PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 11-4268
FREDERICK A. JONES,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Virginia, at Richmond.
Robert E. Payne, Senior District Judge.
(3:09-cr-00047-REP-1)
Argued: March 22, 2012
Decided: May 10, 2012
Before MOTZ, KING, and GREGORY, Circuit Judges.
Reversed and remanded by published opinion. Judge Motz
wrote the opinion, in which Judge King and Judge Gregory
joined.
COUNSEL
ARGUED: Nia Ayanna Vidal, OFFICE OF THE FEDERAL
PUBLIC DEFENDER, Richmond, Virginia, for Appellant.
Erik Sean Siebert, OFFICE OF THE UNITED STATES
ATTORNEY, Richmond, Virginia, for Appellee. ON
2 UNITED STATES v. JONES
BRIEF: Michael S. Nachmanoff, Federal Public Defender,
Alexandria, Virginia, for Appellant. Neil H. MacBride,
United States Attorney, Alexandria, Virginia, Stephen W.
Miller, Assistant United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Richmond, Virginia, for
Appellee.
OPINION
DIANA GRIBBON MOTZ, Circuit Judge:
Two police officers, in a marked patrol cruiser, closely fol-
lowed a car from a public road onto private property, and then
blocked the car’s exit. The officers observed no traffic viola-
tion. The only assertedly suspicious activity they saw was the
car’s presence in a high-crime neighborhood with out-of-state
tags. These facts alone led the officers to suspect that the car’s
occupants, four African American men, were involved in drug
trafficking. Immediately after the driver, Frederick Jones,
exited his car, the officers approached him and asked that he
lift his shirt, which he did. The officers then asked him to con-
sent to a pat down search, which he did.
After neither the shirt lift nor the search revealed anything,
the officers discovered that Jones had committed a traffic vio-
lation, and so detained him. Subsequently, they found he pos-
sessed a firearm and a small quantity of marijuana. The
district court denied Jones’s motion to suppress this evidence,
reasoning that the initial encounter—prior to the discovery of
the traffic violation—was consensual and therefore did not
infringe on Jones’s Fourth Amendment rights. Because a rea-
sonable person in Jones’s position would not have felt free to
terminate the initial encounter with the officers, we must
reverse.
I.
The parties do not seriously dispute the facts of this case.
During the early evening of August 13, 2008, Detective
UNITED STATES v. JONES 3
Edward Aeschlimann and his partner, Officer Adrienne Rice,
were patrolling the 2100 block of Afton Avenue in Richmond,
Virginia. Det. Aeschlimann patrolled this area as part of the
Focus Mission Team to interdict illegal drugs and firearms
and deter robberies and burglaries. He had been on this
assignment for six months and had been with the Richmond
Police Department for five years.
At approximately 7:00 p.m., "in the daylight hours of the
early evening," Det. Aeschlimann saw a dark blue Dodge
Avenger, which he did not recognize, traveling on Afton Ave-
nue. Det. Aeschlimann explained that the car "caught [his]
attention" because it had New York tags, and "drugs are fre-
quently trafficked between Richmond, Florida and New York
on Interstate 95." He further explained that his interest "was
piqued because [he] thought that that vehicle did not belong
there and that the people in the vehicle didn’t belong there."
Four African American men occupied the vehicle.
Although initially driving in front of the car, Det. Aeschli-
mann turned around—possibly in a roundabout at the end of
Afton Avenue—and "pulled behind" the car so as to follow it
in his marked police patrol car.1 Det. Aeschlimann, although
looking for a traffic violation, was unable to "see any equip-
ment violations that [he] could have stopped the [out-of-state]
vehicle for."
Apartment complexes line Afton Avenue on both sides.
1
The district court did not make any factual findings as to how Det.
Aeschlimann maneuvered his vehicle behind the car, but Jones, who testi-
fied at the suppression hearing, stated he saw the police cruiser driving in
front of him on Afton Avenue and then saw the cruiser turn around at the
end of Afton Avenue and begin to follow his car. Jones further testified
that he saw the police cruiser follow him into the driveway of the Gray-
stone Apartments. Det. Aeschlimann did not offer any contrary testimony.
We note that the district court did not find Jones’s testimony lacking in
credibility; rather, the court relied on that testimony in making findings of
fact.
