The Corpus Christi, Texas, Police Department (CCPD) on July 15, 2020, at 4:30 p.m. received an anonymous suspicious vehicle call regarding a vehicle in the Glen Arbor Park area. Glen Arbor Park and the surrounding neighborhood are part of a corridor of problem areas where drugs are sold. Officers respond to a few calls in this area every shift.
Officer Jakobsohn testified the dispatcher told her there was a suspicious vehicle in the area of the Glen Arbor Park near Tanglewood Drive and Bonner Drive, and directed her to respond. Dispatch also transmitted information regarding the call to the Officer’s in-vehicle computer (call summary or call-log report generated by CCPD dispatch). In addition to providing the address for Glen Arbor Park and the names of the surrounding intersecting streets signifying the vehicle’s location, the information communicated to the Officer included the following:
• SUSPICIOUS PEOPLE AT LOC/ RP ADV DRUG DEALERS/NO DRIVING CARS AT LOC
• RP ADV NO DESC
• RP ADV PD NEEDS TO GET THESE DRUG DEALERS OUT OF HIS PARK
• DID THREATEN TO SHOOT SUBJS IF THEY DID SOMETHING THAT REQUIRED HIM TO DEFEND
• REF TO GIVE INFO ON HIMSELF
• ALSO ADV OF A GOLD COROLLA AT LOC/ IS ONE OF THE SUBJS CARS
Minutes later, the Officer located a gold Toyota Corolla parked on Bonner Drive, across the street from the park; executed a three-point-turn; and pulled behind the vehicle, engaging her patrol vehicle’s red and blue emergency lights. As the Officer parked her vehicle, she saw the driver’s door open on the Corolla, and as she exited her vehicle, she commanded the driver—later identified as Jacob Wright—three times to stay in his car.
Wright did not, however, remain in or re-enter his vehicle; but when the Officer told him to put his hands on his vehicle, he placed his keys on top of, and turned towards, it. The Officer then conducted a pat-down of Wright and attempted to move him next to her patrol vehicle, but he refused. He turned towards the Officer, keys in hand, and stated he wanted to talk to her.
When the Officer again commanded Wright to walk towards the patrol vehicle, he instead began removing a key from the key chain. Wright then disregarded the Officer’s commands to put his keys on top of his vehicle. Once Wright separated one key and put the rest of them in his pocket, he turned and began moving towards the driver’s door; the Officer moved him to the front of his vehicle and ordered him to put his hands behind his back.
Wright began knocking, and then banging, on his vehicle’s hood, while yelling repeatedly to the passenger in the vehicle to exit and lock it. Wright was also motioning to the passenger to put something in his mouth. The Officer handcuffed Wright; she testified that, at this point, she was arresting him for “resisting detention”.
The passenger exited the vehicle as a second officer arrived. (According to testimony by a special ATF agent at Wright’s subsequent December 23 2020 preliminary hearing, the passenger was not arrested during the stop in question.) A search of the vehicle produced a pistol and drugs.
Wright was indicted for possession of firearm by a felon. At the motion to suppress, he argued there was no reasonable suspicion to justify the stop. The trial court held that the terry stop did not take place when the officer initially pulled behind Wright’s car. Instead the subsequent actions discussed above that took place on the scene led to sufficient grounds for a terry stop.
The 5th reversed and held that the terry stop occurred when the officer pulled behind Wright’s parked vehicle with the emergency lights engaged on her patrol vehicle and almost simultaneously ordered him to remain in his vehicle, which he instead stood beside. Thus, the question of reasonable suspicion for stop must be determined at the time of the seizure and not by subsequent actions at the scene.
A temporary, warrantless detention of an individual constitutes a seizure for Fourth Amendment purposes and must be justified by reasonable suspicion that criminal activity has taken or is currently taking place; otherwise, evidence obtained through such a detention may be excluded. See Garza. The seizure must be “justified at its inception”; therefore, our first task is ordinarily to determine when the seizure occurred. See Flowers.
