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• Roadblocks as a Use-of-Force Issue
• Roadblocks and Fourth Amendment Seizures of the Person

A roadblock used to stop a fleeing motorist (or bicyclist) constitutes a use of force and a Fourth Amendment seizure.  Depending upon an evaluation of the totality of the circumstances, using a roadblock in such a manner may or may not involve an excessive use of force and a Fourth Amendment violation.

Preston Seidner was riding his bicycle on a well-lit Arizona residential street (they don’t say what city) at just before midnight in February, 2020.  Seidner’s bike didn’t have a front light; a violation of Arizona law (Revised Statute § 28-816(A)).  Patrol Officer Jonathan de Vries, observing this violation, pulled ahead of Seidner to confirm that there was no headlight.  The officer then stopped ahead of Seidner and activated his marked patrol vehicle’s overhead lights.  As the officer started to get out of his car expecting to contact the bike’s rider, Seidner ignored him and went right on by.  Officer de Vries jumped back into his patrol car and initiated a 15-mph pursuit as Seidner put the pedal to the metal (so to speak), and continued to flee.  Officer de Vries eventually accelerated ahead of Seidner and turned his patrol car at an angle across the street into Seidner’s path, and stopped.  Seconds later, as Officer de Vries started to open his door, Seidner crashed into the side of the patrol car.  As Seidner laid on the ground moaning from his injuries (a dislocated wrist and a sprained forearm), and having hit his head and chest in the impact, Officer de Vries handcuffed him.  As he did so, the officer asked Seidner why he didn’t stop, to which Seidner could only say that he was “scared.”  He also confessed that his bicycle’s brakes didn’t work. Seidner later sued Officer de Vries in federal court under authority of 42 U.S.C. § 1983, alleging Eighth (cruel and unusual punishment) and Fourteenth (due process) Amendment violations.  Construing Seidner’s allegations as more correctly a Fourth Amendment excessive force claim, the federal district (trial) court denied the officer’s motion for summary judgment and ruled that the officer was not entitled to qualified immunity.  Officer de Vries appealed.

The Ninth Circuit Court of Appeal affirmed in part and reversed in part.  First off, the Court “easily conclude(d) that de Vries’s use of his patrol car to stop Seidner from fleeing was a (Fourth Amendment) seizure.”  That’s never been an issue.  The issue here was whether, under the circumstances of this case, Officer de Vries’ seizure of Seidner, and the degree of force used in effecting that seizure, was “objectively reasonable in light of the facts and circumstances confronting [hi]m.” (Williamson v. City of National City (9th Cir. 2022) 23 F.4th 1146, 1151.)  In examining this issue, a court is to consider three factors: (1) The severity of the intrusion on the individual’s Fourth Amendment rights by evaluating the type and amount of force inflicted; (2) the government’s interest in the use of force; and (3) the balance between the gravity of the intrusion on the individual and the government’s need for that intrusion.  (Graham v. Connor (1989) 490 U.S. 386.)  In reviewing these factors as they pertain to this case, and while characterizing the use of the officer’s car to stop Seidner from fleeing as a “roadblock,” the Court reviewed prior roadblock cases, noting that “roadblocks are a type of force that must be quantified in reference to the surrounding circumstances.”  For instance, using a roadblock to stop a motorcycle fleeing at speeds of up to 100 mph, where the fleeing suspects crashed into a patrol car causing “severe and permanent” injuries to the bike riders, was characterized by the reviewing court under those circumstances as “deadly force.”  (Buckner v. Kilgore (6th Cir. 1994) 36 F.3rd 536.)  However, a roadblock “brightly illuminated and located at the end of a long straightaway” that the suspect could have avoided hitting if the brakes on his vehicle were working properly was held not to be deadly force. (Seekamp v. Michaud (1st Cir. 1997) 109 F.3rd 802.)  In yet another case, a partial roadblock created to stop a fleeing motorcyclist traveling at high speeds that caused an “unavoidable” collision was held to be an unreasonable use of force.  (Hawkins v. City of Farmington (8th Cir. 1999) 189 F.3rd 695, 698-702.)  And lastly, a so-called “rolling roadblock,” where several police vehicles “surrounded” the suspect’s fleeing vehicle, began braking, and stopped the suspect’s vehicle with a “low-impact collision,” was characterized as “de minimis force.”  (Tucker v. McCormack (M.D. Tenn. 2010), 2010 U.S. Dist. LEXIS 94157.) Once the degree of the force used in any particular case is so quantified, the issue becomes whether the use of that force was reasonable under the then-existing circumstances.  In this case, the Court accepted Seidner’s allegation (as it must when appealed by the civil defendant) that Officer de Vries did not pull over in front of him far enough ahead to allow Seidner the opportunity to stop before hitting the patrol car.  However, in this case, the Court felt that even if Seidner could not fully stop before hitting the patrol car, it was reasonable for de Vries to expect that Seidner could still react to the situation by slowing down, turning, or taking other measures to minimize any impact (noting that the officer was not responsible for Seidner’s defective brakes, having no way to know that).  Also, Seidner was traveling at a relatively slow speed (15 mph), and de Varies patrol car was in view through most if not all of the immediately preceding chase.  Based upon this, the Court concluded that the roadblock that de Vries created in this case is an example of force that is “capable of inflicting significant pain and causing serious injury,” which the Court in previous cases has characterized as “intermediate force.” 

