Given the fact that [Officer Eric] Williams blocked See’s car with his marked patrol car, a reasonable person in See’s position would not have felt free to leave. [W]e conclude that the initial Terry stop was not supported by reasonable suspicion.
U.S. v. See
574 F.3d 309 (2009)
U.S. Circuit Court of Appeals
On Sunday April 22, 2007 at 4:31 a.m. at 2190 East 30th Street, Cleveland, Ohio at the dimly lit Cedar Estates Housing Complex parking lot Officer Eric Williams observed a White Chevrolet Lumina backed in to a parking spot with no front license plate.
Later he would observe the vehicle had an Ohio Temporary tag #N190764 in the rear window. This particular area had sustained multiple armed robberies, so Officer Williams decided to stop and investigate what the three vehicle occupants were doing in the parking lot at 4:30 a.m.Officer Williams pulled his cruiser in front of the Lumina to prevent the vehicle from driving off as he exited his cruiser.
Mr. Karl See was backed in a parking spot here at the Cedar Estates public housing complex in Cleveland, Ohio when he was detained by Officer Williams.
He radioed for backup and soon Officer Azzano arrived. Officer Williams asked the occupants to step out of the Lumina and he shined his flashlight in the car and observed a 9 mm bullet on the floorboard. Based on the presence of the bullet, Officer Williams looked under the seats and under the driver’s seat was a 9 mm Makarov handgun. The handgun had the serial number scraped off so he placed Mr. Karl See under arrest for Carrying a Concealed Weapon.Mr. See was parked in a Chevrolet Lumina in this parking area when he was detained by Officer Williams.
Mr. See was charged federally based in part because the serial number was scraped off of the handgun. He filed a Motion to Suppress with the District Court which denied the motion. Mr. See entered a conditional plea agreement pending this appeal. The Sixth Circuit Appellate Court held “Given the fact that [Officer Eric] Williams blocked See’s car with his marked patrol car, a reasonable person in See’s position would not have felt free to leave. [W]e conclude that the initial Terry stop was not supported by reasonable suspicion.”
So, what was Mr. See doing in the parking lot at Cedar Estates at 4:31 a.m.? Here is an excerpt from the Sixth Circuit, specifically footnote #2; “See testified that he was at Cedar Estates because he had arranged to meet with Tarajuawanna Crowell (“Crowell”), a woman he knew and with whom he was planning to spend the night. See stated that the two men in the car had been with him at a bar and that he was going to let them use his car while he spent the rest of the night at Cedar Estates. When See arrived at Cedar Estates, he backed his car into a parking space on the side of the lot closest to the street, parked his car, and asked his friends to wait while he went to make sure that Crowell was home. Crowell was not home and See returned to his car and decided to wait in his car for a few minutes to see if she arrived. Shortly after he returned to his car, Williams’s patrol car pulled up and parked in front of See’s car, blocking in See’s car.”
- When law enforcement physically blocks a citizen either as a pedestrian or in a vehicle the citizen is immediately seized. At that moment law enforcement must have Reasonable Suspicion that the citizen is involved in criminal activity, otherwise the detainment is likely to be determined unlawful. In this case, the three men in the car were simply sitting in the car. Officer Williams knew that this was a high crime area that had been hit with several recent armed robberies. Not surprisingly, Mr. See had a handgun secreted under the driver’s seat with the serial number scraped off. Clearly Officer Williams ‘gut feeling’ was spot – on. However, the mere presence in a high crime area is not enough to rise to Reasonable Suspicion.
- Law enforcement officers will often discuss their own ‘Sixth Sense’ and how they use it when investigating criminal activity. This is also called a ‘gut feeling’. In the book Primal Leadership it states in pertinent part “The amygdala [this is part of our brain], then, lets us know its conclusions primarily through circuitry extending into the gastrointestinal tract that, literally, creates a gut feeling. Gut feelings offer a guide when facing a complex decision that goes beyond the data at hand. Gut feeling, in fact, has gained new scientific respect because of recent discoveries about implicit learning – that is, the lessons in life we pick up without being aware that we’re learning.”. Goleman, R. Boyatzis, A. McKee, Primal Leadership, 44, Harvard Business School Press (2013). So, this sixth sense or gut feeling IS REAL. Most often it has kept law enforcement officers, maybe even you, alive in many dangerous encounters. Even though the excerpt states that gut feelings have gained new scientific respect, it has not and likely never will gain legal justification. Law enforcement cannot simply rely on three men loitering in a high crime area at 4:30 a.m. and immediately detain them based on a gut feeling. I want to underscore that Officer William’s gut feeling was accurate, perhaps even scientifically accurate, but it was not legally justified.
- For more information on the impact of a high crime area and law enforcement authority to detain, see my post Julian’s Bar was in a High Crime Area But Was that Enough to Conduct an Investigatory Stop? September 7, 2020.
Does your agency train on Investigative Detention?
Don’t fail your training.
Don’t let your training fail you!
Be safe, smart and objectively reasonable!
Robert H. Meader Esq.