4 UNITED STATES v. JONES
Shortly after Det. Aeschlimann began following the car, it
turned into the driveway of one such complex—the Graystone
Apartments. The detective followed the car into the driveway
of the Graystone Apartments, which has a "no trespassing"
sign posted on the property. Det. Aeschlimann testified that
he suspected the men in the vehicle were trespassing and that
"in that area" it was his common practice to follow "any car
with an out-of-state tag" to determine whether the occupants
of the vehicle were trespassing. The detective did not activate
the lights or sirens of his marked police cruiser. He did, how-
ever, stay close to the out-of-state car—losing sight of it only
for a second as it rounded a corner—because he "wanted to
try to make contact with the folks inside the vehicle to see if
they lived there because it’s private property."
The driveway of the Graystone Apartments is a one-way
roadway with a row of diagonal parking spaces on one side.
The out-of-state car pulled into a diagonal parking space, and
the four men emerged from it, including the driver, Jones. At
this time, Det. Aeschlimann pulled to a stop and parked the
police cruiser in the lane of traffic rather than pulling into one
of the diagonal parking spaces. The detective believed that he
"had no option [other] than to park where [he] did" to ensure
that he would "have the opportunity to make contact with the
occupants of the [out-of-state] vehicle."
Det. Aeschlimann conceded that he had no basis to stop
Jones, or his car, but testified that "to make things what we
term a consensual encounter[,] . . . [he] pulled past where Mr.
Jones had parked" assertedly "leaving [Jones’s] vehicle unob-
structed to back out of the parking spot if that’s something
that he chose to do." However, the detective acknowledged
that his police patrol car "obstructed them from leaving the
driveway." As Det. Aeschlimann described the situation,
"[g]iven that our vehicle was parked on a one-lane driveway
that had parking stalls to the left-hand side and bushes and
doors to the other row of apartments on the right-hand side,
had they immediately backed their vehicle out or gotten back
UNITED STATES v. JONES 5
into their car and backed the vehicle out, my vehicle down the
driveway probably would have obstructed them from leaving
the driveway." Thus, the detective acknowledged the place-
ment of the police cruiser presented Jones with the options of
"back[ing] [his] vehicle back up" the one-way driveway going
in the "wrong direction" or requesting that the officers move
their patrol car. Despite the "Do not enter" sign posted at the
entrance to the driveway, Det. Aeschlimann testified that he
would not have prevented Jones from backing his car up the
one-way roadway in the wrong direction.
As Det. Aeschlimann and Officer Rice exited their patrol
car, but before they reached the out-of-state vehicle, they saw
two of the vehicle’s passengers leave on foot. One of the pas-
sengers entered a nearby apartment. The officers did not see
where the other man went. The officers did not pursue either
man, nor did they attempt to speak to them. Instead, the offi-
cers proceeded immediately to speak to Jones, who had just
emerged from and was still standing by the driver’s door. At
this time, the remaining passenger walked over to stand with
Jones. Jones was returning from the store and held a slice of
pizza in his hand.
The officers approached Jones and his companion; the offi-
cers stood at the rear of the car with their side arms holstered.
Det. Aeschlimann asked Jones and his companion whether
they "live out here." Jones answered that he did. Det. Aeschli-
mann testified that "[r]ight when I made contact with Mr.
Jones and the other party," I said, "Hey, guys, can you do me
a favor? Just lift your shirt for me so I can see you have no
guns." The detective further testified that this was his "com-
mon practice, especially in high crime areas." Det. Aeschli-
mann acknowledged that Jones and his companion promptly
complied by lifting their shirts, as requested. Then Det.
Aeschlimann said, "Hey, guys, would you mind if I pat you
down for weapons?" Jones and his companion turned around
and raised their arms. The detective performed a quick pat
down search and felt no weapons.
6 UNITED STATES v. JONES
Jones testified that between the time the officers
approached him and he was asked to lift his shirt, he asked
why the officers were "stopping us," and Det. Aeschlimann
responded "because it’s a drug area." (Det. Aeschlimann did
not contradict this account during his previous testimony and
the Government did not recall him to refute Jones’s state-
ment.) Jones testified that at no point did he feel free to go.
He explained that he did what the detective asked because he
believed that the detectives were "looking for us to do some-
thing wrong at the time." He further explained that it was not
just the presence of the police officers but their manner that
led him to conclude that he was not free to go: "it wasn’t"
"just like how are you doing? Hey, how is your day going?
