Case o' The Week: A "WARRENless" Search Case with New Fourth Amendment Rules, Al Nasser

Judge Kleinfeld (seen here, left, with members of the Harvard Federalist Society) authors a "new" (amended) Fourth Amendment decision that asks whether a defendant is "seized" when he or she voluntarily stops for the police. United States v. Al Nasser, __ F.3d. __, No. 05-10466, 2009 WL 251951 (9th Cir. Feb. 4, 2009), decision available here.
The answer? Nope.

Players: Decision by Judge Kleinfeld, joined by Judges Trott and N. Randy Smith. Dissent in original decision by the late Hon. Judge Warren Ferguson.

Facts: Border patrol and tribal police stopped one car at night, then stopped a second car that was smuggling undocumented aliens. Id. at *1. By the time the third car – Al Nasser’s – passed on the highway the cops had their hands full and (said) they didn’t intend for him to stop. Id. Seeing flashing lights – and a flashlight shined at him by a cop – Al Nasser stopped anyway. Id. Turns out Al Nasser was carrying undocumented aliens too. Id. at *2. The district court denied his suppression motion, holding there was no seizure. Id. at *3.

Issue(s): “What if the police do not intend to stop someone, but a person thinks that he is being stopped? Must that unintended stop still be supported by reasonable suspicion in order to prevent suppression of its fruits? Does the ‘objective’ examination of police conduct, as required in Whren v. United States for a vehicle stop brought about by police action undertaken to effect the stop, mean that if a reasonable person would think that he was being stopped, then the person is ‘seized’ within the meaning of the Fourth Amendment, even if the police do not want the person to stop and intended for him to go on about his business without stopping?” Id. at *3 (footnote omitted).

Held: “‘A person is seized when he is “ meant to be stopped by [a particular law enforcement action] ... and [is] so stopped.’ That is, a seizure occurs where a person is stopped by ‘the very instrumentality set in motion or put in place in order to achieve that result.’ Here, the two Border Patrol agents and the tribal police officer did not stop their vehicles or the two civilian ones in order to make other vehicles stop. Although Al Nasser did stop, the lights and the vehicles that caused him to do so were not a roadblock put in place to accomplish that purpose. Thus, Al Nasser was thus not ‘seized’ within the meaning of the Fourth Amendment when he stopped his car.” Id. at *7 (quotes and brackets in original, footnotes omitted).

Of Note: This dense decision is not an easy read, so here’s the gist. Remember how, after Whren, the subjective intent of the officers isn’t relevant in a Fourth Amendment search? Remember how, after Whren, a cop could want to stop and search for drugs, but could use the pretext of a traffic stop, and as long as there was P.C. for the traffic stop, the seizure passed Fourth Amendment muster? Remember how the objective evaluation of probable cause, not the subjective intent of the officers, is what is important?

Well, that’s all still true – unless the cop didn’t intend to stop the defendant. Then, after Al Nasser, we switch: it becomes a subjective test and we ask whether the subjective intent of the cop was to effectuate a stop. If it wasn’t, there’s no stop. No stop, no Fourth Amendment violation.

A cynic might claim that the Court is flip-flopping between subjective and objective tests, cherry-picking whichever approach will defeat a Fourth Amendment challenge. But we’re not cynics.

How to Use: There’s some big new Fourth rules buried in this opinion, but the case offers no clear tests or decision-trees for how to approach this analysis. In short, Al Nasser is going to prompt a lot of head-scratching and litigation, both in criminal defense and in § 1983 claims. The opinion will also spawn more evidentiary hearings, as that old, fuzzy, subjective “intent-of-the-officers” is now back in play (just like pre-Whren). Finally, anticipate cops abusing the rule – particularly in road-block and DUI cases. The best way to use Al Nasser is to avoid it, if possible.

For Further Reading: This amended opinion followed Judge Warren Ferguson’s (right) death and replacement on the panel by Judge N. Randy Smith. For a radically different account of this stop – and a persuasive argument against the ultimate holding – see Judge Ferguson’s original dissent at Hussein Al Nasser, 479 F.3d 1166, 1172 (9th Cir. 2007). As Judge Ferguson explained, the border patrol agent stood in the lane in front of Al Nasser, shined a “stinger’ flashlight into the car, then continued to shine it into the car as it passed. Id. One officer testified that Al Nasser was “ordered to stop.” Id. at n.1. With typical forthrightness, Judge Ferguson opined, “the majority’s decision contradicts both logic and clear precedent.” Id.



Image of the Hon. Judge Andrew J. Kleinfeld from http://www.law.harvard.edu/students/orgs/fedsoc/2003_event_summary.shtml . Image of the Hon. Warren Ferguson from http://www.nytimes.com/2008/07/12/washington/12ferguson.html?ref=todayspaper

Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at www.ndcalfpd.org

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