THIRD CIRCUIT FINDS NO SEIZURE WHEN OFFICER REQUESTED PERSON TO TAKE HANDS OUT OF POCKETS ©2019 Brian S. Batterton, Attorney, Legal & Liability Risk Management Institute (LLRMI.com)

On October 3, 2018, the Third Circuit Court of Appeals decided the United States v. De Castroi , in which the court examined whether a person was seized under the Fourth Amendment when an officer requested that he take his hands out of his pockets. The relevant facts of De Castro are as follows: During the early evening hours of September 22, 2014, an anonymous source called 911 to report a Hispanic male pointing a gun at juveniles outside a vacant flower shop on the 1800 block of North 31st Street in Philadelphia, Pennsylvania. The suspect was reportedly wearing a gray shirt, gray pants, and a bucket hat. Philadelphia Police Officer John Mulqueeney, who had been assigned to that area for approximately thirteen years and knew about the drug and firearm activity prevalent there, was dispatched minutes after the call was placed. He stopped his cruiser approximately fifteen to twenty feet from De Castro and his neighbor, who were speaking outside of the vacant flower shop. De Castro was wearing a light gray bucket hat, a gray striped shirt, and gray camouflage pants. As Officer Mulqueeney exited his car and approached the men, De Castro turned toward Officer Mulqueeney. "At a distance of approximately [five to ten] feet, Officer Mulqueeney used a polite, conversational, and non-threatening tone to ask De Castro if he would remove his hands from his pockets." (App. at 11.) De Castro complied, revealing a green pistol grip protruding from his pants pocket. Officer Mulqueeney asked De Castro to raise his hands higher, and removed a loaded firearm from De Castro's pocket. When asked if he had identification or a permit to carry the firearm, De Castro replied that he had neither, but that he had a passport from the Dominican Republic. Officer Mulqueeney handcuffed De Castro and frisked him, finding in De Castro's pocket a loaded magazine containing ammunition that matched the firearm. Additional officers arrived on-scene as Officer Mulqueeney placed De Castro under arrest.ii De Castro was charged with a weapons violation under federal law. He filed a motion to suppress the officer requested that he take his hands out of his pocket. As such, he argued that the weapon was the product of a violation of his rights under the Fourth Amendment. The district court denied the motion to suppress and held that it was not a seizure. De Castro pled guilty with the right to appeal the denial of his motion to suppress. He then filed a timely appeal with the Third Circuit Court of Appeals. The issue on appeal was whether the officer seized De Castro, within the meaning of the Fourth Amendment, when he requested that De Castro remove his hands from his pocket. The Third Circuit first examined the legal principles that are relevant to this issue. The court first noted that [P]olice encounters with citizens fall into one of three broad categories, each with varying degrees of constitutional scrutiny: '(1) police-citizen exchanges involving no coercion or detention; (2) brief seizures or investigatory detentions; and (3) fullscale arrests.’ United States v. Brown, 765 F.3d 278, 288 (3d Cir. 2014) (quoting United States v. Perez, 443 F.3d 772, 777 (11th Cir. 2006)).iii [emphasis added] The court also noted that when deciding whether an officer/citizen contact is reasonable under the Fourth Amendment, a court must answer two questions: (1) Was there a seizure? And (2) If so, was the seizure reasonable? The court then quoted the Supreme Court and stated [L]aw enforcement officers do not violate the Fourth Amendment by merely approaching an individual on the street or in another public place, by asking him if he is willing to answer some questions, by putting questions to him if the person is willing to listen, or by offering in evidence in a criminal prosecution his voluntary answers to such questions ... The person approached, however, need not answer any question put to him; indeed, he may decline to listen to the questions at all and may go on his way . . . . If there is no detention—no seizure within the meaning of the Fourth Amendment—then no constitutional rights have been infringed. Florida v. Royer, 460 U.S. 491, 497-98 (1983) (plurality opinion) (internal citations omitted).iv [emphasis added] The court also stated that the encounter does not change from consensual to a detention simply because the officer does not tell the person that they are free to not respond to the officer, unless the officer acted in an intimidating manner such that a reasonable person would not have felt free to leave.v The court further went on to explain the legal requirements for a seizure to occur under the Fourth Amendment and stated Police conduct rises to the level of a "seizure" when, "by means of physical force or a show of authority, [a person's] freedom of movement is restrained." United States v. Mendenhall, 446 U.S. 544, 553-55 (1980) (holding that agents' requests for an individual to produce her plane ticket and identification, "without more, did not amount to an intrusion upon any constitutionally protected interest"). "Only when such restraint is imposed is there any foundation whatever for invoking constitutional safeguards." 
