Contributions

Seizures Conducted Absent Physical Force: Momentary Compliance Versus Submission

by Dean S. Ache­son1

The Fourth Amend­ment pro­tects “[t]he right of the peo­ple to be secure in their per­sons … against unrea­son­able search­es and seizures.”2 Jurispru­dence con­cern­ing street encoun­ters with law enforce­ment must there­fore con­front, explic­it­ly or implic­it­ly, the ten­sion between society’s dual inter­ests in pro­tect­ing civ­il lib­er­ties and inves­ti­gat­ing crim­i­nal activ­i­ty.3 Along with the fact that these inter­ac­tions “may inflict great indig­ni­ty and arouse strong resent­ment,” their vari­ety pos­es par­tic­u­lar prob­lems for courts adju­di­cat­ing Fourth Amend­ment chal­lenges to police con­duct.4

In Cal­i­for­nia v. Hodari D., the Supreme Court clar­i­fied what con­duct trig­gers Fourth Amend­ment pro­tec­tions by hold­ing that a seizure requires appli­ca­tion of phys­i­cal force or sub­mis­sion to a show of police author­i­ty.5 Far from elim­i­nat­ing all ambi­gu­i­ty in the seizure analy­sis, how­ev­er, this bright line rule rais­es the issue of whether an indi­vid­ual has been seized by momen­tar­i­ly yield­ing to a show of author­i­ty before flee­ing or oth­er­wise ter­mi­nat­ing a police encounter.6 The answer to this question—specifically, whether pre-flight com­pli­ance con­sti­tutes sub­mis­sion with­in the mean­ing of the Fourth Amendment—ultimately deter­mines when law enforce­ment must have a basis to jus­ti­fy the seizure.7 If an indi­vid­ual is not seized at the time of the ini­tial encounter, then there is no Fourth Amend­ment vio­la­tion to rem­e­dy, and any evi­dence dis­card­ed dur­ing flight is admis­si­ble at tri­al.8

This arti­cle will argue that, under Fourth Amend­ment prece­dent, tem­po­rary com­pli­ance dur­ing a police encounter does not con­sti­tute sub­mis­sion where the defen­dant mere­ly responds to pre­lim­i­nary ques­tion­ing from offi­cers and engages in eva­sive behavior.

*****

Fourth Amend­ment pro­tec­tion against unrea­son­able seizures “does not pro­scribe all con­tact between the police and cit­i­zens.”9 A seizure occurs only when police have “in some way restrained the lib­er­ty of a cit­i­zen” through “phys­i­cal force or show of author­i­ty.”10 A show of author­i­ty refers to police con­duct that caus­es “a rea­son­able per­son … [to] have believed that he was not free to leave” under the total­i­ty of the cir­cum­stances.11 Since this is a “nec­es­sary, but not a suf­fi­cient, con­di­tion,” a seizure effec­tu­at­ed with­out phys­i­cal force requires not only a show of author­i­ty by law enforce­ment, but also sub­mis­sion to that show of author­i­ty by the sus­pect.12

Because it affects the tim­ing of a seizure, the sub­mis­sion require­ment announced in Hodari is espe­cial­ly impor­tant in street encoun­ters where an indi­vid­ual, pri­or to their ulti­mate deten­tion, takes flight after a brief inter­ac­tion with police. A seizure is unrea­son­able under the Fourth Amend­ment if it lacks an ade­quate basis to jus­ti­fy the intru­sion into the lib­er­ty of the indi­vid­ual: prob­a­ble cause for an arrest and rea­son­able sus­pi­cion for an inves­ti­ga­to­ry stop.13 “[T]iming … is sig­nif­i­cant” because deter­min­ing pre­cise­ly when police have seized a defen­dant affects whether courts may con­sid­er spe­cif­ic con­duct bear­ing on rea­son­able sus­pi­cion into the valid­i­ty of a seizure.14 Under the exclu­sion­ary rule, evi­dence obtained as a result of a Fourth Amend­ment vio­la­tion is inad­mis­si­ble.15 Since evi­dence obtained pri­or to appre­hen­sion is “not the fruit of a seizure,” it is admis­si­ble even in the absence of prob­a­ble cause or rea­son­able sus­pi­cion.16

