Sorting out Fourth Amendment issues in the context of warrantless stops can be tricky. I like to break the case down into five basic questions:
- Did a seizure occur?
- If so and it was a stop, was it supported by reasonable suspicion or other valid basis?
- If reasonable suspicion supported the stop, was the officer’s subsequent conduct sufficiently limited in scope?
- If the seizure was an arrest, was it supported by probable cause?
- If the arrest was supported by probable cause, was the search permissible
This flowchart illustrates the analysis:
Right upfront it’s important to note that if no seizure occurred, the Fourth Amendment isn’t implicated. See, e.g.,California v. Hodari D., 499 U.S. 621, 626 (1991) (because the defendant had not been seized when he discarded a rock of crack cocaine, the Fourth Amendment did not require suppression of the drugs); Florida v. Royer, 460 U.S. 491, 498 (1983) (plurality opinion) (“If there is no detention—no seizure within the meaning of the Fourth Amendment—then no constitutional rights have been infringed.”). This post will focus on that first question: Did a seizure occur?
The next thing to note is that the “free to leave” standard applies. As the high Court has put it: “[A] person has been ‘seized’ within the meaning of the Fourth Amendment only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.” United States v. Mendenhall, 446 U.S. 544, 554 (1980). Sometimes a person may not feel free to leave for reasons unrelated to officers’ conduct, such as when officers question passengers on a bus at a scheduled stop. The Court has explained that in these situations passengers do not feel free to leave for reasons independent of a law enforcement presence, namely that by leaving they risk missing the scheduled departure. Florida v. Bostick, 501 U.S. 429, 436 (1991). In this context, the standard is whether a person would have felt free to decline the officer’s request or to terminate the encounter. Id. at 436-37.
The free to leave analysis is an objective one, Michigan v. Chesternut, 486 U.S. 567, 574 (1988), and the court must consider all of the circumstances of the encounter. Bostick, 501 U.S. at 439; Chesternut, 486 U.S. at 572. Relevant factors include:
- The threatening presence of several officers. Mendenhall, 446 U.S. at 554.
- An officer’s display of a weapon. Id. (no seizure where, among other things, DEA agents did not display weapons); Chesternut, 486 U.S. at 575 (no seizure where, among other things, officers did not display any weapons); see also Bostick, 501 U.S. at 437 (although not deciding the issue, noting that there was “some doubt whether a seizure occurred” where, among other things, officers did not point their guns at the defendant).
- An officer’s physical touching of the person detained. Mendenhall, 446 U.S. at 554.
- An officer’s use of language and/or tone suggesting that compliance with the officer’s command might be compelled. Id.; Chesternut, 486 U.S. at 575 (no seizure where among other things, officers did not command that the defendant halt).
- Whether officers retained the person’s identification papers or property. Royer, 460 U.S. at 501-02 (seizure occurred where, among other things, officers who approached the defendant at an airport told him that he was suspected of transporting drugs and asked him to accompany them to a police room while retaining his ticket and drivers’ license).
- Whether officers told the person that he or she was free to leave. Id. at 504 (noting that if the officers had returned the defendant’s airplane ticket and license and told him that he was free to go, “the officers may have obviated any claim that the encounter was anything but a consensual matter from start to finish”). But the fact that officers failed to expressly tell the person that he or she is free to leave is not dispositive of the inquiry. Mendenhall, 446 U.S. at 555 (no seizure where, among other things, the defendant was not so told).
- Whether officers blocked the person’s path. Chesternut, 486 U.S. at 575 (no seizure where among other things, the officers did not use their car to block the defendant’s course of travel or otherwise control the direction or speed of his movement; instead, officers merely drove parallel to the defendant, who was running).
- Whether officers activated sirens or lights. Id. at 575 (no seizure where, among other things, the officers did not activate sirens or flashers). For more on this factor, see Jeff’s blog post here.
Of course, this isn’t an exclusive list. If you’ve got other facts that inform the free to leave analysis, argue them. As noted, the analysis must consider all of the relevant circumstances of the encounter.
And as noted above, if the court concludes that no seizure occurred, the Fourth Amendment analysis is done. If the seizure was as stop, it has to be supported by reasonable suspicion; if an arrest, by probably cause. I’ll take up those questions in later posts.