United States v. Steven G. Campbell

unnecessary. Accordingly, dant denying quali- court’s decision

bankruptcy petitioning creditor status to Crown

fied dismissing the amended

and RTRR and

involuntary petition for an insufficient qualified

number creditors under 303(b)(1)

§ affirmed. will be

V. CONCLUSION above,

For the reasons set forth bankruptcy

decision of the court dismiss- involuntary bankruptcy the amended

ing AFFIRMED.

petition is America,

UNITED STATES

Plaintiff-Appellant, CAMPBELL, Defendant-

Steven G.

Appellee.

No. 06-3321. Appeals,

United States Court of

Sixth Circuit.

Argued: March 2007. May

Decided and Filed:

Rehearing Rehearing En Banc 8, 2007.* Aug.

Denied * Judge grant rehearing the rea- sons stated in his dissent. Cole would Office, Cleveland, Ohio, Appel-

fender’s lee. COLE, CLAY, GILMAN,

Before Judges. Circuit GILMAN, J., opinion delivered the of court, CLAY, J., joined. which COLE, 958-63), (pp. J. delivered a separate dissenting opinion.

OPINION GILMAN, RONALD LEE Circuit Judge. Campbell

Steven G. was indicted on one count being possession felon of a firearm, in violation of 18 U.S.C. § 922(g)(1). possession He was found in handgun quarter-ounce-size of both a and bags marijuana police after a officer arrested him and searched his car incident key appeal to the arrest. The issues on (1) are whether the initial interaction be- tween the officer and involuntary a consensual encounter or an (2) detention, and did the officer have cause to arrest at the point that Campbell was “seized” for purposes. Fourth Amendment to evi- suppress moved arrest, during his dence obtained contend- ing be- that the evidence inadmissible it resulted from an unreasonable granted seizure. The district court motion, prompted government which interlocutory appeal. file this For the rea- below, sons set forth we REVERSE the grant district motion court’s REMAND and the case for Deskins, Duane J. ARGUED: Assistant proceedings further consistent Ohio, Cleveland, Attorney, United States opinion. Appellant. Fleming, for Charles E. Fed- Office, Cleveland, eral Public Defender’s I. BACKGROUND Ohio, Appellee. for BRIEF: ON Duane Deskins, p.m. J. At on the eve- approximately Assistant United States Attor- 10:30 Cleveland, Ohio, ney, Appellant. ning July officer Michael E. Fleming, patrol Charles Federal Public De- Salser was on routine a marked returned the cell bell that address and vicinity McClurg Road in the police car Campbell. phone area Township, Ohio. The in Boardman a rash of break- recently experienced told about Officer Salser stopped and car thefts. ins area burglaries recent committed McClurg Road intersection of at the like to see then said that he “would a black Chev- Boulevard behind Southern ID, I talked to just log [Campbell’s] As the by Campbell. driven rolet Cavalier Salser, According logging to Officer him.” Road, McClurg turned east on Cavalier something he meetings with civilians is soon it. Salser followed investigative work. routinely does lot parking of Modern turned into according to Officer Salser’s Campbell, home-building supply Building Supply, a re- testimony suppression hearing, at the time. Officer that was closed store any that he did not have identifi- sponded Campbell exit the car and observed Salser hearing, Campbell At the same cation. proceeded he on phone as talk on his cell telling Salser that he recalled Officer said McClurg Road. As Officer Sal- foot toward me.” anything have on Of- that he “didn’t Building Sup- past the Modern ser drove Campbell for his ficer then asked Salser lot, Campbell cross ply he watched name, birth, security and social date of park- foot and enter the McClurg Road on response, In Salser testi- number. Officer Church, Inc., manu- American ing lot of “very nervous,” Campbell became fied stationery. American facturer of church and that he up,” hands “[h]is went at the time. was also closed Church trouble, “officer, any I don’t want said re- please.” point At that Officer Salser Campbell stood near the street some identifica- peated contin- his to see parking American lot and Church ID, him if had a tion: “I asked he state phone. to talk on his cell Officer ued And he could car and his name and date of birth. patrol turned his around Salser way just as soon as ID’d him.” parking [I] be on his parked in the American Church emergency not activate his lot. He did the officer that his Campbell then told Although or siren. he informed lights Morris, was that his birth name Steven park- was in the police dispatcher 17,1981, not May was and that he did date male, he did not run ing lot a black security social number. Officer know his through dis- plates the Cavalier’s license relayed the information to his dis- driver. identifying as a means of patch un- responded who that she was patcher, verify to the name or date of birth. Campbell speaking continued on able While any infor- dispatcher’s inability to find phone, cell Officer Salser exited the The his car, of birth mation with the name or date patrol approached Campbell, and to okay. Camp- provided by Campbell him if led Officer Salser everything asked “did not have an gotten trying lost believe replied bell he had ID, license, driver’s or an Ohio or he up girlfriend his from work and Ohio pick to it telling di- me the truth.” As turns phone get on the with her to wasn’t out, May Campbell’s actual birth date is phone rections. He handed the to Officer Salser, although Campbell 1982. And spoke with a woman who iden- who name, that he girlfriend legal he testified sometimes Campbell’s tified herself as In- name of Steven Morris be- goes that she at Treeman explained worked name, Morris is his father’s last contacting dispatcher After dustries. Industries, is his mother’s maiden get the address of Treeman whereas gave Camp- that he name. Officer Salser testified firearm, being possession continued a felon of a testified that he

