What Counts as a Seizure

What Counts as a Seizure

The preceding sections asked whether a given investigative technique amounted to a search. The Fourth Amendment poses a second, separate question about police conduct, because it protects the right to be secure in persons, houses, papers, and effects against unreasonable seizures as well as unreasonable searches.¹ The two terms guard different interests. A search compromises a person's interest in privacy, while a seizure deprives a person of dominion over his or her own body or belongings, a distinction the Court drew in Horton v. California by relying on United States v. Jacobsen.² Because the interests differ, the two events can come apart. An article lying in plain view can be looked at without invading anyone's privacy, yet carrying it away invades the owner's possessory interest, so the taking is its own Fourth Amendment event and is analyzed separately from the looking.³

A seizure is therefore the point at which a police encounter becomes a Fourth Amendment event, and the definition has to sort encounters with some care. If every conversation between an officer and a citizen counted, ordinary policing would need constitutional justification at every step, down to asking a bystander what happened. If only a formal arrest counted, the brief stops that officers make on the street would fall outside the Amendment altogether. The Court rejected that narrower line in Terry v. Ohio, reasoning that sorting police conduct into labels such as stop and arrest isolates the first stages of contact between officer and citizen from constitutional review.⁴ The working definition therefore has to sit between the two extremes, and the rest of this section builds it in stages.

The starting point comes from Terry itself. Whenever an officer accosts an individual and restrains his freedom to walk away, the officer has seized that person, even though the encounter never ends at the station house or in a prosecution.⁵ Officer McFadden took hold of Terry and patted down the outer surfaces of his clothing, and the Court held that this conduct was both a seizure and a search.⁶ The test looks to the restraint on the person's liberty, so the word the police use for the encounter does not control the answer. Whether a seizure of that kind was justified is a different question, handled in the reading on stops based on reasonable suspicion, and this chapter asks only whether a seizure occurred.

Seizure of the person is only half of the concept. The Amendment also protects houses, papers, and effects, so the definition covers things as well as people: government conduct is a seizure when it materially interferes with possessory rights in a house, paper, or effect, or meaningfully interferes with a person's liberty.⁸ Taking full possession and control of property plainly qualifies, as in Soldal v. Cook County. Lesser interference can qualify as well, and the Court has so held for significantly delaying a traveler's luggage at an airport in United States v. Place and for denying a resident access to a home in Segura v. United States.⁹ The possessory side reaches partial interference because an owner's interest lies in controlling the belongings, and the government harms that interest whenever it takes over the control, even for a limited time and even if the owner later gets the property back.

Seizures of persons themselves occur in two ways. An officer may touch the person with the objective purpose of effecting a seizure, which is complete at the moment of contact, or the officer may make a show of authority, which is complete only if the person submits.¹⁰ The next three sections follow the order in which the analysis is built: the reasonable-person test that governs shows of authority, then the sharper requirement of force or submission, and then the seizure of property. Students lose this issue when they treat only a formal arrest as a seizure of a person, because a brief detention on the street restrains the freedom to walk away just as an arrest does.¹¹

The Reasonable Person Test

The preceding section left open how a seizure by show of authority is recognized when the police never touch anyone. Most street encounters begin with an officer's words, number, and manner, so the law needs a way to say when those features restrain a person's liberty. It uses an objective standard. In Florida v. Bostick the Court held that a person is seized only when, under the totality of the circumstances, a reasonable person would feel that he was not free to decline the officer's requests or otherwise terminate the encounter.¹³ The standard has two older sources. Terry v. Ohio treated an officer who accosts an individual and restrains his freedom to walk away as having seized him.¹⁴ Justice Stewart then framed the question in United States v. Mendenhall as whether, in view of all the circumstances, a reasonable person would have believed that he was not free to leave, and a majority of the Court later adopted that touchstone as the reasonable person test.¹⁵