It wasn’t like that. It was all of a sudden, ‘Lift your shirt. Can
I pat you down?’ From the beginning."
Not until after the shirt lift and pat down did Det. Aeschli-
mann ask Jones for identification. Jones replied that he left his
license at home. Det. Aeschlimann testified that beginning at
that point in the encounter, Jones would not have been free to
leave, but rather "was being detained" for driving a motor
vehicle without having his driver’s license with him in viola-
tion of state law. See Va. Code § 46.2-104. Det. Aeschlimann
then asked Jones for his personal information, and Jones gave
him a false name, date of birth, and Social Security number.
Unable to find this information in any of the state databases,
Det. Aeschlimann confronted Jones. Jones then provided his
true name and date of birth. Either just before or just after
Jones gave his true information, one of the officers placed
him in handcuffs. Det. Aeschlimann then returned to the
police cruiser and ran Jones’s information through the state
databases; he learned that Jones’s license had been revoked.
While Det. Aeschlimann was running Jones’s information,
Officer Rice conducted another pat down of Jones, and dis-
covered a handgun in the crotch area of his pants. Det.
Aeschlimann then placed Jones under arrest. During a search
UNITED STATES v. JONES 7
of Jones’s person incident to arrest, one of the officers discov-
ered a small bag of marijuana in Jones’s front pants pocket.
On July 13, 2010, a federal grand jury returned a supersed-
ing indictment charging Jones with one count of possession of
a firearm by an unlawful user of controlled substances, in vio-
lation of 18 U.S.C. § 922(g)(3). Jones moved to suppress the
gun and marijuana and subsequent statements to the police,
alleging that the officers had illegally seized him when Det.
Aeschlimann asked him first to lift his shirt and then submit
to a pat down search. The Government opposed the motion,
contending that during the shirt lift and pat down the officers
merely engaged in a consensual encounter with Jones. After
the district court held a hearing on the matter, it denied
Jones’s motion in an oral ruling. The court concluded that the
encounter was consensual up until the police learned that
Jones was driving without a license, a traffic violation that
provided the officer with reasonable suspicion to detain Jones.
A jury subsequently convicted Jones of the single charged
crime, and the district court sentenced him to 41 months’
imprisonment and a 3-year term of supervised release. Jones
timely filed this appeal challenging the district court’s denial
of his suppression motion. When considering a district court’s
denial of a motion to suppress, we review the court’s factual
findings for clear error and all legal conclusions de novo.
United States v. Weaver, 282 F.3d 302, 309 (4th Cir. 2002).
II.
The Fourth Amendment protects "[t]he right of the people
to be secure in their persons . . . against unreasonable . . . sei-
zures." U.S. Const. amend. IV. This guarantee does not
extend to all police-citizen encounters. Rather, as the Supreme
Court has instructed, "[o]nly when the officer, by means of
physical force or show of authority, has in some way
restrained the liberty of a citizen may we conclude that a ‘sei-
zure’ has occurred." Terry v. Ohio, 392 U.S. 1, 19 n.16
8 UNITED STATES v. JONES
(1968). Police-citizen encounters that are consensual require
no justification, but those that are not consensual impose a
detention on a citizen and so must be supported by an offi-
cer’s reasonable, articulable suspicion. See Florida v. Bostick,
501 U.S. 429, 434 (1991); Terry, 392 U.S. at 21.
As a general matter, law enforcement officers do not effec-
tuate a detention or seizure "merely by approaching individu-
als on the street or in other public places and putting questions
to them." United States v. Drayton, 536 U.S. 194, 200 (2002).
But, an officer’s authority to initiate an encounter with a citi-
zen rather than detain him is "no greater than[ ] the authority
of an ordinary citizen to approach another on the street and
ask questions." United States v. Burton, 228 F.3d 524, 527
(4th Cir. 2000).
"[I]n order to determine whether a particular encounter
constitutes a seizure, a court must consider all the circum-
stances surrounding the encounter to determine whether the
police conduct would have communicated to a reasonable per-
son that the person was not free to decline the officers’
requests or otherwise terminate the encounter." Bostick, 501
U.S. at 439. In resolving this question, we, like our sister cir-
cuits, have followed the standard set forth in United States v.
