Page 33 - TPA Journal May June 2022

did not communicate that to them. Flowers, sitting Evidence seized in violation of the amendment
in the driver’s seat, did not attempt to flee. As may be excluded from introduction at trial. A
Officer Stanton approached, Flowers lowered the temporary, warrantless detention of an individual
driver’s side window. constitutes a seizure for Fourth Amendment
purposes and may only be undertaken if the law
With the window down, Officer Stanton reported enforcement officer has reasonable suspicion to
smelling “what appeared to be the strong odor of believe that a crime has occurred or is in the offing.
marijuana coming from the vehicle.” Officer Importantly, however, “law enforcement officers
Stanton asked Flowers for identification and do not violate the Fourth Amendment by merely
Flowers provided his Mississippi driver’s license. approaching an individual on the street or in
According to Officer Stanton, the passenger in the another public place, by asking him if he is willing
vehicle— Jeremy Mayo—then threw an object into to answer some questions, [or] by
his mouth. In response, Officer Stanton ordered putting questions to him if the person is willing to
both men to exit the Cadillac. listen….”

When Flowers stepped out of the vehicle, Officer This court reviews the constitutionality of the Terry
Stanton saw in plain view a silver, .32-caliber stop de novo. We review the findings of fact by the
revolver on the driver’s seat where Flowers had trial court for clear error, id., and are bound by the
been sitting. A criminal history check revealed that court’s credibility determinations. Moreover, we
Flowers had an outstanding arrest warrant, and construe the evidence presented at the suppression
Officer Stanton placed him under arrest. During a hearing “in the light most favorable to the
search incident to his arrest, Flowers stated that he prevailing party”—here, the Government.
had marijuana on him, and Officer Stanton
recovered a small, clear plastic bag of marijuana Because a seizure under the Fourth Amendment
from his front left pocket. Officer Stanton must be “justified at its inception,” our first task is
identified this marijuana as the source of the odor ordinarily to determine when the seizure occurred.
he smelled upon approaching Flowers’s driver-side Flowers contends that he was seized at the outset of
window. the police encounter, when the patrol cars
surrounded the vehicle in which he was sitting. The
Flowers was charged with one count of being a government contends that the police encounter
felon in possession of a firearm, in violation of 18 with Flowers was consensual, and a seizure did not
U.S.C. § 922(g)(1). Before trial, Flowers moved to occur until after Officer Stanton smelled marijuana
suppress evidence of the gun on the basis that the from Flowers’s open window, giving rise to
encounter with Flowers was a seizure that violated probable cause for arrest.
the Fourth Amendment. The district court
explained orally on the record his reasons for A seizure occurs when, under the totality of the
rejecting the motion. The district court determined circumstances, a law enforcement officer, by
that there was “no evidence” that the “investigatory means of physical force or show of authority,
aspect of the initial approach of the officers ever terminates or restrains a person’s freedom of
evolved into a seizure.” Flowers proceeded to trial, movement. The test that applies in the absence of
and a jury convicted him. an unambiguous intent to restrain or upon a
suspect’s passive acquiescence is whether “in view
The Fourth Amendment prohibits “unreasonable of all of the circumstances…, a reasonable person
searches and seizures.” U.S. Const. amend. IV. would have believed that he was not free to leave.”

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