What is a Seizure?

Introduction

We typically think of the 4th Amendment as it relates to searches, but it also relates to “seizures.”  Law enforcement can seize a person (an arrest) or a house, paper or effect (seizing property).  Whether that seizure of person or property requires probable cause or reasonable suspicion will be discussed in later sessions.

 Seizing Persons

Basically, a person can be seized by the police either by a touching with the intent to restrain, or a show of authority which leads the citizen to submit to that authority.  For instance, the Court has said that merely driving next to a person in a patrol car (who had taken flight) is not a seizure, chasing after someone ordering them to stop is not a seizure if the suspect does not submit, but shooting (even justified) where the bullet strikes the suspect but the person continues to flee is a seizure. 

 Seizing Property

Determining when there has been the seizure of property is a bit easier.  The Supreme Court has said, “A ‘seizure’ of property occurs when there is some meaningful interference with an individual's possessory interests in that property.”

Conclusion

Put simply, if an officer takes custody of a person or a person’s property, even temporarily, that would constitute a seizure under the Fourth Amendment – which requires that the seizure be reasonable. 

Legal Supplement

Terry v. Ohio, 392 U. S. 1, 19 (1968):

This case concerns the “seizure” of a “person,” which can take the form of “physical force” or a “show of authority” that “in some way restrain[s] the liberty” of the person. 

United States v. Mendenhall, 446 U.S. 544 (1980):

We conclude that 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. Place, 462 U.S. 696 (1983):

Where law enforcement authorities have probable cause to believe that a container holds contraband or evidence of a crime, but have not secured a warrant, the Court has interpreted the Amendment to permit seizure of the property, pending issuance of a warrant to examine its contents, if the exigencies of the circumstances demand it or some other recognized exception to the warrant requirement is present.

Although the 90-minute detention of respondent's luggage is sufficient to render the seizure unreasonable, the violation was exacerbated by the failure of the agents to accurately inform respondent of the place to which they were transporting his luggage, of the length of time he might be dispossessed, and of what arrangements would be made for return of the luggage if the investigation dispelled the suspicion. In short, we hold that the detention of respondent's luggage in this case went beyond the narrow authority possessed by police to detain briefly luggage reasonably suspected to contain narcotics.

United States v. Jacobsen, 466 U.S. 109 (1984):

A "seizure" of property occurs when there is some meaningful interference with an individual's possessory interests in that property.

[T]he removal of the plastic bags from the tube and the agent's visual inspection of their contents enabled the agent to learn nothing that had not previously been learned during the private search.  It infringed no legitimate expectation of privacy, and hence was not a "search" within the meaning of the Fourth Amendment.

Michigan v. Chesternut, 486 U.S. 567 (1988):

The cruiser quickly caught up with respondent and drove alongside him for a short distance. As they drove beside him, the officers observed respondent discard a number of packets he pulled from his right-hand pocket. Officer Peltier got out of the cruiser to examine the packets. He discovered that they contained pills. While Peltier was engaged in this inspection, respondent, who had run only a few paces farther, stopped.

[W]e conclude that the officers' conduct did not constitute a seizure.

California v. Hodari D., 499 U.S. 621 (1991):

From the time of the founding to the present, the word "seizure" has meant a "taking possession,"

There can be constructive detention, which will constitute an arrest, although the party is never actually brought within the physical control of the party making an arrest. This is accomplished by merely touching, however slightly, the body of the accused, by the party making the arrest and for that purpose, although he does not succeed in stopping or holding him even for an instant;

The narrow question before us is whether, with respect to a show of authority as with respect to application of physical force, a seizure occurs even though the subject does not yield. We hold that it does not…

It does not remotely apply, however, to the prospect of a policeman yelling "Stop, in the name of the law!" at a fleeing form that continues to flee. That is no seizure.

There can be no arrest without either touching or submission.

Torres v. Madrid, 592 U.S. _______ (2021):

[T]the common law rule does not transform every physical contact between a government employee and a member of the public into a Fourth Amendment seizure. A seizure requires the use of force with intent to restrain. Accidental force will not qualify. We hold that the application of physical force to the body of a person with intent to restrain is a seizure even if the person does not submit and is not subdued.