JurisdictionUnited States

§ 7.03. Seizure of Persons17

[A] Overview

The arrest of a suspect uncontroversially constitutes a seizure of that person.18 The Court has also held that circumstances short of an arrest may constitute a seizure, so the high court has had to provide a working definition of a "seizure" of a person.

Recently, the Court provided this summary of what constitutes a seizure of a person:

A person is seized by the police . . . when the officer, by means of physical force or show of authority, terminates or restrains his freedom of movement through means intentionally applied. Thus, an unintended person may be the object of the detention, so long as the detention is willful and not merely the consequence of an unknowing act. A police officer may make a seizure by a show of authority and without the use of physical force, but there is no seizure without actual submission. . . .
When the actions of the police do not show an unambiguous intent to restrain or when an individual's submission to a show of governmental authority takes the form of passive acquiescence . . . a seizure occurs if in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave. . . . [W]hen a person "has no desire to leave" for reasons unrelated to the police presence, the [test for a seizure is] whether "a reasonable person would feel free to decline the officers" requests or otherwise terminate the encounter."19

This summary, although reasonably concise, is not useful without elaboration, to which the Text now turns.

[B] The Terry Definition

The Supreme Court first defined "seizure" (of persons) in Terry v. Ohio:20 "Obviously, not all personal intercourse between policemen and citizens involves "seizures" of persons. Only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a "seizure" has occurred."

The Terry rule has been slightly restated by later Court decisions this way: A person is seized when the officer by one of the means noted in Terry—use of physical force or show of authority — either terminates or restrains the individual's freedom of movement through means intentionally applied.21 According to this definition, D is "seized" by an officer when, for example: she is physically restrained or ordered to stop so that she can be frisked or questioned on the street;22 she is intentionally shot by the officer;23 she is taken into custody and brought to a police station for questioning24 or fingerprinting;25 she is the driver or passenger in a car ordered to pull off the highway for questioning or to receive a traffic citation;26 or she is intentionally forced to stop her car by means of a roadblock.27 She is not seized, however, if she is a driver of a motorcycle whom a police officer accidentally strikes during a high-speed pursuit.28

[C] The Mendenhall "Reasonable Person" Test

[1] In General

Some police-citizen encounters are not as clear-cut as the examples set out in subsection [B], because the officer's intention to restrain a person's freedom of movement is externally ambiguous or the citizen's submission to authority occurs through passive acquiescence.

For example, in United States v. Mendenhall,29 two male federal drug agents approached M, an African-American woman, in an airport concourse. They identified themselves as federal agents, and asked to see her identification and airline ticket, which she handed to them. Did this brief encounter constitute a seizure of M? If so, the agents needed to have reasonable cause for approaching her and requesting her identification and ticket; if it was not a seizure, they could approach her at will to make such a request.

Justice Stewart announced the judgment of the Court, and in a portion of the opinion in which only Justice Rehnquist joined, but which now commands the support of the full Court,30 he added an objective component to the "seizure" definition: "We conclude that a person has been "seized" within the meaning of the Fourth Amendment only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave."

The implication of the Mendenhall objective test is that, in determining whether a seizure has occurred, the subjective intention of a police officer to forcibly detain a suspect if she attempts to leave is irrelevant, except insofar as that intention is conveyed to the suspect and, thus, might affect the impressions of a reasonable person in the suspect's shoes. It follows, as well, that the subjective impressions of the person accosted is irrelevant, except to the extent that a reasonable person in that individual's situation would have the same concerns.

[2] Some Applications of the Test

[a] Seizure by Questioning?

The Court stated in Terry v. Ohio that "[o]bviously, not all personal intercourse between policemen and citizens involves "seizures" of persons." In the simplest case, if an officer asks a person on the street for the time of day, no reasonable person would believe that her freedom of movement is restricted because of the question. Under TerryMendenhall, no seizure has occurred.

However, even when a law enforcement agent questions an individual about suspected criminal activity, brief questioning in a public place by itself does not amount to a sei-zure.31 The Court's reasoning is frankly pragmatic: "[C]haracterizing every street encounter between a citizen and the police as a "seizure," while not enhancing any interest secured by the Fourth Amendment, would impose wholly unrealistic restrictions upon a wide variety of legitimate law enforcement practices."32

The Supreme Court has determined that the police have considerable Fourth Amendment leeway in conducting criminal investigations: "Even when law enforcement officers have no basis for suspecting a particular individual, they may pose questions, ask for identification, and request consent to search luggage—provided they do not induce cooperation by coercive means."33 In this context, consider the Court's treatment of the facts in Mendenhall. Justices Stewart and Rehnquist concluded that, based on the totality of circumstances in that case, no seizure occurred when the agents first accosted M and requested her identification and airline ticket. It was irrelevant that the officers might have physically restrained M or ordered her to remain in their custody had she refused to cooperate. In the view of these two justices—a view that seems unrealistic to many people and may best be explained on the pragmatic ground noted in the last paragraph—a reasonable person in M's situation would have believed that she was free to leave.34 Justice Stewart explained, "[t]he events took place in the public concourse. The agents wore no uniforms and displayed no weapons. They did not summon [ M] to their presence, but instead approached her. . . . They requested, but did not demand to see [her] identification and ticket. . . ."

What would have converted the encounter into a seizure? Justice Stewart stated:

Examples of circumstances that might indicate a seizure, even where the person did not attempt to leave, would be 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.

The line between a finding of "no seizure" and "seizure," therefore, is exceedingly thin. Contrast Mendenhall to the facts in Florida v. Royer.35 In Royer, two detectives accosted R, an embarking airline passenger, identified themselves, and asked to see his ticket and driver's license, which he provided them. When the officers spotted a discrepancy in the documents, they informed him that he was suspected of transporting narcotics. Without returning his ticket and license, they requested that he accompany them to a small airport office to be searched. R agreed.

As in Mendenhall, the Supreme Court held that the initial encounter—when the officers asked R for identification—was not a seizure, but the plurality opinion stated that R was seized when the agents asked him to accompany them to the room for a search. And yet, in Mendenhall, the Court held that a similar request by federal agents that M accompany them to a nearby airport office for a search was not a seizure. The Royer Court explained the difference and, in doing so, showed how careful one must be in studying the facts:

The case before us differs in important respects [from Mendenhall]. Here [R] 's ticket and identification remained in the possession of the officers throughout the encounter; the officers also seized and had possession of his luggage. As a practical matter, [ R] could not leave the airport without them. In Mendenhall, no luggage was involved, the ticket and identification were immediately returned, and the officers were careful to advise that the suspect could decline to be searched. Here, the officers had seized [R]'s luggage and made no effort to advise him that he need not consent to the search.36

[b] Factory Sweeps

The Supreme Court applied the Terry-Mendenhall rule strictly in Immigration and...

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