Officer Salser 922(g)(1). Camp- § name and proper for his violation 18 U.S.C. to ask birth, Campbell’s at which time all date of bell filed motion evidence Campbell, according changed. stop demeanor obtained as result of Salser’s Salser, “[ejxtremely had become argued to Officer and arrest. He Officer Salser I that he was point nervous. At one felt suspicion did not have a reasonable walking run me. He was going to from activity justify an investigative criminal Very, very nervous.” Officer Sal- circles. stop Campbell. cause to arrest said, however, have that he would not ser Following evidentiary hearing an held in restrained the latter February of court grant- district that time. sought to leave at government ed motion. The timely interlocutory appeal. filed backup, officer arrived for After another asked if he could weapons. Campbell him down for did pat II. ANALYSIS object proceeded put his hands A. of review Standard felt a behind his back. Officer Salser pocket. left front bulge reviewing sup a motion to bulge, Campbell about the When asked press, legal we review the district court’s responded money. that it was Officer Sal- novo, determinations de but will set aside from ser did not remove the contents findings only they clearly its factual if are Campbell’s pocket. When Officer Long, v. erroneous. United States 464 bulge Campbell’s a in then asked about (6th Cir.2006). 569, “A factual 572 Campbell that he pocket, other front said when, clearly although finding is erroneous in Accord- did not know what was there. it, support there be evidence to Salser, if ing Campbell to Officer he asked court, reviewing utilizing the entire evi in he could take out what was dence, the definite and firm is left with Campbell yes. and said right pocket front that a been commit conviction mistake has testified that he found sev- Sanford, ted.” States v. 476 F.3d United bags marijuana pocket. At Cir.2007) eral (6th 391, (quotation marks 394 point Officer Salser arrested omitted). conclusion The district court’s marijuana placed bags and on the there clearly cannot be erroneous where patrol trunk of his ear. permissible are views of the evidence. two “must the evi Furthermore, Id. we review arrest, placing Campbell After under Of- likely support light dence in the most Campbell’s person ficer Salser searched the district court’s decision.” United pants in front and found his left $862 (6th Bates, 790, v. Cir. States Campbell’s ve- pocket. He then searched 1996) omitted). (quotation marks handgun a under- hicle and found loaded was neath the driver’s seat. B. Seizure police headquarters booking,

