Defendant Not Seized Until Cuffed

U.S. v. Martin, 2010 WL 2977721 (7/30/10) (Kan) (Published) - An affirmance of denial of a suppression motion. The officers had not seized the defendant until they placed him in handcuffs because, before that time, they had ordered him to place his hands on the wall, but instead he dropped his hands out of sight and said he had "something on" him. So, whether the seizure is proper must be judged from the time of the handcuffing, not at the time of the dubious order.

By the time of the handcuffing, the officers had probable cause to arrest the defendant where: (1) 4 hours earlier someone had shot another person; (2) the assailant fled with the weapons he used; (3) the assailant was wearing a fur-lined winter coat; (4) the assailant was an African-American male who was called "Kalil" an aka of a "Michael Johnson"; (5) Johnson was known to be the boyfriend of Ora Hudnall; (6) she lived in a particular apartment building; (7) the defendant they encountered in that building's atrium was with Ms. Hudnall, was African-American and wearing a fur-lined coat and gave his name as Michael Martin; and (8) the defendant indicated he was carrying a gun ["something"]. There were exigent circumstances to justify entering the building to arrest the defendant, [assuming he had a reasonable expectation of privacy in the atrium] for officer safety because the man they confronted had likely shot someone else earlier in the day, claimed to have a gun and dropped his hands out of sight in violation of the officers' orders. And, besides, the intrusion was extremely modest---just a short distance into the atrium. And, there should be a far greater reluctance to fault the police for making a warrantless arrest when they are out investigating, rather than making a long-planned arrest.