Mendenhall, 446 U.S. 544 (1980) (plurality op.), asking
"whether ‘in view of all [of] the circumstances surrounding
the incident, a reasonable person would have believed that he
was not free to leave.’" United States v. Gray, 883 F.2d 320,
322 (4th Cir. 1989) (quoting Mendenhall, 446 U.S. at 554
(plurality op.)).
This "reasonable person" standard "is an objective one,"
thus "its proper application is a question of law." Weaver, 282
F.3d at 309 (quoting United States v. Sullivan, 138 F.3d 126,
133 (4th Cir. 1998)). We review such questions of law de
novo. See Ornelas v. United States, 517 U.S. 690, 699 (1996)
(holding objective "determinations of reasonable suspicion
and probable cause should be reviewed de novo on appeal");
UNITED STATES v. JONES 9
Mendenhall, 446 U.S. at 554-55 (describing issue as "a matter
of law").2
A court considers a number of factors in determining
whether an officer’s conduct would convey to a reasonable
person that he is not free to leave. These include, but are not
limited to, the number of police officers present during the
encounter, whether they were in uniform or displayed their
weapons, whether they touched the defendant, whether they
attempted to block his departure or restrain his movement,
whether the officers’ questioning was non-threatening, and
whether they treated the defendant as though they suspected
him of "illegal activity rather than treating the encounter as
‘routine’ in nature." Gray, 883 F.2d at 322-23.
III.
With these governing principles in mind, we consider the
"totality of the circumstances" in this case to determine
whether the initial encounter between the police officers and
Jones was consensual. See Lattimore, 87 F.3d at 653.
From the outset, the encounter in this case differs in a sig-
nificant respect from the mine run of cases, on which the
Government relies, which hold the challenged police-citizen
2
In its brief to this court, the Government contended that we should
review for clear error, relying on our discussion in United States v. Latti-
more of the different question of "whether consent to search was freely
and voluntarily given." 87 F.3d 647, 650 (4th Cir. 1996) (en banc)
(emphases added) (relying on Schneckloth v. Bustamonte, 412 U.S. 218,
226-27 (1973) (describing subjective criteria of voluntariness analysis)).
But later in Lattimore, we separately analyzed whether a consensual
encounter had become a seizure; in this analysis we applied de novo
review to determine whether an objectively "reasonable person" would
have considered himself free to go. Id. at 653. Perhaps recognizing that
these are distinct inquiries and that the latter standard of review applies to
the question at issue here, at oral argument the Government acknowledged
several times that our review as to whether the officers seized Jones is not
for clear error but de novo.
10 UNITED STATES v. JONES
encounter consensual. Unlike those cases, the encounter here
began with a citizen knowing that the police officers were
conspicuously following him, rather than a citizen, previously
unaware of the police, being approached by officers seem-
ingly at random. Cf. United States v. Black, 525 F.3d 359,
361, 363 (4th Cir. 2008) (officer spoke to defendant as he was
walking along passenger side of police car, which had just
arrived on the scene); Weaver, 282 F.3d at 307 (officer
approached defendant on the street and asked if he could
speak with him); United States v. Analla, 975 F.2d 119, 122,
124 (4th Cir. 1992) (two officers approached defendant while
he was using a public pay phone and asked to speak with him
when he was through); Gray, 883 F.2d at 321, 323 (plain-
clothes officer approached defendant in terminal area of air-
port, identified himself, and asked to speak with defendant).3
Indeed, in this case, the defendant, Jones, saw the officers
turn their marked patrol cruiser around to follow his car, pull-
ing in behind it on a public roadway, and following it onto
private property. According to Det. Aeschlimann’s own
account, he followed Jones closely enough to look for (but not
find) equipment failure on the car that would justify a traffic
stop. Although the detective never initiated the marked police
cruiser’s lights or sirens, he and Officer Rice were in uniform
and armed. Moreover, in Det. Aeschlimann’s haste to speak
with Jones he pulled the police cruiser to a stop in the lane of
traffic and parked there, effectively blocking Jones from mov-
ing his vehicle. Accordingly, before the verbal encounter even
3
In United States v. Wilson, 895 F.2d 168, 169-70 (4th Cir. 1990), on
which the Government also relies, the officer did follow the defendant
through an airport terminal; however, the officer was not in uniform but
rather "was casually dressed" and did not identify himself as law enforce-
ment until he "caught up" with the defendant and "displayed his creden-
tials." Accordingly, while the officer testified that the defendant looked at
him twice before quickly looking away, the facts do not suggest that the
defendant knew the casually attired man was a policeman before the offi-
cer approached the defendant and asked "if he would talk with him." Id.
at 170.