taken to police where officers discovered that Ste- ... not Constitution forbids “[T]he ven Morris was one of aliases seizures, but unreasonable all searches outstanding had an Ohio, Terry v. searches and seizures.” violation in New York parole warrant for 1868, S.Ct. 20 L.Ed.2d 889 392 U.S. City. (1968). offi police Encounters between 2005, into three grouped and citizens can be cers September encounters charged categories: in a one-count indictment with “consensual offi- the defendant’s encounter by police officer is initiated which contact cers, airport in an approached her whatsoever who reason any articulable traf- they suspected drug her of ques- because briefly asked some and the citizen is a seizure under ficking, did not constitute tions; involuntary detention temporary a reason- Amendment because predicated the Fourth which must be Terry stop circumstances person under those and arrests able suspicion; upon reasonable leave). have felt free to cause.” would based on which must be Bueno, 21 F.3d United States individual, on the A seizure of an omitted). Cir.1994) marks (quotation hand, the totali occurs when “under other circumstances, per a reasonable ty of the Royer, 460 U.S. In Florida v. have believed that he or she son would (1983), 75 L.Ed.2d 411. The away.” to walk Id. at not free on what elaborated Supreme subjective officer’s intent detain encounter: constitutes a consensual long is irrelevant so as ing an individual officers do not vio- enforcement [L]aw conveyed is not to the individu that intent merely Amendment late the Fourth way that results in the individual al on the street approaching an individual believing that he or she is not free to by asking him public place, inor another Mendenhall, leave. United States See questions, willing if to answer some he is 6,n. 446 U.S. to him the by putting questions (1980). “Examples circum L.Ed.2d 497 listen, by offering willing seizure, might indicate a even stances prosecution in a criminal evidence leave, attempt where the did not questions. voluntary answers to such of sev threatening presence would be the fact that the officer iden- Nor would the officers, weapon by of a an display eral the officer, police a without tifies himself as officer, touching per of the physical some more, encounter into a sei- convert the citizen, language son of the or the use of objective requiring zure some level indicating compliance tone of voice approached, justification. The com request might with the officer’s be however, any question need not answer at a pelled.” Id. 554. Once consensual him; indeed, may decline put to point the where the encounter escalates to may questions go at all and listen to the “seized,” police the officer individual is way. He not be detained on his suspicion a of crimi must have reasonable, momentarily without even justify Terry stop, or activity nal a so; objective doing for and his grounds arrest, in probable justify cause to an or not, does refusal to listen or answer comply with the der for the seizure more, grounds. If furnish those See, e.g., Reid v. Fourth Amendment. within there no detention —no seizure is 438, 440, 100 Georgia, 448 U.S. S.Ct. of the Fourth Amend- meaning (1980) “any (noting 65 L.Ed.2d 890 rights have ment —then no constitutional liberty by the person’s curtailment of a infringed. been by at least a police supported must be (citations omitted). short, a because Id. suspicion articulable reasonable and not amount to a consensual encounter does in criminal engaged is seized seizure, not need rea- police officer does activity”). cause before suspicion probable sonable has ex Supreme in- The to make an approaching an individual that, Alston, Terry stop, “a rea plained during quiry. See States v. United (6th Cir.2004) weapons protec- for the (holding that sonable search officer, police tion of the where he has Once a lawful arrest has been made, dealing police reason to believe that he is with an officer is permitted to individual, dangerous regard- search the individual. United armed States Robinson, 414 U.S. probable less of whether he has cause to (1973) crime,” (holding L.Ed.2d that follow per- arrest the individual for a ing “a lawful full custodial arrest a search missible. 392 88 S.Ct. 1868. U.S. of the is not an exception to Terry require does not the officer to “be requirement the warrant of the Fourth absolutely certain that the individual is Amendment, but is also a ‘reasonable’ armed; reasonably the issue is whether a Amendment”). search under that in This prudent man in the circumstances would cludes search of the individual’s vehicle. safety be warranted in the belief that his Robinson, United States v. or that of others in danger.” was Id. (6th Cir.2004) (explaining this

Because search pur- is for the limited court has allowed searches of automobiles pose safety of ensuring the of the officer incident to an arrest even the “arrestee him, and others around the search must car, handcuffed, was out placed of the in scope “be confined to an intrusion rea- cruiser”). back seat of a With knives, sonably designed guns, to discover mind, conceptual framework in we clubs, or other hidden instruments for the now turn to the issue of whether assault of the officer.” Id. at lawfully seized Officer Salser. S.Ct. 1868. government argues that Officer Sal- The final category permissible ser suspicion” stop had “reasonable encounter a police between officer and an Campbell on parking lot and conduct a an probable individual is arrest based on pat down for weapons when the officer cause. A warrantless arrest is constitu approached Alternatively, first him. it if, tionally valid “at the moment the arrest contends that probable Officer Salser had made, officers had cause to arrest to make it—whether at that moment the response to the officer’s question, facts and circumstances within their based on statement he did knowledge they and of which had reason any not have identification with him. This ably trustworthy information were suffi statement, according to government, prudent cient to warrant a man in believ place took before Officer Salser seized ing that the [individual] committed or Campbell provided probable cause be- Ohio, committing was an offense.” Beck driving without a license is a viola- 89, 91, 379 U.S. 13 L.Ed.2d Campbell, tion of law. Ohio on the other (1964); see also United States v. Cai hand, argues that Officer Salser seized him (6th Cir.1996) cedo, 85 F.3d probable cause or reasonable sus- (“Police may person arrest a without a picion when Officer Salser first asked him warrant if they probable have cause at the to show identification. time of the per arrest to believe that the son has committing granted Camp committed or is a The district court crime.”). concluding “Probable cause is a standard bell’s to after motion stringent more than suspicion, Campbell by reasonable seized Officer Salser was require any but does not showing 'Suspicion that the without reasonable suspicions officer’s prove Campbell to be correct or cause. It determined that rea they likely sonably are more true than false.” believed he was not free (citations omitted). Id. leave Campbell when Officer Salser asked Campbell told Although the ter until after Officer Salser identification. to show some may have way just that Officer Salser court noted that he “could be on his as soon suspi- a eventually developed reasonable as ID’d him.” [I] Terry stop, the facts support cion to suspicion arose