But we’re not done.  In reviewing the second Graham factor (i.e., “governmental interest”), a court must consider three more sub-factors (if you will); (1) “how severe the crime at issue was,” (2) “whether the suspect posed an immediate threat to the safety of the officers or others,” and (3) “whether the suspect was actively resisting arrest or attempting to evade arrest by flight.”  These factors are not necessarily exclusive and must be considered under the “totality of circumstances,” including whether “less intrusive alternatives” were available to law enforcement and whether the suspect was given “proper warnings” before force was used.  In that the initial stop in this case was based upon a traffic offense only, the Court noted that it did not become relatively serious until Seidner attempted to pedal away and evade contact with Officer de Vries. Even so, the Court inferred that the offenses at issue were relatively non-serious.  Secondly, a factor strongly favoring Seidner, he never posed an immediate threat to the safety of the officer or others.  The third factor (“attempting to evade arrest”) favored the use of some degree of force.  Upon determining that there was no “less intrusive alternative” available, the Court concluded “that the government did have an interest justifying some use of force to stop Seidner from fleeing even though the incident initially arose from a minor traffic violation.” 

After having expended all the ink it took to balance these confusing and interrelated factors, the Court finally noted that “the ultimate question of reasonableness is not properly decided as a matter of law. . . . [R]easonableness is often a question for the jury.”  For that reason, the Court upheld the district court’s denial of de Varies’ motion for summary judgment, finding that a jury was better suited to make this call.  But the Court then reversed the district court’s ruling on the issue of “qualified immunity,” ruling that contrary to the district court’s conclusions, the rules on the issue of what constitutes reasonable force in the use of a roadblock were not sufficiently settled in the law (i.e., via prior cases) so as to provide Officer de Varies with sufficient notice as to what he could legally do or not do under the Fourth Amendment.  The Court therefore ruled that the lawsuit must be dismissal on qualified immunity grounds. 

So why did the Court take so much time and effort talking about Fourth Amendment use-of-force principles as they relate to roadblocks if it ultimately was only going to dismiss the case on qualified immunity grounds?  The answer to that is simple:  Because of this new case, you’re now on notice as to what the rules are (as confusing as they may be).  Now that the rules have been sufficiently spelled out for you, the next time you’re confronted with the need to set up a roadblock in an emergency situation, you’re expected to know what must be done to effectively and safely employ such a roadblock.  So what then, after this long and confusing dissertation, is it you need to know about roadblocks as they relate to Fourth Amendment use of force principles?

