A suspicious activity report is called in, stating that “two black males” are walking around an apartment complex at 0118. An officer responded and parked his car 15-20 feet behind two males he sees in the parking lot. One is a Hispanic male and the other is a juvenile black male.  The officer approached the two and, after some discussion, the officer offered to give them a ride to the Hispanic male’s apartment. The officer told them he would have to pat them down before they could get in the car.  During the pat-down he found a firearm in the pants of the Hispanic male (Rodriguez).  Rodriguez was charged for being an illegal alien in possession of a firearm.

Rodriguez sought to have the firearm excluded as the product of an unreasonable stop and frisk. The District Court granted the motion to suppress, focusing on the age of Rodriguez. Reversing the District Court, the Eighth Circuit applied the “Seven Factor” test the Eighth Circuit developed after Florida v. Bostick, 501 U.S. 429 (1991). Applying this test, the court concluded both the stop and the frisk were consensual and therefore the Fourth Amendment was not triggered.  Importantly, the court held that while the age or mental ability of the person is a factor to be considered for custody purposes, the test for a seizure is still an objective test.

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