What is a Seizure?
Assessment Questions
Question 1
Which of the following scenarios likely would not rise to the level of a “seizure” of a person under the Fourth Amendment?
a
A traffic stop, in which a cop flashes his lights, and the driver pulls over to the curb
b
An arrest
c
A cop approaches a young man on the street and asks him in a friendly manner if he heard that somebody got robbed in the neighborhood the night before.
d
A cop approaches a young man on the street, pulls a gun, screams at the man to stay where he is, and demands to know why he robbed the bodega down the street the night before.
Traffic stops and arrests are textbook seizures under the Fourth Amendment. Conversations with police officers that don’t involve sirens or handcuffs can be more ambiguous, and that’s where you’ll want to look at the totality of the circumstances to decide if there’s been a seizure or not. The test is whether a reasonable person would believe he was not free to leave or terminate the encounter with police. Factors that help determine whether that belief is reasonable include the officer’s tone, whether he brandishes a weapon, and whether he issues any instructions that the person stop, stay, or answer the questions. In Choice D, those factors weigh in favor of finding that a seizure took place; in Choice C, they do not.
Question 2
Which of the following statements about seizures is not true?
a
A seizure of property occurs when the government meaningfully interferes with someone’s possessory interest in an object.
b
All arrests are seizures of a person, but not all seizures of a person are arrests.
c
You can seize a person by simply flashing a badge and physically detaining her for several minutes.
d
You can seize property by simply flashing a badge and physically picking up the item.
Choice A correctly states the standard for a seizure of property. It also explains why Choice D is incorrect: simply picking up an item and replacing it is not a sufficiently “meaningful” interference with a suspect’s possessory interest to justify calling it a seizure. In terms of seizures of persons, what’s required is the use of physical force or a show of authority to terminate or restrain a person's freedom of movement through means intentionally applied. Arrests fit that definition, but so do many other situations that do not rise to the level of an arrest. Even a brief detention lasting a few minutes can count as a seizure; so can any encounter with police in which a reasonable person would not feel free to leave.
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