Search and Seizure Law School Case Briefs

Terry Stop and Frisk in Terry v. Ohio

Terry v. Ohio, 392 U.S. 1 (1968) Search and Seizure

Facts of the Case Fourth Amendment Search and Seizure Stop and Frisk

Detective McFadden was on the downtown beat, the same beat he had been working for a number of years, when he noticed two men (petitioner, Terry, and Chilton) who were strangers to the neighborhood standing on a street corner. Upon observation, he noticed the men would alternate and take turns passing in front of a store, and stopping to look inside of the window of it. He observed this take place close to 24 times, each time resulting in a conversation between the suspects. The two men were joined by a third, Katz, who quickly left the scene after a brief appearance. Detective McFadden suspected something was going on, and believed the trio was casing the store for a stick-up, so he proceeded to walk up to the suspects, identify himself as a peace officer, and ask their names. The suspects "mumbled something," upon being questioned, at which point Detective McFadden initiated a frisk and found a pistol in the overcoat of the petitioner. He then ordered the three suspects into a store, removed the overcoat of the petitioner, and seized the pistol. He proceeded to order the three to face an opposing wall, raise their hands in the air, and searched each of them, finding a pistol in Chilton's outside overcoat. The three were taken to the police station, and the petitioner and Chilton were charged with carrying concealed weapons. The defense moved to suppress the weapons, citing that the frisk by Detective McFadden was a violation of the Fourth Amendment right against unreasonable searches and seizures.

Issues

The facts surrounding the grounds for a lawful search and seizure without violating the Fourth Amendment surfaced over six points that were presented for review. The first issue is whether the Fourth Amendment protects people against unreasonable searches and seizures, and where this rule can be applied. (i.e. in homes, on the street, etc.) The second issue is whether or not the evidence that was seized can be used against the petitioner, due to the legality of the seizure. In concurrence with the second point, the third point addresses whether the exclusionary rule would go into effect, based upon the facts presented by the defense as to whether or not the search and seizure was lawful. The fourth issue at hand is whether or not the procedures of a "stop and frisk" applied to the situation involving the three suspects. The fifth issue involves a tier of circumstances, which branch from the idea of safety. In essence, a peace officer is allowed to make a reasonable search for weapons if he feels his life may be in danger, and the question posed is whether or not the frisking of the three suspects was warranted. Finally, the sixth issue deals with whether or not the search and seizure of the defendant and his companions falls within the boundaries of being "reasonable" as defined by a normal person.

Court Decision

The Court affirmed the decision of the trial court and the appellate court finding that the search and seizure was legal under the Fourth Amendment.

Rationale for the Decision

Chief Justice Warren wrote for the majority. The Fourth Amendment provides for protection against unreasonable searches and seizures, but does not protect suspects who are acting in a suspicious manner from being questioned by peace officers and possibly searched for contraband if the officer(s) believe the situation can escalate to a matter of life and limb. In simple terms the issue at hand is whether or not the evidence of the firearms that were seized can be suppressed based on the belief that the initial line of questioning that developed into a pat down was a violation of the suspects Fourth Amendment rights. From the point of view of the defense, the detective did not establish that the defendants were acting in a manner that required a search of their person in any way, shape, or form. However, the detective offered testimony that is had been his experience over thirty-plus years that when someone is acting in a manner as the defendant(s) were, it was most likely due to the fact that they were planning an illegal action of some sort. Acting in the best interest of his job description, the detective proceeded to question the defendants, and feeling that it would be prudent to protect himself, he initiated a search, which led to the seizure of two firearms from the defendants. The exclusionary rule removes items from evidence that are illegally seized. If the detective had initiated a frisk that involved more than patting down the outer portions of the garments of the defendants, there would be reason to exclude the firearms, but since the detective did not reach inside of the garments until he felt what he believed to be a pistol on the defendants, the proper method of a warranted search and seizure were followed.

Concurring Opinions

Justices Harlan and White offer concurring opinions. Justice Black concurs in judgment, but does not concur where the opinion relies on quotes from Katz v. United States or the concurring opinion in Warden v. Hayden.