The same cases supply the baseline that makes the test usable. A seizure does not occur simply because an officer approaches a person and asks a few questions, and so long as a reasonable person would feel free to disregard the police and go about his business, the encounter is consensual and needs no justification.¹⁶ Only when the encounter loses that consensual character does it become a Fourth Amendment event. The reason is practical. If every question put to a bystander counted as a seizure, officers would need grounds before asking anyone anything, and the Amendment would stop separating a request from a restraint. Police may therefore approach people at random in most public places, ask questions, and seek consent to a search, until the surrounding circumstances turn the request into a command.¹⁷

What turns a request into a command is an accumulation of signals that compliance is expected. Mendenhall gave examples: the threatening presence of several officers, the display of a weapon, some physical touching of the person, and language or a tone of voice indicating that compliance might be compelled.¹⁸ Without something of that kind, inoffensive contact between the police and a member of the public does not amount to a seizure as a matter of law.¹⁹ In Mendenhall itself the agents approached a traveler in a public airport concourse, wore no uniforms, displayed no weapons, and asked rather than demanded to see her ticket and identification, which she produced.²⁰ The list illustrates the kinds of facts that matter. Because the test looks to the totality, no single fact is decisive, and each counts for what it communicates about whether the person may say no.

The standard also fixes whose perspective controls. The question is what a reasonable person would perceive, so the suspect's own nerve does not decide the result, and neither does what the officer privately intended. An officer's undisclosed plan to detain the person if he tried to leave is irrelevant except insofar as it was conveyed to him.²¹ An objective observer gives officers a rule they can apply in the moment, and it spares courts from deciding cases on testimony about whether a given suspect was unusually timid or bold.

The questions were the same in both versions, so they did not move the answer. What moved it was the number of officers, the weapon, and the command, each of which tells the pedestrian that refusal is not an option. One qualification belongs here. A show of authority completes a seizure only if the person submits, a requirement taken up in the next section, so the second version produces a seizure at the point the pedestrian yields.²⁴

The test is phrased around declining requests or ending the encounter, and not only around leaving, because leaving is sometimes the last thing the person wants to do. The free-to-leave question works when the person would otherwise depart. When a person has no desire to leave for reasons unrelated to the police, the coercive effect of the encounter is measured better by asking whether a reasonable person would feel free to decline the officers' requests or otherwise terminate the encounter.²⁵ Bostick shows why. Officers boarded a bus during a scheduled stopover, picked out a passenger without articulable suspicion, asked to see his ticket and identification, returned both immediately, identified themselves as narcotics agents, and asked for consent to search his luggage.²⁶ A passenger in that position has reasons to stay seated that have nothing to do with the officers, so asking whether he felt free to leave the bus would measure the departure schedule and reveal little about police pressure.

The Florida Supreme Court reasoned that a reasonable passenger would not feel free to leave the bus, and it made the setting dispositive in every case by holding that questioning boarded passengers without articulable reasons, to obtain consent to search luggage, was an impermissible seizure.²⁷ The Supreme Court framed the issue as whether an encounter of that type necessarily constitutes a seizure, and the totality standard is the framework it applied.²⁸ Under that standard no setting, a bus included, answers the question by itself, and the confined space is one fact to weigh with the others. In Bostick those others included the immediate return of his ticket and identification, a pistol that stayed in a zipper pouch and was never removed or pointed, and advice that he could refuse consent.²⁹

Students lose this issue when they treat an officer's questions alone as a seizure, or when they decide the question by asking what the particular suspect felt or what the officer secretly intended. On an exam stem, ask what a reasonable person would have understood from the officer's conduct, and look for the signals from Mendenhall: how many officers were present, whether a weapon was displayed, whether anyone touched the person, and whether the officer's words or tone sounded like an order. This section asks only whether a seizure occurred. Whether an officer needed reasonable suspicion to carry out a seizure of that kind belongs to the separate treatment of Terry stops.

Force or Submission

The reasonable person test from the previous section identifies the kind of police conduct a person would feel bound to obey, but it does not by itself say when that conduct becomes a seizure. The answer comes from California v. Hodari D., which held that police pursuit of a suspect is not itself a seizure and that a mere order to stop is not enough.³¹ A seizure requires either the application of physical force by the officer or the person's submission to the officer's show of authority.³² Call this the force or submission requirement. It follows from what a seizure is, a restraint on a person's liberty. An order the person ignores restrains nothing, and a pursuit that has not yet caught anyone has not yet taken hold of anyone, so the person's liberty stays intact until the officer's force lands or the person yields.

