United States of America v. William Edward Richardson

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RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2004 FED App. 0325P (6th Cir.)
File Name: 04a0325p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
v.
WILLIAM EDWARD
RICHARDSON,
Defendant-Appellee.
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No. 02-6146
Appeal from the United States District Court
for the Middle District of Tennessee at Columbia.
No. 02-00002—Thomas A. Higgins, District Judge.
Argued: December 4, 2003
Decided and Filed: September 24, 2004
Before: KENNEDY, MARTIN, and MOORE, Circuit
Judges.
_________________
COUNSEL
ARGUED: Steven L. Lane, U.S. DEPARTMENT OF
JUSTICE, CRIMINAL DIVISION, Washington, D.C., for
Appellant. Hugh M. Mundy, FEDERAL PUBLIC
DEFENDER’S OFFICE, Nashville, Tennessee, for Appellee.
2 United States v. Richardson No. 02-6146
ON BRIEF: Steven L. Lane, U.S. DEPARTMENT OF
JUSTICE, CRIMINAL DIVISION, Washington, D.C., Debra
Teufel Phillips, ASSISTANT UNITED STATES
ATTORNEY, Nashville, Tennessee, for Appellant. Hugh M.
Mundy, C. Douglas Thoresen, FEDERAL PUBLIC
DEFENDER’S OFFICE, Nashville, Tennessee, for Appellee.
MARTIN, J., delivered the opinion of the court, in which
MOORE, J., joined. KENNEDY, J. (pp. 11-16), delivered a
separate dissenting opinion.
_________________
OPINION
_________________
BOYCE F. MARTIN, Jr., Circuit Judge. The United States
of America appeals the district court’s grant of William
Edward Richardson’s motion to suppress evidence seized
from a vehicle in which he was a passenger. In light of the
specific facts of this case and for the reasons that follow, we
AFFIRM.
I
On October 19, 2000, Officer Darryl Fisher noticed a
vehicle recklessly swerving between two eighteen-wheel
trucks on Interstate 65 in Tennessee. Officer Fisher pulled the
vehicle over for following too closely in violation of section
55-8-124 of the Tennessee Code. The entire traffic stop was
recorded by the video camera in Officer Fisher’s police car.
The following people were traveling in the vehicle: the
driver, Ricky Collier; the defendant, Richardson;
Richardson’s wife, Shirley Richardson; and their son,
William Darnell Richardson, whom we refer to as Darnell.
Officer Fisher requested to inspect Collier’s license. At this
point, Officer Fisher noticed that the occupants of the vehicle
appeared nervous. In particular, he noticed that Collier’s

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No. 02-6146 United States v. Richardson 3
1There is some dispute over the precise language that Officer Fisher
used to indicate that he d esired Collier to rem ain behind the car. T he
United States asserts that the district court erred as a factual matter in
finding that Officer Fisher told Collier to “wait where he was” and instead
asserts that Officer Fisher stated, “Okay, just hang out right here for me,
hand trembled as he presented his license and Darnell’s lips
quivered as he spoke. Upon learning that Shirley Richardson
was the owner of the vehicle, Officer Fisher requested to
inspect her driver’s license and registration. As she searched
for this information, Shirley spilled all of the contents of her
purse onto the floorboard. Officer Fisher perceived this
action as a sign of nervousness. He asked the vehicle’s
occupants about their travel plans, to which Darnell
responded that they had been to Nashville to see his lawyer.
The videotape’s sound recording reveals that Darnell also
muttered something about having a back problem.
Officer Fisher then asked Collier to step to the back of the
car. There, Officer Fisher informed Collier that he was going
to issue a warning citation for traveling too closely to the first
truck. Collier remained behind the car while Officer Fisher
returned to his police car, where he narrated his impressions
of the incident into the video camera, specifically noting the
nervous appearance of the vehicle’s occupants.
When Officer Fisher returned, he asked Collier about his
travel plans. Collier responded that they had gone to
Nashville to see a doctor. Officer Fisher then gave the
citation to Collier and shook his hand, and Collier turned
around to return to his vehicle.
At that point, Officer Fisher asked Collier to answer a few
more questions, and Collier agreed. Officer Fisher asked
whether there were any drugs, money, or guns in the car, to
which Collier responded in the negative. Then, instead of
allowing Collier to return to the vehicle, Officer Fisher asked
Collier to remain behind the car while he asked Shirley
Richardson for permission to search the car.1
4 United States v. Richardson No. 02-6146
okay?” This dispute , however, is not significant to our analysis and
conclusion.
