PROFESSIONAL LEGAL WRITING SAMPLE

To: Prospective Employer

From: Kyle N. Berger
Date: December 23, 2009
Re: Appellate Brief for a criminal defendant advocating a bright-line rule that when
the police ask for personal identification and retain that identification, a person
is effectively seized under the Fourth Amendment; Writing sample for Prospective
Employer.

A. This Court should adopt a bright line rule that when a police
officer, without reasonable suspicion of criminal activity,
retains a person’s identification for a period longer than
necessary to establish that person’s identity, the officer has
seized that person under the Fourth Amendment.

People should be free from unreasonable and arbitrary police conduct. Holding
that a seizure does not occur when police officers arbitrarily approach a pedestrian and
request and retain that person’s identification without reasonable suspicion of criminal
activity departs drastically from the goal of the Fourth Amendment. The question of
whether an encounter constitutes a seizure is determined by whether police conduct
would have communicated to a reasonable person that they were not free to decline the
officer’s requests or otherwise terminate the encounter. Bostick, 501 U.S. at 439.
A bright line rule mandating that when a police officer, without reasonable
suspicion of criminal activity, retains a person’s identification for longer than necessary
to establish that person’s identity results in a seizure of that person, should be adopted for
the following reasons: (1) what can start as a voluntary encounter can graduate into a
seizure under the Fourth Amendment; (2) this Court has consistently held that individual
freedoms shall not be violated, by detailing critical policy arguments that support the
adoption of a bright line rule in this situation; and (3) precedent suggests that the police
retaining a person’s identification for a period longer than necessary to establish that
person’s identity, by itself, should automatically transform an encounter into a seizure.

1. What can start as a voluntary encounter between the police

and a pedestrian can graduate into a seizure within the
meaning of the Fourth Amendment.

This Court has held that what can start as a voluntary encounter between the
police and a pedestrian can graduate into a seizure within the meaning of the Fourth
Amendment. Fla. v. Royer, 460 U.S. 491, 501 (1983) (plurality). An initial interrogation
relating to a person’s identity or a request for identification by the police does not, by
itself, constitute a Fourth Amendment seizure, and is therefore considered a voluntary
encounter. Id. However, an initial voluntary encounter between the police and a
pedestrian can be transformed into a seizure or detention within the meaning of the
Fourth Amendment. I.N.S. v. Delgado, 446 U.S. 210, 215 (1984); see Royer, 460 U.S. at
501 (plurality). The question of whether an encounter constitutes a seizure is determined
by whether police conduct would have communicated to a reasonable person that they
were not free to decline the officer’s requests or otherwise terminate the encounter.
Bostick, 501 U.S. at 439.
This Court in Royer introduced that what can start as a voluntary encounter
between the police and a pedestrian, can at some point within the encounter, transform
into a seizure within the meaning of the Fourth Amendment. 460 U.S. at 502 (plurality).
In Royer, two detectives approached Royer while he was about to board an airplane,
identified themselves as policemen, and asked if he had a moment to speak with them, to
which Royer obliged. Id. at 494. Upon request, Royer produced his airline ticket and his
driver’s license for the detectives. Id. The Court ruled this initial conduct was
permissible and did not constitute a seizure. Id. at 501 (plurality). The detectives then
notified Royer that they were narcotics agents and they had reason to suspect him of
transporting narcotics. Id. at 494. The detectives did not return his ticket or license, and
asked for him to accompany them to a small room, where he was further questioned and
his luggage was searched, which found marijuana and resulted in his arrest. Id. at 494-
495.
When construing the facts, the Court ruled this latter conduct, before the actual
arrest, transformed the initial voluntary encounter into a seizure within the meaning of the
Fourth Amendment, because the circumstances amounted to a show of official authority
such that a reasonable person would have believed he was not free to leave. Id. at 502-
503 (plurality); see U.S. v. Jordan, 958 F.2d 1085, 1088 (D.C. Cir. 1992) (holding that
what began as a consensual encounter graduated into a seizure when the officer asked for
consent to search the defendant’s bag after he had taken and retained the defendant’s
driver’s license); U.S. v. Battista, 876 F.2d 201, 205 (D.C. Cir. 1989) (holding that the
encounter transformed into a seizure because once identification is handed to the police
and they have had a reasonable opportunity to review it, if the identification is not
returned to the detainee, it is difficult to imagine that any reasonable person would feel
free to leave without it); State v. Daniel, 12 S.W.2d 420, 427 (Tenn. 2000) (holding that
the encounter transformed into a seizure when an officer retained a person’s identification
for the purpose of running a computer check for outstanding warrants, because no
reasonable person would believe that they could terminate the encounter).
In this case, the two officers approached Mr. Caxton, asked him a few brief
questions, and asked for his identification. R. at 5. These events are similar to Royer,
where the officers approached Royer, asked him some brief questions, and asked to see
his identification, which the Court ruled was initially a voluntary encounter. See 460
U.S. at 502 (plurality). However, like Royer, where the officers retained Royer’s
identification while escorting him to a police room where he was asked more questions
and his bags were searched, the events between Mr. Caxton and the two police officers
graduated from a voluntary encounter into a seizure. See id. at 494-495; R. at 5, 6. The
uniformed officers retained Mr. Caxton’s identification while they ran a lengthy warrants
check in their marked squad car, without Mr. Caxton’s overt permission. R. at 5, 6. It
was at this point the initial voluntary encounter transformed into a seizure, because a
reasonable person would have believed he was not free to leave, because the officers’
retention of Mr. Caxton’s license effectively immobilized him. See Royer, 460 U.S. at
502; R. at 5, 6. Therefore, even if this Court finds the encounter began as voluntary, it
should find the latter police conduct transformed it into a seizure, because the police
conduct in this situation would have communicated to a reasonable person that they were
not free to terminate the encounter.
 2. This Court has consistently held that individual freedoms
shall not be violated, by detailing critical policy arguments
that support the adoption of a bright line rule in this
situation.

