Seizures

The Fourth Amendment to the United States Constitution states that ‘‘[t]he right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.’’ As construed by the U.S. Supreme Court, this language means that if a government action is considered a ‘‘search’’ or a ‘‘seizure,’’ it must either be authorized by a warrant issued by a magistrate, or—in emergency situations or for lesser intrusions—there must some other reasonable justification for the action. However, if the government’s action is not a search or a seizure, then the Fourth Amendment is not implicated. Thus, the definition of these two words is crucial in determining the scope of protection from government efforts to investigate crime and other activities. This entry discusses the definition of seizure and the rules that govern seizures.

The Definition of Seizure

According to the Supreme Court, a person is seized for purposes of the Fourth Amendment if a reasonable innocent person, under the same circumstances, would not feel free to terminate the encounter (Michigan v. Chesternut, 1988; Florida v. Bostick, 1991). Applying this test, the Court has held that a seizure occurs when police stop and frisk an individual (Adams v. Williams, 1972), when plainclothes officers confront someone at an airport, ask for the person’s identification and plane ticket and do not return them (Florida v. Royer, 1983), and when cars are stopped at a roadblock, even momentarily (United States v. Martinez-Fuerte, 1976). On the other hand, no seizure occurs when a person agrees to accompany an officer to where his colleagues are being questioned by another officer (Florida v. Rodriguez, 1984), when persons are briefly questioned at their place of work by armed officers (INS v. Delgado, 1984), or when a person is briefly questioned by armed officers on a bus and asked if his or her luggage can be searched (United States v. Drayton, 2002). In each of these last three cases, the Court viewed the encounter as consensual.

Most people probably do not feel free to leave when confronted by an identified police officer, even if the encounter is casual. The Court has nonetheless held to the contrary to avoid unduly restricting the police. The Court seems to agree with the commentary to the American Law Institute’s Model Code of Pre-Arraignment Procedure, which states that police should be allowed to undertake brief suspicionless detentions ‘‘to seek cooperation, even where this may involve inconvenience or embarrassment for the citizen, and even though many citizens will defer to this authority of the police because they believe—in some vague way—that they should.’’

Arrest

" The requirements imposed by the Fourth Amendment when a seizure occurs vary depending on the nature of the seizure. If the action is an arrest, then probable cause must exist. Probable cause is akin to a morelikely- than-not finding, but does not require proof beyond a reasonable doubt, the standard the prosecution must meet to secure conviction at trial. If the arrest is in the home, a warrant is required, and if it occurs in a third party’s home, then both an arrest warrant and a search warrant (based on probable cause to believe the suspect is in the third party’s home), are required, unless exigent circumstances exist. The best example of exigent circumstances is when the police are in hot pursuit of a suspect. If the arrest is not authorized by a warrant, the police must promptly bring the arrestee in front of a magistrate, normally within forty-eight hours of arrest.

Sometimes it is not clear whether police have made an arrest. Obviously, a statement that ‘‘You are under arrest,’’ accompanied by handcuffs and transportation to the station, constitutes an arrest. The Court has also held that an arrest also occurs when police ask an individual to come to the police station and subject him to an hour-long interrogation preceded by Miranda warnings, as well as when police take a seventeen-year-old boy from his house at 3:00 a.m., barefoot and in his underwear, after telling him ‘‘we need to go and talk.’’ Detentions outside the station house can also constitute an arrest. For instance, questioning a suspect for fifteen minutes in a small room off an airport concourse requires probable cause, as does detaining the occupants of a house for forty-five minutes.

On the other hand, a twenty-minute detention of the suspect and his car on a public thoroughfare does not require probable cause, at least when the length of the detention is partly due to the defendant’s attempts to evade police. Nor is probable cause required for a sixteen-hour detention, designed to wait out a suspected ‘‘drug balloon swallower’’ who refused to defecate, at least when it occurs at the international border, where constitutional protections have historically been diminished. The Court has also intimated that if the purpose of removing someone from his or her home is to obtain fingerprints rather than interrogate, probable cause is not necessary, although a judicial order may be.