supporting that reasonable statement Officer Salser’s seized: was that he would like to see provide After failed to his so- “like,” opposed ID. The use of the word as Salser, security cial Salser number “want,” suggests to “need” or rea Campbell’s statements did not believe person sonable would feel free to decline and date of regarding his name birth. request and leave the scene. More ensuing exchange Campbell, In the over, yet backup. had not called for Salser developed a reasonable Salser have point was alone with at this He suspicion had made and had neither drawn the encounter description of his name or birth false weapon emergency his nor activated his Campbell’s pacing agita- date.... lights or siren. Camp- fearful that tion also made Salser Nothing about first re- Officer Salser’s However, might fight bell him. reject- quest suggests for identification suspicion only after came to this ing Campbell’s request to leave the en- freedom to leave the encounter pick up girlfriend. counter to on with the re- complying was conditioned grounds poten- to believe quest. Nor did Officer Salser ask tially activity only in some de- involved accompany anywhere him fur- bell for veloped after the unreasonable deten- questioning. ther See United States tion. (6th Cir.1989) Garcia, (“[T]he one occurrence which to dis- seems person A respectfully disagree. We tinguish ‘seizures’ from casual contacts be- seized when “a reasonable would police tween and citizens is when the de- not feel free to leave an encounter with Eastpointe, accompany fendant is asked to police.” City Bennett v. Cir.2005). In Florida v. agents place to a to which the defendant Bostick, 429, 439, 111 S.Ct. 501 U.S. planned go.”). had not (1991), Supreme 115 L.Ed.2d 389 Delgado, In INS v. 466 U.S. “a Court stated that court must consider (1984), L.Ed.2d 247 surrounding all the circumstances the en- Supreme “interrogation noted that the police counter to determine whether identity relating to one’s or a conduct would have communicated to not, by identification does that the was not itself, a constitute Fourth Amendment sei- requests free to decline the officers’ Moreover, previously zure.” this court has otherwise the encounter.” The terminate permissive held that the use of less lan- that “no seizure occurs elaborated by than guage police phrase officers the individual, when of an questions ask “I’d like to see some ID” did not constitute ask to examine the individual’s iden- [and] Matthews, a seizure. See United States v. tification, long ... so as the officers do not (6th Cir.2002) (holding 278 F.3d convey message compliance a that person walking that a down the street was requests required.” their Id. at is driving not detained when an officer in a view, S.Ct. 2382. In our the interaction yelled “Hey, buddy, marked car between and did Officer Salser here,” beyond characterizing not escalate encoun- come with the court consensual Cir.2005) (6th that (holding rather than an request aas the statement order). was not seized when “officers defendant of resi- Nappier’s went to the entrance the dis- disagree with respectfully We door, dence, for him knocked on the waited Salser’s of Officer characterization sent’s him- identify and respond, asked him a seizure. identification as request for during appeared,” because self when according to Campbell, key inquiry The of “Nappier time was free period of Salser, [Camp- “before he was that Officer request that he disregard the officers’ ID, just I would like to see left bell] door, free to decline to come to the In the dissent’s log that I talked to him.” preliminary, non- answer the officers’ view, into “that he language morphs was free to oth- threatening questions, and presented his iden- not leave until he could encounter”). The terminate the erwise that a reasonable tification” and finding to the clearly district court erred “until the feel free to leave would not contrary. duty logging fulfilled his Officer Op. 960-62. Dissenting encounter.” C. Probable support this charac- record does The not Having determined simply giv-