This Court should find that policy considerations detailed in previous decisions,
which favored the right to be free from police intrusion, support the adoption of a bright
line rule. This Court is not empowered to suspend constitutional guarantees so that the
government may more effectively wage a “war on drugs.” Bostick, 501 U.S. at 439. If
that war is to be fought, those who fight it must respect the rights of individuals, whether
or not those individuals are suspected of having committed a crime. Id. Courts that sit
under our Constitution cannot and will not be made party to lawless invasions of the
constitutional rights of citizens by permitting unhindered governmental use of the fruits
of such invasions. Terry, 392 U.S. at 12
This Court has considered policy arguments that favored the people’s right to be
free from police intrusion when determining whether the police have seized someone in
violation of the Fourth Amendment. See Brown v. Texas, 443 U.S. 47, 52 (1979). In
Brown, police officers observed Brown and another man walking away from one another
in an alley in an area that had a high incidence of drug traffic. Id. at 48-49. There was no
indication it was unusual for people to be in the alley, and the officer was unable to point
to any facts that substantiated his conclusion that the situation looked suspicious. Id. at
52. The Court emphasized policy considerations when they ruled in favor of Brown. Id.
In the absence reasonable suspicion, the balance between the public interest and the right
to personal security and privacy tilts in favor of freedom from police interference. Id.
The guarantees of the Fourth Amendment do not allow stopping and demanding
identification from a person without reasonable suspicion of criminal activity for the
purpose of preventing crime. Id. When such a stop is not based on objective criteria, the
risk of arbitrary and abusive police practices exceeds tolerable limits. Id.
The officers in this case approached Mr. Caxton and asked for his identification
without any suspicion of criminal activity because he was standing in a high-crime area
when it was dark out. R. at 4, 5. These actions are identical to the police officer’s
actions in Brown, and should invoke the same policy considerations that this Court in
Brown found important enough to base their decision on. See 443 U.S. at 52. Therefore,
this Court should find that policy considerations support a decision that Mr. Caxton was
illegally seized. Failing to rule the police seized Mr. Caxton can create a substantial risk
of arbitrary and abusive police practices in a way that would be eerily reminiscent of the
British officials’ actions against the Colonial Americans—the same actions the founders
sought to protect against when creating the Fourth Amendment.

3. Precedent suggests that the police retention of a person’s

identification for a period longer than necessary to establish
that person’s identity, by itself, should automatically result
in a person being seized.

