State v. Steele: What is a Law Enforcement Show of Authority?

“The issue in this case is whether a driver is ‘seized’ within the meaning of the Fourth Amendment when he is tailed by a marked police cruiser down empty streets at 3 a.m., followed into an empty parking lot, and then hailed down by the officer’s hand gestures. Because we conclude that no reasonable person would believe he was free to go under such circumstances, we hold that Defendant was seized for purposes of the Fourth Amendment and that the trial court erred in denying his motion to suppress.”

So begins Judge Darren Jackson’s April 20^th majority opinion in State v. Steele, joined by Judge Jeff Carpenter.[1]

Given these facts, the key issue the majority, and Judge Toby Hampson in dissent, grapple with is whether the East Carolina University police officer who ultimately arrested Defendant for Driving While Impaired made such a show of authority that a reasonable person would not have felt free to end the encounter. Concluding that there was such a show of authority, the majority focuses on “(1) the fact that this encounter involved two moving vehicles; (2) the time and location of the encounter; and (3) Officer Plummer’s use of authoritative gestures to hail down Defendant’s vehicle.” Each of these facts points to a show of authority and, relatedly, distinguishes this case from precedent wherein no seizure was deemed to have occurred.

The dissent sees far less to differentiate these facts from controlling case law. As in State v. Williams, this “encounter with Defendant was in the early morning hours.” Granting that the officer in State v. Wilson approached on foot, both the officer in that case and Steele waved their hands to get their respective quarry to stop. “Moreover: there were no other officers at the scene; Officer Plummer did not display his firearm; Officer Plummer did not block Defendant from leaving the parking lot; and Officer Plummer did not shout or use a tone of voice indicating authority[.]”

Reflecting this disagreement over how to view controlling precedent is the manner in which the dueling opinions conceptualize and characterize such encounters between law enforcement and the public. Judge Jackson argues that “the inherently coercive nature of an officer hailing down a motor vehicle while in a marked patrol car” presents a driver with “a Catch-22—comply with the officer’s requests, and relinquish your Fourth Amendment rights; or ignore the officer’s requests, and be arrested for resisting a public officer.” Where such a “choice” exists, according to the majority, a seizure has occurred. Judge Hampson rejects this binary. While noting that “civility must extend both ways to avoid unnecessary escalation[,]” the dissent emphasizes that “[c]ooperation between law enforcement and the public they serve in myriad of daily consensual, voluntary interactions is essential to a functioning civil society[.]”

Steele presents a timely reminder of the different ways jurists perceive law enforcement interactions with the public and, in turn, how that can inform their view of precedent. Which lens holds sway may well determine the outcome of this case if it is appealed to the North Carolina Supreme Court.

[1] Interesting side note: Judge Carpenter served as a North Carolina State Highway Patrolman for six years before attending law school.