United States of America, Cross-Appellant v. Luis Fernando De La Rosa, Cross-Appellee

CLARK, Circuit Judge,

dissenting:

“[A] person has been ‘seized’ within the meaning of the Fourth Amendment 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.” ¹ In upholding the search of De La Rosa’s car and residence, the majority ascribes to our fellow citizens a fortitude in the face of police-initiated encounters of almost Homeric proportions. The majority would have us believe that De La Rosa— blocked in by police vehicles that followed him through a locked security gate and confronted in his own parking lot by armed agents who demanded and retained his most valuable piece of personal identification — would feel free to walk blissfully away from these officers and continue on his own business. The law in this area unequivocally demonstrates that De La Rosa was “seized” without sufficient justification and that all fruits of this initial illegality must be excluded.

At the outset, it should be noted that if this encounter was considered a “seizure” within the meaning of the fourth amendment, the police had neither reasonable, articulable suspicion nor probable cause to support the seizure of De La Rosa.² As the government admitted at the district court, the testimony adduced at the suppression hearing indicated that the police had no particularized and objective basis for seizing De La Rosa. The only activities observed by the police, while on routine patrol, were that an associate, Bustamonte, talked on a public telephone at a shopping mall for several minutes while De La Rosa waited in a car; that De La Rosa then drove Bustamonte to a place of residence; and that he then returned to his own home. Every observed act, whether viewed alone or in combination with each other, is consistent with innocent activity. Indeed, there is not even a hint on this record to suggest that the police had reasonable suspicion or probable cause to believe that De La Rosa was involved in any sort of criminal activity.³

Having framed the importance of the majority’s determination that a “seizure” did not occur in this case, I find its opinion irreconcilable with this court’s previous decision in United States v. Thompson.⁴ In that case, Officer Kier, without suspicion of any criminal activity, approached the defendant Thompson who was sitting inside an automobile at an airport parking lot.⁵ As he approached, Kier noticed that Thompson was holding a colored, circular object to his nose.⁶ The officer asked for identification, and Thompson handed him his driver's license, which was retained throughout the encounter.⁷ Suspecting that the object contained cocaine, Kier requested that Thompson hand him the vial and subsequently arrested him and secured consent to search the car, which later revealed more contraband.⁸

In finding that the defendant in Thompson had been “seized” within the meaning of the fourth amendment, we specifically noted that:

when Kier requested the vial a reasonable person in Thompson’s position would have believed that he was not free to leave.... Kier did more than simply request and examine Thompson’s driver’s license. The record shows ... that when Kier made the request he had not returned Thompson’s driver’s license..,. When Kier retained Thompson’s license, the encounter matured into an investigative stop protected by the Fourth Amendment. Without his driver’s license Thompson was effectively immobilized. A reasonable person in these circumstances would not have believed himself free to leave.⁹

Our holding in Thompson was specifically premised on the Supreme Court’s prior decision in Florida v. Royer,¹⁰ in which it excluded evidence seized during an airport stop.¹¹ There, a majority of the Justices found that an initial encounter between DEA agents and the defendant was a “seizure”:

Asking for and examining [the defendant’s] ticket and his driver’s license were no doubt permissible in themselves, but when the officers identified themselves as narcotics agents, told [the defendant] that he was suspected of transporting narcotics, and asked him to accompany them to the police room, while retaining his ticket and driver’s'license and without indicating in any way that he was free to depart, [the defendant] was seized for purposes of the Fourth Amendment.¹²

Indeed, other circuits, which have considered the exact issue posed in Thompson, have reached similar results.¹³

In this case, the testimony of the officers at the suppression hearing indicated that they asked for identification from De La Rosa and, while retaining his driver’s license, asked for consent to search the inside of his automobile.¹⁴ Although this incident alone is sufficient to escalate this encounter to a “seizure” under Thompson, I find that this conclusion becomes irresistible when the totality of the circumstances faced by De La Rosa on that night are also considered.¹⁵ The officers gained access to De La Rosa’s apartment complex by following him through a controlled access security gate which was obviously designed to exclude the general public from the premises. In addition, when the encounter ensued, De La Rosa’s car was effectively blocked on two sides by unmarked police vehicles without an avenue of exit. Finally, he was confronted by two police officers, both wearing holstered firearms in plain view and acting in an official capacity, who did not initially inform him that he could refuse to consent to a search of his car. Under such circumstances, I find the majority’s conclusion that a reasonable person would not consider himself the focus of an investigation and therefore free to leave to be without basis.¹⁶

Despite this court’s view that the holding in Thompson was a “common-sense conclusion,” ¹⁷ the majority completely sidesteps its relevance to this case. In a footnote, it attempts to distinguish Thompson on the grounds that:

unlike the defendant in Thompson, appellant had already exited his vehicle and was proceeding toward his home for the evening. Thus, temporary retention of the license did not preclude appellant from terminating the encounter by going into his apartment.