UNITED STATES v. JONES 11
began, this case lacked a traditional hallmark of a police-
citizen consensual encounter: the seemingly routine approach
of the police officer. See Bostick, 501 U.S. at 434 ("[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, [or] by putting questions to him if the person is
willing to listen . . . ." (internal quotation marks omitted)).
That this was not a routine encounter, but one targeted at
Jones seems to us particularly significant given that the offi-
cers blocked in Jones’s car to effectuate the encounter.4 In
United States v. Green, 111 F.3d 515 (7th Cir. 1997), the Sev-
enth Circuit considered a very similar case. There, as here, the
police followed a car into a driveway where the driver parked
the car, and there, as here, the defendant then exited his car.
Id. at 517. The Seventh Circuit concluded that, although the
driver was no longer in his car, and indeed was walking away
from his car toward a house, when "the officers pulled their
car in behind the [defendant’s car], blocking the car’s exit . . .
a reasonable person would not feel that he was free to leave."
Id. at 520 n.1. Accordingly, the court found that the police
4
Det. Aeschlimann claimed he would have permitted Jones to back his
car out of the parking lot going the wrong way in a one-lane driveway,
thus possibly backing up into oncoming traffic and through an entrance
with a posted "Do not enter" sign. But no reasonable law-abiding person
would take such evasive action in the presence of police officers, and cer-
tainly not when the officers have just finished closely following that per-
son’s vehicle from a public roadway onto private property. (Of course, if
a person did take such evasive action in the presence of police officers, it
might give the police reasonable suspicion for an investigatory stop. See
United States v. Smith, 396 F.3d 579, 584 (4th Cir. 2005)). Moreover, Det.
Aeschlimann’s asserted intent to permit Jones, if he chose, to back the
wrong way down a one-way driveway into oncoming traffic is irrelevant
to our analysis of the legal question at issue because the detective never
communicated this asserted intent to Jones. See 4 Wayne LaFave, Search
and Seizure: A Treatise on the Fourth Amendment § 9.4 (4th ed. 2004)
(explaining the lack of significance that an officer’s "uncommunicated
intention" has in the objective reasonable person inquiry).
12 UNITED STATES v. JONES
had seized not only the passenger who remained in the car but
also the driver who had left it. Id.
This holding comports with that of numerous other courts
considering similar facts. See, e.g., United States v. See, 574
F.3d 309, 313 (6th Cir. 2009) ("Given the fact that [the offi-
cer] blocked [the defendant’s parked] car with his marked
patrol car, a reasonable person in [his] position would not
have felt free to leave."); United States v. Kerr, 817 F.2d
1384, 1386-87 (9th Cir. 1987) (reversing district court’s hold-
ing that police blockage of defendant, who could have driven
around the police car, was not detention because officer
"[a]rriving in uniform and in a marked patrol car . . . unques-
tionably appeared to be acting in an official capacity" and,
"[i]nstead of waiting . . . at the roadside," blocked defendant’s
car "thus precipitat[ing] the confrontation"); Riley v. State,
892 A.2d 370, 374 (Del. 2006) (concluding that "when police
approached [defendant’s car] with their badges and flash-
lights, after having parked their police vehicle . . . so as to
prevent [defendant] from driving away, a seizure had taken
place for purposes of Fourth Amendment analysis"); Com-
monwealth v. Helme, 503 N.E.2d 1287, 1288 (Mass. 1987)
(finding investigatory stop occurred when officer "parked the
police cruiser so as to block the defendant’s [parked] automo-
bile and prevent it from leaving the parking lot"); State v.
