, hunched over in the driver’s seat and resting his head on the steering wheel. Hutchins
knocked on the window, startling and waking Brissey. Hutchins then asked Brissey to roll
the window down. Brissey instead “began making sudden movements inside the vehicle
and appeared to grab for various items.” Concerned for his safety, Hutchins directed
Brissey to exit the truck and show his hands. Brissey ignored the order and “continued to
make sudden movements as if hiding something or attempting to gain access to
something.” Hutchins repeated his order several times and in the meantime observed
“several items” in Brissey’s hands and a package of rolling papers fall from his coat.
Hutchins opened the door to the truck—releasing a strong marijuana odor from
inside—and Brissey finally stepped out, as ordered. Hutchins then noticed a pocketknife
among the items in Brissey’s hands. Hutchins placed Brissey against the side of the truck
and directed him to drop the items. When Brissey refused, Hutchins forcibly removed the
items and handcuffed Brissey. A pat‐down search of Brissey’s clothing revealed a lighter,
$1,500 in cash, and a small bag of marijuana. A search of the truck revealed small bags of
cocaine, methamphetamine, and Xanax, as well as a large bag of marijuana and a .25‐caliber
pistol, which recently had been reported stolen.
These facts are recounted in an undisputed affidavit from Hutchins, which the
district court relied on in denying the motion to suppress evidence. The court reasoned that
the encounter was consensual until Hutchins ordered Brissey to exit the pickup. At that
point Brissey was seized, the court said, but the seizure was justified because Brissey’s
sudden movements and attempts to grab for something had given Hutchins reasonable
concerns for his safety. Once Brissey refused to drop the pocketknife, the court further
concluded, Hutchins was justified in taking the knife away from Brissey, patting him down,
and handcuffing him. Finally, in addition to Hutchins’s safety concerns, the strong smell of
marijuana emanating from the pickup gave Hutchins probable cause to search it.
No. 12‐3000 Page 3
On appeal Brissey challenges the lawfulness of the officer’s request that Brissey roll
down his car window, disputing the district court’s ruling that the encounter at that point
was consensual. Brissey contends that a reasonable citizen would not have felt free to
terminate the exchange when Hutchins woke Brissey and asked him to roll down his
window. At that point, Brissey adds, Hutchins had no reason to fear for his safety, and
therefore he lacked reason to order him out of the car and search him and the car.
Accordingly, Brissey concludes, the evidence discovered after the search should be
suppressed.
We begin by examining whether Hutchins “seized” Brissey when he asked Brissey to
roll down the window and Brissey ignored the request; if there was no seizure at that point,
the issue of consent is academic. A seizure occurs only “when the officer, by means of
physical force or show of authority, has in some way restrained the liberty of a citizen.”
Terry v. Ohio,
392 U.S. 1, 19 n.16 (1968); see United States v. Griffin,
652 F.3d 793, 798 (7th Cir.
2011). Two conditions must occur: Not only must a reasonable citizen have felt unable to
decline an officer’s requests, see Florida v. Bostick,
501 U.S. 429, 435 (1991); United States v.
Mendenhall,
446 U.S. 544, 554 (1980), but the citizen must have actually submitted. California
v. Hodari D,
499 U.S. 621, 628 (1991); United States v. Griffin,
652 F.3d 793, 798 (7th Cir. 2011);
Christensen v. Cnty. of Boone, Ill.,
483 F.3d 454, 460 (7th Cir. 2007). Here, the officer’s request
and Brissey’s disregard demonstrate that neither of these two conditions was met.
