The Hitchhikers Guide to the Fourth Amendment: The Plight of Unreasonably Seized Passengers under the Heightened Factual Nexus Approach to Exclusion

By Soree, Nadia B. | American Criminal Law Review, Summer 2014 | Go to article overview

The Hitchhikers Guide to the Fourth Amendment: The Plight of Unreasonably Seized Passengers under the Heightened Factual Nexus Approach to Exclusion


Soree, Nadia B., American Criminal Law Review


B. The Heightened Factual Nexus Approach: An Impossible Bind for the Reasonable, but Unreasonably Seized, Passenger

1. Defining the Fourth Amendment Seizure: From Pedestrian to Passenger

The Supreme Court, in the landmark decision of Terry v. Ohio, held that a police constraint short of a formal arrest could still trigger one's Fourth Amendment protection against being unlawfully seized. (195) Specifically, the Terry Court defined a Fourth Amendment seizure as occurring "whenever a police officer accosts an individual and restrains his freedom to walk away." (196) The Court elaborated that not all contact between officer and citizen rises to the level of a Fourth Amendment seizure, but that "when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a 'seizure' has occurred." (197)

Many years later, the Court applied Terry's definition to facts involving Drug Enforcement Agency ("DEA") agents who approached a woman at an airport concourse and, after having identified themselves, requested to inspect her identification and ticket. (198) A fractured Court found this encounter to be reasonable under the Fourth Amendment, although there was disagreement as to whether a seizure had occurred. (199) Consequently, only two Justices officially endorsed the part of Justice Stewart's opinion providing the definition of a seizure that would later be referred to as "the Mendenhall test." (200) This definition added a layer to the Terry formulation: "a person has been 'seized' ... 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." (201) In I.N.S. v. Delgado, the Court quoted Mendenhall's language, which has become an essential part of the definition of the Fourth Amendment seizure. (202)

The Court, in California v. Hodari D., added one other requirement to the Terry-Mendenhall definition: when the seizure is predicated upon a "show of authority," the individual is not in fact seized until and unless he submits to such authority, or is subdued by physical force. (203) In other words no seizure has occurred until the individual is under the officer's control. Turning to passengers (albeit traveling by bus, rather than by automobile), the Court clarified that Mendenhall's language indicating an individual's freedom to leave or "walk away," was inapplicable where the approached individual may reasonably feel unable to leave, not because of the police interest, but as "the natural result of his decision to take the bus" and the fear of being stranded. (204) Eschewing any per se rule with respect to bus dragnets, the Court phrased the test of whether police have conducted a Fourth Amendment seizure as follows:

   [A] court must consider all the circumstances surrounding the
   encounter to determine whether the police conduct would have
   communicated to a reasonable person that the person was not free to
   decline the officers' requests or otherwise terminate the
   encounter. That rule applies to encounters that take place on a
   city street or in an airport lobby, and it applies equally to
   encounters on a bus. (205)

As we shall see, that rule also applies to encounters in private automobiles.

The Court in United States v. Brignoni-Ponce considered the applicability of the Fourth Amendment to roving-patrol stops of vehicles traveling near the Nation's border. (206) The Court held that the Fourth Amendment prohibits even brief detentions207 unless supported by at least reasonable suspicion. (208) In Delaware v. Prouse, the Court reiterated that "stopping an automobile and detaining its occupants constitute a 'seizure' within the meaning of [the Fourth and Fourteenth] Amendments" (209) in the context of a random stop to check the driver's license and the vehicle registration. (210) The Court also emphasized the requirement that officers have at least some "articulable basis amounting to reasonable suspicion" for stopping a particular driver, admonishing that "[t]his kind of standardless and unconstrained discretion is the evil" the Court had, in earlier cases, sought to curtail. …

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