"[T]he test for existence of a 'show of authority' is an objective one: not whether the citizen perceived that he was being ordered to restrict his movement, but whether the officer's words and actions would have conveyed that to a reasonable person." California v. Hodari D., 499 U.S. 621, 628 (1991) (citation omitted). A person is thus "seized" when he or she yields to the show of authority. Id. at 626.vi [emphasis added] The court also named factors to consider to determine whether a seizure under the Fourth Amendment occurred. The circumstances were as follows: (1) Were there multiple officers present threatening present; (2) Did the officer display his weapon; (3) Did the officer physically touch the person; (4) Did the officer use a threatening tone of voice or words to indicate that compliance with the officer was required.vii After a review of the constitutional principles that apply in this case, the court next examined case law that is relevant to De Castro’s case. The court noted that the D.C. Circuit case of the United States v. Barnesviii , is instructive for De Castro’s case. In Barnes, the officer approached Barnes (the defendant) when he observed him acting “suspicious,” and he asked him to take his hands of out his pockets. The officer asked Barnes what he was doing and the defendant replied that he was “just hanging out.” The officer asked him if he had any prior arrests and the defendant said that he had been arrested for armed robbery. While speaking to defendant, the officer observed an unusual bulge under the stomach area of his windbreaker jacket. Suspecting that it was a gun, the officer conducted a frisk and discovered that it was a revolver. The defendant was arrested for weapons charges. The district court suppressed the gun and held that the officer seized Barnes the moment he asked him to take his hands out of his pockets. The State appealed to the Third Circuit Court of Appeals. The court of appeals observed that, when the officer asked Barnes to remove his hands from his pockets and asked what he was doing, the request and question were not said in an intimidating manner and were no different than a simple request for a driver’s license. They also observed that the officer did not touch Barnes or draw his weapon. The court ruled that the initial request that Barnes remove his hands from pockets and the question regarding what the defendant was doing did not amount to a seizure. They also ruled that the answer to the question, his initial behavior, and the weapon-like bulge in the defendant’s stomach area did provide the officer with reasonable suspicion to detain Barnes and conduct a frisk. As such, the court reversed the decision of the district court and upheld the evidence. The court of appeals, in De Castro, also noted that many state courts have reached a similar conclusion as the Barnes case, particularly that a simple request to take hands out of pockets does not alone convert a consensual encounter into a detention, as long as the police do not convey a message that compliance is required.ix The court next set out to analyze De Castro’s case in light of the legal principles and court precedent previously examined. De Castro argued that, even though the officer made his request in a conversational tone of voice, such request constitutes a “show of authority” that a reasonable person would not feel free to disregard, especially in light of “tragic stories suggesting that failing to comply with a police officer’s request...can end in death.”x The court of appeals rejected De Castro’s argument and held We reject De Castro's arguments in light of the Mendenhall factors and Barnes. Officer Mulqueeney was the only officer present during the initial encounter, and made a sole, polite, and conversational request for De Castro to remove his hands from his pockets, rather than an order for him to show his hands. No weapons were drawn, and no threats were made. Officer Mulqueeney did not communicate to De Castro—either through words or actions—that he was not free to leave. Rather, it was appropriate for Officer Mulqueeney to request that De Castro remove his hands from his pockets for the safety of himself and others…We thus hold that Officer Mulqueeney's request for De Castro to remove his hands from his pockets did not constitute a seizure.xi Therefore, the court of appeals affirmed the denial of the motion to suppress. i No. 17-1901 (3rd Cir. Decided October 3, 2018) ii Id. at 3-4 iii Id. at 5 iv Id. at 5-6 v Id. at 6-7 vi Id. at 7 vii Id. at 8 viii 496 A.2d 1040 (D.C. Cir. 1985) ix De Castro, No. 17-1901 at 10-11 x Id. at 12 xi Id. at 12-13