In this case, a police officer approached someone he suspected was involved in criminal activity and from a distance of 5 to 10 feet away, he asked the person if he would remove his hands from his pockets in a “polite, conversational, and non-threatening tone.”  The person in this situation was De Castro, and when he complied with the request, the officer saw a green pistol grip protruding from his pocket.  It turns out De Castro is a citizen of the Dominican Republic and is not a PRA (Permanent Resident Alien) and therefore he is a prohibited person under 922(g).  BUSTED!

The defense attorney argued that when the police officer asked De Castro to take his hands out of his pocket, that this was a seizure under the Fourth Amendment and therefore needed to be supported, at a minimum, by a reasonable suspicion that De Castro was involved in criminal activity (Terry Stop).  Applying the Mendenhall factors from United States v. Mendenhall, 446 U.S. 544 (1980) the Third Circuit disagreed and stated the officer’s sole, polite, and conversational request for him to remove his hands from his pockets (rather than to order him to show his hands with weapon drawn) was not an order and therefore De Castro was not seized for Fourth Amendment purposes.

Editor’s Note:  Under the facts as they given in this case, the officer probably had reasonable suspicion to support a Terry Stop, but since the court ruled that it was not a seizure, they didn’t have to answer that question … and they chose not to do so.

LEGAL REFRESHER: The Mendenhall Factors:

Factors tending to indicate a seizure include “the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer’s request might be compelled.”