Dissenting Opinions

Justice Douglas offers the dissenting opinion of the court, citing the fact that no connection can be made by a reasonable person to conduct a reasonable search for weapons on suspects who were merely loitering in front of a property. He states that a magistrate would not have issued a warrant for a search based on the lack of probable cause stated by the detective, in which he cited the facts which led him to believe that the suspects might be armed, thus making him fear for his life. Justice Douglas offers text from Henry v. United States, 361 U.S. 98, 100-102, in which it is stated that a "strong reason to suspect" was needed in order to establish probable cause. It is his belief that the level of probable cause was not established when the detective initiated a search of the defendants, and subsequently seized firearms.

Holding of the Court

The technique of stopping and frisking suspects who peace officers believes might be potentially dangerous is within Constitutional boundaries of search and seizure, and does not violate any portion of the Fourth Amendment. Probable cause is established through the actions of the suspects, and is deemed worthy of a search if there is reasonable suspicion that they are a threat to the personal safety of the officers.

Parole Search Probation Search



Recent search and seizure case from California

People v. Butler, C064170 (CAAPP3)

Defendant Demond Dupree Butler appeals the trial court’s denial of his motion to suppress evidence that includes a loaded handgun the police found underneath the driver’s seat of the car defendant was driving. The police searched under the seat as part of a “parole search” because the front seat passenger, Johnny Duckworth, was on parole. Defendant argued in the trial court, as he does on appeal, that the search under the driver’s seat went beyond the permissible reach of a parole search. We disagree and affirm.

BACKGROUND

I. Factual Background[1]

Just after midnight on July 25, 2009, Officers Mohammed and Guerrero of the Stockton Police Department were driving behind a 1999 Honda Accord. Officer Mohammed noticed the red lens on the left brake light was cracked and initiated a traffic stop. The car pulled over, and the officers approached the vehicle. Officer Mohammed asked defendant (the driver) for his driver’s license, registration, and insurance. Defendant provided the information. Officer Mohammed also obtained the names and birth dates of the front seat passenger and the two passengers in the back seat. Officer Mohammed returned to his patrol car and ran a records check on all of the vehicle occupants. The records check indicated that the front seat passenger, Johnny Duckworth, was on parole for residential robbery.

Upon learning of Duckworth’s parole status, the officers decided to conduct a parole search and had everybody exit the vehicle. During this time, Duckworth was handcuffed and placed in the back of the patrol car. The other vehicle occupants were seated on the curb. During the parole search, Officer Guerrero found a handgun directly underneath the driver’s seat. Additional officers arrived on the scene, and the remaining vehicle occupants were handcuffed and placed into patrol cars. Officer Guerrero had Officer Mohammed look under the driver’s seat to observe the gun. Before the officers handled the gun, an evidence technician was called to the scene for photographing. Eventually Officer Mohammed removed the gun from under the driver’s seat and discovered it was loaded with six bullets.

After being read his Miranda rights, [2] defendant spoke with Officer Mohammed about the gun. Defendant stated that his cousin was involved in an altercation earlier that night, and defendant took the gun away from his cousin before the matter escalated. Defendant placed the gun in his vehicle and forgot about it. Defendant indicated that he knew the gun was loaded, but was unaware that it was illegal to carry a gun in the vehicle.

II. Procedural Background

On September 28, 2009, the San Joaquin County District Attorney filed a two-count information against defendant charging him with possession of a firearm by a felon (count 1) and possession of ammunition by a felon (count 2). The information further alleged that defendant had committed one prior strike and served two prior prison terms. A combined preliminary and suppression of evidence hearing was held on September 24, 2009. The superior court judge, sitting as a magistrate, denied the suppression motion and held defendant to answer on the charges against him. In denying the suppression motion, the magistrate stated: “Next issue would be the issue of a parole search.... A Honda, not a lot of distance between the driver’s seat and passenger seat. The officers would be allowed to look. [¶]... [W]hat I have here indicates Mr. Duckworth was on parole and therefore there would be a basis for a parole search. Also, though he’s the passenger, that doesn’t mean they can’t search the car or areas particularly in his control. On a bus, that is a different deal. This is a small car. We’re not talking about officers plowing through the trunk. We’re talking the search of the front seat where Duckworth was seated apparently next to [defendant] that night. [¶] I would deny the [motion] for those reasons.”

