Metropolitan News-Enterprise


Friday, February 4, 2011


Page 1


Flight From Officer Held Cause to Stop and Search


By SHERRI M. OKAMOTO, Staff Writer


The Ninth U.S. Circuit Court of Appeals yesterday ruled that a Las Vegas man who attempted to flee from a police officer who called out to him to stop was not unconstitutionally seized since he did not submit to the officer’s show of authority, and his flight gave the officer reasonable suspicion to handcuff and search him after the foot chase ended.

Judge Ronald M. Gould, in his decision for the panel, acknowledged that “circumstances where a person’s flight has a perfectly innocent and reasonable explanation” may exist. But Jermaine Smith’s reaction was suggestive of wrongdoing, the judge concluded.

Smith said he was crossing the street when Las Vegas Metropolitan Police Officer Tyler Dominguez activated the siren on his patrol car, pulled over, and exited the vehicle. The officer then allegedly called to Smith to come over to the car.

Upon hearing the siren, Smith claimed he had stepped towards the car, but began backing away after Dominguez got out of the vehicle and called to him. Smith said he continued to back away even though the officer told him he was not under arrest, and then turned and ran when he saw Dominguez reach for what he thought was a gun.

 Dominguez pursued Smith on foot, catching up to him after Smith tripped and fell. He said Dominguez handcuffed him and searched him for weapons while he was prone on the ground. Smith was later indicted for being a felon in possession of a firearm based on a gun Dominguez found on his person during this search.

After U.S. District Judge Kent J. Dawson of the District of Nevada denied Smith’s motion to suppress the evidence of the gun, Smith entered a conditional guilty plea, retaining the right to appeal Dawson’s ruling.

Gould agreed that Smith was not seized during his initial encounter with the officer and therefore did not address whether Dominguez was justified in attempting to stop Smith.

The jurist explained that a person is not “seized” within the meaning of the Fourth Amendment unless his freedom of movement restrained by some show of authority or application of physical force. He analogized Smith’s situation to the scenario in United States v. Hodari D., (1991) 499 U.S. 621, which held that an officer’s shouting at a fleeing suspect to “ ‘Stop, in the name of the law!’ ” was not a seizure.

Gould reasoned “Smith did not submit in any realistic sense to Officer Dominguez’s command that Smith stand in front of the patrol car” since he turned and ran, and “because he was not otherwise coerced or physically forced to submit, Smith

was not seized within the meaning of the Fourth Amendment during his initial encounter with the officer.”

Once Smith was apprehended, Gould said, “he was indisputably seized.” But based on Supreme Court precedent that a person’s “headlong” and “unprovoked” flight upon seeing a police officer in a high-crime neighborhood is sufficient to establish

reasonable suspicion that the person is involved in criminal activity, Gould concluded Dominguez was justified in seizing Smith.

Gould opined that “Smith’s initial reaction was not suspicious,” and no cause to stop him would have existed if he had “simply continued to go about his business, or walked away.” Since he chose to run, “for no other reason than to evade Officer Dominguez,” Gould said “Smith’s flight under these circumstances created a reasonable suspicion that he was involved in criminal activity.”

Judge Consuelo M. Callahan and Senior U.S. District Judge Edward R. Korman of the Eastern District of New York, sitting by designation, joined in the opinion.

The case is United States v. Smith, 10-10036.


Copyright 2011, Metropolitan News Company