Immigration Lawyers New York



Searches and Seizures: Nuances of Detention

Are you detained if a cop stops you to ask a couple of questions? What if he holds you by the sleeve? What if he tells you you can't leave until he permits you to? Can you be detained, but not arrested? These nuances are touched upon in the following excerpts.

Court Opinions on the Topic:

California v. Hodari D. (1991)
Florida v. Bostick (1991)
Arkansas v. Sullivan (2001)


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Respondent contends that his position is sustained by the so-called Mendenhall test, formulated by Justice Stewart's opinion in United States v. Mendenhall, 446 U.S. 544, 554 (1980) [...]: "person has been 'seized' within the meaning of the Fourth Amendment only if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave." 446 U.S., at 554. [...] In seeking to rely upon that test here, respondent fails to read it carefully. It says that a person has been seized "only if," not that he has been seized "whenever"; it states a necessary, but not a sufficient, condition for seizure -- or, more precisely, for seizure effected through a "show of authority."

[...]

California v. Hodari D. (1991)
The Honorable Justice Stevens, with whom Justice Marshall joins, dissenting:
The facts of this case do not describe an actual arrest, but rather an unlawful attempt to take a presumptively innocent person into custody. Such an attempt was unlawful at common law. Thus, if the Court wants to define the scope of the Fourth Amendment based on the common law, it should look, not to the common law of arrest, but to the common law of attempted arrest, according to the facts of this case. [...] it would still be necessary to decide whether the unlawful attempt to make an arrest should be considered a seizure within the meaning of the Fourth Amendment, and whether the exclusionary rule should apply to unlawful attempts. [...] ...[U]nder the Court's logic-chopping analysis, the exclusionary rule has no application because an attempt to make an unconstitutional seizure is beyond the coverage of the Fourth Amendment, no matter how outrageous or unreasonable the officer's conduct may be.

[...]

California v. Hodari D. (1991)
The Honorable Justice Stevens, with whom Justice Marshall joins, dissenting:
"The danger in the logic which proceeds upon distinctions between a 'stop' and an 'arrest,' or 'seizure' of the person, and between a 'frisk' and a 'search' is twofold. It seeks to isolate from constitutional scrutiny the initial stages of the contact between the policeman and the citizen. And by suggesting a rigid all-or-nothing model of justification and regulation under the Amendment, it obscures the utility of limitations upon the scope, as well as the initiation, of police action as a means of constitutional regulation." Terry v. Ohio, 392 U.S., at 17.

[...]

California v. Hodari D. (1991)
The Honorable Justice Stevens, with whom Justice Marshall joins, dissenting:
At least on the facts of this case, the Court concludes that the timing of the seizure is governed by the citizen's reaction, rather than by the officer's conduct.

[...]

California v. Hodari D. (1991)
The Honorable Justice Stevens, with whom Justice Marshall joins, dissenting:
It seems equally clear to me that the constitutionality of a police officer's show of force should be measured by the conditions that exist at the time of the officer's action. A search must be justified on the basis of the facts available at the time it is initiated; the subsequent discovery of evidence does not retroactively validate an unconstitutional search. The same approach should apply to seizures; the character of the citizen's response should not govern the constitutionality of the officer's conduct.

[...]

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