Roberts, 977 P.2d 974, 977, 979 (Mont. 1999) (holding sei-
zure occurred when officer, "armed and in uniform," followed
defendant’s car without activating lights or sirens, blocked the
car from backing out of a driveway, and made an additional
"show of authority in immediately exiting his patrol car and
approaching" defendant who had exited his car simulta-
neously and was standing by the car door); State v. Garcia-
Cantu, 253 S.W.3d 236, 246 & n.44 (Tex. Crim. App. 2008)
(relying on fact that officer "parked his patrol car" such that
it "‘boxed in’ [defendant’s] parked truck, preventing him from
voluntarily leaving" and noting that "[m]ost courts have held
that when an officer ‘boxes in’ a car to prevent its voluntary
departure, this conduct constitutes a Fourth Amendment sei-
UNITED STATES v. JONES 13
zure"); State v. Jestice, 861 A.2d 1060, 1063 (Vt. 2004)
("[W]hen a police cruiser completely blocks a motorist’s car
from leaving, courts generally find a seizure. . . . [T]he fact
that it was possible for the couple to back and maneuver their
car past the patrol car and out of the trailhead parking lot does
not convince us that this was a consensual encounter . . . .");
McChesney v. State, 988 P.2d 1071, 1075 (Wyo. 1999) (not-
ing fact that officer "blocked in" defendant’s car has "been
found sufficient to constitute a seizure").
We agree that when an officer blocks a defendant’s car
from leaving the scene, particularly when, as here, the officer
has followed the car, the officer demonstrates a greater show
of authority than does an officer who just happens to be on the
scene and engages a citizen in conversation. For this reason,
the three cases on which the Government relies are inapposite.
See United States v. Thompson, 546 F.3d 1223 (10th Cir.
2008); United States v. Kim, 25 F.3d 1426 (9th Cir. 1994);
United States v. Pajari, 715 F.2d 1378 (8th Cir. 1983). In
those cases, unlike the one at hand, the officers did not target
and follow the defendant’s car before blocking it in. The offi-
cers here did not merely "come upon an already parked car"
as they did in Kim, 25 F.3d at 1430, or approach incognito
from behind the defendant’s parked car as they did in Pajari,
715 F.2d at 1380-81. Nor did the police merely ask to speak
with a pedestrian who happened to be walking toward his car,
as the officer did in Thompson, 546 F.3d at 1224-25. Rather,
Jones saw the officers follow his car from a public street onto
private property and then block the car from exiting in their
haste to speak with him.
The Government contends that the placement of the police
cruiser has minimal relevance because, as the police
approached, two of Jones’s companions walked away from
the car—one into an apartment and one in the other direction
—and the officers did not chase after them or call them back.
But it is not altogether clear to us which way this fact cuts.
On the one hand, that the officers allowed two passengers to
14 UNITED STATES v. JONES
walk away from the vehicle could convey to a reasonable per-
son that he, too, was free to walk away.
But, on the other hand, a reasonable person, whose car has
been followed by police officers and who then saw the offi-
cers’ apparent lack of interest in his passengers, might just as
likely believe that the police wanted to question only him.
Operating under this assumption, seeing two passengers walk
away does nothing to quell, and may even enhance, a driver’s
reasonable suspicion that the police are targeting him.5 See
United States v. Williams, 615 F.3d 657, 664 (6th Cir. 2010)
(relying, in part, on fact that, although two officers "did not
draw their weapons or touch" the defendant, "they were in
uniform and arrived in a marked police car, and . . . immedi-
ately focused their attention on one person, [the defendant] in
a group of four or five" which "contributed to their show of
authority"). Indeed, the officers in this case proceeded imme-
diately to the driver’s side of the car where Jones was stand-
ing after just emerging from the driver’s side door. See United
States v. Jones, 269 F.3d 919, 926 (8th Cir. 2001) (weighing
fact that police officer "exited his patrol car and engaged
[defendant] outside the vehicle" in favor of finding encounter
was non-consensual).
Furthermore, when the officers approached Jones, they did
not ask if they could speak with him, which, based on a
review of our cases, appears to be the routine practice of offi-
cers seeking to engage in a consensual encounter when they
approach an individual on foot. See, e.g., Weaver, 282 F.3d at
307; Analla, 975 F.2d at 124; Gray, 883 F.2d at 322. Nor did
the officers explain their function of conducting a routine
5
Irrelevant to our analysis is that Det. Aeschlimann assertedly had no
intention to effectuate a traffic stop. For, "whether an encounter has
become a seizure depends on the officer’s objective behavior, not any sub-
jective suspicion of criminal activity." LaFave, supra, § 9.4. Although
Det. Aeschlimann did not activate the cruiser’s lights or sirens, a reason-
able person might very well have believed that police officers, who were
following him closely and blocking his car, intended to stop him.