On December 7, 2009, defendant sought review of the magistrate’s suppression ruling and filed a renewed motion to suppress pursuant to Penal Code section 1538.5, subdivision (i) (section 1538.5(i)).[3] On January 11, 2010, after reviewing the parties’ briefing and preliminary hearing transcript, the trial court denied the motion. In its ruling, the trial court stated: “I am going to deny the motion based on the notion that this was a parole search. And the gun was found in a place that was readily accessible to the defendant. [¶] The Court made sort of a factual finding on that, about the size of the car and the, quote, relatively small car. [¶] A gun was found under the driver’s seat, next to wherever Mr. Duckworth, the parolee, was seated, so that he had access to it. I’m not disagreeing with the notion that he didn’t have an ownership interest in the car, or even have a possessory interest in the car. But he had the ability or right to control those items underneath the driver’s seat. [¶] And so a parole search clause requiring access to places that a person has control is imposed just for that purpose. The place where the parolee might be able to put, place[, ] secret or have access to contraband. And, certainly, that could have been the case here. [¶] So for all those reasons, the Court’s going to deny the [section] 1538.5 motion. But that’s an interesting issue. Let’s see where it goes from here.” This appeal followed.

DISCUSSION

Motion to Suppress

On appeal from a renewed motion to suppress brought under section 1538.5(i), we review the determination of the magistrate at the preliminary hearing. (People v. Nonnette (1990) 221 Cal.App.3d 659, 664.) We defer to the magistrate’s factual findings, whether express or implied, when supported by substantial evidence, and we independently determine whether the facts of the challenged search and/or seizure violated defendant’s Fourth Amendment rights. (People v. Lomax (2010) 49 Cal.4th 530, 563; People v. Hua (2008) 158 Cal.App.4th 1027, 1033.)

A warrantless search is “‘per se unreasonable under the Fourth Amendment -- subject only to a few specifically established and well-delineated exceptions.’ [Citation.]” (Arizona v. Gant (2009) 556 U.S. __ [173 L.Ed.2d 485, 493] (Gant); see also People v. Redd (2010) 48 Cal.4th 691, 719.) A search pursuant to a properly imposed parole search condition is one such exception. (People v. Reyes (1998) 19 Cal.4th 743, 751 (Reyes); People v. Smith (2009) 172 Cal.App.4th 1354, 1360 (Smith).) California parolees are subject to a standard search condition, which provides that their person, their residence, and any property under their “control” may be searched without a warrant at any time by any law enforcement officer. (Cal. Code Regs., tit. 15, § 2511, subd. (b); Reyes, supra, 19 Cal.4th at p. 746; People v. Lewis (1999) 74 Cal.App.4th 662, 666, fn. 1 (Lewis); People v. Williams (1992) 3 Cal.App.4th 1100, 1105 (Williams).)[4] This condition has long been regarded as valid. (People v. Wagner (1982) 138 Cal.App.3d 473, 479; People v. Montenegro (1985) 173 Cal.App.3d 983, 988.) While parole searches need not be based on probable cause or reasonable suspicion of criminal activity (People v. Sanders (2003) 31 Cal.4th 318, 332-333 (Sanders); Reyes, supra, 19 Cal.4th at pp. 751, 754), they are subject to constitutional limits. Among other things, the scope of a parole search may render the search constitutionally unreasonable. (See Smith, supra, 172 Cal.App.4th at p. 1362.)

No party disputes that Officers Mohammed and Guerrero had knowledge that Duckworth was on parole and were authorized to conduct a parole search. (See Smith, supra, 172 Cal.App.4th at p. 1360 [officer was aware that defendant was on parole and was therefore authorized to conduct a parole search]; see also Samson v. California (2006) 547 U.S. 843, 856, fn. 5 [165 L.Ed.2d 250, 262].) Rather, the parties dispute whether the scope of their search went beyond the parameters of a legitimate parole search.