The answer to this question is also simple (even if difficult to apply in the real world).  In a nutshell, you need to do everything you possibly can to minimize the likelihood of injury to your fleeing suspect, or to anyone else.  For instance, setting up a roadblock around a blind curve in a high speed situation where the suspect may not have a reasonable opportunity to stop will likely get you sued.  Setting up that roadblock where he can see it without having to crash into it will likely protect you from a lawsuit.  The fact that giving a fleeing suspect enough notice as to an upcoming roadblock may offer him the opportunity to avoid it altogether and escape via a detour seems to be irrelevant to the Court.  But that wasn’t in issue in this case.  In summary, all I can tell you is that the Court expects you to do all you can to minimize the possibility of serious injury while hopefully still being able to stop and take the sucker into custody.  Figuring out how to do that is why you get paid the big bucks.   

• Prolonged Detentions
• The Mission of a Lawful Traffic Stop
• A Motion to Traverse a Search Warrant
• Evidence Sufficient to Justify a Franks Hearing

(1) Knowing that the registered owner of a vehicle has an outstanding arrest warrant is sufficient cause (absence of other evidence to the contrary) for a police officer to stop that vehicle and contact its occupants to check to see if the suspect is in the car.  Once lawfully detained in a traffic stop context, an officer may legally continue the detention of a vehicle’s driver for as long as it reasonably takes to complete the “mission” of a traffic stop.  The “mission” of a traffic stop includes checking the driver’s license (insuring that he can legally drive the car), determining whether there are outstanding warrants against the driver, and inspecting the automobile’s registration and proof of insurance.  (2) A defendant is entitled to a hearing on the truth of (or material omission in) a search warrant affidavit if he can make a “substantial preliminary showing” that the affidavit contains material falsehoods or omissions.

On March 30, 2018, Patrol Officer Jordan Chroniger of the Havre (Montana) Police Department was informed by a local drug task force that a “vehicle of interest” was presently in the parking lot of the High Land Park Zip Trip gas station.  The vehicle was described to Officer Chroniger as a red GMC pickup truck.  Officer Chroniger was also told that the vehicle was frequently driven by either defendant Shane Nault or a woman named Joei Ross; the latter being the registered owner.  He was also told that Ross had an outstanding warrant for her arrest, stemming from a failure to appear.  Upon entering the Zip Trip gas station parking lot, Officer Chroniger found the suspects’ truck with its engine running.  A figure was visible in the truck, but the officer couldn’t make out who it was because of the tinted windows.  As Officer Chroniger pulled up behind the truck, another police car pulled in from the other side, boxing it in between them.  Upon approaching the driver’s side door, Officer Chroniger was able to visibly identify the defendant as the driver.  The officer told defendant that the registered owner of the car (i.e., Joei Ross) had a warrant out for her arrest, and asked where she was. Defendant responded that she was at the “Emporium;” another gas station in town.  At about 20 seconds into the contact, Officer Chroniger asked defendant for his license, registration and proof of insurance; a practice the officer later described in testimony to be “standard procedure” whenever he would contact someone in control of a motor vehicle.  Telling the officer that he did not have a license, defendant spent the next two minutes looking for the truck’s registration and proof of insurance.  As he did so, Officer Chroniger noticed that defendant was “fidgety,” “making kind of sporadic movements,” that “his pupils were constricted,” and that he was “sweating profusely” despite it being cold out.  The officer recognized these as indications that defendant might be “under the influence of something.”  At just over a minute into the contact, Officer Chroniger asked defendant whether he had been drinking, was nervous, or had consumed any illegal drugs.  Despite defendant denying that he was under the influence of anything, Officer Chroniger initiated a DUI investigation. The officer later testified that he patted defendant down for officer safety reasons and discovered brass knuckles and a glass marijuana pipe on defendant’s person. The officer then administered a series of field sobriety tests, the results of which indicated signs of impairment. Officer Chroniger arrested defendant for DUI/drugs and physically took him into custody.  After Officer Chroniger did all the dirty work, agents from the drug task force showed up at the scene and ran a drug-sniffing dog (“Nato”) around defendant’s truck.  Upon Nato alerting on the driver’s side door, a search warrant was obtained.  The warrant affidavit reflected all of the above, plus the fact that a “controlled buy” operation had been conducted six weeks earlier (on February 18) during which an informant had purchased methamphetamine from defendant out of the same truck.  Upon executing the warrant, agents recovered a pistol along with more than 500 grams of methamphetamine.  Charged in federal court with various drug and gun-possession related offenses, defendant’s motion to suppress the evidence recovered from the truck was denied.  A motion to traverse the warrant was also denied.  Defendant then pled guilty to a negotiated plea of possession with intent to distribute methamphetamine (21 U.S.C. § 841(a)(1)) and felon in possession of a firearm (18 U.S.C. § 922(g)(1)). Sentenced to concurrent terms of 15 years for the methamphetamine offense and 10 years for the firearm offense, defendant appealed.

