United States v. Steven G. Campbell

R. GUY COLE, JR., Circuit Judge,

dissenting.

I agree with the majority’s conclusion that a mere request for identification is not a seizure. Majority Op. at 957. If the majority were correct that Officer Salser *959only told Campbell that he would like to see his identification, then I might also agree with the majority that such a request is not a seizure. I part ways with the majority because the facts adduced at the suppression hearing reveal that Officer Salser did not simply ask Campbell for identification by stating, as the majority claims, that “he ‘would like to see [Campbell’s] ID.’ ” Majority Op. at 952 (quoting Joint Appendix (“JA”) 74). Rather, the facts indicate that Officer Salser instructed Campbell that “before [Campbell] left [he] would like to see his ID.” (JA 74 (emphasis added).) By conditioning Campbell’s ability to leave on his first producing valid identification, Officer Salser transformed what could otherwise have been a simple request for identification into a command that Campbell would not have reasonably felt free to refuse. Such a command constituted a seizure of Campbell. Because Officer Salser did not have reasonable suspicion to seize Campbell at that time, I respectfully dissent. Accordingly, I would AFFIRM the district court’s grant of Campbell’s motion to suppress the evidence obtained during his arrest and subsequent search of his car.

I.

The majority states that “Officer Salser told Campbell about the recent burglaries committed in the area and then said that he ‘would like to see [Campbell’s] ID, just to log that I talked to him.’ ” Majority Op. at 952 (quoting JA 74). Officer Salser’s own testimony, however, does not support this characterization of the facts. Rather, as indicated by Officer Salser at Campbell’s suppression hearing, Officer Salser’s initial inquiry into Campbell’s identification went beyond a simple request:

Q: And after they gave you the information, you told Mr. Campbell where the business was, what happened next? 1
A: I told him that we had some burglaries in the area, and before he left I would like to see his ID, just to log that I talked to him.
Q: When you said that, is that — let me just go back by saying, is that something you do routinely in your investigative work?
A: Yes.
Q: What happened when you said that? What did the defendant do? He stated that he didn’t have an ID.
A: And I take it that under Ohio law one is required to have a driver’s license? Correct.
Q: And were you able to see his demeanor?
A: Once I inquired about an ID and he said he didn’t have one, I asked him for his name and date of birth. And he began, became very nervous. His hands went up. He said, officer, I don’t want any trouble, please. Several times he stated that to me.
Q: When you say also, in terms of nervousness, can you describe for the court what you observed that led you to that understanding, about nervousness?
A: He was walking around, not — he was just very nervous. His hands were moving. He kept saying, please, I don’t want any trouble. I *960just want to pick up my girlfriend. Just to that effect.
Q: Now, what did you say to him in response?
A: I said, I asked him for — I asked him if he had a state ID, or his name and date of birth, And he could be on his way just as soon as [I] ID’d him.

(JA 74-75 (emphasis added).) As the transcript of the suppression hearing shows, the majority incorrectly states that Officer Salser’s initial request for identification did not condition Campbell’s ability to leave on him first providing the Officer with identification. Rather, the Officer’s own testimony illustrates that he asked Campbell for identification twice, and each time he clearly conditioned Campbell’s ability to leave on Campbell first producing valid identification.

The majority argues that “Officer Sal-ser’s first statement was that he would like to see Campbell’s ID. The use of the word ‘like,’ as opposed to ‘need’ or ‘want,’ suggests that a reasonable person would feel free to decline this request and leave the scene.” Majority Op. at 956. I do not disagree with the majority that if Officer Salser had simply stated, “I would like to see your ID,” that no seizure would have occurred because, as the majority concludes, the word “like” is permissive and implies that a reasonable person would feel free to decline the Officer’s request.2 See INS v. Delgado, 466 U.S. 210, 216, 104 S.Ct. 1758, 80 L.Ed.2d 247 (1984) (explaining that a request for identification by itself does not constitute a seizure under the Fourth Amendment). However, Officer Salser’s own testimony indicates that he went beyond simply stating, “I would like to see your ID.” By instructing Campbell that he could not leave until he presented his identification, Officer Salser created a condition, i.e., the presentation of a valid form of identification, that Campbell had to satisfy before he could leave the scene. In Mendenhall, the Supreme Court explained that

a person has been ‘seized’ within the meaning of the Fourth Amendment only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave. Examples of circumstances that might indicate a seizure, even where the person did not attempt to leave, would be the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer’s request might be compelled.

