Lead Opinion
ROGERS, J., delivered the opinion of the court, in which THAPAR, D.J., joined. MOORE, J. (pp. 575-78), delivered a separate dissenting opinion.
OPINION
This is our second opportunity to consider the purported seizure of Defendant Joey Carr’s ear. On the night of August 29, 2006, two police officers approached Carr’s white Chevy Tahoe, which was parked in an otherwise empty coin-operated carwash. After seeing furtive movements, and observing marijuana on Carr’s dashboard, the police arrested Carr and searched the Tahoe. They discovered a gun, crack cocaine, and marijuana. Carr was charged with intent to distribute, 21 U.S.C. § 841(a), possession of a firearm, 18 U.S.C. § 924(c), and being a felon in possession of a firearm, 18 U.S.C. § 922(g). Following a suppression hearing, the district court denied Carr’s motion to suppress the fruits of the search. Carr appealed and we remanded for further fact-finding. On remand, the district court conducted a second evidentiary hearing and again denied Carr’s motion to suppress. This was proper because Carr and the officers had a consensual encounter and no seizure occurred when the officers parked their cruiser and approached Carr’s vehicle. Even if a seizure had occurred, the officers had reasonable suspicion sufficient to justify stopping Carr.
I.
On the night of August 29, 2006, three officers from the Madison County Metro Narcotics Unit — Lieutenant William Carneal and Investigators Marc Byrum and David Coffman
When the light changed, the officers proceeded up the road, turned around, and returned to the carwash a few minutes later. The Tahoe had not moved from the carwash bay, and no one was washing it. The officers testified that they did not see any illegal activity, but were concerned that the car was abandoned or that an
The officers parked their unmarked Explorer at an angle, approximately 12 feet from the front of the Tahoe’s passenger’s side. Carr, the driver of the Tahoe, could have driven forward past the Explorer or, alternatively, could have backed out of the open carwash bay. Officer Byrum testified that “there was enough room that [Carr] could have just merely steered around [the Explorer],” and that there was “ample room to steer and maneuver around our vehicle.”
As the unmarked Ford Explorer came to a stop, the officers “momentarily activated the blue lights,” which were “immediately turned off’ in order “to inform the passenger of the vehicle that [they] were police and not someone trying to do him harm.” Officers Carneal and Byrum exited the Explorer and approached the Tahoe on foot. Officer Carneal went to the Tahoe’s passenger’s side and Officer Byrum walked to the driver’s side. Neither officer drew his weapon. As they approached, the officers saw Carr bending toward the middle console, fidgeting with his hands. When they arrived at the vehicle, Officer Carneal looked through the passenger-side window and saw a bag of marijuana sitting on the console of the Tahoe. Officer Byrum asked Carr to exit the Tahoe and undergo a safety patdown for weapons. Carr complied, but as he exited the vehicle, Officer Byrum noticed loose tobacco fall off Carr’s clothing. The officers arrested Carr. Carr consented to a search of the vehicle, which uncovered marijuana, crack cocaine, plastic bags, scales, a large amount of money and a loaded handgun.
Carr was charged with intent to distribute, 21 U.S.C. § 841(a), possession of a firearm, 18 U.S.C. § 924(c), and being a felon in possession of a firearm, 18 U.S.C. § 922(g). Following a full evidentiary hearing, the district court denied Carr’s motion to suppress, finding that the encounter between Carr and police was consensual or, in the alternative, that the stop was supported by reasonable suspicion. Carr entered a conditional guilty plea and appealed the order denying his motion to suppress. We remanded for further fact-finding regarding the positioning of the police car and to determine the extent to which the blue police lights were used. United States v. Carr,
II.
A. Consensual Encounter
Carr’s encounter with the officers occurred in three stages: the parking of the police vehicle, the officers’ approach on foot, and Carr’s exit from his vehicle. As a threshold matter, the stop was consensual at the point where the officers parked their unmarked police car near Carr’s Tahoe. A “consensual encounter” occurs when “a reasonable person would
The officers’ use of blue lights was not sufficiently coercive to transform this encounter into a compulsory stop. An encounter does not become compulsory merely because a person identifies himself as a police officer. See O’Malley v. City of Flint,
Carr’s case is distinguishable from See,
The encounter continued to be consensual as the officers approached Carr’s Tahoe on foot. One officer approached the driver’s door while another approached the passenger’s door. We have held that approaching the vehicle in this manner, by itself, does not make the encounter non-consensual. In United States v. Dingess,
[Two officers] parked their cruiser on the street, leaving the driveway entrance clear. [Officer # 1] approached the driver’s door while [Officer # 2] approached the passenger’s door. Accord*574 ing to the officers, both the driver’s and the passenger’s -windows were down. As the officers approached the rear bumper, they smelled burning marijuana; as they moved closer, [Officer # 1] observed Dingess holding a marijuana blunt in his right hand.