The Ninth Circuit Court of Appeal, in a split (2-to-1) decision, affirmed. 

(1) Prolonged Detention:  Defendant’s primary contention on appeal was that Officer Chroniger detained him longer than legally allowed; i.e., that once the officer determined that he was not Joei Ross—for whom an outstanding warrant existed—and that she was not in the car, any further detention was unlawful. As such, defendant argued that asking for his driver’s license and the vehicle’s documentation constituted an unlawfully prolonged detention, and was thus illegal.  Pursuant to the “fruit of the poisonous tree” doctrine, as argued by defendant, everything that came after than should have been suppressed.  The Court disagreed, finding defendant’s continued detention to be lawful.  The rule is as follows:  “Like a Terry stop, the tolerable duration of police inquiries in the traffic-stop context is determined by the seizure’s ‘mission’—to address the traffic violation that warranted the stop, and attend to related safety concerns.”  (Rodriguez v. United States (2015) 575 U.S. 348, 354, referencing Terry v. Ohio (1968) 392 U.S. 1.)  The initial contact with defendant in this case—categorized by the majority as a “traffic stop”—was lawful; an issue not contested by defendant.  (But see “Note,” below.)  When defendant was first contacted, Officer Chroniger was aware that the registered owner of the vehicle (i.e., Joei Ross) had an outstanding arrest warrant.  Due to the window tinting, he could not see who was in the vehicle, leaving open the possibility that Ross might in fact be there.  Knowledge that the registered owner of a vehicle has an outstanding warrant is sufficient cause to stop that vehicle to check to see if the suspect is in the car (at least in the absence of other evidence to the contrary).  (United States v. Yancey (7th Cir) 928 F.3rd 627.  See also Kansas v. Glover (2020) __ U.S. __ [140 S.Ct. 1183, 1188]; stopping a vehicle when it is known that the registered owner’s license is revoked held to be lawful.)  Once the detention was lawfully initiated, Officer Chroniger was not obligated to suddenly cut off the contact merely because the registered owner was not present.  He was allowed to continue on with the detention for as long as it reasonably took to accomplish what is commonly referred to as the “mission” of the traffic stop.  As noted by the Court: “An officer’s ‘mission’ includes certain ‘ordinary inquiries incident to the traffic stop,’ even if they are not required to investigate a particular traffic violation. . . . Those inquiries ‘[t]ypically . . . involve checking the driver’s license, determining whether there are outstanding warrants against the driver, and inspecting the automobile’s registration and proof of insurance,’ . . .  Such routine checks ‘ensur[e] that vehicles on the road are operated safely and responsibly.’”  (Rodriguez v. United States, supra, at p. 355.)  Additionally, the Court held that Officer Chroniger’s mission included the right to ensure that defendant was lawfully able to drive away the vehicle.  Based upon these legal principles, holding onto defendant for the time it took to accomplish this mission was not an unlawfully prolonged detention.  It was during this time that Officer Chroniger observed indications that defendant might be impaired.  If, during a lawful detention, evidence of some other offense is discovered, the detention may be extended for whatever time it reasonably takes to either substantiate or negate that additional suspicion.  It was during this lawfully prolonged detention that probable cause to believe defendant was under the influence (i.e., DUI/drugs) was developed which, after further investigation, justified his eventual arrest.  It wasn’t until after defendant’s arrest that Nato alerted on defendant’s vehicle, resulting in a search warrant and the recovery of defendant’s drugs and firearm.  Based upon this progression of events, the evidence in this case was lawfully discovered.  The trial court was correct in denying defendant’s motion to suppress. 

