An Order Not To Leave – When Is It A Fourth Amendment ‘Seizure’

An issue arises from time to time as to whether an order forbidding an employee from going home or requiring the employee to remain in a particular location so that an investigation can be conducted amounts to a “seizure” for Fourth Amendment purposes. The federal Third Circuit Court of Appeals recently followed the decisions of a number of other courts and concluded that such orders rarely amount to a “seizure.”

The case involved Philadelphia Police Officers Michael Gwynn and Brendon Ryan. On December 15, 2009, while on duty, Gwynn and Ryan stopped and frisked men they believed were engaged in an illegal drug transaction. One of the men they frisked, Keyshawn Artis, accused Gwynn and Ryan of stealing money from him. Gwynn and Ryan denied the accusation, and told Artis to “move along.”

When Gwynn and Ryan returned to headquarters, Sergeant Salvatore Fede ordered them into his office. After informing Gwynn and Ryan that a complaint about their behavior had been made to the Internal Affairs Bureau, Fede took Gwynn and Ryan to Captain Melvin Singleton’s office. Gwynn and Ryan did not feel free to leave because they had been “ordered to be in the captain’s office.” After waiting 15 to 20 minutes, Gwynn and Ryan and Sergeant Fede were joined by Captain Singleton, then-Sergeant Patrick Kelly, and Lieutenant Frank Palumbo.

Gwynn and Ryan were instructed to stay in Captain Singleton’s office until officers from the Internal Affairs Bureau arrived. While Gwynn and Ryan waited, Captain Singleton offered them water and told them that they could watch television, but instructed them not to use their cell phones. Gwynn and Ryan then were questioned about their interaction with Artis, including whether they had taken money from him. In that regard, Gwynn and Ryan were asked to remove their jackets and Gwynn was asked to remove his outer vest. Gwynn and Ryan also were told to pull out their pockets, pull up their pant legs and pull down their socks, and open their wallets.

Finally, Gwynn and Ryan were told that cooperation would be in their “best interest” insofar as it could demonstrate to Internal Affairs that they did not have Artis’s money when they returned from their patrol. During the hour or so they spent in Captain Singleton’s office while awaiting the arrival of Internal Affairs officers, Gwynn and Ryan did as they were told because the orders came from their “superiors and supervisors,” and they feared “discipline and possible loss of employment” if they disobeyed.

Upon their arrival at Captain Singleton’s office, two Internal Affairs officers questioned Gwynn and Ryan for about 15 to 20 minutes and then left briefly to talk to Artis, the complainant. Gwynn and Ryan were told to stay put until the Internal Affairs officers returned after speaking with Artis. The Internal Affairs officers returned, stated that they believed Artis, and told Gwynn and Ryan that they were not needed for anything further that day.

Gwynn and Ryan sued the City, contending their treatment amounted to a “seizure” without probable cause in violation of the Fourth Amendment. The appeals court disagreed, and dismissed the lawsuit.

The Court started with the proposition that “police officers, no less than civilians, are protected by the Fourth Amendment, and, in some circumstances, they may be seized as the result of an order given by another officer.” However, the Court noted, “this does not mean that every order a police officer feels compelled to obey amounts to a seizure. Public employees, like their counterparts in the private sector, often must comply with orders issued by supervisors, and may suffer work-related consequences if they disobey. Officers are trained to obey orders from their superiors and may be subject to discipline if they fail to do so.

“Characterizing work-related demands as seizures whenever an officer feels compelled to obey them would not further any interest protected by the Fourth Amendment, and it would significantly interfere with the effective management of police forces. To determine whether a police officer has been seized for purposes of the Fourth Amendment, our sister courts of appeals have recognized that the distinction between situations in which the police department issues orders in its capacity as an employer and those in which it acts as the law enforcement arm of the state. An officer is seized if a reasonable person in his position would believe that he were not actually free to disobey the command – that is, if he feared he would be detained if he attempted to leave.

“We recognize that whether a police officer would reasonably have perceived his superior officer to be issuing orders as his supervisor or as a law enforcement agent during the course of an investigation will not always be clear. Here, however, the evidence demonstrated that, to the extent Gwynn and Ryan felt compelled to obey their superior officers’ commands, that compulsion was borne out of their employment relationship. There was no suggestion that Gwynn and Ryan were under criminal investigation; they were asked to wait in Captain Singleton’s office so they could speak with Internal Affairs agents. Additionally, the circumstances surrounding the investigation were not particularly coercive. Although Gwynn and Ryan were not able to use the phone while waiting for Captain Singleton to return, they were offered drinks, they were asked if they wanted to watch television, and they retained all of their police-issued equipment. For these reasons, we hold there was no Fourth Amendment seizure of Gwynn and Ryan.”

The Court also rejected Gwynn’s and Ryan’s contention that their superior officers conducted an unreasonable search when they asked Gwynn and Ryan to reveal whether they had money in their pockets, vests, or socks. The Court noted that “work-related searches of a government employee’s person or property often fall into the ‘special government needs’ exception to the Fourth Amendment’s warrant and probable cause requirements. We find that to be the case here as well. The search was not excessively intrusive given the nature of the alleged misconduct. Gwynn and Ryan’ superior officers examined their outer clothing, wallets, pockets, socks, and the cuffs of their pants to see if they had a large amount of money on them, and checked their lockers for the same purpose. The search was reasonably related to its purpose – that is, ensuring that Gwynn and Ryan did not possess Artis’s money – and it was not overly intrusive.”

Gwynn v. City of Philadelphia, 719 F.3d 295 (3d Cir. 2013).