While Officer Fisher and Collier were talking, Darnell
moved to the driver’s seat. Thus, when Officer Fisher
returned to the driver’s side of the car, he asked Darnell for
his driver’s license. Darnell complied and Officer Fisher was
satisfied with his identification. Officer Fisher then asked
Darnell whether there were any guns in the car. Darnell
responded that he had a gun in the vehicle. Darnell explained
that his employer, the Lawrence County Sheriff’s
Department, authorized him to carry the gun. Darnell gave
permission to Officer Fisher to inspect the gun. Upon
inspection, Officer Fisher discovered that the gun was loaded.
He stated that he would have to inquire into Darnell’s
employment and permit to carry the gun. Before doing so,
however, Officer Fisher asked for permission to search the
vehicle. The parties dispute whether Shirley Richardson gave
her consent at this time.
Officer Fisher then radioed for assistance and also
contacted the Lawrence County Dispatch to inquire about
Darnell’s employment. The dispatcher erroneously informed
him that Darnell was not employed there and had been
arrested a few times for drug possession. At this point,
Officer Tommy Goetz arrived on the scene to assist.
Officer Fisher asked the occupants to exit the vehicle and
empty their pockets. Defendant Richardson stated that his
pants were too tight to empty his pockets. Officer Fisher
patted down Richardson and noticed that Richardson turned
his body to the left. Officer Fisher felt something on
Richardson’s left side. He proceeded to ask Shirley
Richardson again whether he could search the vehicle and she
responded in the affirmative. After Officer Fisher told Officer
Goetz that he had felt something on defendant Richardson’s
left side, Officer Goetz conducted a second pat-down and
discovered a handgun in Richardson’s pocket.

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No. 02-6146 United States v. Richardson 5
Richardson was placed under arrest and subsequently
indicted for possession of a firearm by a convicted felon in
violation 18 U.S.C. §§ 922(g)(1) and 924(a). He moved to
suppress the handgun evidence as fruit of an unlawful seizure.
The district court granted the motion to suppress, holding that
Officer Fisher seized the vehicle and its occupants for no
reasonable suspicion. The United States filed this timely
appeal.
II
In reviewing the judgment, we are asked to decide two
questions: 1) whether the vehicle and its occupants were
unlawfully seized following the conclusion of the traffic stop,
and 2) whether the handgun evidence found thereafter was
fruit of the unlawful seizure. We review the district court’s
factual findings in a suppression hearing for clear error and
the district court’s conclusions of law de novo. United States
v. Waldon, 206 F.3d 597, 602 (6th Cir.), cert. denied, 531
U.S. 881 (2000); United States v. Guimond, 116 F.3d 166,
169 (6th Cir. 1997), cert. denied, 530 U.S. 1268 (2000);
United States v. Bradshaw, 102 F.3d 204, 209 (6th Cir. 1996).
Also, because we are reviewing the grant of a motion to
suppress, we review the evidence “in the light most likely to
support the district court’s decision.” Guimond, 116 F.3d at
169 (quoting United States v. Roark, 36 F.3d 14, 16 (6th Cir.
1994)).
A. Seizure of the vehicle and its occupants
The primary interests that the Fourth Amendment protects
include an interest in freedom of movement and insulation
from the fear and anxiety produced by unlawful seizure. In
the traffic stop scenario, these interests are personal to all
occupants of the vehicle that is detained, United States v.
Mesa, 62 F.3d 159 (6th Cir. 1995), because the detention
affects an occupant’s interest in freedom from such seizures.
See Michigan Dep’t of State Police v. Sitz, 496 U.S. 444, 450
(1990) (recognizing that a passenger may challenge his
6 United States v. Richardson No. 02-6146
detention because all occupants of a stopped vehicle are
subject to a Fourth Amendment seizure); see also Delaware
v. Prouse, 440 U.S. 648, 653 (1979) (noting that each
occupant has an interest in freedom from random,
unauthorized, investigatory seizures); United States v.
Kimball, 25 F.3d 1, 5 (1st Cir. 1994) (“interest in freedom of
movement and the interest in being free from fear and
surprise are personal to all occupants of a vehicle”).
Unlawful seizure occurs when an officer, without
reasonable suspicion, “by means of physical force or show of
authority . . . in some way restrain[s] the liberty of a citizen.”
