Unlawful police seizure means that an otherwise voluntary search is involuntary, says Virginia criminal lawyer

Unlawful police seizure under the Constitution’s Fourth Amendmentprecludes an otherwise vountary search from being voluntary. As a Virginia criminal lawyer, I know that many judges will disagree with when a seizure has taken place. Fortunately, we have Virginia and federal appellate court opinions to provide guidance on that question, including Florida v. Royer, 460 U.S. 491 (1983), and a recent unpublished Virginia Court of Appeals opinion (which I prefer to be published), called Virginia v. Martinez, Record No. 0061-22-1 (Va. App., May 24, 2022) (unpublished).

What factors must be considered in determining whether a seizure has taken place?

As to an unlawful police seizure, consider that 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,’ California v. Hodari D., 499 U.S. 621, 628… (1991), the encounter is consensual and no reasonable suspicion is required. The encounter will not trigger Fourth Amendment scrutiny unless it loses its consensual nature…” Florida v. Bostick, 501 U.S. 429, 434. The federal Supreme Court and Virginia Supreme Court “have previously listed factors that are relevant in determining whether a seizure has occurred, which include the number of police officers present, the display of weapons by an officer, physical contact between an officer and a citizen, an officer’s language or tone of voice compelling compliance, the retention of documents requested by an officer, and whether a citizen was told that he or she was free to leave.” Jones v. Virginia, 279 Va. 521, 528 (2010) (citations omitted). “The determination whether an encounter is consensual or is an illegal seizure in violation of a defendant’s Fourth Amendment rights is not governed by a ‘litmus test, and requires consideration of all the circumstances surrounding the encounter.” Jones at 528. 

Seizure can occur when police hold onto the suspect’s liense for a long time

In the most recent Virginia unlawful police seizure appellate opinion, Christopher Francis Martinez was passed out in the back of an Uber, whose drive reported the same.  Police asked Martinez to get out of the vehicle and asked him for identification. Martinez handed over his Colorado driver’s license. Thereafter, another police officer asked if Martinez was “Chris or Andrew Martinez”. That same officer was familiar with Martinez, thought he was living in Colorado,  and asked Martinez why he was in Virginia Beach. Officer Brenya “returned Martinez’s Colorado driver’s license “as Martinez handed Brenya his Virginia license… Brenya retained Martinez’s Virginia lidense and crossed the street to speak with the Uber driver” while two other law enforcement officers stayed with Martinez. “While Brenya was at the Uber, but before emergency personnel arrived, Fogarty asked to search Martinez’s pockets. Martinez said yes.”  Officer Brenya returned to the group after about ninety seconds,. finding marijuana and Xanax on him. Without Mirandizing Martinez, one of the officers asked Martinez if he had anything else on him, and proclaimed ‘let’s make some smart decisions now. Put him in handcuffs.’ Martinez then told the officers that he had cocaine in his socks. Brenya then handcuffed Martinez and recovered cocaine from Martinez’s sock.” Martinez. 

Applying the exclusionary rule to unlawful police seizure

Finding an unlawful police seizure, Martinez summarizes that because “the record establishes that Martinez’s consent was involuntary and the application of the exclusionary rule was the appropriate remedy for the Fourth Amendment violation, we affirm the circuit court’s decision” to suppress the evidence from the search. “Once a Fourth Amendment violation has been established, ‘we must decide whether to apply the exclusionary rule.’ [Jones, 71 Va. App. at 383.] The purpose of the exclusionary rule ‘is to deter future Fourth Amendment violations.’ Davis v. United States, 564 U.S. 229, 236-37 (2011). ‘To trigger the exclusionary rule, police conduct must be sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system.’ Collins, 297 Va. at 215… The goal of the exclusionary rule is ‘to deter deliberate, reckless, or grossly negligent conduct.’ Herring, 555 U.S. at 144. Therefore, we must determine under all the circumstances ‘whether a reasonably well trained officer would have known that the search was illegal.’ Id. at 145… ‘[A]n officer can gain no Fourth Amendment advantage through a sloppy study of the laws he is duty-bound to enforce.’ Heien v. North Carolina, 574 U.S. 54, 67 (2014).” Martinez

Ask your lawyer about challenging any unlawful police seizure of you

Although we are far from the golden age of the Warren Supreme Court from decades ago ago that protected criminal defendant’s Constitutional rights much more than the do current appellate courts, Virginia criminal defense lawyers can still obtain critical protection — including with unlawful police seizures — for their clients with the court cases from the federal Supreme Court and the Virginia Supreme Court and Court of Appeals. Among the important questions to ask your potential and hired Virginia criminal lawyer is how to challenge your arrest, and any police search of you or your property.

Virginia criminal lawyer Jonathan Katz has successfully defendend thousands of people against felony, misdemeanor, DUI and drug prosecutions. For your free in-person consultation with Jon Katz abour your court-pending case, call 703-383-1100.