What Is a Seizure?

We're still talking about whether government action is the kind of thing to which the Fourth Amendment applies at all. Basically, whether the Fourth Amendment even possibly governs the particular conduct at issue. As I said in the previous lesson, one key question there is was this government action, and we're assuming at this point that we've determined that this is government action and that it in some way intruded on someone's person, house, papers, or effects. Was it a seizure or was it a search? If neither of those things is true, Fourth Amendment doesn't apply.

Seizures to Property

As I also said, the question of whether something is a search is one of the hardest and most complicated and most important questions in Fourth Amendment doctrine. For that reason, I'm going to talk about that second. I'm going to talk about seizures a little bit first, and we're going to talk about that and then we're going to get to the question of what constitutes a search because there's just a lot more law to go through there. What is a seizure? A seizure basically can be two things. It can be the police seizing a person or the police seizing some property. The definitions of the two contexts are going to look a little bit different. I'm going to talk about the seizures of the person first.

Seizures of Persons

What does it mean for a person to be seized by the police? Now, the most classic example is an arrest. You've probably seen many arrests on television. You may have seen some in person. You may even have been arrested yourself. That's when the police determine someone has committed a crime, often put them in handcuffs, take them in, and so forth. The thing I want you to understand is that while an arrest is a seizure, not all seizures rise to the level of arrest. I want you to understand the actual definition of a seizure to know what kinds of things are covered. Basically, here's what a seizure is.

It's a situation where an officer using physical force or show of authority terminates or restrains a person's freedom of movement through means intentionally applied. If a police officer goes and grabs someone and holds them down, even if they let them go ten minutes later, that person has been seized, but that's not even the complete definition. The case law also says if there's no unambiguous intent to restrain by the police officer, we're also going to say something is a seizure when a reasonable person would believe that she is not free to leave or terminate an encounter with the government.

So, in a situation where the police have created circumstances where a reasonable person would believe that she's not free to leave or to terminate an encounter with some agent of the government. After the police put hands on you or the person submits and says, " Take me into custody," or whatever. The reason this matters is because it's actually not going to be a seizure if the police say, " Hey, stop," and someone runs. It's not a seizure until the person stops and surrenders to the police, submits, or the police tackle the person.

Believe it or not, that line of when the seizure occurs actually can have some implications in tricky Fourth Amendment questions. But there's going to be a lot of contexts where you are going to want to look at a fact pattern and figure out, "Was this a seizure?" If the police tackle the person, that's easy, but another fact pattern is where police stop someone and ask them some questions, and they don't put hands on them, they don't tackle them, they don't explicitly tell them, "I'm arresting you or I'm seizing you," and then we're going to have to look to this test.

Totality of Circumstances Test

Based on the totality of the circumstances, would a reasonable person feel not free to leave or to decline an officer's request to answer questions? Here, it's more of an all things considered test rather than a bright-line rule, but it's often going to come up when police stop people on the street, they stop people in the airport, comes up in situations where the police come on buses and are questioning people. So, look at certain factors. Whether the officer brandishes a weapon, that's obviously going to influence whether someone feels free to leave or whether a reasonable person feels free to leave.

Also, look at the officer's tone and demeanor when interacting with the individual questioned. Friendly questions are going to look a lot different than loud orders being shouted. Then finally, look at whether the individual was told by the police he had the right to refuse consent to stop, or to be searched, or to answer questions, and so forth. That's certainly not dispositive. There's many situations where courts confront fact patterns where defendants were not told they had the right to refuse and nonetheless find that no seizure, but it is relevant. The thing to note about this test is reasonable does a lot of work.

There's lots of situations where you might look at a fact pattern and conclude, "Yes, I probably wouldn't have felt free to leave, or I can imagine that this defendant didn't feel free to leave." Courts are usually pretty generous to the government in concluding that a reasonable person, and maybe they're thinking a reasonable judge, a reasonable Supreme Court justice, would feel free to leave in these situations, even if common sense tells you that if a police officer comes up to you and starts asking you questions, most people feel like they have to comply.

Traffic Stops as Seizures

Those are situations where someone is seized because an officer comes up to them, starts talking to them, and so forth, but there's other situations. Again, we're still talking about seizures that are less than an arrest that still count as seizures for constitutional purposes. Another classic context is a traffic stop. If you've ever been driving and you're pulled over by the police, they turn their sirens on. In that situation, the police officer has made a show of authority. And if you pull over, you have submitted to that show of authority. You have been seized. The driver has been seized by the police officer in that situation where the vehicle is pulled over, even if the driver is never actually arrested.

Both Driver and Passengers Are Seized

The thing that's important to note here is pulling over a vehicle means that the driver is seized. It also means that the passengers of the vehicle are seized, and that's going to matter because there's contexts where the passenger might end up being prosecuted for evidence that's found as a result of this and wants to be able to challenge the legality of the traffic stop. Here, because the passenger is equally being pulled over and unable to move, being in the vehicle, the passenger has also been seized. One thing that is important to note is the Supreme Court has said that it is fine for police to use drug-sniffing dogs during a traffic stop.

A Valid Seizure May Become Invalid

So, if someone has been permissibly pulled over and seized, and we'll talk about when exactly that's permissible a little bit later on, but someone's been permissibly pulled over and stopped, they can use a drug-sniffing dog just to smell the car and determine are there drugs in this car. Then that might give them probable cause for search, more on that later, but only if doing so doesn't prolong the stop unreasonably. A seizure could be permissible at the outset, but then it's a continued seizure if the police, let's say, they have to call for the drug-sniffing dog and it takes an hour to get there, but you can do it while the police are doing other things that are already permitted.

Just to reiterate a point I've already made, a good definition of arrest is when the police take a person into custody against their will for criminal prosecution or interrogation. That is unquestionably a seizure, but you don't need an arrest to conclude that there's a seizure. A seizure can be shorter, it can be less serious, as long as this less demanding test for the seizure of a person is satisfied, that this test that I've gone over, as long as that's satisfied, you've got a seizure, and whether something counts as an arrest or not really doesn't matter for Fourth Amendment purposes, except in a couple of distinct places that we'll talk about a little bit later.

Seizures to Property

That's seizure to the person. What about property? Property can be seized. You don't have a lot of questions that are really going to meaningfully turn on whether the definition of seizure is with respect to property, but so you know the test, it counts as some kind of meaningful interference with a person's possessory interest in something. So, if the police just pick up an object for five seconds and put it back down, that's not a seizure of that object. It could be a search. We'll talk about that a little bit, but it's not a seizure. If police take it for some extended period of time that really meaningfully interferes with the owner's ability to possess it, that will count as a seizure of that object.

Recap

Just as a reminder, all we're talking about here is this threshold question. Is the Fourth Amendment even potentially applicable to this government action? Did what the government do constitute a search or seizure? Here we've been talking about seizure such that the Fourth Amendment even might apply. If something doesn't count as a seizure at all, the Fourth Amendment just doesn't govern it at all. It's completely irrelevant. So, when you're approaching a question and it seems to turn on whether something is a seizure or not, first identify, is the thing being seized an object or is it a person? If it's an object, just look to the question of whether there's meaningful interference with a possessory interest.

If it's a person, look to this question of whether the police officer exercised force or show of authority through means intentionally applied, and the person submits to that show of authority. If not, use the totality of the circumstances test to figure out whether a reasonable person would have felt free to leave when there is no unambiguous intent by the police.