terization. Officer Salser by Salser when the was not seized why would ing Campbell the reason Salser Campbell for identifi initially officer asked ID; not at he was like to see cation, question turn to the now we Campbell’s depar- conditioning that point response gave Officer whether Only later production. ture on such ensuing make the probable cause to said that exchange their —after cause ex warrantless arrest. “Probable “seize” he had no ID—did Officer Salser and circumstances where the ists facts creating the condition Campbell by knowledge ... are suf the officer’s within way just as [I] on his as soon “he could be or one prudent person, warrant a ficient to ID’d him.” caution, believing, short, could have de In shown, suspect has circumstances request initial clined Officer Salser’s committed, or is about to committing, fact the encounter. The left the scene of States v. San commit an offense.” United so did not convert that he chose not to do gineto-Miranda, within the into seizure omitted). Cir.1988) (quotation marks See meaning of the Fourth Amendment. case, ob- present Mendenhall, 446 U.S. shortly driving a ear and served “person is ‘seized’ (holding his identification. thereafter asked to see when, or a physical means of force he did not have Campbell responded that of move authority, his freedom show him. Ohio any identification with Under restrained”); v. Pe United States ment is law, of a license is driving proof (6th Cir.1999) (“Ab ters, 194 F.3d offense, having docu- misdemeanor behavior intimidating sent coercive prima the driver is mentation on or about belief that negates which the reasonable having of not a license: facie evidence compelled, [govern compliance is not (A) vehicle a motor operator request for additional identi agent’s ment] li- the driver’s display operator’s shall voluntarily given information fication and cense, satisfactory proof or furnish not constitute a from the defendant does license, upon Amendment.”); has a operator the driver’s the Fourth seizure under any or of any peace demand Fed.Appx. Nappier, 155 United States officer 958 injured any driving colli- mitted the misdemeanor offense of damaged

person license, licensee be in- proof ensuing the without of a the sion which properly a demand is volved. When warrantless arrest did not violate opera- the operator Atwater, the has made and rights. bell’s constitutional See license on or about the driver’s tor’s 121 532 U.S. at S.Ct. 149 operator (2001) (“If the shall not operator’s person, L.Ed.2d an officer has 549 A person’s the license. display believe that an individual probable cause to refuse satisfactory furnish evidence failure to criminal very has committed even minor is licensed under this that the presence, may, offense in his without does not the have chapter when Amendment, violating the Fourth arrest per- license on or about the person’s offender.”). the the We therefore conclude evi- prima-facie shall be son’s in granting the district court erred person’s having ob- dence the Campbell’s suppress. motion to tained a driver’s license. Finally, permit police officers are (B) section is violates Whoever with a ted search the vehicle associated of the first de- guilty of a misdemeanor purpose lawful arrest for the defendant’s gree. taking inventory prior an of its contents (emphasis § 4507.35 add- Ohio Rev.Code impoundment, even the have no ed). probable cause to otherwise search the Chapel, No. States United Opperman, vehicle. South Dakota v. 428 96-1176, at *4 1997 WL Cir. 364, 375, 96 U.S. S.Ct. 49 L.Ed.2d 1997) curiam), Apr.ll, this court held (per (1976) (holding inventory that an probable that an cause to ar officer prior search of an automobile to its im- at rest the defendant because the time of poundment, pursuant to standard arrest, that the the officer knew de procedures, under driving a valid li fendant was Robinson, Amendment); Fourth see also previous cense due to a encounter Accordingly, gun therefore defendant. The officer vehicle, retrieved from as well reasonably trustworthy “had information as the other during evidence obtained ... prudent man sufficient warrant search, inventory should not have been had com believing that the [defendant] suppressed. offense, mitted an committing or was namely, a license.” Id. driving without III. CONCLUSION (citation omitted) marks quotation above, all For of the reasons set for we (emphasis in under federal original). And grant REVERSE district court’s law, police officer can arrest an individ motion to RE- ual long “probable so as the officer has MAND the case for further proceedings cause to believe that a misdemeanor of opinion. consistent with this fense pres has been committed Williams, ence.” United States v. JR., COLE, R. Judge, GUY Circuit (6th Cir.2006)