A seizure occurs when an officer objectively manifests an intent to restrain the liberty of an individual through either use of physical force or a show of authority. See Torres. In the absence of physical force to restrain a suspect, a police officer may make a seizure by a show of authority but there is no seizure without actual submission; otherwise, there is at most an attempted seizure, so far as the Fourth Amendment is concerned. See Carroll. Accordingly, when, as presented in this appeal, a claimed seizure lacks physical force, we must analyze the encounter in two steps: whether the officer exerted a sufficient show of authority; and whether defendant submitted to it.
A. Show of Authority
In determining whether an officer makes a sufficient show of authority, the court considers whether, in the light of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave. See United States v. Mendenhall, 446 U.S. 544 (1980).
The Government contended that all agree that stopping one’s vehicle pursuant to a police command of a visual signal constitutes a seizure; but, because Wright’s vehicle was already stopped, he was not seized when the Officer pulled behind him. Although our case law is sparse in considering whether emergency lights constitute a seizure, our court in Morris recently explained an officer’s visual signal for a motorist to stop— whether made by hand or lights and sirens—is such a show of authority.
Although Wright’s vehicle was already in the parked position, the use of emergency lights when Officer Jakobsohn arrived at his vehicle was a visual signal exhibiting her authority, as explained in Morris. The principle underlying our court’s decision in Morris is not limited to actively moving vehicles. Accordingly, when the Officer quickly pulled up behind Wright’s vehicle, with emergency lights engaged, she was showing a sign of authority clearly communicating to Wright he was not free to leave.
That Wright’s vehicle was parked at the time does not detract from the Officer’s show of authority. Moreover, the Officer almost simultaneously ordered Wright to remain in his vehicle; and under the Fourth Amendment’s free to leave test, it is hard to conclude that a person ordered to a certain location by police would feel free to leave. (Therefore, on the facts presented by this case, it is not necessary to decide whether solely engaging the emergency lights constituted a seizure.)
B. Did Wright Submit to Authority
Determining the time at which an individual submits to authority depends on what a person was doing before the show of authority: a fleeing man is not seized until he is physically overpowered, but one sitting in a chair may submit to authority by not getting up to run away.
It is undisputed that compliance with an officer’s commands constitutes submission to authority. See Darrell. The question at hand, however, turns on whether Wright submitted when, although he disregarded the Officer’s commands to remain in his vehicle, he did not attempt to flee or terminate the encounter.
At the suppression hearing, Officer Jakobsohn testified: she found it unusual to see the driver’s door opening; and Wright’s exiting the vehicle was kind of an aggressive approach. The Officer’s dashboard-camera video shows Wright slowly exiting his vehicle. He turns to face the Officer with his arms extended at mid-chest level, with the palms of both of his hands facing her, and calmly states “Ma’am, I haven’t done anything”. He did not lunge towards the Officer, nor did he make any threatening or evasive movements. Wright did not attempt to flee, nor terminate the encounter.
Wright’s not complying fully with some of Officer Jackobsohn’s commands was improper, to say the least, but his behavior does not show defiance to the Officer’s authority. Wright sufficiently submitted to the show of authority because he objectively appeared to believe he was not free to leave, and he did not attempt to flee, nor terminate the encounter.
Thus, Wright was seized when Officer Jakobsohn pulled behind his parked vehicle with the emergency lights engaged on her patrol vehicle and almost simultaneously ordered him to remain in his vehicle, which he instead stood beside.
C. Reasonable Suspicion
Based on the district court’s concluding the Terry stop was initiated later than our holding that it occurred when the Officer pulled behind Wright’s parked vehicle with the emergency lights engaged on her patrol vehicle and almost simultaneously ordered him to remain in his vehicle, the record lacks adequate findings of fact and conclusions of law for whether reasonable suspicion existed at that point. In other words, because the court’s findings and conclusions turn instead on events occurring after the Terry stop, we are unable to deduce from them whether the court concluded the totality of the circumstances prior to the Officer’s pulling behind Wright’s vehicle provided reasonable suspicion justifying the stop.
Accordingly, we remand for the limited purpose of the district court’s expeditiously providing written findings of fact and conclusions of law on whether reasonable suspicion existed when the Officer pulled behind Wright and ordered him to remain in his vehicle.