Consistent with the ambit of the standard parole search condition, the searching officer may look into areas or containers that it is reasonable to believe are within the complete or joint “control” of the parolee. (People v. Boyd (1990) 224 Cal.App.3d 736, 745, 749-751 (Boyd); People v. Britton (1984) 156 Cal.App.3d 689, 703 (Britton), disapproved on another ground in People v. Williams (1999) 20 Cal.4th 119, 135; United States v. Davis (9th Cir. 1991) 932 F.2d 752, 760 (Davis).) As there was no evidence that Duckworth owned or possessed the vehicle, some other indication of Duckworth’s control of the area searched was necessary for the search to be reasonable. From the record, it is clear that the magistrate (and the trial court) concluded that the area underneath the driver’s seat was within Duckworth’s “control” based on his immediate access to that area.

As the magistrate correctly found, a Honda Accord is a “small car.”[5] Duckworth was sitting in the front passenger seat of the vehicle, which put him within immediate reach of the area under the driver’s seat. Moreover, there was no evidence Duckworth suffered from a physical limitation that rendered him unable to utilize his hands or that the area under the driver’s seat was partitioned off or excluded from other passengers. As the trial court put it, and as the magistrate impliedly found, the area underneath the driver’s seat was “readily accessible” to Duckworth. We defer to this finding.

The issue remains, however, whether it was reasonable to believe that this area, which was readily accessible to Duckworth, was within his “control.” (See Boyd, supra, 224 Cal.App.3d at p. 750 [reasonable suspicion standard used to determine whether an object is within the scope of a parole search].) We conclude that it was.[6]

Because Duckworth was within immediate reach of the area underneath the driver’s seat and it was readily accessible to him, it was reasonable to believe that Duckworth could personally exercise power over that area (and any contraband therein), rendering it within his control. (See Merriam-Webster’s Collegiate Dict. (11th ed. 2006) p. 272, col. 1 [defining “control” as, among other things, “to have power over”]; cf. People v. Pompa (1960) 178 Cal.App.2d 62, 65 [“control [over contraband] might be inferred from its presence in a place to which the accused and others had joint access”); United States v. Tirrell (7th Cir. 1997) 120 F.3d 670, 676 [“Indeed, in close quarters such as a car, a jury likely would have an easier time concluding that multiple individuals exercised control over a particular weapon”].)

Although we have not located any authority that purports to delineate or establish criteria for determining what areas inside a vehicle are within a passenger-parolee’s control for parole search purposes, our conclusion that it was reasonable to believe the area searched was within Duckworth’s control, and thus within the proper scope of a parole search, is consistent with the rationale for permitting warrantless, suspicionless parole searches. (See Cupp v. Murphy (1973) 412 U.S. 291, 295 [36 L.Ed.2d 900, 905-906] (Cupp)[“the scope of a warrantless search must be commensurate with the rationale that excepts the search from the warrant requirement”]; see also Gant, supra, 556 U.S. at p. ___ [173 L.Ed.2d at p. 493] [explaining that “‘the area “within [an arrestee’s] immediate control”’” is defined as the “‘area from within which he might gain possession of a weapon or destructible evidence’” so that the scope of the search-incident-to-arrest exception remains “commensurate with its purposes of protecting arresting officers and safeguarding any evidence of the offense of arrest that an arrestee might conceal or destroy” (italics added)].)

“The justification for exempting parole searches from the warrant requirement... is that these searches are necessary for effective parole supervision.” (Williams, supra, 3 Cal.App.4th at pp. 1105-1106.) Parolees are “routinely and closely monitored, ” which greatly reduces their expectation of privacy. (Reyes, supra, 19 Cal.4th at p. 753.) Warrantless parole searches serve to deter crime and protect the public, and when randomly done, parole searches enhance the potential for crime deterrence. (Ibid.)