446 U.S. at 554, 100 S.Ct. 1870 (emphasis added). Because “use of language” can indicate to a reasonable person that an “officer’s request might be compelled,” Officer Salser’s condition would have conveyed to a reasonable person that compliance with his request to produce identification was required before being free to terminate the encounter. See Florida v. Bostick, 501 U.S. 429, 437, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991) (“No seizure occurs when police ask questions of an individual, [and] ask to examine the individual’s identification, ... so long as the officers do not convey a message that compliance with their requests is required.”) (emphasis added).

Further supporting a conclusion that a reasonable person would not have felt free *961to leave is Officer Salser’s statement to Campbell that he wished to “log” their conversation. (JA 74-75.) The majority explains that “Officer Salser was simply giving Campbell the reason why Salser would like to see Campbell’s ID; he was not at that point conditioning Campbell’s departure on such production.” Majority Op. at 957. The majority mischaracterizes Officer Salser’s testimony. As described above, the Officer’s testimony clearly shows that Campbell was not free to leave until he produced his identification. (JA 74.) Thus, the problem arises not from Officer Salser’s explanation of why he wanted to see Campbell’s identification, i.e., to log their conversation, but rather from Officer Salser’s statement that Campbell could not leave before producing identification. Additionally, when Officer Salser’s statement that Campbell could leave only after producing identification is coupled with his statement that he wanted to log their meeting, a reasonable person would have believed that he or she was not free to leave until the Officer fulfilled his duty of logging the encounter. Although Officer Salser might have intended such a statement to be explanatory, his subjective intent is irrelevant; rather, we look only to what a reasonable person would have understood the Officer’s statement to mean. See, e.g., United States v. Taylor, 956 F.2d 572, 576 n. 2 (6th Cir.1992) (“The subjective intent of the officers is relevant to an assessment of the fourth amendment implications of police conduct only to the extent that that intent has been conveyed to the person confronted.”) (quoting United States v. Rose, 889 F.2d 1490, 1493 (6th Cir.1989)).

Even more telling is the majority’s own statement that “the interaction between Officer Salser and Campbell did not escalate beyond a consensual encounter until after Officer Salser told Campbell that he ‘could be on his way just as soon as [I] ID’d him.’ ” Majority Op. at 957 (quoting JA 75) (emphasis added). By its own admission, therefore, the majority believes that Campbell would have been seized had Officer Salser conditioned his ability to leave on Campbell first producing identification. The majority, however, mistakenly states that “[njothing about Officer salser’s first request for identification suggests that Campbell’s freedom to leave the encounter was conditioned on complying with the request,” but as the transcript of Officer Salser’s testimony indicates, Officer Salser at all times conditioned Campbell’s ability to leave on him first producing valid identification. Compare Majority Op. at 957 with JA 74-75.

Most importantly, the standard of review requires us to look at the evidence in the light most likely to support the district court’s decision. See United States v. Bates, 84 F.3d 790, 794 (6th Cir.1996) (quotation marks omitted). Here, the district court concluded that Officer Salser seized Campbell without reasonable suspicion and therefore granted Campbell’s motion to suppress. Because I agree with the district court’s conclusion that a reasonable person would not have felt free to leave without first complying with the Officer’s condition of presenting identification, I conclude that Officer Salser’s statement amounted to a seizure of Campbell and accordingly would affirm the district court’s grant of Campbell’s motion to suppress.

II.

Because Officer Salser lacked reasonable suspicion to seize Campbell, the seizure was unreasonable and violated Campbell’s Fourth Amendment rights. In United States v. Cortez, 449 U.S. 411, 417, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981), the Supreme Court explained that “[a]n inves*962tigatory stop must be justified by some objective manifestation that the person stopped is, or is about to be, engaged in criminal activity.” Although an officer can engage in a Terry stop for purposes of obtaining a suspect’s identity, “[t]he officer’s action must be justified at its inception, and ... reasonably related in scope to the circumstances which justified the interference in the first place.” Hiibel v. Sixth Judicial Dist. Court of Nevada, 542 U.S. 177, 185, 124 S.Ct. 2451, 159 L.Ed.2d 292 (2004) (quoting United States v. Sharpe, 470 U.S. 675, 682, 105 S.Ct. 1568, 84 L.Ed.2d 605 (1985) and Terry v. Ohio, 392 U.S. 1, 20, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) (quotation marks omitted)) (emphasis added); see also Hayes v. Florida, 470 U.S. 811, 816, 105 S.Ct. 1643, 84 L.Ed.2d 705 (1985) (“[I]f there are articu-lable facts supporting a reasonable suspicion that a person has committed a criminal offense, that person may be stopped in order to identify him, to question him briefly, or to detain him while attempting to obtain additional information.”). In Smoak v. Hall, 460 F.3d 768, 779 (6th Cir.2006), we explained that to justify a Terry stop a police officer must have a reasonable suspicion that the individual is engaged in criminal activity, namely, “a particularized and objective basis for suspecting the particular person ... of criminal activity based on specific and articula-ble facts.” Id. (quoting Houston v. Clark County Sheriff Deputy John Does 1-5, 174 F.3d 809, 813-14 (6th Cir.1999) (internal quotation marks omitted)).

