McChesney v. State10/20/1999
an objective one: not whether the citizen perceived that he was being ordered to restrict his movement, but whether the officer=s words and actions would have conveyed that to a reasonable person.@ California v. Hodari D., 499 U.S. 621, 628, 111 S.Ct. 1547, 1551, 113 L.Ed.2d 690 (1991). In the vehicle context, there is no question that the stopping of a vehicle and the detention of its occupants is a seizure. Whren v. United States, 517 U.S. 806, 809, 116 S.Ct. 1769, 1772, 135 L.Ed.2d 89 (1996); Colorado v. Bannister, 449 U.S. 1, 4 n.3, 101 S.Ct 42, 43-44 n.3, 65 L.Ed.2d 1 (1980); Delaware v. Prouse, 440 U.S. 648, 653, 99 S.Ct. 1391, 1396, 59 L.Ed.2d 660 (1979). The question thus becomes whether, under the circumstances presented here, a reasonable person in McChesney=s position would have believed that he was not free to leave.
Here, as McChesney turned into the convenience store parking lot, Officer Will, who was following one car length behind, activated his red and blue overhead lights and followed McChesney into the parking lot. At this point, had McChesney attempted to drive off or otherwise flee the scene, he could have been charged with a misdemeanor for attempting to elude a police vehicle after being Agiven visual or audible signal to bring the vehicle to a stop . . . .@ Wyo. Stat. Ann. ' 31-5-225(a) (Lexis 1999). Certainly, if McChesney could have been charged with a misdemeanor at this point, he was not free to leave in the eyes of the law. In similar situations, numerous courts have found that when an officer activates a police vehicle=s emergency lights he has initiated a stop. Garza v. State, 771 S.W.2d 549, 557-58 (Tex.Crim.App. 1989); State v. Walp, 672 P.2d 374, 375 n.1 (Or.App. 1983); State v. Stroud, 634 P.2d 316, 318-19 (Wash.App. 1981); Hammons v. State, 940 S.W.2d 424, 428 (Ark. 1997); State v. Burgess, 657 A.2d 202, 203 (Vt. 1995); State v. Pulley, 863 S.W.2d 29, 30 (Tenn. 1993); see 4 Wayne R. LaFave, Search and Seizure ' 9.3(a), at 108-110, n.99-100 (3d ed. 1996).
However, there is even more in this case. Officer Will parked his vehicle directly behind McChesney=s, which was parked at the convenience store=s front doors. McChesney=s vehicle was thus blocked in, and he could not have driven away had he wanted to. Such action has also been found sufficient to constitute a seizure. See 4 Wayne R. LaFave, Search and Seizure ' 9.3(a), at 108, n.96. Therefore, under the totality of these circumstances, we conclude that Officer Will=s actions constituted a show of authority sufficient to convey to any reasonable person that Avoluntary departure from the scene was not a realistic alternative.@ State v. Stroud, 634 P.2d at 319. The propriety of our decision is underscored by Officer Will=s testimony that he turned on his overhead lights in order to stop McChesney. McChesney had been Aseized@ within the meaning of the Fourth Amendment.
Because McChesney was Aseized@ for purposes of the Fourth Amendment, the next question is whether the stop complies with that amendment=s protections from Aunreasonable searches and seizures.@ We hold that it does not. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) and its progeny establish that law enforcement officers may stop and temporarily detain citizens short of arrest if the officer has a reasonable suspicion that a person
has committed or may be committing a crime. Wilson v. State, 874 P.2d at 220. In order to establish the reasonable suspicion necessary to justify a second tier Terry or investigatory stop, Athe police officer must be able to point to specific and articulable facts which, taken together with rational inferences [drawn] from those facts, reasonably warrant that intrusion.@ Olson v.
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