Stops

A seizure that falls short of an arrest usually requires reasonable suspicion, a level of certainty below probable cause, but one that still requires an articulable suspicion that criminal activity is afoot, rather than a mere hunch (Terry v. Ohio, 1968). Thus, the detentions in the three cases just described all required reasonable suspicion. The most common type of detention authorized on reasonable suspicion is the investigative stop, which involves police attempts to investigate suspicious activity that has not yet resulted in criminal action.

A number of Supreme Court cases help clarify the difference between probable cause, reasonable suspicion, and situations in which the police have insufficient suspicion for a seizure of any type. In Terry v. Ohio, (1968), an officer saw two men pausing to stare in a store window roughly twenty-four times, consult with one another after passing by the store, and on one occasion consult with a third person who left swiftly and then rejoined them a few blocks away. The Court indicated that, although probable cause to arrest did not exist on these facts, the officer’s suspicion that criminal activity was afoot was reasonable, and thus a stop and frisk could take place. Similarly, in Illinois v. Wardlow (2000), the police had reasonable suspicion, but not probable cause, when they saw the defendant standing on a corner in an area known for heavy drug trafficking look in their direction and begin running away from them. In United States v. Arvizu (2002), reasonable suspicion, but not probable cause, existed when the driver of a van registered to a residence known for its association with drug smuggling was seen driving on a dirt road often traveled by drug smugglers, along a route that made little sense for normal travelers; the agent also noted that the driver failed to acknowledge him and that the children in the van waved oddly and had their knees in a raised position as if resting on something.

In contrast, in Sibron v. New York, (1968), the Court held that the ‘‘mere act of talking to a number of known addicts’’ and reaching into one’s pocket does not give police reasonable suspicion that would justify a stop and a frisk of the pocket. Nor did police have reasonable suspicion when they observed an individual and another man in a ‘‘high crime’’ area walking away from one another when they saw the police, or when they received an anonymous tip that a young black male, standing at a particular bus stop and wearing a plain shirt, would be carrying a gun. In Reid v. Georgia, (1980), the Court found that reasonable suspicion did not exist when agents saw a person get off a plane from Ft. Lauderdale (a supposed drug source) with no luggage other than a shoulder bag, apparently make efforts to conceal he was traveling with someone else, and occasionally looked back at that person. In contrast, the Court found reasonable suspicion (but not probable cause) when, in addition to the types of facts that existed in Reid, agents noted that the individual paid for his ticket with cash and that he was traveling under an assumed name (Florida v. Royer, 1983).

There is no easy way to summarize the Court’s decisions in this area, which are all very fact specific. Although the Court is quite willing to provide the police significant leeway in engaging in preventive and investigative stops, it is also has tried to avoid holdings that would allow seizure of large numbers of innocent individuals on the basis of hunches, random guesses, or highly suspect information. Thus, in addition to the decisions just discussed, it has struck down on vagueness grounds a number of loitering and vagrancy statutes that allow seizures of individuals who are standing in or frequenting a place police think they should leave.

Unfortunately, research suggests that, despite these types of decisions, arbitrary seizures take place on a routine basis. Members of minority communities seem to be particularly likely targets of ‘‘aggressive patrolling’’ strategies that attempt to prevent and inhibit criminal activity, to the point where ‘‘driving while black’’ and ‘‘walking while black’’ have become popular phrases for describing the focus of frontline law enforcement. The laxness of the reasonable suspicion standard may be partly to blame. But also contributing to this state of affairs is the fact that the primary means of enforcing the Fourth Amendment is exclusion of illegally seized evidence, a remedy that comes into play only when prosecution occurs and that has only an indirect effect on police. Very often the intent of police making stops is simply to inhibit criminal activity and seize weapons or drugs, not to charge, so the threat of exclusion does not affect them. If and when they do press charges, the failure to obtain a conviction because of the exclusionary rule hurts the prosecutor much more than it affects the police.

