The Third Circuit Court of Appeals ruled that for Fourth Amendment purposes a man is not seized despite the fact that two police officers are pointing guns at him when he does not freeze in response to the officers with the guns.

Two Wilmington, Delaware police officers received a report that a person had a gun at 1009 West Seventh Street. They drove by the house and saw five people on the front porch. They got out of the marked vehicle and told the five people to raise their hands for officer safety. Four of them raised their hands. Christopher Waterman kept his hands in his pockets. The officers drew their guns. Waterman removed one of his hands and put it behind him. He unsuccessfully attempted to open the door to the house with the hand that was behind him. Deborah Waters opened the door and came out of the house. Waterman went into the house.

The question before the Court was whether Waterman was seized at the time he went into the house. The Fourth Amendment forbids illegal searches and seizures. In order to arrest a person an officer must have probable cause to believe that a crime has been committed and that the person committed the crime. A detention does not require probable cause. Rather it only requires a reasonable suspicion that the person is involved in a crime. In this case since the police only had an anonymous tip neither probable cause or a reasonable suspicion existed. But since the Third Circuit held that neither a search or a seizure occurred it refused to suppress evidence found as a result of the incident on the porch. It held that for a seizure to occur the officers must either physically seize the person or the person must submit to an assertion of authority. While the drawing of the guns was an assertion of authority, Waterman did not submit to the authority and therefore there wasn’t a seizure subject to the Fourth Amendment.

But in United States v, Mendenhall the Supreme Court ruled that searches and seizures must be based on an objective basis. In other words they can only be justified if the average person in the spot of the defendant would feel that they are seized and unable to leave. I would maintain that the average person facing two officers both of whom have their guns drawn would not be crazy enough to leave even to enter the house through an open door. If this is the case then Waterman was seized and any evidence discovered as a result of his entry into the house should be suppressed.

In fact the Court stated in Mendenhall that

We conclude that a person has been “seized” within the meaning of the Fourth Amendment only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave. Examples of circumstances that might indicate a seizure, even where the person did not attempt to leave, would be 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.

While in this case Waterman went into the residence and the decision does not state what happened next I think we can bet he did not get very far. We have the threatening presence of two officers with guns drawn insisting that Waterman put his hands above his head. It would seem under an objective standard Waterman was seized. And I bet when he went into the house the officers proved that he was seized by taking further steps that limited his ability to move.