Terry v. Ohio, 392 U.S. 1, 19 n.16 (1968). One’s liberty is
restrained when a reasonable person would not feel free to
walk away and ignore the officer’s requests. United States v.
Mendenhall, 446 U.S.544, 554 (1980). In United States v.
Hill, 195 F.3d 258, 264 (6th Cir. 1999), cert. denied, 528 U.S.
1176 (2000), this Court determined that “[o]nce the purposes
of the traffic stop [are] completed, a motorist cannot be
further detained unless something that occurred during the
stop caused the officer to have a reasonable, articulable
suspicion that criminal activity was afoot.” See also United
States v. Mesa, 62 F.3d 159, 162 (6th Cir. 1995) (“Once the
purposes of the initial traffic stop were completed, there is no
doubt that the officer could not further detain the vehicle or its
occupants unless something that occurred during the traffic
stop generated the necessary reasonable suspicion to justify
a further detention.”). Thus, in determining whether the
Fourth Amendment forbids the action taken by Officer Fisher
in this case, we must decide whether there was a seizure, and,
if so, whether Officer Fisher had reasonable suspicion for
effecting the seizure.
In determining whether a particular encounter between an
officer and a citizen constitutes a seizure, we recognize that
words alone may be enough to make a reasonable person feel
that he would not be free to leave. See United States v.
Buchanon, 72 F.3d 1217, 1233 (6th Cir. 1995) (quoting
Mendenhall, 446 U.S. at 554). In the instant case, the traffic

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No. 02-6146 United States v. Richardson 7
stop concluded when Officer Fisher handed Collier the
citation and shook his hand. Collier was then free to leave,
until Officer Fisher asked him to remain behind the vehicle.
The United States makes much of the fact that Officer Fisher
did not display an intimidating demeanor or use coercive
language, but rather said, “Okay, just hang out right here for
me, okay?” Regardless of Officer Fisher’s demeanor,
however, his words alone were enough to make a reasonable
person in Collier’s shoes feel that he would not be free to
walk away and ignore Officer Fisher’s request. When the
driver is not free to leave, neither are his passengers; indeed,
the passengers are at the mercy of any police officer who is
withholding the return of their driver. See Sitz, 496 U.S. at
450; Prouse, 440 U.S. at 653; Kimball, 25 F.3d at 5. Thus,
defendant Richardson’s freedom of movement was subject to
the will of Officer Fisher for as long as Officer Fisher
detained Collier behind the car.
The United States argues that while the occupants may not
have wanted to leave the scene, that “says nothing about
whether Officer Fisher’s conduct toward them was coercive.”
However, so long as Collier obeyed Officer Fisher’s
instruction to remain outside of the vehicle, his passengers
were as unable as he to leave the scene. Also, that Darnell
moved from his original position to the driver’s seat does not
affect our conclusion. This movement by itself indicates
nothing about his willingness to drive away without Collier
or his belief that he could lawfully take such action.
B. Reasonable suspicion
Having concluded that a seizure occurred, we now address
whether Officer Fisher had the requisite reasonable suspicion
to seize Collier and his passengers. In doing so, we must
determine from the totality of the circumstances whether the
seizure was supported by “‘specific and articulable facts that
give rise to a reasonable suspicion of criminal activity.’”
United States v. Orsolini, 300 F.3d 724, 728 (6th Cir. 2002)
(quoting United States v. Palomino, 100 F.3d 446, 449 (6th
8 United States v. Richardson No. 02-6146
Cir. 1996)). At the outset, we recognize that “[r]easonable
suspicion is more than an ill-defined hunch; it must be based
upon a particularized and objective basis for suspecting the
particular person . . . of criminal activity.” United States v.
Cortez, 449 U.S. 411, 417-18 (1981). We view the evidence
offered in support of reasonable suspicion using a common
sense approach, as understood by those in the field of law
enforcement. Id.
In support of its argument that reasonable suspicion
justified the seizure, the government combines the following
factors:
(1) Nervousness, as evidenced by Collier’s trembling
hand, Darnell Richardson’s quivering lip and
difficulty speaking, and Shirley Richardson’s
spilling of the contents of her purse;
(2) Allegedly conflicting explanations of their travel
plans; and
(3) Darnell Richardson’s movement to the driver’s seat.