Deter­min­ing whether a sus­pect who momen­tar­i­ly yields to a show of author­i­ty before tak­ing flight has been seized is a “fact-inten­sive inquiry” into all the cir­cum­stances of a police encounter.17 Courts hold­ing that a brief encounter with law enforce­ment does not con­sti­tute sub­mis­sion to a show of author­i­ty ground their analy­sis in the out­come and rea­son­ing of Hodari.18 Since a seizure effec­tu­at­ed with­out phys­i­cal force requires “sub­mis­sion to the asser­tion of author­i­ty,”19 courts must exam­ine the nature of the encounter to deter­mine whether there was unequiv­o­cal com­pli­ance with the police.20 Inter­ac­tions that involve min­i­mal affir­ma­tive con­duct or eva­sive behav­ior by the defen­dant do not amount to sub­mis­sion.21 Since “a law enforce­ment offi­cer’s approach­ing a per­son and ask­ing him ques­tions on the street does not, with­out more, effec­tu­ate a seizure,”22 a short, insub­stan­tial exchange with offi­cers does not con­sti­tute sub­mis­sion to author­i­ty unless it is part of a sub­stan­tial­ly more con­fronta­tion­al encounter.23 Hold­ing that this type of inter­ac­tion amounts to a seizure would only under­mine the deter­rence pur­pose under­ly­ing the exclu­sion­ary rule by pun­ish­ing law enforce­ment for con­duct­ing rou­tine inves­ti­ga­to­ry tech­niques.24

Courts hold­ing that an indi­vid­ual is seized when there is momen­tary com­pli­ance pri­or to flight, on the oth­er hand, adopt a stricter read­ing of Hodari, in which any com­pli­ance con­sti­tutes sub­mis­sion to a show of author­i­ty.25 Since a seizure has occurred when police have “in some way restrained the lib­er­ty of a cit­i­zen,”26 sub­mis­sion does not require a lengthy or involved inter­ac­tion, and “[l]ater acts of non­com­pli­ance do not negate a defendant’s ini­tial sub­mis­sion, so long as it was authen­tic.”27 Nonethe­less, these courts typ­i­cal­ly empha­size fac­tors demon­strat­ing the con­fronta­tion­al nature of the police encounter at issue.28 Appeal­ing more broad­ly to the prin­ci­ples under­ly­ing the Fourth Amend­ment, some courts argue that “a broad­er def­i­n­i­tion of ‘seizure’—or some oth­er remedy—is required to ade­quate­ly pro­tect Fourth Amend­ment val­ues from the harms flow­ing from police ini­ti­a­tion of Ter­ry stops with­out rea­son­able sus­pi­cion.”29

*****

The view that tem­po­rary coop­er­a­tion with law enforce­ment does not amount to sub­mis­sion when the defen­dant responds to brief, pre­lim­i­nary police ques­tion­ing with eva­sive behav­ior most close­ly accords with Hodari and oth­er lead­ing prece­dents for three rea­sons. First, the sub­mis­sion require­ment makes clear that a seizure is a dis­crete action rather than a con­tin­u­ous event that begins with an individual’s ini­tial inter­ac­tion with police and pro­ceeds until their ulti­mate appre­hen­sion. Sec­ond, an exam­i­na­tion into the entire nature of a police encounter is nec­es­sary to ensure actu­al sub­mis­sion rather than mere momen­tary com­pli­ance with law enforce­ment. Third, sub­mis­sion pro­motes the func­tion­al­i­ty of the exclu­sion­ary rule.

