On Sunday December 15, 1985 at 3:30 p.m., Deputy Sheriff Hedrick was on routine patrol in a rural neighborhood. Deputy Hedrick observed Kerr by a car parked near a barn located on a residential property. The car’s trunk was open, exposing cardboard boxes. Because he knew of several recent residential burglaries in the area, Deputy Hedrick made a U-turn, returning to the residence’s driveway. The driveway was a one lane dirt road approximately seventy to one hundred feet long. As Deputy Hedrick pulled into the driveway, Kerr was backing his car out. When he was approximately forty to fifty feet from the patrol car, Kerr left his own car and met Deputy Hedrick on foot. Without being asked, Kerr produced his birth certificate and vehicle registration and stated that he had no driver’s license. Deputy Hedrick questioned Kerr, investigated the premises and discovered a methamphetamine laboratory in the barn.
Kerr was indicted for three counts of drug offenses involving the manufacture and distribution of methamphetamine. After an evidentiary hearing, the district court denied Kerr’s motion to suppress the evidence collected as a result of his encounter with Deputy Hedrick, concluding that the encounter did not constitute a seizure within the meaning of the fourth amendment.
Not every encounter between the police and the public is entitled to fourth amendment protection. “Only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a `seizure’ has occurred.” Terry v. Ohio,392 U.S. 1, 19 n. 16, 88 S.Ct. 1868, 1879 n. 16, 20 L.Ed.2d 889 (1968). Because search and seizure issues arise in a myriad of fact patterns, the Supreme Court has not defined the precise point at which a fourth amendment seizure occurs. See United States v. Ward,488 F.2d 162, 169 (9th Cir. 1973) (en banc).
Under the circumstances, Deputy Hedrick’s authority and conduct provided Kerr with no reasonable alternative except an encounter with the police. Consequently, the encounter cannot be deemed voluntary. Voluntariness presupposes a freedom of choice that Kerr did not have. The district court’s suggestion that Kerr could have backed around the car or ignored Deputy Hedrick defies common sense; Kerr’s freedom to depart was restrained at the moment Deputy Hedrick blocked the one-lane driveway.
*I accidentally said the Supreme Court in the video. This is the 9th Circuit decision. My apologies for the confusion.
U.S. v. Kerr, 817 F.2d 1384 (9th Cir. 1987)
Anton Vialtsin, Esq.
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