Ingram

dissenting.

The panel would have us require reasonable suspicion of criminal activity before approaching a car awkwardly parked in a dark public space to check on the welfare of the occupants. I disagree.

The car was parked alone at an angle on government premises at night. The officer said he asked Ingram if he could roll down the window. Ingram said the officer “politely but firmly” told him to roll the window down. The district judge assumed the officer “told” the defendant to do so. I agree with the judge that this was not an illegal seizure.

This circuit has joined our sister circuits in recognition that “an officer’s approach of a car parked in a public place does not constitute an investigatory stop or higher echelon Fourth Amendment seizure.” United States v. Kim; 1 see, e.g. United States v. Barry 2 (holding that officer’s approach of parked car and knocking three times until window was rolled down did not constitute a seizure); United States v. Hendricks 3 (finding no seizure where officer approached vehicle parked at gas station); United States v. Baker 4 (holding that encounter with police officers, who approached running vehicle stopped in traffic and made…

MEMORANDUM **

At approximately 8:58 p.m., a United States Park Police Officer noticed a lone vehicle parked at an “awkward angle.” The officer decided to conduct a “welfare check” of the car’s occupants. He approached the driver’s side of the vehicle, while another officer approached from the passenger’s side. Both men were in full uniform and armed. When the officer reached the front driver’s side window, he directed Samuel Ingram to roll down his window. When Ingram complied, the officer was immediately engulfed by the distinct odor of marijuana. Ingram subsequently moved to suppress the evidence found in his vehicle as fruits of an unlawful search and seizure.

A seizure occurs for purposes of the Fourth Amendment when, “taking into account all of the circumstances surrounding *599 the encounter, the police conduct would have communicated to a reasonable person that he was not at liberty to ignore the police presence and go about his business.” United States v. Washington, 387 F.3d 1060, 1068 (9th Cir.2004) (citation and internal quotation marks omitted).

The fact that the government labels this encounter a “welfare check” is not controlling. The appropriate inquiry is…