An encounter where police make a show of author­i­ty is not a seizure “with­out actu­al sub­mis­sion” by the sus­pect.30 In hold­ing that an indi­vid­ual has not been seized with­out yield­ing to a show of author­i­ty by police, the Court in Hodari stat­ed that “[a] seizure is a sin­gle act, and not a con­tin­u­ous fact.”31

Under the Fourth Amend­ment, an arrest is not “con­tin­u­ing … dur­ing the peri­od of fugi­tiv­i­ty” if a sus­pect escapes after “the slight­est appli­ca­tion of phys­i­cal force.”32 Since a seizure is an instan­ta­neous act, it can­not be char­ac­ter­ized as “a ‘con­tin­u­um’ that can span the time between a show of author­i­ty and a sur­ren­der.”33 There­fore, even­tu­al appre­hen­sion does not pro­vide retroac­tive con­fir­ma­tion that an indi­vid­ual was seized at the time that law enforce­ment made a show of author­i­ty. Only if an indi­vid­ual unequiv­o­cal­ly sub­mits to a show of author­i­ty dur­ing a police encounter pri­or to their flight and sub­se­quent arrest would they be seized under the Fourth Amend­ment at the time of the ini­tial inter­ac­tion.34

Absent sub­mis­sion, there is noth­ing more than an attempt­ed seizure, which is “beyond the scope of the Fourth Amend­ment.”35 Deter­min­ing “[w]hether con­duct con­sti­tutes sub­mis­sion to police author­i­ty … depend[s], as does much of the Fourth Amend­ment analy­sis, on ‘the total­i­ty of the circumstances—the whole pic­ture.’”36 “[B]oth the nature of the show of author­i­ty as well as the suspect’s con­duct” are rel­e­vant to this analy­sis.37 Although the brevi­ty of a police encounter some­times weighs against find­ing sub­mis­sion to a show of author­i­ty,38 com­pli­ance does not need to be “extra­or­di­nar­i­ly brief” in order to hold that a “sus­pect ha[s] not man­i­fest­ed suf­fi­cient sub­mis­sion to author­i­ty.”39 If dura­tion was dis­pos­i­tive to the issue of sub­mis­sion, then all sus­pects who flee dur­ing fleet­ing inter­ac­tions with law enforce­ment would receive Fourth Amend­ment pro­tec­tions, regard­less of their inten­tions or the nature of their actions.40 In Unit­ed States v. Bald­win, the defen­dant momen­tar­i­ly com­plied with a show of author­i­ty by stop­ping his car when hailed down by police sirens, but refused to com­ply with orders to show his hands and sub­se­quent­ly fled.41 The court held that “a sus­pect must do more than halt tem­porar­i­ly” in order to com­ply with the offi­cers’ order to stop, explain­ing that the rel­e­vant fac­tor in the seizure analy­sis was “the nature of the inter­ac­tion, and not its length.”42

For the same rea­son, con­duct involv­ing “eva­sion of police author­i­ty” does not con­sti­tute sub­mis­sion to a show of author­i­ty.43 In Unit­ed States v. Huer­tas, the Sec­ond Cir­cuit held that a defen­dant did not sub­mit dur­ing a thir­ty-sec­ond to one-minute inter­ac­tion in which he answered an officer’s ques­tions while illu­mi­nat­ed by a spot­light but fled as soon as the offi­cer got out of his car, rea­son­ing that this con­duct “max­i­mized his chance of avoid­ing arrest.”44 Such con­duct was “eva­sive” because tem­porar­i­ly remain­ing still and answer­ing ques­tions pro­vid­ed defen­dant “a chance to qui­et sus­pi­cion,” while imme­di­ate flight would like­ly have result­ed in a chase.45 An indi­vid­ual who does not “let pass his oppor­tu­ni­ty to flee” has not actu­al­ly sub­mit­ted to a show of author­i­ty.46