Here, given that the area underneath the driver’s seat was readily accessible to Duckworth, he could easily utilize that area to store or conceal items, such as weapons or other contraband, and he could easily retrieve items from that area and reduce them to his immediate possession. Accordingly, treating that area as within Duckworth’s control and subject to a parole search is commensurate with the purpose of effectively supervising Duckworth, closely monitoring his conduct, protecting the public from any criminal danger he may pose, and deterring him from committing crime. Indeed, it is difficult to imagine that an officer attempting to supervise and monitor a parolee via a warrantless parole search would disregard those areas that are readily accessible to him. (Cf. United States v. Knights (2001) 534 U.S. 112, 120 [151 L.Ed.2d 497, 506] [“probationers [and parolees] have even more of an incentive to conceal their criminal activities and quickly dispose of incriminating evidence than the ordinary criminal because probationers [and parolees] are aware that they may be subject to supervision and face revocation of probation [or parole], and possible incarceration, in proceedings in which the trial rights of a jury and proof beyond reasonable doubt, among other things, do not apply”].)

We conclude that the facts confronting the searching officers supported a reasonable belief that the area under the driver’s seat, which was readily accessible to Duckworth, was within his control and therefore within the proper scope of a parole search. Accordingly, the search of that area was lawful. While defendant raises arguments to the contrary, none compel a different result.

Defendant claims that this case is “controlled” by People v. Baker (2008) 164 Cal.App.4th 1152 (Baker), a decision from the Fifth Appellate District, which defendant cites in support of his position that “t is not enough that the parolee had some theoretical access to the area underneath the driver’s seat.” Baker, which we are not bound to follow, is readily distinguishable.

In Baker, an officer stopped a vehicle for speeding. (Baker, supra, 164 Cal.App.4th at p. 1156.) Defendant Baker was sitting in the front passenger seat with a female’s purse at her feet. (Id. at p. 1156.) After confirming that the vehicle’s driver was on parole, the officer decided to conduct a parole search and had Baker exit the vehicle. (Ibid.) The officer searched the entire car and found nothing. (Ibid.) The officer then searched the purse and found methamphetamine in one of the purse pockets. (Ibid.) Baker was later charged with possession of methamphetamine and moved, unsuccessfully, to suppress the contraband found in her purse. (Id. at pp. 1155-1156.) The Court of Appeal concluded that the search of the purse went beyond the legitimate scope of a parole search. (Id. at pp. 1156, 1161.)

The Baker court reasoned that when executing a parole search, “the searching officer may look into closed containers that he or she reasonably believes are in the complete or joint control of the parolee, ” and the purse was not such a container. (Baker, supra, 164 Cal.App.4th at p. 1159.) According to the court, a purse is “not generally an object... which two or more persons share” and “there [was] nothing to overcome the obvious presumption that the purse belonged to the sole female occupant of the vehicle.” (Id. at p. 1160.)

What distinguishes this case from Baker is the nature of the area searched and the different “social expectations” (Georgia v. Randolph (2006) 547 U.S. 103, 111 [164 L.Ed.2d 208, 220]) that attach. In Baker, the area searched was the interior of a female’s purse; it obviously belonged to the female nonparolee passenger, and as a matter of common social expectations, a purse is not generally an object that two or more persons share as it is “an inherently private repository for personal items.” (Baker, supra, 164 Cal.App.4th at pp. 1159-1160; see also United States v. Welch (9th Cir. 1993) 4 F.3d 761, 764 [recognizing that “a purse is a type of container in which a person possesses the highest expectations of privacy”].) Thus, even though the driver, a male parolee, was likely within reach of the female purse, there was no reason to believe that he was allowed to access it.

Here, the area searched was an open space underneath the driver’s seat, not a closed, personal possession clearly belonging to another individual. Unlike the female’s purse in Baker, the area underneath the driver’s seat carried with it no social expectation of exclusive or intensely private use. As the People suggest in their briefing, it is not atypical for passengers apart from the driver to utilize the space underneath the driver’s and front passenger’s seat for storage purposes (whether to create more legroom or otherwise). In short, unlike in Baker, here there was no reason to believe that the parolee was not allowed to access the area searched.