Fed.Appx. n. dissenting. Vista, (citing City Lago Atwater v. U.S. L.Ed.2d I agree majority’s with the conclusion (2001)). that mere for identification is not Majority If Op. Because Officer Salser had a seizure. at 957. majority cause to believe that had com- were correct that Officer Salser into identification inquiry initial like to he would that told request: simple beyond went identification, might I also then his see a re- majority that such with the agree they gave you the infor- Q: And ways with part I is not a quest seizure. mation, Mr. you told the facts adduced majority the because was, hap- what the business where that Officer hearing reveal suppression the pened next? for ask simply did Salser bur- had some I told him that we A: majority the by stating, as identification area, he glaries before [Camp- claims, like to see “he ‘would that ID, just his I would like to see left ” (quoting Majority Op. at 952 ID.’ bell’s] I talked him. log that to (“JA”) 74). Rather, Appendix Joint that, me is that —let you said Q: When that Officer Salser instructed facts indicate is that just by saying, back go [Campbell] [he] that left “before routinely your you do something (JA (emphasis ID.” to see his would like investigative work? added).) Campbell’s abili- conditioning By A: Yes. valid producing his first ty to leave on identification, Officer Salser transformed that? you said Q: happened when What simple have been a could otherwise what He do? did the defendant What into a command request for identification an ID. have that he didn’t stated reasonably not have Campbell would that law it that under Ohio I take A: And con- a command to refuse. Such felt free a driver’s to have required one is Campbell. Because stituted seizure Correct. license? sus- not have reasonable Salser Officer did his de- you to see Q: were able And time, I Campbell at that to seize picion meanor? Accordingly, I would respectfully dissent. ID and he an inquired I about A: Once grant court’s AFFIRM district one, him I asked have said he didn’t evi- motion to birth. date of his name and for arrest sub- during his dence obtained very ner- began, he became And of his car. sequent search said, He up. hands went vous. His trouble, officer, any I don’t want I. he stated times please. Several to me. that that “Officer Salser majority states of ner- also, in terms you say Q: When burglaries the recent told about vousness, describe for you can then said area and committed led you what observed court ID, just [Campbell’s] to see he ‘would like ” about understanding, you to Majority Op. him.’ I log talked nervousness? 74). Salser’s Officer (quoting at 952 JA around, not—he walking however, support A: He was does not testimony, own hands His Rather, just very nervous. of the facts. characterization saying, kept moving. He were Camp- Salser at indicated Officer as I any trouble. want please, I don’t hearing, Salser’s suppression bell’s Campbell had told cer testified tes- question to Officer Salser's 1. This relates up girl- dispatcher way pick his timony asked was on his him he 73-74.) (JA location of Treeman but was lost. at her work friend Industries — Offi- place employment. girlfriend’s bell’s just pick up my want to girlfriend. your like to ID.” By instructing Camp- see to that Just effect. bell that he could not leave until pre- identification, sented his Now, cre- Q: what you say did to him in condition, i.e., ated a presentation response? identification, valid form of that Campbell said, A: I I asked him asked for —I satisfy had to before he could leave the ID, him he had a state or his Mendenhall, scene. Supreme birth, name and date And he explained that could way just be on his as soon as person has [I] ID’d him. been ‘seized’ within the meaning of the Fourth Amendment (JA added).) (emphasis 74-75 As the tran- if, in view of all of the circumstances script shows, of the suppression hearing incident, surrounding the a reasonable majority incorrectly states that Officer person would have believed that he was request Salser’s initial for identification did not free to Examples leave. of circum- Campbell’s ability condition to leave on that might seizure, stances indicate a him first providing the Officer with identi- person even where the did not attempt Rather, fication. the Officer’s own testi- leave, would be the threatening pres- mony illustrates that he asked Campbell officers, ence of several display of a twice, for identification and each time he officer, weapon by an physical some clearly conditioned ability to touching citizen, person of the leave on producing valid the