UNITED STATES v. JONES 15
patrol in the area. Cf. Drayton, 536 U.S. at 198-99 (describing
how officer walked from the rear of the bus toward the front
explaining to each passenger he was conducting routine drug
and weapons interdiction efforts); Gray, 883 F.2d at 323
(finding no detention when officers who approached defen-
dant in an airport initially "informed [him] of the DEA’s pur-
pose and function, [and] treated the questioning as a matter of
routine, rather than as a particularized investigation of [the
defendant]").
Rather, in speaking to Jones, the officers clearly continued
their show of authority. According to Det. Aeschlimann him-
self, "right when" he "made contact" with Jones, he asked
Jones to "lift [his] shirt" to see whether Jones possessed a
weapon. Not satisfied with the shirt lift, Det. Aeschlimann
then asked Jones to consent to a pat down search, further
implying that the officer suspected that Jones—a person the
police had followed onto private property—might be armed.
Thus, their immediate verbal exchange with Jones did nothing
to lessen a reasonable person’s suspicion that he was the tar-
get of a criminal investigation, and, in light of the totality of
the circumstances, only enhanced it.
The Government makes much of the fact that Det. Aeschli-
mann requested, rather than ordered, Jones to lift his shirt and
consent to a pat down search. A request certainly is not an
order, but a request—two back-to-back requests in this case—
that conveys the requisite show of authority "may be enough
to make a reasonable person feel that he would not be free to
leave." United States v. Richardson, 385 F.3d 625, 629 (6th
Cir. 2004).
For example, in Richardson, after completing a traffic stop,
a police officer made a single request that the driver "just
hang out right here for me, okay?" Id. at 630. Despite the fact
that the officer "did not display an intimidating demeanor or
use coercive language," the court held that the officer’s
"words alone were enough to make a reasonable person . . .
16 UNITED STATES v. JONES
feel that he would not be free to walk away and ignore [the]
request." Id.; see also United States v. Smith, 594 F.3d 530,
534, 539 (6th Cir. 2010) (holding police officer detained
defendant, whose path was not blocked, when officer "asked
him to stop"); Johnson v. Campbell, 332 F.3d 199, 206 (3d
Cir. 2003) (holding officer’s second request to roll down car
window constituted a seizure by "ma[king] it clear that [the
defendant] was not free to ignore" the officer).
Here, too, under the circumstances of this case, we con-
clude that a reasonable person would not have felt free to
walk away and ignore Det. Aeschlimann’s nearly immediate
"requests" that the person first lift his shirt and then submit to
a pat down search. By making such intrusive "requests"
almost immediately upon approaching Jones and his compan-
ion, Det. Aeschlimann communicated, through his conduct,
that this was not just a routine encounter with the police. See
Terry, 392 U.S. at 16-17 (explaining that "a careful explora-
tion of the outer surfaces of a person’s clothing all over his
or her body in an attempt to find weapons . . . performed in
public by a policeman while the citizen stands helpless"
inflicts "a serious intrusion upon the sanctity of the person").6
The two Supreme Court bus cases, on which the Govern-
ment relies, Drayton and Bostick, are readily distinguishable.
6
The Government emphasizes that Det. Aeschlimann’s routine practice
of asking individuals in high-crime neighborhoods to lift their shirts and
consent to being patted down are "good policing" tactics designed to pro-
mote officer safety. Govt’s Br. at 26. And the Government, at oral argu-
ment, argued that such fears justify this practice with regard to any
individual who happens to live in or visit a high crime area. We do not dis-
count the grave risks that police officers face on a daily basis whether con-
fronting dangerous criminals or conducting routine traffic stops. Nor do
we advance any bright-line rules regarding when and where an officer can
ask to frisk a citizen for safety purposes during a consensual encounter.
All that we hold here is that such fears for officer safety do not justify
police conduct that would convey to a citizen, whose only suspicious
behavior is driving a car with out-of-state tags in a high-crime neighbor-
hood, that he must submit to a "shirt lift" and pat down search.