The facts of Hodari D. show how much turns on timing. In April 1988 two officers in street clothes, wearing jackets marked as police jackets, were patrolling a high-crime area of Oakland in an unmarked car when they saw four or five youths huddled around a small red car. The youths panicked and fled when they saw the officers' car, and Hodari ran through an alley while the officers pursued. Officer Pertoso chased on foot. When Hodari came out of the alley onto 62nd Avenue, he looked behind him, did not notice Pertoso until the officer was nearly upon him, and tossed away what looked like a small rock. Pertoso then tackled and handcuffed him, and the discarded rock proved to be crack cocaine.³³

The question was whether Hodari had been seized at the moment he dropped the rock, because evidence abandoned before any seizure cannot be the product of one.³⁴ The tackle came after the toss. Before it, Pertoso had applied no physical force, and Hodari had not submitted, since he was still running. With neither route satisfied, no seizure had occurred when the rock left his hand, so the cocaine was abandoned property and not the fruit of a seizure.³⁵ The tackle was a seizure, because it was an application of physical force, and it would have been one by submission had Hodari stopped on command. Either event simply came too late to reach the rock.

The two routes to a seizure differ in when they are complete. A seizure by force occurs when an officer makes physical contact with a person under circumstances showing an objective purpose to seize, a rule applied in Torres v. Madrid to an officer who shot a fleeing suspect.³⁶ The seizure is accomplished at the moment of contact, so it is not undone if the person then escapes the officer's grasp or keeps fleeing.³⁷ A seizure by show of authority is complete only if the person commanded accedes, and a suspect who runs when an officer shouts a command to stop has not been seized.³⁸ Brendlin v. California restates the point: an officer may seize by a show of authority without any force, but without actual submission there is at most an attempted seizure.³⁹ The same opinion adds that the force or show of authority must be intentionally applied, so an unintended person may be the object of a willful detention, but a harm that results from an unknowing act is not a seizure, as when an officer accidentally struck and killed a motorcycle passenger during a high-speed pursuit.⁴⁰

This requirement sits on top of the reasonable person test and does not replace it. The reasonable person standard remains a necessary condition for a seizure by show of authority, but it is not a sufficient one, because the person must also submit.⁴⁴ The Court has since folded Justice Stewart's touchstone into its seizure cases while holding the submission requirement in place.⁴⁵

The dissent in Hodari D. disagreed with the rule at its root. Justice Stevens, joined by Justice Marshall, argued that the majority took a narrow view of seizure that was at odds with Katz and Terry, both of which refused to let older common-law limits fix the reach of the Amendment.⁴⁶ On the dissent's account, the touchstone of a seizure is a restraint on personal liberty in some way, and the Mendenhall reasonable person standard should decide the case without a further submission requirement.⁴⁷ Applied to Hodari D., that view would treat a pursuit that a reasonable person could not ignore as a seizure from its start, and evidence thrown away during the chase would then come after a seizure. The majority had looked instead to the common law of arrest, under which a show of force produced no arrest unless the arrestee submitted.⁴⁸ The majority's rule also gives a line both sides can identify, since the moment of seizure is the moment of the tackle or the stop. That rule is the law.

A separate question remains whether the officers had reasonable suspicion to pursue in the first place. The holding does not depend on it, because the only issue was whether a seizure had occurred when the rock was dropped, and a concurring opinion accompanied the majority.⁴⁹ The justification for a stop belongs to the reading on stops based on reasonable suspicion. Students lose this issue when they treat a chase or a shouted command as a completed seizure, because without touching or yielding there is at most an attempted seizure.⁵⁰

Detaining Personal Effects

The seizure cases so far have concerned people, but the Fourth Amendment also protects effects, and a possession can be seized without anyone being stopped. Government conduct seizes property when it materially interferes with the owner's possessory rights, and even a lesser interference, such as significantly delaying a traveler's luggage, qualifies.⁵² The reason lies in what the Amendment protects. It guards both the interest in keeping possession of property and the interest in personal privacy, and a seizure threatens the first while a search threatens the second.⁵³ A bag that is held but never opened has therefore been seized, and that seizure needs its own justification even though nothing inside has been exposed.