Profiling

Another way of controlling police discretion is to formalize the grounds for stops through reliance on empirically based profiles that indicate the type of behavior most likely to be predictive of criminal behavior. Law enforcement agencies have developed airplane hijacker, drug courier, and terrorist profiles in an attempt to aid identification of criminals. For instance, agents purported to be relying on a drug courier profile in both Reid and Royer, the airport cases described previously. The Drug Enforcement Administration claims that its profile results in discovery of drug-related crime in connection with more than 30 percent of the stops made pursuant to it, a ‘‘success rate’’ that might be sufficient for reasonable suspicion (but not for probable cause, which presumably would require a success rate closer to 50 percent).

These profiles are problematic for a number of reasons, however. First, they seem to be ad hoc; the profile factors used by agents in drug courier cases, for instance, seem to change from case to case. Second, even assuming the factors are consistent, they are not always all present in a given case, meaning that the statistical justification for their use, which is based on the presence of all the factors, disappears. Third, use of the profiles allows stops of large numbers of people at airports, on the highways, and in other public places, a large percentage of whom, by definition, are not engaged in criminal activity. Although the definition of reasonable suspicion suggests that a substantial proportion of ‘‘misses’’ is permissible, profiles expose dramatically the amount of discretion that standard affords police.

Seizures Short of a Stop

Sometimes a detention is considered so minor that, even though it is a seizure, neither probable cause nor reasonable suspicion is required. For instance, in United States v. Martinez-Fuerte (1976), the Court held that roadblocks set up to detect illegal immigration effect seizures both at the initial stop and at the referral to a secondary checkpoint to scrutinize Citizenship documents. But it also held that neither seizure requires reasonable suspicion, because the initial stop generally lasts only a few seconds, long enough for an immigration official to survey the occupants of the car, and the document check takes approximately five minutes. Similarly, stopping motorists at a sobriety checkpoint is permissible without any individualized suspicion, because of the ‘‘magnitude of the drunk driving crisis’’ and the minimal intrusion associated with the roadblock. However, a roadblock away from the border, set up solely for the purpose of implementing ‘‘a general interest in crime control’’ and not involving an ‘‘immediate, vehicle-bound threat to life and limb,’’ is impermissible in the absence of individualized suspicion of each driver stopped.

Police may also order the driver of a car validly stopped for a violation of traffic laws to exit the vehicle. Although such an order effects a seizure, the Supreme Court held that the intrusion is de minimus, because a restriction of liberty will occur whether or not the individual stays in the car, and exiting the car exposes little more of the individual. For the same reasons, police can order passengers out of a validly stopped car. Similarly, a brief detention of a driver who has been given a ticket and had his license handed back is permissible to ask him whether he has illicit items in his car.

Finally, the Court has held that there are certain ‘‘special needs’’ situations, where the primary purpose of the government is something other than enforcement of the Criminal Law, that permit a seizure on less than reasonable suspicion. For instance, the seizure necessary to carry out drug testing at workplaces or in schools is permissible on a random basis, as long as the government can show that there is a significant drug problem that needs to be addressed and the drug testing procedure is otherwise reasonable.

Seizures of Property

The Fourth Amendment also governs seizures of property. The Court has held that a seizure of property occurs when there is some ‘‘meaningful interference’’ with an individual’s possessory interest. Putting a tracking device in a can of ether belonging to a suspect is not a seizure, but destroying a portion of a suspect’s drugs is. Generally, a seizure is permissible if there is probable cause, which will usually exist if the search that allows discovery of the item is valid (because a valid search usually requires probable cause).