Without even examining its legal basis, this distinction is flawed from the outset because there is no factual support in the record for the majority’s adoption of the district court’s determination that De La Rosa “had returned home for the evening, and was not anticipating using the automobile in the immediate future.” The only person who could have conceivably had knowledge of this intention was De La Rosa, and he did not testify at the suppression hearing. There was no testimony at all from the police witnesses about De La Rosa’s plans for the evening. It seems rather odd that the result in this case would be different under the majority’s rationale if, for example, De La Rosa had indicated that he was returning home to feed his dog before driving out again.¹⁸

Putting these factual deficiencies aside, the majority’s analysis misperceives the nature of the inquiry in determining whether a “seizure” has taken place within the meaning of the fourth amendment. The question to be resolved is not, as the majority poses it, whether a person is physically “preelud[ed] ... from terminating the encounter,” but whether a reasonable person “would have believed that he was not free to leave.” ¹⁹ Put more simply, the issue is one not of physical capacity, but of belief, objectively viewed. Indeed, in Thompson, we anticipated the very type of argument that the majority now deploys to distinguish that case and expressly rejected it. In analyzing the facts of Royer, we noted that:

[ i]n a purely physical sense, the retention of a person’s airline ticket does not prevent him from leaving the company of law enforcement agents. He may, if he has sufficient funds, attempt to purchase another ticket and depart to his chosen destination. Or he may simply try to walk away, abandoning his plans to travel by air. But the cases ... hold that despite physical possibility of departure, a reasonable person whose airline ticket has been retained would not believe that the officers would permit him to de-part_ [TJhe person whose driver’s license has been retained can, in a physical sense, attempt to leave the scene. He can abandon his vehicle and walk away, or attempt to drive away.... [T]he legal issue is whether a reasonable person would believe that law enforcement officers would permit him to leave.²⁰

In light of this clear language, it is obvious that the majority’s analysis of this question is flawed.

Finally, even if we accept the majority’s view that De La Rosa intended to retire for the evening, its opinion is still inconsistent not only with the underlying rationale of Thompson, but also with the practical realities of such police encounters. In our society, the most valuable piece of personal identification possessed by most citizens is their driver’s license. Because of the safeguards that most states employ in issuing such documents, it is considered by merchants, employers, government officials, and other relevant persons as definitive proof of an individual’s personal identity, age, and residence. Indeed, those who have been unfortunate enough to lose their driver’s licenses know how completely disabled one is from participating in many of the incidents of everyday life, apart from driving. Thus, when a person is confronted by a police officer and hands over his license, the reasonable expectation of that person must be that he is not free to leave the officer’s presence. By giving over what may be his only piece of personal identification to an agent of the state, that person knows that he is effectively immobilized even if he could physically walk away from the officer. Recognizing that fact, a person would not feel that he is free to stroll away, and, as a consequence, has been “seized” for purposes of the Fourth Amendment.²¹

Under the majority’s view, De La Rosa and other similarly situated persons who intend to avoid a police encounter, should reasonably be expected to abandon their driver’s license in the possession of a police officer, walk away, and perhaps apply for a new license another day. I find such a result completely at odds not only with ordinary experience, but, more importantly, the clear precedents of this court and the accepted constitutional analysis of this question. Because the majority clearly erred by abandoning principles of stare de-cisis in not applying a binding precedent of this court, I dissent.

1 . United States v. Mendenhall, 446 U.S. 544, 545, 100 S.Ct. 1870, 1872-73, 64 L.Ed.2d 497 (1980) (opinion of Stewart, J.).

2 . See United States v. Espinosa-Guerra, 805 F.2d 1502, 1506 (11th Cir.1986); United States v. Berry, 670 F.2d 583, 591, 598-603 (5th Cir. Unit B 1982) (en banc).