The district court concluded that there was nothing inherently
suspicious about the group’s nervousness in this instance. We
agree, and note that although nervousness has been
considered in finding reasonable suspicion in conjunction
with other factors, Mesa, 62 F.3d at 162, it is an unreliable
indicator, especially in the context of a traffic stop, United
States v. Saperstein, 723 F.2d 1221, 1228 (6th Cir. 1983).
Many citizens become nervous during a traffic stop, even
when they have nothing to hide or fear. Also, the allegedly
conflicting explanations of their travel plans are not mutually
exclusive; it is entirely plausible that the group traveled both
to see a doctor and a lawyer. Finally, even Officer Fisher
stated that he was not concerned that Darnell Richardson
moved to the driver’s seat, and the United States has made no
attempt to explain why such behavior would be suspicious.
Indeed, there are innocent and plausible explanations for this

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No. 02-6146 United States v. Richardson 9
behavior—e.g., perhaps Darnell thought that Collier, after
driving recklessly, needed to take a break from driving.
The United States argues that the district court erred by
considering each factor individually and that when
considering the factors in combination, reasonable suspicion
existed to further detain Collier and his passengers. We
recognize that even a string of innocent behavior added
together may amount to reasonable suspicion of criminal
activity. See United States v. Arvizu, 534 U.S. 266, 273-75
(2002). Yet, regardless of whether the district court
improperly analyzed each factor individually, our independent
review leads us to conclude that reasonable suspicion did not
exist. See United States v. Smith, 263 F.3d 571, 591, 594 (6th
Cir. 2001) (concluding, over the government’s objection that
the district court erred in analyzing each suspicious factor
individually, that “[e]ven considering all of the government’s
proffered factors as a whole, we must conclude that [the]
Officer . . . did not possess a reasonable, articulable suspicion
that criminal activity was afoot”). Under the totality of the
circumstances, the factors upon which the United States relies
do not add up to a reasonable suspicion of criminal activity.
Although “there is always a temptation in cases of this nature
when . . . firearms are found to let the end justify the means,”
we must resist such temptation. Mesa, 62 F.3d at 163.
III
Absent reasonable suspicion, the evidence obtained as a
result of the unlawful detention in this case must be
suppressed as fruit of the unlawful seizure. There is,
however, an exception to the rule when the causal chain is
broken by a voluntary statement. United States v. Brown, 422
U.S. 590 (1975); United States v. Arias, 344 F.3d 623 (6th
Cir. 2003). The United States argues that even assuming that
defendant Richardson was unlawfully seized, Darnell
Richardson’s voluntary, intervening admission that he was
carrying a gun broke the causal chain between their illegal
detention and the discovery that defendant Richardson carried
10 United States v. Richardson No. 02-6146
a gun, thereby purging the original taint of the unlawful
seizure.
We shall, in our discretion, decline to address this argument
because, as the United States conceded, it did not raise the
argument before the district court. See Singleton v. Wulff, 428
U.S. 106, 120-21 (1976) (“The matter of what questions may
be taken up and resolved for the first time on appeal is one
left primarily to the discretion of the courts of appeals, to be
exercised on the facts of individual cases.”). Indeed, courts
of appeals generally should decline to consider arguments that
were not raised below and were not passed on by the district
court. Hormel v. Helvering, 312 U.S. 552, 556 (1941).
IV
For the foregoing reasons, we affirm the judgment of the
district court.

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No. 02-6146 United States v. Richardson 11
_________________
DISSENT
_________________
KENNEDY, Circuit Judge. Because I believe that the
conduct of Officer Fisher did not violate the defendant’s
Fourth Amendment rights, I would reverse the district court’s
decision finding that Officer Fisher seized the defendant when
he requested Collier to remain outside the car while he
intended to ask the car’s owner for permission to search it.
Neither the defendant nor the majority question the validity
of the traffic stop nor the questioning of Collier at the rear of
the car. Rather, the majority holds that once Officer Fisher’s
consensual questioning with Collier was completed, the
officer was then required to permit Collier to immediately re-
enter the car and thus permit the occupants, including the
defendant, to be on their way; and that a delay, caused by the
officer’s decision to ask the owner for permission to search
the car for drugs or guns, resulted in an unlawful detention of
the defendant. In reaching its conclusion, the majority relies
upon our decisions in United States v. Hill, 195 F.3d 258 (6th
Cir. 1999) and United States v. Mesa, 62 F.3d 159 (6th Cir.
