WASHINGTON v. LAMBERT
George WASHINGTON; v. Skystone–Eagle LAMBERT;
1996
9th circuit case on brandishing.
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As a result, we have held that while certain police actions constitute an arrest in certain circumstances, e.g., where the “suspects” are cooperative, those same actions may not constitute an arrest where the suspect is uncooperative or the police have specific reasons to believe that a serious threat to the safety of the officers exists. “The relevant inquiry is always one of reasonableness under the circumstances.” Allen v. City of Los Angeles, 66 F.3d 1052, 1057 (9th Cir.1995) (quoting United States v. Sanders, 994 F.2d 200, 206 (5th Cir.), cert. denied, 510 U.S. 1014, 114 S.Ct. 608, 126 L.Ed.2d 572 (1993)).
....
Therefore in determining whether a stop was lawful or unlawful, we must consider the risk to the police officers inherent in the situation, but we must also consider the liberty interests all Americans cherish—specifically the freedom from unreasonable searches and seizures guaranteed by the Fourth Amendment to our Constitution.
In this nation, all people have a right to be free from the terrifying and humiliating experience of being pulled from their cars at gunpoint, handcuffed, or made to lie face down on the pavement when insufficient reason for such intrusive police conduct exists. The police may not employ such tactics every time they have an “articulable basis” for thinking that someone may be a suspect in a crime. The infringement on personal liberty resulting from so intrusive a type of investigatory stop is simply too great. Under ordinary circumstances, when the police have only reasonable suspicion to make an investigatory stop, drawing weapons and using handcuffs and other restraints will violate the Fourth Amendment. Del Vizo, 918 F.2d at 825; United States v. Delgadillo–Velasquez, 856 F.2d 1292, 1295 (9th Cir.1988).
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Kraus v. County of Pierce, 793 F.2d 1105, 1109 (9th Cir.1986) (holding that arrest occurred where police used guns and searchlights but neither handcuffed suspects nor restrained them in a police car), cert. denied, 480 U.S. 932, 107 S.Ct. 1571, 94 L.Ed.2d 763 (1987).
The significance of the pointed gun is that it makes the encounter far more frightening than if the officer's gun remains holstered, or even drawn but pointed down at his side; and certainly where the danger of the encounter to the officer, though potentially serious, is not clear and present, the deliberate pointing of a gun at the suspect is problematic. It would be a sad day for the people of the United States if police had carte blanche to point a gun at each and every person of whom they had an ‘articulable suspicion’ of engaging in criminal activity.
United States v. Serna–Barreto, 842 F.2d 965, 967 (7th Cir.1988) (Posner, J.) (citation omitted).
In determining whether the use of intrusive techniques turns a stop into an arrest, we examine the reasonableness of the police conduct in light of a number of factors. Despite the absence of a bright-line rule, our cases make clear that we have only allowed the use of especially intrusive means of effecting a stop in special circumstances, such as 1) where the suspect is uncooperative or takes action at the scene that raises a reasonable possibility of danger or flight;
12 2) where the police have information that the suspect is currently armed;
13 3) where the stop closely follows a violent crime;
14 and 4) where the police have information that a crime that may involve violence is about to occur.
15 Clearly, some combination of these factors may also justify the use of aggressive police action without causing an investigatory stop to turn into an arrest.
16
this brings us to the most problematic element of this case, which is that Officer Dailey (we are assuming) pointed his gun at Serna-Barreto when he ordered her out of the car. The significance of this is not that it assured compliance with his order. A stop is a stop; if an encounter with the police is not coercive, the Fourth Amendment is not in play in even an attenuated form and the officer is not required to demonstrate that he had even an articulable suspicion. The significance of the pointed gun is that it makes the encounter far more frightening than if the officer's gun remains holstered, or even drawn but pointed down at his side; and certainly where the danger of the encounter to the officer, though potentially serious, is not clear and present, the deliberate pointing of a gun at the suspect is problematic. See United States v. White, supra, 648 F.2d at 34 n. 27. It would be a sad day for the people of the United States if police had carte blanche to point a gun at each and every person of whom they had an "articulable suspicion" of engaging in criminal activity.