use language or tone of voice identification. indicating compliance with the offi- majority argues that “Officer Sal- cer’s request might be compelled. ser’s first statement was that he would like U.S. 100 S.Ct. (emphasis to see ID. The use of the word added). Because “use of language” can ‘like,’ opposed ‘want,’ as to ‘need’ or sug indicate to a person reasonable that an gests that a person reasonable would feel request might “officer’s compelled,” be free request to decline this and leave the Officer Salser’s condition would have con- Majority scene.” Op. at 956. I do not veyed to a reasonable that compli- disagree with the majority that if Officer ance with request to produce identifi- stated, Salser had simply “I would like to cation required being before free to your ID,” see that no seizure would have terminate the encounter. See Florida v. because, occurred as the majority con Bostick, 429, 437, 501 U.S. cludes, the word “like” is permissive and (1991) (“No 115 L.Ed.2d 389 seizure implies that a reasonable would feel occurs when ask questions an free to decline the request.2 Officer’s See individual, [and] ask to examine the indi- Delgado, 210, 216, INS v. 466 U.S. identification, vidual’s ... long so as the (1984) S.Ct. 80 L.Ed.2d 247 (explain do not convey message ing that officers identification compliance with requests their is re- itself does not constitute a seizure under added). quired.”) (emphasis Amendment). the Fourth However, Offi cer testimony Salser’s own indicates supporting Further a conclusion that a he went beyond simply stating, “I would would not have felt free I suggest do not mean every time the whether a seizure has occurred. United used, word “like" is an encounter becomes Mendenhall, States v. 446 U.S. Rather, consensual. the entire context of the (1980). 64 L.Ed.2d 497 analyzed encounter must be to determine ” Majority to ID’d him.’ atOp. (quoting to leave is Officer Salser’s statement 957 75) added). their Campbell “log” that he wished to (emphasis By JA its own ad- (JA 74-75.) majority conversation. The mission, therefore, majority believes simply that “Officer Salser was explains that Campbell would have seized been why reason giving Campbell the Salser Officer Salser conditioned ability his to ID; Campbell’s would like to see he was Campbell leave on first producing identifi- point conditioning Campbell’s not at that however, majority, cation. The mistakenly Majority departure production.” on such “[njothing states that about Officer salser’s Op. majority at mischaracterizes suggests first for identification testimony. Officer Salser’s As described that Campbell’s freedom to leave the en- above, testimony clearly the Officer’s complying counter was conditioned on with was not free to leave Campbell shows request,” transcript but as the of Offi- (JA produced until he his identification. indicates, testimony cer Salser’s 74.) Thus, problem arises not from Campbell’s Salser at all times conditioned explanation why Officer Salser’s ability producing to leave on him first valid identification, wanted to see Majority Op. identification. Compare i.e., conversation, log their rather but 957 with JA 74-75. from Officer Salser’s statement importantly, Most the standard of re- producing could not leave before Campbell requires view us to look at the evidence Additionally, identification. when Officer light likely support most the district Campbell statement could Salser’s court’s decision. See States v. United only producing leave identification is (6th Bates, Cir.1996) 790, (quo- 794 coupled with his statement that he wanted omitted). Here, tation marks the district log meeting, person their a reasonable court concluded that Officer Salser seized would have believed that he or not she was suspicion without reasonable until free to leave the Officer fulfilled his granted Campbell’s therefore motion to duty logging Although the encounter. I might suppress. agree have intended such a Because with the dis- explanatory, subjective statement to be trict conclusion that a court’s reasonable irrelevant; rather, only intent is we look would have felt free to leave what a un- would have complying Officer’s derstood the Officer’s statement to mean. identification, I presenting condition of See, e.g., Taylor, v. F.2d United States 956 conclude that Officer Salser’s statement (6th Cir.1992) (“The subjec- n. 2 amounted to a seizure of tive intent of the officers is relevant to an accordingly would affirm the district im- assessment of the fourth amendment grant sup- court’s motion to plications conduct to the press. conveyed that that