1995). It cites these decisions for the same proposition,
namely: “Once the purposes of the traffic stop [are]
completed, a motorist cannot be further detained unless
something that occurred during the stop caused the officer to
have a reasonable, articulable suspicion that criminal activity
was afoot.” Hill, 195 F.3d at 264; See also Mesa, 62 F.3d at
162. As the majority notes, the issue in this case is whether,
after the completion of the traffic stop, the defendant was
seized, and, if so, whether the seizure was supported by
reasonable suspicion.
In Hill, a deputy sheriff pulled over a U-Haul for speeding.
195 F.3d at 261. While processing the traffic violation, which
included running a check on the defendant’s driver’s license,
retrieving and reviewing the U-Haul rental agreement, and
12 United States v. Richardson No. 02-6146
1As we recently noted in United States v. Burton, 334 F.3d 514, 518
(2003), asking more que stions to the occupants of a stopped vehicle than
are necessary to issue a traffic citation d oes not turn a reasonable
detention into an unreasonable one, especially when such “[q]uestions
hold the po tential for dete cting crime, yet create little or no
inconvenience.” (quoting United States v. Childs, 277 F.3d 947, 954 (7th
Cir.) (en banc))
writing out the citation, the deputy asked the driver and his
passenger a number of questions concerning the purpose of
their trip.1 Id. at 261-63. After he completed the processing
of the traffic violation, the deputy decided to detain the
occupants in order to have his drug detection dog sniff the U-
Haul for the presence of narcotics. Id. at 263. Refusing to
permit the driver and passenger to leave in order to have a
drug detection dog sniff the vehicle certainly constituted a
detention of the driver and passenger. For this detention to be
justified, it needed to be based upon reasonable suspicion,
which the court found existed. Id. at 270.
In Mesa, like Hill, the defendant was stopped for speeding.
After the defendant retrieved her driver’s license, the officer
“directed the defendant to sit in the back seat of [his] police
vehicle.” 62 F.3d at 160. While the officer was writing out
the warning citation, he asked her a number of questions
regarding her destination. Id. After he finished writing out
the citation and received her signature on it, he did not allow
her to leave his vehicle, and she could not have voluntarily
left the vehicle because the doors to the back seat of the
police car could not be opened from the inside. Id. The
officer then proceeded to ask the defendant “additional
questions totally unrelated to the initial traffic stop.” Id. at
161. Eventually, the officer asked for, and obtained, her
consent to search her vehicle. Id. The court opined, as did
the court in Hill, that “[o]nce the purposes of the initial traffic
stop were completed, ... the officer could not further detain
the vehicle or its occupants ... [without] reasonable suspicion
to justify [it].” Id. at 162. It then considered whether there
was reasonable suspicion to justify the further detention. Id.

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No. 02-6146 United States v. Richardson 13
2Indeed, after the Supreme Court decided Oh io v. Robin ette, 519 U.S.
33, this court in United States v. Guimond, 116 F.3d 16 6 (6th Cir. 1997),
read Mesa to ap ply only on its facts – where the driver consented to a
search only after she had been detained in a locked police cruiser for a
considerable period of time.
Since the court immediately considered whether reasonable
suspicion was present, it must have considered it obvious that
the defendant was detained, for the court does not tell us
when the traffic stop no longer justified her detention. It is
likely that the court believed that the traffic stop no longer
justified her detention as soon as she signed the citation and
was then not able to exit the police vehicle.2 If the court
believed that she was detained after she signed the citation
merely because she was asked questions that were unrelated
to the initial traffic stop, or because she was asked questions
at all, then Mesa would no longer accurately reflect the state
of the law after Ohio v. Robinette, 519 U.S. 33 (1996).
In Robinette, a deputy sheriff stopped the defendant for
speeding. Id. at 35. The deputy asked for and was handed the
defendant’s driver’s license. Id. After running a computer
check on the license which indicated that he had no previous
violations, the deputy asked the defendant to step out of his
vehicle, issued a verbal warning to him, and returned his
license. Id. The deputy then asked whether the defendant had
any drugs or weapons in his car Id. at 35-6. After the
defendant answered no, the deputy asked for, and received,
the defendant’s consent to search his vehicle. Id. at 36.
Drugs were found in the car during the search. Id. The Ohio
Supreme Court held both that the defendant’s consent to
search was the product of an unlawful detention, and that an
officer must first inform “citizens stopped for traffic offenses
... [that] they are free to go after a valid detention, before [the]
officer attempts to engage in a consensual interrogation.” Id.