United States v. Serna–Barreto, 842 F.2d 965, 967 (7th Cir.1988) (Posner, J.) (citation omitted).
The distinction between a stop and an arrest is one of degree, so it is not surprising that the courts have had difficulty in coming up with a bright-line test. Instead they have tended to follow the laundry-list approach, well illustrated by the list (not exhaustive) of factors (all relevant, none decisive, and no indication of how to weigh or compare them) in United States v. White, 648 F.2d 29, 34 (D.C.Cir.1981): officer's intent, impression conveyed, length of stop, questions asked, search made. Length of time seems the most important consideration in deciding whether a restraint is a mere stop or a full-fledged arrest, because it is a direct measure of the degree to which the citizen's freedom of action has been interfered with. But it cannot be the only factor. Remember that we are trying to balance the individual's interest in being left alone by the police with the community's interest in effective enforcement of the criminal laws. The individual's interest is measured not only by the duration of the restraint but also by the fear or humiliation which it engenders. It makes a difference whether the police merely insist that the suspect stop and answer a few questions and submit to a pat down or whether they manacle him or conduct a strip search.
But this case falls short of that ominous prospect. Among the considerations supporting the district judge's determination that this was a lawful stop are, first, that the encounter occurred at night; second, that the suspects were suspected on more than a hunch or an uncorroborated informer's tip of narcotics offenses; third, that many drug traffickers are armed and they sometimes shoot policemen; fourth, that there were two suspects and (at first) only one officer (others were on the scene, and assisted in the arrest of Serna-Barreto and her companion after she tried to grab the cassette box back from Dailey); fifth, that because the suspects were seated in a car the officer did not have them in full view (see Pennsylvania v. Mimms, 434 U.S. 106, 110, 98 S.Ct. 330, 333, 54 L.Ed.2d 331 (1977) (per curiam)); and sixth, that--surprising as this may seem--Serna-Barreto testified that she was not scared by the gun. It seems that somehow Officer Dailey was able to deploy his weapon in a fashion that protected him without appearing to menace the person at whom it was pointed. Although subjective belief is not determinative on whether an ostensible stop is actually an arrest, Serna-Barreto's testimony is strong evidence in an otherwise sketchy record that, if Officer Dailey did in fact point his gun at her, he did so in a manner that protected him without unduly threatening her.
The constellation of facts to which we have referred entitled the district judge to conclude that Dailey acted reasonably in a situation of potential danger and did not make an illegal arrest. This conclusion would be unavailing if a Terry stop always turns into an arrest as soon as an officer points his gun at the suspect, but while a divided panel opinion in the Ninth Circuit suggests such a rule, United States v. Strickler, 490 F.2d 378, 380 (9th Cir.1974), this cannot be right, especially where as in the present case the officer is doing it to protect himself, a qualification implicit in a later Ninth Circuit decision, United States v. Ramos-Zaragosa, 516 F.2d 141, 144 (9th Cir.1975). The Tenth Circuit has held that there is no such per se rule. See United States v. Merritt, 695 F.2d 1263, 1272-74 (10th Cir.1982). Although we are troubled by the thought of allowing policemen to stop people at the point of a gun when probable cause to arrest is lacking, we are unwilling to hold that an investigative stop is never lawful when it can be effectuated safely only in that manner. It is not nice to have a gun pointed at you by a policeman but it is worse to have a gun pointed at you by a criminal, so there is a complex tradeoff involved in any proposal to reduce (or increase) the permissible scope of investigatory stops. We need not decide in this case just how great that scope should be, though clearly we are near the outer edge.
11
United States v. Ceballos, 654 F.2d 177 (2d Cir.1981), the decision that after Strickler is the most helpful to Serna-Barreto, is distinguishable from the present case. Policemen in three cars blocked Ceballos' car and, approaching him with drawn guns, ordered him out and frisked him. The court could find no justification for this massive show of force.
