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 [...]
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