United States v. Brian James Morrison
Opinion
Opinion
Appellee was charged with possession of marihuana with intent to distribute, in violation of 21 U.S.C. § 841 (a)(1). The court granted appellee’s motion to suppress the marihuana in question. The government appeals, asserting that the trial court erroneously disregarded evidence of appellee’s actions after the border patrol officers signaled him to stop and, considering this evidence, that the stop was based upon reasonable suspicion.
We agree with the trial court’s ruling that appellee’s response to the order to stop cannot justify the order itself.
When a law enforcement officer signals a motorist to stop by use of a siren or red light, there has been a seizure which must be justified under the Fourth Amendment. United States v. Ward, 488 F.2d 162, 169 (9th Cir. 1973) (in banc); Carpenter v. Sigler, 419 F.2d 169, 171 (8th Cir. 1969). The seizure occurs when the officer first communicates the command to halt. The command must be valid when given; its character is not changed by the motorist’s response, any more than probable cause for a search can be established by what the search discloses. United States v. Di Re, 332 U.S. 581, 595 , 68 S.Ct. 222 , 92 L.Ed. 210 (1948).