Occasionally, however, a seizure of property will occur independently of a search. Again, probable cause is usually required for such a seizure, although a warrant is usually not. Cars may be seized under a lawful impoundment policy, luggage may be seized when there is probable cause to believe it contains evidence, and even a residence may be ‘‘seized’’ if the police have probable cause to believe it contains criminal evidence and need time to obtain a warrant.

A number of states have also passed statutes requiring forfeiture of property that has a nexus to criminal activity. For instance, the federal forfeiture statute, 21 U.S.C. } 881(a), permits government confiscation of drugs, drug paraphernalia, and any personal or real property used to carry out drug sales and manufacture, as well as any money obtained in its sale. The Supreme Court has generally upheld such statutes, although confiscation of assets far out of proportion to the crime committed may be a violation of the ‘‘excessive fines’’ clause of the Eighth Amendment.

CHRISTOPHER SLOBOGIN

References and Further Reading

• American Law Institute. A Model Code of Pre-Arraignment Procedure. Philadelphia: American Law Institute, 1975.
• Cloud, Morgan, Search and Seizure by the Numbers: The Drug Courier Profile and Judicial Review of Investigative Formulas, Boston University Law Review 65 (1985): 843.
• Harris, David A., Particularized Suspicion, Categorical Judgements: Supreme Court Rhetoric versus Lower Court Reality Under Terry v. Ohio, St. John’s Law Review 72 (1998): 975–1023.
• LaFave, Wayne, ‘‘Seizures’’ Typology: Classifying Detentions of the Person to Resolve Warrant, Grounds, and Search Issues, University of Michigan Journal of Law Reform 17 (1984): 409–463.
• Maclin, Tracey, The Decline of the Right of Locomotion: The Fourth Amendment on the Streets, Cornell Law Review 75 (1990): 1258–1337.
• ———, ‘‘Black and Blue Encounters’’—Some Preliminary Thoughts about Fourth Amendment Seizures: Should Race Matter, Valparaiso Law Review 26 (1991): 243.

Cases and Statutes Cited

• Adams v. Williams, 407 U.S. 143 (1972)
• Florida v. Bostick, 501 U.S. 429 (1991)
• Florida v. Rodriguez, 469 U.S. 1 (1984)
• Florida v. Royer, 460 U.S. 491 (1983)
• Illinois v. Wardlow, 528 U.S. 119 (2000)
• INS v. Delgado, 466 U.S. 210 (1984)
• Michigan v. Chesternut, 486 U.S. 567 (1988)
• Reid v. Georgia, 448 U.S. 438 (1980)
• Sibron v. New York, 392 U.S. 40 (1968)
• Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868 (1968)
• United States v. Arvizu, 534 U.S. 266 (2002)
• United States v. Drayton, 536 U.S. 194 (2002)
• United States v. Martinez-Fuerte, 428 U.S. 543 (1976)

See also Arrest; Arrest without a Warrant; Calero- Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663 (1974); Chicago v. Morales, 527 U.S. 41 (1999); Delaware v. Prouse, 440 U.S. 648 (1979); Exclusionary Rule; Gerstein v. Pugh, 420 U.S. 103 (1975); Kolender v. Lawson, 461 U.S. 352 (1983); Michigan v. Summers, 452 U.S. 692 (1981); Michigan Department of State Police v. Sitz, 496 U.S. 444 (1990); Papachristou v. City of Jacksonville, 405 U.S. 156 (1972); Payton v. New York, 445 U.S. 573 (1980); Probable Cause; Profiling (including DWB); Rawlings v. Kentucky, 448 U.S. 98 (1980); Reid v. Georgia, 448 U.S. 438 (1980); Search Warrants; Skinner v. Railway Labor Executives’ Association, 489 U.S. 602 (1989); South Dakota v. Opperman, 428 U.S. 364 (1976); United States v. Brignoni-Ponce, 422 U.S. 873 (1975); United States v. Verdugo-Urquidez, 494 U.S. 259 (1990); Vernonia School District v. Acton, Inc., 445 U.S. 208 (1980)