The question presented to the Court was whether the Fourth
Amendment demanded the per se rule that an officer, after the
completion of a traffic stop, must inform the person stopped
14 United States v. Richardson No. 02-6146
3One may attemp t to distinguish Bostick or Royer, where the officers
approached the defendants for questioning while the defendants were not
in legal custody, from the present case, where the occupants were in legal
that he is “free to go” before requesting the person’s consent
to search his vehicle. Id. at 35. The Court concluded that it
did not. Although it never specifically addressed whether the
defendant was seized when the officer asked him both
whether he had any drugs or weapons and for his consent to
search his vehicle, I believe, since the Court reversed the
Ohio Supreme Court’s judgment and since there certainly was
no reasonable suspicion to further detain the defendant if he
were seized, that the Court concluded, sub silentio, that the
defendant was not seized when he was asked those questions.
It is well settled that an officer may approach a person to
ask questions or seek permission to search, provided that the
officers do not imply that answers or consent are obligatory.
See e.g., INS v. Delgado, 466 U.S. 210, 212 (finding that
agents’ questioning of factory employees concerning their
citizenship did not constitute a seizure); Florida v. Royer, 460
U.S. 491, 497 (1983) (observing that law enforcement officers
do not violate the Fourth Amendment by merely approaching
an individual and asking if he is willing to answer some
questions). In Florida v. Bostick, 501 U.S. 429, 434 (1991),
the Court made clear that these requests are proper without
regard to the absence of reasonable suspicion because “mere
police questioning does not constitute a seizure.” See e.g.,
United States v. Erwin, 155 F.3d 818, 823 (1998) (en banc)
(noting that an “officer does not violate the Fourth
Amendment merely by approaching an individual, even when
there is no reasonable suspicion ..., and asking him whether
he is willing to answer some questions. This includes a
request for consent to search [an] individual’s vehicle”).
It is clear then, after considering the Court’s and this
Circuit’s precedents, that Officer Fisher was entitled to ask
the owner for her consent to search the vehicle.3 See Bostick,

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No. 02-6146 United States v. Richardson 15
custody until the purposes of the traffic stop were comp leted, and then
were posited questions and asked to consent to a search, by arguing that
in the latter case an individual may not feel as if he has a right to refuse
the officer’s request because he was just in legal custody and, in fact, may
believe he still is in legal custody. However, unless the officer’s conduct
and questions intimated that answers were obligatory, then such a concern
would merely go to the voluntariness of the conse nt, not whether the
consent was a fruit of an illegal seizure.
4It is clear that Officer Fisher, while he was talking with Collier at the
rear of the car, noticed Darnell Richardson exit the passenger seat and
take the driver’s seat.
5Officer Fisher would have needed to talk around the front passenger
because he always approached the car on the passenger’s sid e for safety
reasons to avoid exposure to freeway traffic.
501 U.S. at 434; Royer, 460 U.S. at 497. Officer Fisher’s
request to Collier that he remain outside the car after he had
handed Collier the citation so that he could ask the owner for
her consent to search the vehicle did not transform the
encounter into an unlawful detention. Unlike the occupants
of the U-Haul in Hill, neither Collier nor the occupants who
remained in the car were detained so that a drug detection dog
could sniff the vehicle for the presence of narcotics. And,
unlike the defendant in Mesa, neither Collier nor the
occupants who remained in the car were physically locked in
the back seat of a police car after the purposes of the traffic
stop were completed. Moreover, Officer Fisher’s request to
Collier to remain outside the vehicle as he went back to the
car to ask the owner for her consent to search was reasonable
where Officer Fisher knew 1) that the owner was sitting in the
rear passenger seat and that Collier would take the front
passenger seat,4 so that if Collier had re-entered the vehicle,
he would have needed to speak around him in order to talk
with the owner,5 and 2) if the owner had consented to a
search, Collier would have needed to immediately re-exit the
vehicle if he had first re-entered after Officer Fisher handed
him the ticket.
16 United States v. Richardson No. 02-6146
Since I believe that Officer Fisher was entitled to ask the
owner for permission to search her car, and that his request to
Collier to remain outside the car did not constitute a seizure
where 1) he was not restrained from leaving, and 2) the
request was reasonable under the circumstances, I would
therefore reverse the district court’s conclusion to the
contrary.

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