extent intent has been confronted.”) to the (quoting Unit- II. Rose, ed States Cir.1989)). lacked reason- Because Officer Salser suspicion Campbell, able to seize the sei- telling majority’s

Even more is the own zure was unreasonable and violated statement “the interaction between rights. bell’s Fourth Amendment Officer Salser and did not esca- Cortez, beyond late a consensual encounter until United States U.S. (1981), Salser told that he 66 L.Ed.2d after Officer way just Supreme explained ‘could be on his as soon as inves- [I] “[a]n tigatory justified stop must be some engaged criminal objective See, manifestation that the person Wardlow, activity. e.g., Illinois v. is, be, about to stopped engaged U.S. 145 L.Ed.2d activity.” Although criminal (2000) an officer can 570 (explaining that individu- “[a]n Terry stop in a engage purposes presence al’s in an expected area of crimi- obtaining suspect’s identity, “[t]he offi- alone, nal activity, standing enough is not justified cer’s action must incep- be at its reasonable, to support particularized sus- tion, ... reasonably and scope related in picion that committing a to the justified circumstances which crime”); City Bennett v. Eastpointe, 410 place.” interference the first Hiibel v. (6th 810, Cir.2005) (“While F.3d 830 offi- Nevada, Sixth Judicial Dist. Court 542 cers can surely and appropriately take into 177, 185, 2451, 124 U.S. 159 L.Ed.2d account the fact that an area is high a (2004) 292 (quoting United States v. area, alone, crime justify does not 675, 682, 470 Sharpe, U.S. 105 S.Ct. seizure.”). a effectuating did (1985) Ohio, 84 L.Ed.2d Terry and v. violate any traffic laws or in way drive a 1, 20, 88 S.Ct. U.S. 20 L.Ed.2d might suspicion, arouse and Officer (1968) omitted)) (em- (quotation marks testify Salser did not to the contrary. Ad- added); phasis Florida, see Hayes also ditionally, parking lot, in an empty parking U.S. 105 S.Ct. closed, even the business is suspi- is not (1985) (“[I]f L.Ed.2d 705 are articu- there behavior, cious because one could look- be lable supporting facts a suspi- reasonable directions, ing for talking on phone, or cion that a has committed a crimi- simply taking a break from driving. offense, nal stopped be Further, Campbell’s actions of exiting identify him, order to question him car, street, his crossing the and talking on briefly, or to detain him while attempting phone his cell while standing in a neigh- information.”). to obtain additional boring lot, parking are also not indicative Hall, (6th Smoak of criminal behavior. The district court Cir.2006), explained we justify noted that nearby the two businesses were stop Terry officer must have a not attractive targets for “If thieves: suspicion reasonable that the individual is Campbell intended to break into Modern engaged activity, criminal namely, “a Building Supply, major he would face diffi- particularized objective for basis sus- culty loading much roofing product into pecting particular person ... of crimi- the Chevrolet Cavalier. If Campbell in- nal activity specific based on and articula- tended to Church, break into American ble facts.” Id. (quoting Houston v. Clark major would face difficulty selling church County 1-5, Deputy John Does Sheriff (JA 260.) envelopes.” Additionally, Cir.1999) (internal 813-14 omitted)). provided plausible explanation quotation marks actions; for lost, his he was had bad cell- Here, the support facts do not a finding phone reception, and was trying get that Officer Salser had a suspi- reasonable girlfriend, directions from his as confirmed cion that engage, about to by caller, the female who spoke to Officer engaged, activity. criminal Salser. This should have dispelled, or at driving industrial, in an diminished, least any suspicions that Offi- neighborhood commercial at night. By it- might cer Salser have had. self, such behavior does not create suffi- cient grounds from which to conclude argues Government “Camp- Officer Salser had a suspicion reasonable bell’s behavior, nervous evasive [and] beyond a identification went a license driving without “coupled with identification and simple request identification” when lot parking at a late hour presence an unlawful seizure of amounted to crime high in [a] businesses of two closed bell, the district court’s I would AFFIRM finding that Officer Salser support a area” motion to grant Campbell’s necessary to suspicion had the of his arrest. seized as a result evidence 26.) Br. (Appellant’s Terry stop. justify however, must arise suspicion, Reasonable by an officer. individual is seized

before an

See, Cortez, 449 e.g., U.S. was not nervous Campbell’s behavior until

and evasive identification, demanding him seized did not discover

and Officer Salser a license driving without Campbell was Shirley J. A. Carol ROCKSTEAD told until Officer Salser after Henderson, Plaintiffs-Appellants, producing leave that he could identification. correctly concludes majority LAKE, OF CRYSTAL CITY that he Campbell told Officer Salser once Defendant-Appellee. him, Officer Sal-

had no identification with No. 06-1286. necessary probable had the ser violating Ohio Rev. Campbell for arrest Appeals, United States Court Majority Op. § at 957-58 4507.35. Code Seventh Circuit. (“Because probable had com- cause to believe and Decided Oct. 2006.* Argued driving offense of mitted the misdemeanor April Opinion license, ensuing proof of without not violate arrest did warrantless However, rights.”).

bell’s constitutional ar- probable cause to Salser had conditioned Campbell only after he

rest to leave the on

Campbell’s freedom scene producing identification. present cause must probable

Because be occurs, Campbell’s arrest

before an arrest under the Fourth

was unreasonable See, e.g., United States

Amendment. Cir.1996)

Caicedo,

(“Police arrest cause at the they have

warrant per- that the arrest to believe

time of the committing a committed or is

son has

crime.”). I the facts

Accordingly, because believe inquiry into that Officer Salser’s

indicate

* opinion that an would follow. With a notation

Case Details

Case Name: United States v. Steven G. Campbell

Court Name: Court of Appeals for the Sixth Circuit

Date Published: May 24, 2007

Citation: 486 F.3d 949

Docket Number: 06-3321

Court Abbreviation: 6th Cir.