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Officer’s Retention of Driver’s License is a Seizure

The North Carolina Court of Appeals issued an opinion today that held that a voluntary encounter became a seizure for purposes of the Fourth Amendment when the police officer took the defendant’s driver’s license to the police car to run a check on it. The trial court in State v. Leak had held that any seizure that occurred was de minimis in nature and did not violate the Fourth Amendment. The court of appeals rejected this argument based on the U.S. Supreme Court decision from earlier this year, Rodriguez v. United States. Let’s take a look at the facts of the case and the reasoning behind the holding.

The defendant in Leak was in his car, parked in a gravel area on the side of Highway 74 in Lilesville. A police officer noticed the defendant’s car and stopped to see if he needed assistance. Before approaching the defendant, he ran a check on the car’s license plate and found that it was owned by Keith Leak (the defendant). When the officer approached the defendant, the defendant told him that he did not need help and had only pulled off the road to return a text message. The officer asked to see the defendant’s license and found that the defendant’s name on the license matched the name of the car’s owner.

At this point, the officer did not return the defendant’s license but instead took it back to his police car to run a check on its status. The police officer acknowledged that he did not have reasonable suspicion that the defendant was involved any criminal activity. The license check revealed that there was a five-year-old warrant for the defendant’s arrest. The police officer returned to the car and asked the defendant to step out of the car. The defendant then told the officer that he had a gun in his pocket. The defendant was subsequently arrested for possession of a firearm by a convicted felon. It is unclear whether the defendant was prosecuted for the offense involved in the five-year-old arrest warrant.

The defendant filed a motion to suppress the evidence obtained during his arrest, arguing that he had been seized in violation of the Fourth Amendment. The trial court denied his motion, and the defendant later entered a guilty plea to possession of a firearm by a convicted felon. The defendant then appealed the denial of his motion to suppress.

The court of appeals began its discussion with a review of the Fourth Amendment. The Fourth Amendment protects us “against unreasonable searches and seizures.” For a seizure to be permitted under the Fourth Amendment, it “must be based on reasonable suspicion.”

However, not every encounter with the police is a seizure.

[A] seizure does not occur simply because a police officer approaches an individual and asks a few questions. So long as a reasonable person would feel free to disregard the police and go about his business, the encounter is consensual and no reasonable suspicion is required. The encounter will not trigger Fourth Amendment scrutiny unless it loses its consensual nature.

The encounter with the officer and the defendant began as a voluntary encounter. The officer was not required to have reasonable suspicion to approach the defendant who was in the parked car on the side of the road and inquire as to whether the defendant needed assistance. Neither did the officer require reasonable suspicion to ask the defendant to consent to the officer’s examination of his license and registration.

The court, however, disagreed with the trial court’s conclusion that a seizure did not occur. The court of appeals explained that

An individual is seized by a police officer and is thus within the protection of the Fourth Amendment when the officer’s conduct “would have communicated to a reasonable person that he was not at liberty to ignore the police presence and go about his business.” . . . Moreover, “an initially consensual encounter between a police officer and a citizen can be transformed into a seizure or detention within the meaning of the Fourth Amendment, if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave” or otherwise terminate the encounter.

Not only did the officer in this case testify that he did not consider the defendant free to leave, but the court of appeals has previously “held that a reasonable person would not feel free to drive away while a law enforcement officer retains possession of his driver’s license.” Therefore, the court concluded, a seizure occurred when the officer took the defendant’s license to the police car to run a check.

The court of appeals also disagreed with the trial court’s alternative conclusion that if a seizure did occur it was de minimis in nature and not in violation of the Fourth Amendment. The court noted that the U.S. Supreme Court recently held in Rodriguez that “continued detention of a motorist beyond the scope of the initial reason for the stop was unconstitutional unless justified by reasonable suspicion.” Rodriguez specifically rejected the theory that a de minimis extension of a detention was permitted under the Fourth Amendment. The court of appeals noted that there was no dispute in Leak that the officer did not have reasonable suspicion that the defendant was involved in criminal activity. Therefore, the seizure in Leak occurred in violation of the Fourth Amendment. The court of appeals then remanded the case to the trial court to vacate the defendant’s guilty plea.

If you have been charged with DWI, contact an attorney at Rosensteel Fleishman, PLLC (704) 714-1450, to discuss your options.

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