In a related argument, defendant contends there was no evidence that Duckworth had “common authority” over defendant’s vehicle. Defendant attempts to invoke the “common authority” theory of consent articulated in United States v. Matlock (1974) 415 U.S. 164 [39 L.Ed.2d 242] (Matlock), which Baker mentions and which the California Supreme Court employed in People v. Woods (1999) 21 Cal.4th 668, 675-676 (Woods), for purposes of explaining the legitimate scope of a probation (not parole) search. While defendant would have us analyze this case under the “common authority” theory of consent, we decline defendant’s invitation to do so.

At its heart Matlock is a consent case, and Woods imported Matlock into the probation search context based on the underlying premise that probationers “may validly consent” to the search terms of their probation. (Woods, supra, 21 Cal.4th at p. 674.) While probation search terms may be a matter of consent, on more than one occasion the California Supreme Court has indicated that a parolee does not consent to the search terms of his parole; rather, those terms are imposed upon him. (Sanders, supra, 31 Cal.4th at p. 329, fn. 3 [“No comparable issue of waiver is raised in the present case, because the search condition at issue here was imposed as a condition of parole, which defendant could not refuse”]; Reyes, supra, 19 Cal.4th at p. 749 [“The consent exception to the warrant requirement may not be invoked to validate the search of an adult parolee because, under the Determinate Sentencing Act of 1976, parole is not a matter of choice”]; People v. Bravo (1987) 43 Cal.3d 600, 608 [“A probationer, unlike a parolee, consents to the waiver of his Fourth Amendment rights in exchange for the opportunity to avoid service of a state prison term”].) Accordingly, unless and until the California Supreme Court explicitly imports Matlock’s “mutual authority” theory of consent into the parole search context, we are reluctant to filter this case through a Matlock analysis.

Second, and in any event, there is no need to utilize Matlock as the test for assessing the parole search’s legitimacy. The standard parole search condition, along with case law, already authorizes a search of the parolee and areas or property within his “control.” (Cal. Code Regs., tit. 15, § 2511, subd. (b), item 4; see Boyd, supra, 224 Cal.App.3d at pp. 745, 749-751; Britton, supra, 156 Cal.App.3d at p. 703; Davis, supra, 932 F.2d at p. 760.) Here, it was reasonable to believe that the area underneath the driver’s seat (and the contraband therein) was within Duckworth’s “control” for parole search purposes. Moreover, the scope of a parole search must be commensurate with the rationale for exempting parole searches from the warrant requirement (Cupp, supra, 412 U.S. at p. 295 [36 L.Ed.2d at pp. 905-906]), and as previously discussed, the search underneath the driver’s seat was commensurate with this rationale. Therefore, the search was valid and there is no need to separately analyze this case under a consent rubric and independently determine whether the scope of the search was also commensurate with the quite different rationale behind warrantless consent searches. (Florida v. Jimeno (1991) 500 U.S. 248, 250-252 [114 L.Ed.2d 297, 302-303] [discussing consent exception rationale]; People v. Jenkins (2000) 22 Cal.4th 900, 980 [same].) Because the parole search in this case was lawful without regard to its treatment under Matlock, there is no need to further analyze the legality of the parole search under a Matlock paradigm.

Despite defendant’s arguments to the contrary, the parole search underneath the driver’s seat was constitutionally reasonable. Accordingly, we uphold the trial court’s ruling.

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Warrantless Search and Seizure Case Law

State v. Rodriquez, 476 SE 2d 161 - SC: Court of Appeals 1996 - Fourth Amendment

A. Detention

The Fourth Amendment provides that "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated. ..." U.S. Const. amend. IV.

No right is held more sacred, or is more carefully guarded, by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law.

Union Pac. Ry. Co. v. Botsford, 141 U.S. 250, 251, 11 S.Ct. 1000, 1001, 35 L.Ed. 734 (1891). 165*165 Generally, police seizures are per se unreasonable within the meaning of the Fourth Amendment unless such seizures are accomplished pursuant to judicial warrants issued upon probable cause. United States v. Place, 462 U.S. 696, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983).

