When a Seizure Begins

When a Seizure Begins

The justification that Terry requires is owed only for a seizure, so the first question in any street encounter is when a seizure begins. Terry v. Ohio supplies the starting definition: an officer who accosts a person and restrains his freedom to walk away has seized him.¹ That definition turns on restraint, but it does not say what counts as restraint when the person is moving, has received only a command, or has not yet yielded. California v. Hodari D. and the decisions around it answer by recognizing two routes to a seizure, physical force and submission to a show of authority, and by treating a failed attempt to stop someone as no seizure at all.² The paragraphs below take that dividing line first and then the reasonable-person test that governs shows of authority.

The rule has a clear center. Hodari D. held that police pursuit of a suspect is not itself a seizure, and that a seizure requires either the application of physical force by the officer or the suspect's submission to a show of authority, so a mere order to stop is not enough.³ The reasoning treats a seizure as an actual restraint of liberty. A suspect who hears a command, declines to obey it, and keeps running still has the freedom of movement the Fourth Amendment protects, so the officer has made only an attempt. Brendlin v. California later restated the rule in those terms: an officer may seize by a show of authority without physical force, but without actual submission there is at most an attempted seizure.⁴ The Hodari majority also drew on the common law of arrest, under which an arrest by show of authority was not complete until the person submitted.⁵

The practical consequence is that the legal moment is fixed by what the person does, and the officer's words do not fix it. If an order to stop were enough, a fleeing suspect would be seized at the instant of the command, and anything the suspect did afterward, such as throwing away contraband, would be the product of a seizure that needed reasonable suspicion at that instant. Hodari D. rejects that reading. An officer there ordered a fleeing suspect to stop and chased him, the suspect kept running and threw away contraband before being caught, and no seizure had yet occurred, so the discarded item was not the product of one.⁶ Flipping a single fact shows that submission is what changes the result.

Physical force works differently, because the force itself is the restraint and the person's response adds nothing. Once an officer makes physical contact with a suspect in circumstances showing an objective purpose to seize, such as grabbing an arm or tackling, the person is seized at the moment of contact.⁷ The contact must be a deliberate act of restraint, since an unintended consequence of police action is not a seizure.⁸ In Terry itself, McFadden grabbed Terry and spun him around before patting down his outer clothing.⁹ In United States v. Sokolow, a DEA agent displayed credentials, grabbed the respondent by the arm, and moved him back onto the sidewalk as he tried to hail a cab. The court of appeals held that he was seized at that point, and the Supreme Court, with the government not contesting the holding, assumed without deciding that a stop had occurred.¹⁰

Many encounters involve neither contact nor a clear command, and for them courts apply a test from United States v. Mendenhall. When police conduct does not show an unambiguous intent to restrain, or the person's response is only passive acquiescence, a seizure by show of authority requires that, in view of all the circumstances, a reasonable person would have believed he was not free to leave.¹¹ Where the person has no wish to leave for reasons apart from the police presence, as when someone is questioned on a bus, the question becomes whether a reasonable person would feel free to decline the officers' requests or otherwise end the encounter.¹² The test separates conduct that restrains from conduct that does not. Agents who told an airport traveler he was suspected of carrying drugs, took his identification and ticket, and asked him to come to a back room had seized him in Florida v. Royer, while agents who questioned factory workers or bus passengers and left a path to leave had seized no one in INS v. Delgado and United States v. Drayton.¹³

After Hodari D., the reasonable-person test and the submission requirement are two conditions for a seizure by show of authority, and both must be met. The Hodari majority treated the reasonable-person test as necessary but not sufficient: if a reasonable person would feel free to go, no show of authority has restrained anyone, yet even a command that no reasonable person would ignore effects no seizure until the person yields.¹⁴ Justice Stevens, joined by Justice Marshall, would have treated the reasonable-person standard as the whole test and objected that requiring submission departed from Mendenhall.¹⁵ That dissenting position is the contrast to know, and the governing rule remains the Hodari majority's.

On an exam stem in which officers chase a suspect who discards drugs along the way, the tempting move is to call the chase a seizure and demand reasonable suspicion for it. The question that decides the issue is whether the suspect had yielded or been touched when the item was dropped, because pursuit alone is not a seizure.¹⁶ If the suspect submitted first, or was grabbed first, the seizure had begun and what followed is tested against it. Fixing the moment of seizure also fixes which facts count, since the dual inquiry asks only what the officer knew when the intrusion began. Once a seizure exists, the remaining question is what justified it, and the sections that follow turn to reasonable suspicion.