We have repeatedly concluded that a reasonable person would feel free to terminate
an encounter when officers approach a citizen sitting in a parked car and ask a few
questions, as long as the officers do not flash their weapons, use physical force, use forceful
language suggesting that compliance with the officers’ request might be compelled, or
prevent the citizen from driving away. See, e.g., United States v. Whitaker,
546 F.3d 902,
907–909 (7th Cir. 2008); United States v. Clements,
522 F.3d 790, 794–95 (7th Cir. 2008); United
States v. Douglass,
467 F.3d 621, 623–24 (7th Cir. 2006); United States v. Hendricks,
319 F.3d
993, 1000–01 (7th Cir. 2003); United States v. Packer,
15 F.3d 654, 657 n.3 (7th Cir. 1994); see
also United States v. Taylor,
511 F.3d 87, 91–92 (1st Cir. 2007); United States v. Williams,
413
F.3d 347, 352 (3d Cir. 2005). These cases reflect the well‐established principle that law
enforcement officers do not coerce citizens into complying with their requests simply by
posing requests to them. United States v. Drayton,
536 U.S. 194, 200 (2002); see Mendenhall,
446 U.S. at 554. That is all that happened here: Hutchins walked up to the truck, looked
inside, got Brissey’s attention by knocking on the window, and asked him to roll the
window down.
But even if, by rapping on the window, awakening Brissey, and asking Brissey to roll
down his window, Hutchins showed enough authority that a reasonable person would
have felt compelled to submit, the second condition for a seizure is absent: Brissey did not
No. 12‐3000 Page 4
actually submit. He did not “passively acquiesce” to Hutchins’s request that he roll the
window down. See Brendlin v. California,
551 U.S. 249, 255 (2007). Rather, he ignored the
request, and he then grabbed for items within his reach inside the vehicle, thus showing
that his movement within the car was unrestrained. See Hodari D.,
499 U.S. at 629; Abbot v.
Sangamon Cnty., Ill., No. 12‐1121,
2013 WL 322920 (7th Cir. Jan. 29, 2013); Griffin,
652 F.3d at
798–801.
The seizure occurred moments later, though. When Hutchins ordered Brissey out of
the pickup and Brissey complied, both conditions for a seizure were met because Hutchins
gave Brissey no choice and Brissey submitted. See United States v. Shoals,
478 F.3d 850, 853
(7th Cir. 2007) (concluding that citizen not seized until he acquiesced to officers’ command
that he exit house); United States v. Johnson,
427 F.3d 1053, 1057 (7th Cir. 2005) (concluding
that seizure occurred when citizen complied with officer’s command to stop backing away
from front door); United States v. Jerez,
108 F.3d 684, 692–93 (concluding that occupant of
motel room seized when he complied with officers’ order to open door). The question,
therefore, is whether at the point that Brissey complied with Hutchins’s order to exit the
pickup there was a lawful basis to detain him and pat him down.
When Hutchins ordered Brissey out of the vehicle, he had reason to suspect that
Brissey was dangerous and therefore could detain and frisk him. By that point, Brissey had
made sudden, furtive movements inside the car, attempted to grab at unidentified objects
that might put Hutchins at risk, and, after Brissey ignored the request to roll the window
down, let rolling papers fall from his coat. This court has concluded that, when an occupant
of a car makes suspicious movements, for example taking “an abnormally long time to
comply with” officer requests and “having difficulty with something that the officer could
not see,” an officer has reasonable grounds to order the occupant to exit the vehicle and
submit to a pat‐down search. United States v. Hendricks,
319 F.3d 993, 1004 (7th Cir. 2003);
see also United States v. Evans,
994 F.2d 317, 321 (7th Cir. 1993).
Brissey responds that Hutchins’s observations did not give Hutchins reason to fear
for his safety because when he ordered Brissey out of the truck, he had not yet seen the
pocketknife. (Appellant’s Br. at 7.) But an “officer need not be absolutely certain that an
individual is armed; the issue is whether a reasonably prudent man in the circumstances
would be warranted in the belief that his safety or that of others was in danger.” Terry,
392
U.S. at 27; see United States v. Snow,
656 F.3d 498, 501 (7th Cir. 2011). Thus, the seizure and
pat‐down outside the truck, which revealed the pocket knife and marijuana, were valid.
Brissey does not challenge any of Hutchins’s actions after ordering Brissey out of the
truck. In particular, he does not dispute that if the knife and marijuana were lawfully
discovered on him, they supplied the grounds to search the car, which revealed the firearm.
No. 12‐3000 Page 5
Accordingly, because the knife and marijuana were lawfully seized, Hutchins also lawfully
discovered the firearm used to convict Brissey.
AFFIRMED.