This Court should find that when a police officer retains a person’s identification
longer than necessary to establish that person’s identity, that circumstance alone should
automatically result in a person being seized. Certain circumstances alone would
communicate to a reasonable person that they were not free to leave. Jordan, 958 F.2d at
1086. For example, if a police officer were to draw and aim a gun at a person that
circumstance alone would communicate to a reasonable person they were not free to
leave. Id.
Several lower courts have adhered to a general rule that when police officers
retain a person’s driver’s license, that circumstance by itself, would cause that person to
feel they were not free to leave. See e.g. U.S. v. Lambert 46 F.3d 1064, 1068 (10th Cir.
1995); Jordan, 958 F.2d at 1087; Daniel, 12 S.W.2d at 427. In Lambert, DEA agents
approached and questioned Lambert when he was about to get in to his car to leave an
airport. 46 F.3d at 1066. The agents requested to see his driver’s license, which Lambert
handed to them. Id. However, the agents retained his license from the time he was
requested to present it until the time he was allowed to leave. Id. The court ruled that the
police seized Lambert by reasoning that the police officer’s retention of a person’s
identification, by itself, would cause a reasonable person to feel they were not free to
leave. Id. at 1068; see U.S. v. Chan-Jimenez, 125 F.3d 1324, 1326 (9th Cir. 1997)
(holding the police seized Chan-Jimenez when the officer obtained and failed to return
his driver’s license and registration, and proceeded with an investigation); Jordan, 958
F.2d at 1087 (holding that many circumstances in the case pointed in the direction of a
benign police-citizen encounter, but retaining Jordan’s license while questioning him
reflected a distinct departure from the typical consensual scenario); Daniel, 12 S.W.2d at
427 (holding that while many of the circumstances in the case pointed to a consensual
police-citizen encounter, one circumstance reflects a distinct departure from the typical
consensual encounter—the officer’s retention of Daniel’s identification to run a computer
warrants check).
Some lower courts have decided that this one factor is not dispositive because a
pedestrian has no immediate use for their identification and are therefore free to leave
while the police retain that person’s identification. See e.g. Weaver, 282 F.3d at 311-312
(holding that Weaver was a pedestrian and could have walked away from the police
encounter while his driver’s license was being retained, because he did not need to
immediately use it to drive away). However, these courts have failed to take into account
that a person may need identification in the near future. Other courts have emphasized
the importance of identification in today’s society, because a person would not be able to
legally drive without a driver’s license, cash checks, make credit card purchases, or gain
access to many necessary locations. See e.g. Royer, 460 U.S. at 501-502 (plurality)
(stating that abandoning one’s driver’s license is simply not a practical or realistic option
for a reasonable traveler in this day and age); Daniel, 12 S.W.3d at 427 (stating that
abandoning ones’ identification is simply not a practical or realistic option for a
reasonable person in today’s society).
In this case, Mr. Caxton was initially involved in a voluntary encounter when the
police questioned him and requested to see his identification, much like the defendant in
Lambert, who was approached and questioned in a voluntary manner. See 46 F.3d at
1066; R. at 5. Similarly, Mr. Caxton’s identification was retained by the police officers,
like the defendant in Lambert, for a period longer than necessary to verify his identity,
because the officers conducted a 15-minute warrants check in the patrol car. See 46 F.3d
at 1066; R. at 5, 6. The officer’s retention of Mr. Caxton’s license presents a distinct
departure from a voluntary police-citizen encounter, which lower courts have held is
indicative of a seizure. See Jordan, 958 F.2d at 1087; R. at 5, 6. Furthermore, the law
does not require Mr. Caxton to walk to the officers in their patrol car and ask for his
license back. See Jordan, 958 F.2d at 1088. For these reasons, this Court should find the
retention of Mr. Caxton’s identification, by itself, is dispositive in finding the police
seized him, because precedent has shown that no reasonable person would feel free to
terminate an encounter while the police retained that person’s identification.
In conclusion, This Court should adopt a bright line rule that when a police
officer, without reasonable suspicion of criminal activity, retains a person’s identification
for a period longer than necessary to establish that person’s identity, the officer has
seized that person under the Fourth Amendment. First, this Court has established that
what can start as a voluntary encounter can transform into a seizure because certain
police conduct communicates to a reasonable person they were not free to terminate the
encounter. Second, policy considerations established by this Court support the adoption
of a bright line rule for this situation. Finally, precedent has established that even though
many circumstances point to a voluntary encounter, the police retention of a person’s
identification represents a distinct departure from a voluntary encounter, and should by
itself result in the police seizing that person.