3 . One police officer testified that he believed that De La Rosa had employed evasive driving tactics as a counter-surveillance measure. This same officer testified, however, that De La Rosa’s activity at the shopping mall was not consistent with any form of drug activity. Yet, the fact that a suspect is evasive is alone insufficient to establish reasonable, articulable suspicion when there is no reasonable basis for suspecting why the suspect may be consciously evading a police officer. See United States v. Jones, 619 F.2d 494, 498 (5th Cir.1980). Indeed, since the officers testified that De La Rosa did not know that he was being tailed by the police, and that they were following in unmarked police vehicles, his particular driving technique may well have been consistent with innocent activity.

4 . 712 F.2d 1356 (11th Cir.1983).

5 . Id. at 1358.

6 . Id.

7 . Id.

8 . Id.

9 . Id. at 1359 (emphasis added); accord United States v. Elsoffer, 671 F.2d 1294, 1297 (11th Cir.1982).

10 . 460 U.S. 491, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983).

11 . See Thompson, 712 F.2d at 1360.

12 . Royer, 460 U.S. at 501, 103 S.Ct. at 1326 (plurality opinion) (emphasis added); see also id. at 511, 103 S.Ct. at 1331 (Brennan, J., concurring in the result).

13 . See United States v. Battista, 876 F.2d 201, 205 (D.C.Cir.1989); United States v. Cordell, 723 F.2d 1283, 1285 (7th Cir.1983), cert. denied, 465 U.S. 1029, 104 S.Ct. 1291, 79 L.Ed.2d 693 (1984).

For example, the District of Columbia Circuit has noted that:

[i]t is well-established that the mere request for identification does not inevitably give rise to a seizure. But once the identification is handed over to police and they have had a reasonable opportunity to review it, if the identification is not returned to the detainee we find it difficult to imagine that any reasonable person would feel free to leave without it.

Battista, 876 F.2d at 205 (citation omitted).

14 . Although upholding the district court’s factual determination of this point, the majority notes parenthetically that this conclusion was "somewhat questionable”. However, the following colloquy at the suppression hearing with Officer Anagnostis, who was the officer responsible for writing the official police report of this incident indicates:

Q: You came up to the car, Detective Gross tells you we could search the car. Is that your testimony?

A: That’s correct, yes.

Q: After that, he also shows you a license?

A: Correct.

Q: After he tells you — he being Detective Gross — we could search the car, he also points out to you the license in his possession that shows Atlanta, Georgia, or it says Georgia?

A: Yes.

Q: Did you see how or where Detective Gross obtained items from the car [during the search]?

A: I couldn’t see.

Q: Did you talk to my client during this time at all?

A: I may have asked him if he lived there again. That was about it, or his driver’s license. I may have asked him if he had a Florida license, or something like that.

Q: Did you have possession of the Atlanta license at this time?

A: Detective Gross handed it to me.

Q: So you had possession of the Atlanta license while Detective Gross was searching?

A: Yes.

15 .See United States v. Puglisi, 723 F.2d 779, 783 (11th Cir.1984).

In Puglisi, we pointed to some specific factors that indicate whether a police-citizen contact is consensual or a seizure. These include: the suspect’s age, education, and intelligence; the length of the suspect’s detention and questioning; the number of police officers present; the display of weapons; any physical touching of the suspect; the language and tone of voice of the police; whether the citizen’s path was blocked or his progress impeded; and whether a plane ticket or identification was retained. Id.

16 . See United States v. Kerr, 817 F.2d 1384, 1386-87 (9th Cir.1987); United States v. Pavelski, 789 F.2d 485, 488-89 (7th Cir.), cert. denied, 479 U.S. 917, 107 S.Ct. 322, 93 L.Ed.2d 295 (1986).

17 . Thompson, 712 F.2d at 1360.

18 . In Thompson there was no indication that the defendant required his driver’s license because he intended to drive way immediately. In fact, the defendant was found in a parked car that had already been parked in a short-term airport lot for two weeks. See id. at 1358.

19 . Mendenhall, 446 U.S. at 554, 100 S.Ct. at 1877 (emphasis added).

20 . Thompson, 712 F.2d at 1360-61 (emphasis added).

21 . Because De La Rosa was "seized” within the meaning of the fourth amendment and the seizure was unconstitutional, I would hold that all statements and evidence flowing from that initial illegality must be suppressed. Royer, 460 U.S. at 507, 103 S.Ct. at 1329; Thompson, 712 F.2d at 1361-62.