Here, the facts do not support a finding that Officer Salser had a reasonable suspicion that Campbell was about to engage, or had engaged, in criminal activity. Campbell was driving in an industrial, commercial neighborhood at night. By itself, such behavior does not create sufficient grounds from which to conclude that Officer Salser had a reasonable suspicion that Campbell was engaged in criminal activity. See, e.g., Illinois v. Wardlow, 528 U.S. 119, 124, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000) (explaining that “[a]n individual’s presence in an area of expected criminal activity, standing alone, is not enough to support a reasonable, particularized suspicion that the person is committing a crime”); Bennett v. City of Eastpointe, 410 F.3d 810, 830 (6th Cir.2005) (“While officers can surely and appropriately take into account the fact that an area is a high crime area, that alone, does not justify effectuating a seizure.”). Campbell did not violate any traffic laws or drive in a way that might arouse suspicion, and Officer Salser did not testify to the contrary. Additionally, parking in an empty parking lot, even if the business is closed, is not suspicious behavior, because one could be looking for directions, talking on the phone, or simply taking a break from driving.

Further, Campbell’s actions of exiting his car, crossing the street, and talking on his cell phone while standing in a neighboring parking lot, are also not indicative of criminal behavior. The district court noted that the two nearby businesses were not attractive targets for thieves: “If Campbell intended to break into Modern Building Supply, he would face major difficulty loading much roofing product into the Chevrolet Cavalier. If Campbell intended to break into American Church, he would face major difficulty selling church envelopes.” (JA 260.) Additionally, Campbell provided a plausible explanation for his actions; he was lost, had bad cellphone reception, and was trying to get directions from his girlfriend, as confirmed by the female caller, who spoke to Officer Salser. This should have dispelled, or at least diminished, any suspicions that Officer Salser might have had.

The Government argues that “Campbell’s nervous and evasive behavior, [and] *963Campbell’s driving without a license or identification” when “coupled with his presence at a late hour in the parking lot of two closed businesses in [a] high crime area” support a finding that Officer Salser had the reasonable suspicion necessary to justify a Terry stop. (Appellant’s Br. 26.) Reasonable suspicion, however, must arise before an individual is seized by an officer. See, e.g., Cortez, 449 U.S. at 417, 101 S.Ct. 690. Campbell’s behavior was not nervous and evasive until after Officer Salser seized him by demanding identification, and Officer Salser did not discover that Campbell was driving without a license until after Officer Salser told Campbell that he could leave only after producing identification.

The majority correctly concludes that once Campbell told Officer Salser that he had no identification with him, Officer Sal-ser had the probable cause necessary to arrest Campbell for violating Ohio Rev. Code § 4507.35. Majority Op. at 957-58 (“Because Officer Salser had probable cause to believe that Campbell had committed the misdemeanor offense of driving without proof of a license, the ensuing warrantless arrest did not violate Campbell’s constitutional rights.”). However, Officer Salser had probable cause to arrest Campbell only after he conditioned Campbell’s freedom to leave the scene on Campbell first producing identification. Because probable cause must be present before an arrest occurs, Campbell’s arrest was unreasonable under the Fourth Amendment. See, e.g., United States v. Caicedo, 85 F.3d 1184, 1192 (6th Cir.1996) (“Police may arrest a person without a warrant if they have probable cause at the time of the arrest to believe that the person has committed or is committing a crime.”).

Accordingly, because I believe the facts indicate that Officer Salser’s inquiry into Campbell’s identification went beyond a simple request for identification and amounted to an unlawful seizure of Campbell, I would AFFIRM the district court’s grant of Campbell’s motion to suppress the evidence seized as a result of his arrest.

. This question relates to Officer Salser's testimony that he had asked his dispatcher for the location of Treeman Industries — Campbell’s girlfriend’s place of employment. Officer Salser testified that Campbell had told him he was on his way to pick up his girlfriend at her work but was lost. (JA 73-74.)

. I do not mean to suggest that every time the word “like" is used, an encounter becomes consensual. Rather, the entire context of the encounter must be analyzed to determine whether a seizure has occurred. United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980).