Section 9.8 Seizure of Persons

• Library: Criminal Practice 2012 Supp

2. (§9.8) Seizure of Persons

Although arrest is the paradigmatic seizure of the person, courts have recognized that an individual may be seized short of a full-fledged arrest. While a mere police-citizen encounter is not subject to the constraints of the Fourth Amendment, State v. Talbert, 873 S.W.2d 321, 323 (Mo. App. S.D. 1994); State v. Childress, 828 S.W.2d 935, 945 (Mo. App. S.D. 1992), when the police stop an individual and restrain that person’s freedom of movement, conduct cognizable by the Fourth Amendment has occurred.

A seizure of the person occurs, for purposes of the Fourth Amendment, when, because of police conduct, a reasonable innocent person would not feel free to leave or to decline the officer’s requests or otherwise terminate the encounter. Fla. v. Bostick, 501 U.S. 429 (1991). The “crucial test is whether, taking into account all of the circumstances surrounding 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.’” Id. at 437 (quoting Mich. v. Chesternut, 486 U.S. 567, 569 (1988)). In determining whether this test has been met, factors to be considered include:

· a show of force by the police;

· physical touching of the individual;

·...