Also known as: free-to-leave · freedom to leave
Written by attorneys · grounded in primary & secondary sources — see below
A standard applied to determine whether police conduct amounts to a seizure of the person under the Fourth Amendment or places a suspect in custody for Miranda purposes. The test asks whether a reasonable person in the suspect's position would believe that he or she is not free to leave without police permission. Application of the standard turns on the totality of objective circumstances surrounding the encounter rather than the subjective intent of the officer.
Fabian Flynn rode as a passenger when officers pulled over the car driven by his friend. Officers lacked reasonable suspicion for the stop. Flynn moved to suppress the drugs found in the glove box. Because a reasonable passenger would not have felt free to leave without permission, Flynn was seized and possessed standing to challenge the stop.
Frank Fisher was stopped on the sidewalk by two officers who asked for identification and questioned him about a recent burglary. The officers told Fisher he could not leave until they finished their inquiry. Because Fisher was not free to leave after a brief period, the encounter exceeded the scope of a permissible Terry stop.
Select any source to read its text and confirm it supports the definition.
Fiona Foster was stopped without reasonable suspicion outside her apartment. Officers discovered an outstanding warrant and arrested her. Evidence found during the search incident to arrest was later offered at trial. The court examined whether Foster remained seized at the moment the warrant was discovered because she was not free to leave.
Felix Franco checked his suitcase at the airport curb. Agents detained the bag for ninety minutes while awaiting a narcotics dog. Franco was told he could not retrieve the bag until the sniff was complete. The prolonged detention rendered Franco not free to leave with his property and converted the encounter into an unreasonable seizure.
Fernando Farrell was pulled over for a minor traffic violation. The officer ordered him to remain in the car and began asking questions about possible drug activity. Farrell was not told he could depart. Because a reasonable motorist in that setting would not have felt free to leave, the questioning occurred during a seizure.
Francois Fortier was taken to the police station for questioning about a robbery. Officers told him he could not go home until they finished their investigation. The prolonged detention and explicit restriction on departure meant Fortier was not free to leave and therefore was seized for Fourth Amendment purposes.
Yes. When police stop a vehicle both the driver and any passengers are seized because a reasonable passenger would not feel free to leave without permission. The passenger therefore may move to suppress evidence obtained as a result of an unlawful stop.
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Yes. Questioning that occurs in the suspect's bedroom at night by multiple officers who surround him and treat him as not free to leave satisfies the custody test even though the encounter takes place at home.
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Yes. Officers must keep a Terry encounter brief and the suspect must remain free to leave after a short time. Moving the suspect, extending the detention, or using physical restraint that prevents departure converts the stop into a de facto arrest requiring probable cause.
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A consensual encounter exists only when a reasonable person would feel free to leave or to decline the officer's requests. Circumstances such as multiple officers, display of weapons, physical touching, or commanding language indicate that the person is not free to leave and therefore has been seized.
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…to the extent necessary to protect the police officers involved during the encounter; and, most importantly, the suspect must be free to leave after a short time and to decline to answer the questions put to him. "[T]he person may be briefly detained against his will while pertinent questions are directed to him. Of course, the…