Page 33 - TPA Journal September October 2024

court is required to do. (“Just as with the determi- you’re doing and keep your hands where I can see
nation of probable cause, a piecemeal or ‘divide them”—a message that a reasonable person would
and conquer’ approach is prohibited” when deter- take as an order requiring compliance. An inves-
mining whether a police-citizen interaction consti- tigative detention occurs if the officer conveys to
tutes a seizure.) (The test to determine whether a the citizen that compliance with the requests is
person has been seized for Fourth Amendment required. (an encounter remains consensual “as
purposes “is necessarily imprecise, because it is long as the police do not convey a message that
designed to assess the coercive effect of police compliance with their requests is required.”)
conduct, taken as a whole, rather than to focus on (“whether a reasonable person would have felt
particular details of that conduct in isolation.”). free to ignore the police officer’s request”). It was
The appellate court’s analysis relies on snippets of only then, after being told to stop what he was
Appellant’s interaction with the officers—primar- doing and hold his hands out, that Appellant
ily focusing on the officer’s initial contact with acquiesced and allowed Officer Sallee to search
Appellant—rather than looking at the interaction him. While the appellate court notes that the offi-
in its entirety. Further, the court of appeals erred in cers’ instructions and actions were merely to help
placing import on the subjective intent of the offi- Appellant understand what the officers were
cers instead of viewing the circumstances from the attempting to do, we cannot rely on the officers’
perspective of an objectively reasonable person in subjective intent in determining whether a person
Appellant’s circumstances. has been detained.

Viewing the totality of the circumstances, when In considering the Castleberry and Mendenhall
Officer Starks moved closer to Appellant with his factors, we again note that the time and location of
hands extended and said “manos, manos” while Appellant’s interaction with Officers Sallee and
Officer Sallee had his hand on Appellant’s body, a Starks is not necessarily indicative of a seizure.
reasonable person in Appellant’s shoes would no Like the location in Castleberry, the apartment
longer feel free to disregard the officers’ requests complex encountered some foot traffic—Officer
in light of the officers’ show of authority. Starks is seen on video talking to another tenant
As evidenced by the officers’ body-camera during the interaction with Appellant.
recordings, when Officer Sallee first asked The interaction occurred outside around midday.
Appellant if he could search him, Appellant did And neither officer pulled out his weapon until
not respond—even though he had orally respond- after the altercation began, although the officers’
ed to Officer Sallee’s other questions—and imme- firearms were visible in their holsters.
diately attempted to remove his belongings from
his pockets on his own. In response, Officer Sallee However, Mendenhall notes that “physical touch-
instructed Appellant to “hold on” and placed his ing of the person of the citizen” can indicate a
hand on Appellant’s arm. When Appellant still did seizure invoking the Fourth Amendment, and
not respond and continued to reach into his pock- Castleberry states that “the officer’s conduct is the
ets, Officer Sallee put his hand around Appellant’s most important factor” in determining whether an
elbow. Officer Starks then moved in even closer investigative detention occurred.
proximity to Appellant, and Officer Sallee once
again placed his hand on Appellant—this time on As we recognized in Crain, under the totality of
Appellant’s lower back. Officer Starks instructed the circumstances, a statement that may sound like
Appellant “manos, manos” while holding his a request in one context can sound like an order—
hands out in front. Starks’s words “manos, leaving no choice but to acquiesce—in another
manos” (“hands, hands”) and his actions stepping context. (noting that an officer’s asking an appel-
toward Appellant and holding his hands out con- lant to “come over here and talk to me” when cou-
veyed the message to Appellant to “stop what pled with the shining of a patrol car’s overhead

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