“The Supreme Court has identified three distinct types of police-citizen encounters, each requiring a different level of suspicion to be deemed reasonable under the Fourth Amendment: ‘(1) arrest, which must be supported by probable cause; (2) brief investigatory stops, which must be supported by reasonable articulable suspicion; and (3) brief encounters between police and citizens, which require no objective justification.’ ” So begins the discussion of the Fourth Circuit’s latest decision on this subject, announced Friday, March 25.

In U.S. v. Brown, the Fourth Circuit affirmed a district court’s order suppressing evidence obtained in connection with a weapons charge. Brown had been stopped based on an anonymous tip (not an articulable suspicion in and of itself, but keep reading; there’s more). Officers asked him if he would speak with them, and he agreed. During the conversation, one officer noted that he had glassy eyes and an odor of alcohol. When asked if he had been drinking, he replied, “I’m going to be honest. Yes, I have.”

At this point, a fight broke out nearby, just as the officer decided (but apparently did not announce to Brown) that she was placing him under arrest. Calling for backup, the officer ordered Brown to place his hands on a nearby car. When he did so, she noticed the unmistakable bulge of a handgun in his back pocket.

Several un-Mirandized statements later, Brown faced a charge of possession of a concealed weapon by a convicted felon. He moved to suppress evidence of the weapon. The district court granted the motion, reasoning that the officers did not have probable cause to arrest Brown for public intoxication, and finding that the discovery of the weapon only came after Brown had been seized. The Fourth Circuit, in a split decision, agreed.

Much of the discussion in this case will have some application to other areas of criminal practice, especially for alcohol-related offenses such as DUI. (Caution: DUI statutes and ordinances generally talk about being “under the influence” of alcohol, not driving while “intoxicated.”) The majority notes that there are no appellate decisions in the Virginia courts in which evidence of bloodshot, glassy eyes and an odor of alcohol have justified an arrest for public intoxication.

In dissent, Judge Niemeyer chides the majority’s reasoning, contending that there are no such cases holding that this much evidence is insufficient, either. He also dissents from the majority’s ruling regarding the discovery of the weapon when Brown was ordered to put his hands on the car. The majority held that this discovery came after the officers had arrested him, since the order to put his hands on the car was a seizure of the person. The dissent urges a different rule: Arrest doesn’t take place until the officers “secure” the arrestee, presumably by placing their hands on him, or perhaps even by handcuffing him.

This argument, if it is subsequently adopted on rehearing or by an en banc court, should such review be granted, would have widespread application to criminal procedure in general. The case cited by Judge Niemeyer for this proposition holds that a suspect who refuses to obey, or who flees from, police officers has not been seized. There is no caselaw of which this writer is aware (and none was cited in the dissenting opinion) holding that a citizen who complies with a police directive to put his hands on a car, presumably so he can then be handcuffed, has not yet been seized.