However, it has long been recognized that "[n]ot all personal encounters between policemen and citizens involve `seizures' of persons thereby bringing the Fourth Amendment into play." State v. Culbreath, 300 S.C. 232, 237, 387 S.E.2d 255, 257 (1990) (citing State v. Foster, 269 S.C. 373, 237 S.E.2d 589 (1977)). Indeed, "[t]he purpose of the Fourth Amendment is not to eliminate all contact between the police and the citizenry, but `to prevent arbitrary and oppressive interference by enforcement officials with the privacy and personal security of individuals.'" United States v. Mendenhall, 446 U.S. 544, 553-54, 100 S.Ct. 1870, 1877, 64 L.Ed.2d 497 (1980) (quoting United States v. Martinez-Fuerte, 428 U.S. 543, 554, 96 S.Ct. 3074, 3081-82, 49 L.Ed.2d 1116 (1976)). A person has been "seized" within the meaning of the Fourth Amendment "whenever a police officer accosts [the] individual and restrains his freedom to walk away." Terry v. Ohio, 392 U.S. 1, 16, 88 S.Ct. 1868, 1877, 20 L.Ed.2d 889 (1968); Sikes v. State, ___ S.C. ___, ___, 448 S.E.2d 560, 562 (1994) ("[a]n individual is `seized' when an officer restrains his freedom, even if the detention is brief and falls short of an arrest.") That is, "[o]nly when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a "seizure" has occurred." Terry, 392 U.S. at 19 n. 16, 88 S.Ct. at 1879 n. 16.

In determining whether an encounter between a law enforcement official and a citizen constitutes a seizure, and thereby implicates Fourth Amendment protection, the correct inquiry is whether, considering all of the circumstances surrounding the encounter, a reasonable person would have believed he was not free to leave. Mendenhall, 446 U.S. at 545, 100 S.Ct. at 1872-73. So long as the person approached and questioned remains free to disregard the officer's questions and walk away, no intrusion upon the person's liberty or privacy has taken place and, therefore, no constitutional justification for the encounter is necessary. Id. at 554, 100 S.Ct. at 1877; see also State v. Foster, 269 S.C. 373, 237 S.E.2d 589 (1977) (person has not been seized where he is neither detained nor frisked and remains free to refuse to cooperate with enforcement officers).

We hold the trial court erred in failing to find the North Charleston police officers' encounter with Rodriquez amounted to a "seizure" within the meaning of the Fourth Amendment. As noted by the trial court, Rodriquez was repeatedly advised he was free to leave at any time during the police questioning, but the officers placed a "qualification" on this freedom. In our view, a reasonable person would not have believed he was free to walk away from two police detectives who informed him that all he needed to do was cooperate with their request to search his belongings and, if nothing incriminating was discovered, he would then be "clear to go." We think that by placing a condition upon Rodriquez's freedom to simply walk away from the encounter, the officers effectuated a seizure of his person within the meaning of the Fourth Amendment. See Mendenhall, 446 U.S. at 554, 100 S.Ct. at 1877 ("Examples of circumstances that might indicate a seizure, even where the person did not attempt to leave, would be the threatening presence of several officers ... or the use of language or tone of voice indicating that compliance with the officer's request might be compelled.") (emphasis added); see also United States v. Wilson, 953 F.2d 116 (4th Cir.1991) (holding defendant was seized for Fourth Amendment purposes when, after permitting a search of his person and bags but refusing to allow a search of his coat, he attempted to walk away from police officers who followed and continued to question him).

B. Reasonableness of Seizure

Having determined Rodriquez was in fact seized during his encounter with Detectives Denney and Roberts, we must determine whether his Fourth Amendment rights were thereby violated.

166*166 Clearly, "what the Constitution forbids is not all searches and seizures, but unreasonable searches and seizures." Elkins v. United States, 364 U.S. 206, 222, 80 S.Ct. 1437, 1446, 4 L.Ed.2d 1669 (1960). It is well established that the police may stop and briefly detain and question a person, without treading upon his Fourth Amendment rights, upon a reasonable suspicion supported by articulable facts, short of probable cause for arrest, that the person is involved in criminal activity. State v. Foster, 269 S.C. 373, 379, 237 S.E.2d 589, 591 (1977) (citing Terry, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)); see also United States v. Place, 462 U.S. 696, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983); State v. Morris, 312 S.C. 116, 439 S.E.2d 291 (Ct. App.1993). Here, because Rodriquez does not challenge the State's position the officers had an articulable suspicion he was involved in criminal activity, we need not address this prong of the required constitutional analysis. However, even assuming the validity of the initial seizure of Rodriquez's person, we conclude the seizure exceeded reasonableness limitations prescribed in Terry and its progeny.

