What is a seizure of the person

Here is an article brought to our attention by FourthAmendment.com.

A thoughtful article about the Supreme Court’s "seizure" doctrine, so much a part of the all encompassing reasonable suspicion standard, by David K. Kessler is Free to Leave? An Empirical Look at the Fourth Amendment’s Seizure Standard, 99 J. Crim. L. & Criminology 51 (2009).

Whether a person has been “seized” often determines if he or she receives Fourth Amendment protection. The U.S. Supreme Court has established a standard for identifying seizures: a person is seized when a reasonable person in his situation would not have felt “free to leave” or otherwise to terminate the encounter with law enforcement. In applying that standard, today’s courts conduct crucial seizure inquiries relying only upon their own beliefs about when a reasonable person would feel free to leave. But both the Court and scholars have noted that although empirical evidence about whether people actually feel free to leave would help guide the seizure inquiry, no such evidence presently exists. This Article presents the first empirical study of whether people would actually feel free to leave in two situations in which the Court has held that people would: on public sidewalks and on buses. Drawing on a survey of 406 randomly selected Boston residents, this Article concludes that people would not feel free to end their encounters with the police. Under the Court’s current standard, respondents would be seized within the meaning of the Fourth Amendment in both scenarios. The data also show that knowledge of one’s legal right to end the encounter with the police would not make people feel free to leave, and that women and people under twenty-five would feel less free to leave than would men and people over twenty-five. This initial empirical evidence suggests the need to rethink the current seizure standard.

When the Shirt or First Sergeant or supervisor tells you that you have to come with them to CID/OSI/NCIS, is that not a seizure?  What junior enlisted person is going to say no or feel that they can just not go?  And yet I hear that argued quite frequently in military situations. 

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One response to “What is a seizure of the person”

  1. J says:

    I am a civilian. I got onto a bus one day through the backdoor 4-5 seconds before it closed. A cop standing on the platform yelled and pointed hey you in my direction just as the door closed, and the bus started moving and leaving the station. The bus traveled 6-10 feet before stopping because the cop had yelled at the driver to “shut it down”. The door opened again and he ordered me to get off the bus. I was shocked, but I complied. I got off and the bus left. Then the cop ordered me to give him my ID, I did. Then he ordered me to meet him 40yds away, across the street from the at-grade bus platform. So he rode off on his bike taking my driver’s license with him to the intersection that I had just come from before I had gotten on the bus. He had seized my ID. When I got there, he was writing a ticket, and ordered me to sit on the wall of a planter while he wrote this ticket. Then he started interrogating me about where I lived. I told him my address. Then he asked how long I had been living at the address I had just mentioned, which was different from the address listed on my license. He never read me any Miranda warning. I told him 6 months. So then he added an extra count to my Jaywalking ticket, for violating a statute that requires motor vehicle drivers to notify the dmv within ten days of moving to a new location, of their new address, and carry proof of this notification. I can attest that I also felt no right in this situation at any time to just walk away. What was I supposed to do? Remain on the bus? Do you think that I would not have been detained longer if I had refused to answer his interrogations? He would have just kept me detained longer!

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