(2)  Motion to Traverse:  A motion to traverse a search warrant is a motion attacking the truth of the information contained in the warrant affidavit.  A “material omission” (i.e., something left out of the warrant) will also entitle a defendant to a motion to traverse.  Defendant’s motion to traverse in this case was based upon the argument that the warrant affidavit failed to disclose information about Nato that, if known, the magistrate would not have issued the warrant.  Where a motion to traverse is warranted, a defendant is entitled to put on evidence in support of his motion in what is commonly referred to as a “Franks hearing,” pursuant to Franks v. Delaware (1978) 438 U.S. 154.  However, just alleging a deficiency in a warrant affidavit does not entitle a defendant to a Franks hearing.  “To obtain a Franks hearing, a defendant must make a substantial preliminary showing that: (1) ‘the affiant officer intentionally or recklessly made false or misleading statements or omissions in support of the warrant,’ and (2) ‘the false or misleading statement or omission was material, i.e., necessary to finding probable cause.’”  (United States v. Norris (9th Cir. 2019) 942 F.3rd 902, 909-910.) In this case, defendant alleged that he had a report from an expert ready to testify about a different criminal case addressing a sniff by the same canine, Nato. The expert determined that the search in that prior case was unreliable because Nato was distracted and only alerted the fourth time he was directed to a particular area.  The Court here upheld the trial court’s ruling that these allegations were insufficient to warrant a Franks hearing, having failed to make a “substantial preliminary showing.”  In so ruling, it was noted that the search warrant affidavit in this current case only said that Nato had “proven reliable in prior incidents.”  At most, this expert report established only that Nato’s alert was unreliable on a single unrelated occasion.  The fact that Nato’s sniff had been unreliable on one prior occasion does not mean Nato had not been reliable in most or a large number of prior incidents, which is all the affidavit implies.  Nor does it establish that the affidavit described Nato’s sniff of Ross’s truck in a false or misleading way.  Sustaining the ruling made by the trial court, the Court here held that without more, defendant failed to make a “substantial preliminary showing” and was thus not entitled to a Franks hearing.

The Franks hearing ruling is no big surprise, being consistent with a long line of prior cases on this limited area of the law.  The importance of this case lies in the Court’s analysis of what is meant by the “mission” of a traffic stop.  “Unlawfully prolonged detentions” often haunt officers in the field who have a gut feeling that a suspect in a traffic stop is up to something, but just can’t seem to put into words (i.e., “articulate”) what it is that is causing the officer to feel uneasy.  This uneasy feeling is often referred to as a “hunch,” and is insufficient by itself to justify a suspect’s continued detention.  As for the “mission” of a traffic stop, it typically shouldn’t take an officer longer than about 10 to 12 minutes to complete the mission.  Unless the officer can articulate something amounting to a “reasonable suspicion” that something else is afoot in that time period, the subject has to be allowed to leave; gut feeling notwithstanding.  Holding onto him longer for the purpose of further investigating that hunch is a Fourth Amendment violation and illegal.  The important point in this case is that an officer is entitled to complete the activities considered to be part of the mission despite discovering upon initiation of the detention that the subject detained is not who the officer thought he was.  Note, however, that the dissent disagreed on this point, arguing that “(w)hen they learned that Ross was not present, their mission was completed and their authority for the seizure ended.”  Also, the dissent disagreed with the majority’s conclusion that this incident was a “traffic stop” at all, but was more correctly nothing more than an “investigatory stop under Terry v. Ohio,” i.e., a “temporary detention for investigation.”  An officer’s traffic stop “mission” does not extend to Terry stops (i.e., detentions), per the dissent. Defendant, therefore, should have been released once it was determined that he was not Joei Ross.  The dissenting argument makes a certain amount of sense.  So expect to see more on this issue in further cases.  The other important legal concept touched on here is the rule that it is legal to make a traffic stop based upon no more than the knowledge that the registered owner has a warrant out for his (or her) arrest, or that his (or her) driver’s license has been suspended or revoked.  Stopping the vehicle to see if that registered owner is the driver (in the case of a suspended or revoked license) or is otherwise in the car (in the case of an outstanding warrant) is lawful.  Good point to remember.