revealed "nothing of evidential nature," according to Detective Price. Tr. at 23.
The State Police detectives subsequently contacted the Immigration and Naturalization Service ("INS") to ask them to evaluate the situation, if they considered it was "worthy to respond to the location." Tr. at 23. INS agents responded to the scene within a few minutes and detained Solis and his co-defendant, Garcia, along with the occupants of the van, all of whom were undocumented aliens. Tr. at 157.
Defendants assert that they were "seized" within the meaning of the Fourth Amendment, without probable cause, before the police searched their van, and therefore, the evidence and statements flowing from that allegedly illegal seizure must be suppressed. See Wong Sun v. United States, 371 U.S. 471, 9 L. Ed. 2d 441, 83 S. Ct. 407 (1963) (announcing the "fruit of the poisonous tree" doctrine).
Whether an individual has been "seized," or whether there has been nothing more than a consensual encounter, depends upon whether, "in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave." United States v. Mendenhall, 446 U.S. 544, 555, 64 L. Ed. 2d 497, 100 S. Ct. 1870 (1980). The totality of the circumstances must be assessed objectively. Florida v. Bostick, 501 U.S. 429, 439, 115 L. Ed. 2d 389, 111 S. Ct. 2382 (1991). In evaluating the totality of the circumstances, however, it is appropriate to consider a defendant's characteristics, such as age, maturity, education, intelligence, and experience. See United States v. Watson, 423 U.S. 411, 424, 46 L. Ed. 2d 598, 96 S. Ct. 820 (1976); Schneckloth v. Bustamonte, 412 U.S. 218, 226, 36 L. Ed. 2d 854, 93 S. Ct. 2041 (1973). The purpose of the Fourth Amendment is not "to eliminate all contact between the police and the citizenry." Mendenhall, 446 U.S. at 553. Rather, the amendment simply requires police officers to refrain from coercive conduct which is unreasonable under the circumstances, in this instance, conduct which would lead a reasonable person to believe that he or she could not freely terminate the encounter.
The test which the Supreme Court announced in Mendenhall "is necessarily imprecise, because it is designed to assess the coercive effect of police conduct, taken as a whole, rather than to focus on particular details of that conduct in isolation." Michigan v. Chesternut, 486 U.S. 567, 573, 100 L. Ed. 2d 565, 108 S. Ct. 1975 (1988). Nevertheless, there are a number of indicia of a Fourth Amendment "seizure," some of which were recited by the Supreme Court in Mendenhall, including "the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer's request might be compelled." Mendenhall, 446 U.S. at 555.
In this case, the Government points out that: (1) Detectives Price and Fallon did not park in such a way as to block defendants' egress from the service station; (2) Detective Price and Fallon displayed no weapons during the encounter; (3) Detective Price's unrebutted testimony was that the interviews with defendants were conducted in a polite and informal tone, which the defendant Solis reciprocated; (4) Solis completed a written consent to search the van, after having been advised of his right to refuse his consent; and, (5) Detective Price did not recall even speaking to defendant, Garcia.
On the other hand, an assessment of the characteristics of the defendants reveals that neither defendant is learned, either through experience or training, in the law of search and seizure. Neither Solis, nor Garcia, has a criminal record. While Solis, who is thirty years old, is a high school graduate and a lifelong United States citizen, Garcia, who was nineteen at the time of this encounter, speaks no English, and has completed only the sixth grade in a Mexican grammar school. Considering these factors, it is reasonable to infer that the defendants' compliance with the detectives' requests may have been less than completely consensual.
The Government first contends that the detectives never ordered anyone to stop. Government's Supplemental Brief at 7. While there can be little doubt that compliance with a police officer's order to stop will amount to a "seizure" implicating the Fourth Amendment, see California v. Hodari D., 499 U.S. 621, 626-27, 113 L. Ed. 2d 690, 111 S. Ct. 1547 (1991), the absence of a command does not imply the absence of a "seizure."
Next, the Government contends that "Detective Price's request that Solis produce a drivers [sic] license for examination does not transform the encounter into a stop." Government's Supplemental Brief at 7 (citing INS v. Delgado, 466 U.S. 210, 216, 80 L. Ed. 2d 247, 104 S. Ct. 1758 (1984)). However, Detective Price did not confine his conduct to a simple request to see Solis's operator's license. Either Detective Price or Detective Fallon retained possession of the operator's license, apparently throughout the encounter. Tr. at 77. This fact lends considerable weight to the view that, at this point in the encounter, a reasonable person would not have felt free to leave. See Florida v. Royer, 460 U.S. 491, 496, 75 L. Ed. 2d 229, 103 S. Ct. 1319 (1983) (opinion of White, J.) (detective's retention of airline ticket indicative of seizure). See also United States v. Jordan, 294 U.S. App. D.C. 227, 958 F.2d 1085, 1087-89 (D.C. Cir. 1992) ("What began as a consensual encounter . . . graduated into a seizure when the officer asked [for defendant's] consent to search . . . after he had taken and still retained [defendant's] driver's license."); United States v. Campbell, 843 F.2d 1089, 1093 (8th Cir. 1988) (consensual encounter may become a seizure if the police officer retains the individual's driver's license); United States v. Cordell, 723 F.2d 1283, 1285 (7th Cir. 1983) (Fourth Amendment "detention," necessitating a reasonable, articulable suspicion of criminal activity, occurred when police officer handed defendant's license and ticket to another officer); United States v. Thompson, 712 F.2d 1356, 1359 (11th Cir. 1983) (questioning of an individual "matured into an investigative stop" when police retained his driver's license after examining it); United States v. Waksal, 709 F.2d 653, 660 (11th Cir. 1983) (police officers' failure to return defendant's ticket and license "persuasively indicates an encounter that had progressed beyond truly voluntary police-citizen contact"). Cf. United States v. Thame, 846 F.2d 200, 203 (3d Cir. 1988) (Police officers' conversation with defendant did not ripen into a detention when officers made no attempt to restrain or "otherwise control [the defendant's] movement by retaining his papers."). It is simply not reasonable to believe that Soils, more a thousand miles from his home, would have felt free to end an encounter with the police when that decision would have entailed abandoning his operator's license. See Royer, 460 U.S. at 503 n. 3 (opinion of White, J.) (Officers' retention of the defendant's identification and ticket is critical to the analysis because "as a practical matter, [the defendant] could not leave the airport without them."). Cf. United States v. Place, 462 U.S. 696, 708, 77 L. Ed. 2d 110, 103 S. Ct. 2637 (1983) ("The person whose luggage is detained is technically still free to continue his travels . . . . Nevertheless, such a seizure can effectively restrain the person since he is subjected to the possible disruption of his travel plans . . . .").
Finally, the Government contends that the evidence does not support a finding that either detective subjected the defendants to a pat-down search. Government's Supplemental Brief at 7. In effect, the Government concedes that whether a police officer actually touches the person of a defendant in the course of an encounter is critical in evaluating whether a seizure has taken place. At the April 18, 1997, hearing, Assistant United States Attorney Henry Klingeman put the following question to Detective Price:
Q. Did you or any other officer touch, physically touch any of the persons from the van?