Monday, February 07, 2011

U.S. v. Smith, No. 10-10036 (2-3-11) (Gould with Callahan and Korman, Sr. D.J., E.D.N.Y.).
You can ride, but not only can you not hide, but it gives reasonable suspicion to seize you. The defendant crossed in front of a police car. The officer sounded his siren twice, got out of the car, and ordered the defendant to "stop!" The defendant asked, "Who me?" "Yes," said the officer. The defendant asked if he was under arrest; the police said "no" and the defendant backed away and then took off. The police pursued, caught him (he tripped), and found a gun. The defendant was a prohibited possessor (felon in possession). In court, and on appeal, the defendant argued that he was seized with the order to "stop." The district court held he was not, and the 9th affirms. The 9th declines to say that a momentary hesitation and eye contact prior to flight is a submission to authority. The question -- Who me? -- and then backing away and running, does not constitute a seizure. Hesitation is not a seizure. The defendant was seized when he was apprehended. This seizure was with reasonable suspicion because the defendant took off. If the defendant had walked away, or gone about his business, the police could not have stopped him without more. The running was suggestive of wrongdoing and reasonable.


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