That justification was defined in United States v. Place, where agents reasonably believed that a traveler's luggage held narcotics. The Court held that police may briefly detain personal effects on reasonable suspicion that they contain contraband or evidence, so long as the detention is limited in scope and duration.⁵⁴ Call this the brief detention of effects rule. It borrows the method of Terry v. Ohio: an officer must point to specific and articulable facts, and the intrusion is judged by balancing the government's need against the invasion it causes.⁵⁵ The seizure in Place occurred when, after the traveler refused consent to a search, an agent told him the luggage would be taken to a federal judge so that a warrant could be sought.⁵⁶

Reasonable suspicion is a modest justification, so the rule allows only a correspondingly modest interference. The Court explained that seizures of effects vary in intrusiveness: the property may be taken from the owner's immediate control or from a third party, and police may confine themselves to an on-the-spot inquiry or move the property elsewhere, so some detentions are minimally intrusive enough for strong government interests to justify them on specific articulable facts.⁵⁷ Length is the main gauge of where a given detention falls on that spectrum. A limit on duration also removes an incentive problem. If reasonable suspicion could support a hold of any length, officers without probable cause could keep a bag indefinitely while they searched for the evidence that would justify keeping it, and the lower standard would swallow the higher one.

A concurrence in the judgment rejected the balancing altogether. Justice Brennan reasoned that seizing the luggage was separate from seizing the traveler, that it invaded the distinct interest in retaining possession, and that seizures of personal property must rest on probable cause.⁵⁸ The majority did not adopt that view, so reasonable suspicion governs brief detentions, but the concurrence explains why duration carries so much weight: dispossession is an intrusion in its own right, and it grows the longer it lasts.

The limit was tested on the facts of Place itself. The Court held that a 90-minute detention of the luggage in an airport environment on reasonable suspicion alone was unreasonable.⁵⁹ The agents also failed to tell the traveler where they were taking the bags, how long he might be without them, or how they would be returned if the suspicion proved unfounded, and that silence aggravated the violation.⁶⁰ A seizure of luggage can restrain the traveler as well, because he must either disrupt his travel plans to stay with the bags or arrange for their return, so a long hold approaches the intrusion of detaining the person. When the detention grows lengthy enough, it amounts to an arrest of the luggage that requires probable cause, and without probable cause police cannot search the detained property.⁶¹

The other side of the line shows that no number of minutes decides the question by itself. In United States v. Van Leeuwen the Court upheld holding two mailed packages for twenty-nine hours until a search warrant was served, because the officers investigated diligently and promptly, the mailer had no liberty interest at stake, and the privacy of the contents was not disturbed until a judge approved the search.⁶² The longer hold was the one upheld. What separated the cases was the kind of interest involved and the officers' diligence, along with the length: a traveler kept from his bags in an airport bears a heavier burden than a mailer whose package arrives a day late.

This pair separates two questions that students tend to merge. Place answered the sniff question by holding that exposing luggage in a public place to a trained dog is not a search, because the sniff discloses only the presence or absence of contraband.⁶⁵ That holding does real work for the detention question, because the Court reasoned that if the sniff had been a search, seizing the bag to arrange it could not have been justified on less than probable cause, however brief the seizure.⁶⁶ Yet the holding does not decide how long the bag may be held. The same structure appears in traffic stops, where in Rodriguez v. United States a dog sniff that was not itself a search was still unlawful because it prolonged the stop beyond the time its traffic mission required.⁶⁷

Students lose this issue when they reason that a lawful sniff makes the whole encounter lawful. The sniff answers whether a search occurred, while the detention is a seizure with its own limits, and an overlong one fails even when the sniff at the end of it is not a search. On an exam stem, look for the clock and for what the owner was told, and check whether the officers' suspicion rests on specific facts or only on a hunch.