Page 46 - TPA Journal May June 2024
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Viewing the totality of the circumstances, when of Appellant’s interaction with Officers Sallee
Officer Starks moved closer to Appellant with and Starks is not necessarily indicative of a
his hands extended and said “manos, manos” seizure. Like the location in Castleberry, the
while Officer Sallee had his hand on Appellant’s apartment complex encountered some foot
body, a reasonable person in Appellant’s shoes traffic—Officer Starks is seen on video talking
would no longer feel free to disregard the to another tenant during the interaction with
officers’ requests in light of the officers’ show of Appellant. The interaction occurred outside
authority. As evidenced by the officers’ body- around midday. And neither officer pulled out
camera recordings, when Officer Sallee first his weapon until after the altercation began,
asked Appellant if he could search him, although the officers’ firearms were visible in
Appellant did not respond—even though he had their holsters.
orally responded to Officer Sallee’s other However, Mendenhall notes that “physical
questions—and immediately attempted to touching of the person of the citizen” can
remove his belongings from his pockets on his indicate a seizure invoking the Fourth
own. In response, Officer Sallee instructed Amendment, and Castleberry states that “the
Appellant to “hold on” and placed his hand on officer’s conduct is the most important factor”
Appellant’s arm. When Appellant still did not in determining whether an investigative
respond and continued to reach into his pockets, detention occurred. As we recognized in
Officer Sallee put his hand around Appellant’s Crain, under the totality of the circumstances, a
elbow. Officer Starks then moved in even closer statement that may sound like a request in one
proximity to Appellant, and Officer Sallee once context can sound like an order—leaving no
again. placed his hand on Appellant—this time choice but to acquiesce—in another context.
on Appellant’s lower back. Officer Starks
instructed Appellant “manos, manos” while In this context, even though the officers used
holding his hands out in front. Starks’s words relatively mundane tones, did not initially
“manos, manos” (“hands, hands”) and his display their weapons, and did not use their
actions stepping toward Appellant and holding lights or sirens, a reasonable person in
his hands out conveyed the message to Appellant’s position would not feel free to
Appellant to “stop what you’re doing and keep ignore Officer Starks’s statement “manos,
your hands where I can see them”—a message manos.” Before Appellant “consented” to
that a reasonable person would take as an order Officer Sallee’s request to search, the
requiring compliance. An investigative detention investigative detention was underway. While
occurs if the officer conveys to the citizen that beginning as a consensual encounter,
compliance with the requests is required. It was Appellant’s interaction with Officers Sallee and
only then, after being told to stop what he was Starks rose to the level of an investigative
doing and hold his hands out, that Appellant detention when Officer Starks stepped towards
acquiesced and allowed Officer Sallee to search Appellant, stated “manos, manos” (“hands,
him. While the appellate court notes that the hands”), and showed Appellant to hold his
officers’ instructions and actions were merely to hands out while Officer Sallee had his hand on
help Appellant understand what the officers Appellant’s back.
were attempting to do, we cannot rely on the
officers’ subjective intent in determining For an investigative detention to be permissible
whether a person has been detained. under the Fourth Amendment, it must be
supported by reasonable suspicion. Because
In considering the Castleberry and Mendenhall the court of appeals did not reach the issue of
factors, we again note that the time and location whether reasonable suspicion existed, remand
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