Id. at 854. The officers here similarly approached Carr’s vehicle on both sides, which by itself does not compel a finding the encounter was not voluntary. Further, the officers did not engage in any coercive behavior that would make the encounter non-consensual. Examples of circumstances that might indicate seizure are “the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer’s request might be compelled.” United States v. Peters,
Our sister circuits have found similar police encounters to be consensual. For example, the Tenth Circuit found a consensual encounter where the police car was parked at an angle near the defendant’s car, but did not block defendant’s car from leaving a parking lot. United States v. Ringold,
When the officers asked Carr to exit the vehicle, the encounter transformed from voluntary to compulsory. “Once a consensual encounter escalates to the point where the individual is ‘seized,’ the police officer must have a reasonable suspicion of criminal activity to justify a Terry stop, or probable cause to justify an arrest, in order for the seizure to comply with the Fourth Amendment.” United States v. Campbell,
B. Reasonable Suspicion
Even if Carr had been detained at the initial encounter, reasonable suspicion would have justified the detention. To determine the constitutionality of a brief investigatory stop, we examine the “totality of the circumstances” to determine whether a reasonable officer would have had a “particularized and objective basis” to suspect legal wrongdoing. United States v. Brown,
It would be error for us to disregard the time of day and the fact that the area was a high-crime area when making the totality of the circumstances determination. Although the time of day and the fact that it was a high-crime area, standing alone, are insufficient to support reasonable suspicion, see See,
Further, this case is distinguishable from See and Gross, both of which happened in a residential parking lot in Ohio. Parking a car in an otherwise vacant car-wash that is a known meeting area for drug dealers, at night, and not washing that car, raises a different magnitude of suspicion than parking in a lot behind a residential building. Although it is possible that Carr was waiting for someone to return with change, as he claims, this was not reasonably likely — the carwash was set back from the road and the nearest business, a gas station, was closed. If Carr had needed change, given the location of the carwash, he would have more likely gone to get change in the very car in which he sat. This varies substantially from the events in See, where the defendant claimed he was parked in the parking lot of a residence to wait for a woman whom he wished to see. See,
Because this was a consensual encounter, or alternatively, a valid Terry stop, there is no need to address whether suppression is appropriate in light of the exclusionary rule’s purpose.
III.
The district court’s order denying Carr’s motion to suppress is affirmed.
Notes
. The district court spelled the officer's name "Coffman” while the government spelled his name "Kaufmann.” For the purposes of this opinion, the court adopts the district court's spelling.
Dissenting Opinion
dissenting.
The factual record developed by the district court on remand essentially affirmed that previously presented to this court for review. Accordingly, the conclusion I previously expressed in concurrence remains unchanged: The encounter between Carr and the police officers was neither consensual nor supported by reasonable suspicion and, consequently, was in violation of the Fourth Amendment. See United States v. Carr,
I. CONSENSUAL ENCOUNTER
The law of this Circuit is clear that a Terry stop occurs when a police officer positions his or her vehicle to prevent an individual from physically leaving a citizen-police encounter. United States v. See,
On remand, a second law-enforcement officer testified, and corroborated his partner’s prior testimony, that the police vehicle was stopped approximately ten-to-twelve feet from Carr’s vehicle, R. 102 (Evid. Hr’g Tr. at 20:20), that the police officers flashed their lights once to identify themselves, id. at 16:17-19, and that, while it was possible for Carr to leave the scene, he would have had “to steer and maneuver around [the police] vehicle” to exit forward or back up and reverse his vehicle to exit through the car wash’s rear, id. at 21:1-3, 26:23-24. The officer also testified that maneuvering the car forward would have required steering toward a “rail” and a “ditch” located near the vehicles, both of which were large sport-utility vehicles. Id. at 26:4-15, 27:8-22.
While perhaps it was physically possible for Carr to leave the scene of the encounter, doing so would have been no simple feat given the various obstacles and maneuvering required. The police officers positioned their vehicle so as to obstruct Carr’s forward-exit pathway, leaving him with only a clear rear exit, which would have required him to reverse the direction of his vehicle. Moreover, it was not as if the police officers were without other options for the positioning of their vehicle: They could have entered through the rear of the car wash and parked behind Carr’s vehicle so that his forward-exit pathway was completely unobstructed, or they could have parked inside or in front of one of the adjacent bays. See id. at 29:1-30:7. The police officers, however, chose not to do so. Their choice is relevant because it gave nonverbal cues to Carr about his freedom to terminate the encounter. Specifically, the flashing of the lights combined with the aggressive positioning of the police vehicle signaled to Carr that a stop was occurring and that he was not free to terminate the encounter.
II. REASONABLE SUSPICION
The question that follows is whether there was reasonable suspicion to justify the Terry stop. No new facts regarding reasonable suspicion came to light during the evidentiary hearing on remand. Thus, the issue is whether reasonable suspicion
As the majority admits, we have held that the time of day and high-crime nature of the area are insufficient to support reasonable suspicion. See, e.g., See,
Moreover, the lack of visible activity for two-to-three minutes, even in a nonresidential parking lot, was not sufficient to supply reasonable suspicion under See and Gross. Even the officers testified that when they approached the vehicle to investigate they did not have any particularized suspicions of criminal wrongdoing, but were more concerned about citizen welfare. R. 81 (Supp. Hr’g Tr. at 9:17-24, 16:21-17:21).
Accordingly, I respectfully dissent.
. Ironically, it is the majority’s opinion that appears to endorse a bright-line rule — the establishment of which it criticizes — that, so long as a driver can physically leave the site of a citizen-police encounter, he has not been subject to a Terry stop.
. This Circuit recently reaffirmed that a “community-caretaking function” is distinct from criminal investigation and cannot, standing alone, justify an investigative stop.