UNITED STATES v. JONES 17
In both cases, the Court held there was no "per se rule" about
when "encounters on a bus" constitute a seizure. Drayton, 536
U.S. at 203; Bostick, 501 U.S. at 440. But in both, the officers
were, as they carefully told the passengers, conducting routine
drug and weapons interdiction efforts during scheduled bus
stops. Moreover, unlike the case at hand, in neither case did
the officers exhibit any conduct "to suggest a particularized
suspicion of wrongdoing among any of the passengers ques-
tioned." See State v. Pitts, 978 A.2d 14, 23 (Vt. 2009). Rather,
in Drayton, an officer approached the defendant passenger in
a non-threatening manner, working his way from the rear of
the bus and explaining to each passenger that the officers
were "conducting bus interdiction," 536 U.S. at 198-99; thus
the defendant had no reason to believe he was suspected of
any criminal activity or was the individual target of an investi-
gation. And in Bostick, the police officers "specifically
advised [the defendant] that he had the right to refuse con-
sent" to any search. 501 U.S. at 432.
In contrast, here, the totality of the circumstances would
suggest to a reasonable person in Jones’s position that the
officers suspected him of some sort of illegal activity in a
"high crime area," which, in turn, would convey that he was
a target of a criminal investigation and thus not free to leave
or terminate the encounter. See Williams, 615 F.3d at 665
(explaining that "[n]o reasonable person would feel entitled to
ignore an officer, turn, and walk away" even if questioned
about something as benign as "trespassing"); United States v.
Tyler, 512 F.3d 405, 410-11 (7th Cir. 2008) (explaining "[a]
reasonable person would not feel free to walk away" after
officers approached him and suggested he was violating open
container laws); United States v. Berry, 670 F.2d 583, 597
(5th Cir. Unit B 1982) (en banc) (noting that "[s]tatements
which intimate that an investigation has focused on a specific
individual easily could induce a reasonable person to believe
that failure to cooperate would lead only to formal deten-
tion"); Pitts, 978 A.2d at 22 (finding a detention when "sus-
pect was obviously followed" by police officers who
18 UNITED STATES v. JONES
subsequently "questioned [him] about weapons and drugs"
even though "the record reveals neither physical restraint nor
blatantly aggressive or intimidating language"); Parker v.
Commonwealth, 496 S.E.2d 47, 49, 51 (Va. 1998) (finding a
detention when police officer "driving his police cruiser, fol-
lowed the defendant" onto private property, "stopped the
cruiser at a location where the defendant was standing," asked
the defendant "if he had any guns or drugs in his possession"
and asked to "pat him down").
Thus, the totality of the facts in this case requires us to con-
clude that the officers detained Jones before they had any jus-
tification for doing so. For two police officers in uniform in
a marked police patrol car conspicuously followed Jones from
a public street onto private property and blocked Jones’s car
from leaving the scene. The officers then quickly approached
Jones by the driver’s side of his car –- letting two other vehi-
cle occupants walk away—and nearly immediately asked first
that he lift his shirt and then that he consent to a pat down
search for weapons. Although the uniformed officers did not
draw their holstered weapons or use a threatening tone, these
circumstances would suggest to a reasonable person that the
officers were not "treating the encounter as ‘routine’ in
nature," but rather that the officers were targeting him
because he was engaged in "illegal activity." See Gray, 883
F.2d at 322-23. Any one of these facts on its own might very
well be insufficient to transform a consensual encounter into
a detention or seizure, but all of these facts viewed together
crystallize into a Fourth Amendment violation.7
7
We note that the Government has not suggested that, should we find
a Fourth Amendment violation, the exclusionary rule would not apply. See
United States v. Edwards, 666 F.3d 877, 887 (4th Cir. 2011) (declining to
consider arguments not raised by the Government in exclusionary rule
analysis). Moreover, as we have explained, "the exclusionary rule is our
sole means of ensuring that police refrain from engaging in the unwar-
ranted harassment or unlawful seizure of anyone," regardless of where that
person resides or visits. United States v. Foster, 634 F.3d 243, 249 (4th
Cir. 2011). Accordingly, we find the exclusion of evidence to be the
proper remedy in this case because of the "the potential . . . to deter
wrongful police conduct." See Herring v. United States, 555 U.S. 135, 137
(2009).
UNITED STATES v. JONES 19
IV.
For the foregoing reasons, we reverse the judgment of the
district court and remand the case for further proceedings con-
sistent with this opinion.
REVERSED AND REMANDED