The reasonableness of an "on-thescene" warrantless seizure depends on the balance between the public interest and the individual's right to personal security free from arbitrary interference by law officers. Foster, 269 S.C. at 381, 237 S.E.2d at 592 (citing United States v. Brignoni-Ponce, 422 U.S. 873, 878, 95 S.Ct. 2574, 2578-79, 45 L.Ed.2d 607 (1975). The applicable balancing test employs judicial review of all of the circumstances including but not limited to: (1) the seriousness of the offense; (2) the degree of likelihood that the person detained may have witnessed or been involved in the offense; (3) the proximity in time and space from the scene of the crime; (4) the urgency of the occasion; (5) the nature of the detention and its extent; (6) the means and procedures employed by the officer; and (7) the presence of any circumstances suggesting harassment or a deliberate effort to avoid the necessity of securing a warrant. United States v. Holland, 510 F.2d 453, 455-56 (9th Cir.1975). Given the intrusive nature of a seizure, and considering the fact that on occasion a person may be wrongfully stopped, the United States Supreme Court has held, as has the Supreme Court of this State, that the scope and duration of a Terry detention must be strictly tied to and justified by the circumstances which rendered its initiation proper. Florida v. Royer, 460 U.S. 491, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983); Sikes v. State, 448 S.E.2d 560 (1994). The burden falls upon the State to "demonstrate that the seizure it seeks to justify on the basis of a reasonable suspicion was sufficiently limited in scope and duration to satisfy the conditions of an investigative seizure." Royer, 460 U.S. at 500, 103 S.Ct. at 1326.

Here, two experienced officers were informed on March 23, 1993 that a man named Rodriquez who (1) made frequent train trips to New York; (2) often returned relatively soon after departing; and (3) was regularly picked up by the same person, would be returning to Charleston from New York on March 24. These officers were also aware another man using the name Rodriquez had been arrested for drug trafficking several months earlier and had indicated there might be another drug courier who used the same name. Based on this information, the officers suspected Rodriquez might be carrying drugs when he arrived back in Charleston on March 24. Nevertheless, the officers did not arrange to have a canine drug detection unit at the station when Rodriquez arrived, even after they learned the train on which he was traveling was significantly behind schedule. See United States v. Sharpe, 470 U.S. 675, 686, 105 S.Ct. 1568, 1575, 84 L.Ed.2d 605 (1985) ("[i]n assessing whether a detention is too long in duration to be justified as an investigative stop, [it is] appropriate to examine whether the police diligently pursued a means of investigation that was likely to confirm or dispel their suspicions quickly, during which time it was necessary to detain the defendant."). Even assuming an investigative detention was proper at that point, we find a thirty minute detention while the officers attempted to elicit incriminating evidence from Rodriquez is the type of fishing expedition denounced by our Supreme Court in Sikes, 448 S.E.2d at 563 (assuming arguendo, that stop of motor vehicle passengers was reasonable, twenty minute detention 167*167 while officers "went fishing" for some evidence of crime was not brief). In light of the foregoing, we hold the intrusion of the officers in this case was not reasonable. The fact that the actions of other officers, who arrived at the scene after Detectives Denney and Roberts had illegally detained Rodriquez, fortuitously produced evidence of an illegal pistol and other contraband does not vitiate the fact Rodriquez's Fourth Amendment rights were violated.

The detention and arrest of Rodriquez was constitutionally violative; therefore, the evidence of his possession of a pistol and various quantities of narcotics and drug paraphernalia should have been deemed inadmissible as fruit of the poisonous tree. Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); Sikes, 448 S.E.2d 560.

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