Fourth Amend­ment case law over­whelm­ing­ly estab­lish­es that a “seizure does not occur sim­ply because a police offi­cer approach­es an indi­vid­ual and asks a few ques­tions.”47 For this rea­son, many courts have found no seizure when a defen­dant mere­ly answers ques­tions from law enforce­ment.48 Hold­ing that police ques­tion­ing is a seizure would harm law enforce­ment with­out deter­ring mis­con­duct, which is the explic­it pur­pose of evi­dence sup­pres­sion.49 Since “police ques­tion­ing [is] a tool in the effec­tive enforce­ment of the crim­i­nal laws,” it does not rise to the lim­it­ed sit­u­a­tions war­rant­i­ng exclu­sion.50 The prin­ci­ple that police ques­tion­ing in a street encounter is insuf­fi­cient, by itself, to estab­lish a seizure does not mean that an inter­ac­tion involv­ing inves­ti­ga­to­ry ques­tion­ing is always con­sti­tu­tion­al­ly valid.51 Rather, to prop­er­ly effec­tu­ate the deter­rent pur­pose under­ly­ing the exclu­sion­ary rule, sub­mis­sion requires oth­er cir­cum­stances reflect­ing mis­con­duct with­in a police inter­ac­tion.52 If, on the oth­er hand, answer­ing ques­tions alone con­sti­tut­ed sub­mis­sion, then the exclu­sion­ary rule would deter police from engag­ing in basic inves­ti­ga­to­ry con­duct. Indeed, even courts that have held that respond­ing to ques­tions pri­or to flight con­sti­tutes sub­mis­sion have empha­sized addi­tion­al fac­tors reflect­ing the con­fronta­tion­al nature of an encounter in order to dis­tin­guish from “case[s] in which the offi­cers ‘mere­ly approach[ed] an indi­vid­ual on the street … by ask­ing him if he [was] will­ing to answer some ques­tions.’”53

*****

Address­ing the ambi­gu­i­ty raised by Hodari in police encoun­ters involv­ing tem­po­rary coop­er­a­tion before flight, Fourth Amend­ment prece­dent dic­tates that momen­tary coop­er­a­tion with law enforce­ment does not con­sti­tute a seizure where an indi­vid­ual answers police ques­tion­ing and engages in eva­sive behav­ior. A seizure effec­tu­at­ed with­out phys­i­cal force is a dis­crete action that occurs only at the moment of unequiv­o­cal sub­mis­sion to a show of author­i­ty. Sub­mis­sion requires an exam­i­na­tion into the entire nature of the police encounter based on a total­i­ty of the cir­cum­stances, not only the dura­tion of the inter­ac­tion. Sup­press­ing evi­dence mere­ly because police approached indi­vid­u­als on the street and asked them ques­tions would under­mine the deter­rent pur­pose of the exclu­sion­ary rule.

Notes:

1. Dean S. Ache­son is a J.D. Can­di­date (2021) at New York Uni­ver­si­ty School of Law. This piece is a com­men­tary on the prob­lem pre­sent­ed at the 2020 Dean Jerome Prince Evi­dence Com­pe­ti­tion at Brook­lyn Law School. The ques­tion pre­sent­ed asked whether, under the Fourth Amend­ment, a sus­pect is sub­ject to a con­tin­u­ous seizure where the sus­pect tem­porar­i­ly sub­mits to police author­i­ty but then sub­se­quent­ly flees. This arti­cle presents a dis­til­la­tion of the side of the argu­ment assigned to the author in the Prince Com­pe­ti­tion, and the views expressed here­in do not nec­es­sar­i­ly reflect the view of the author.

2. U.S. Con­st. amend. IV.

3. See, e.g., Ter­ry v. Ohio, 392 U.S. 1, 9–12 (1968) (explain­ing the “prac­ti­cal and con­sti­tu­tion­al argu­ments” that are “[r]eflective of the ten­sions involved” in the prac­tice of stop and frisk).

4. Id. at 13, 17. (“Street encoun­ters between cit­i­zens and police offi­cers are incred­i­bly rich in diver­si­ty. They range from whol­ly friend­ly exchanges of pleas­antries or mutu­al­ly use­ful infor­ma­tion to hos­tile con­fronta­tions of armed men involv­ing arrests, or injuries, or loss of life. More­over, hos­tile con­fronta­tions are not all of a piece. Some of them begin in a friend­ly enough man­ner, only to take a dif­fer­ent turn upon the injec­tion of some unex­pect­ed ele­ment into the con­ver­sa­tion. Encoun­ters are ini­ti­at­ed by the police for a wide vari­ety of pur­pos­es, some of which are whol­ly unre­lat­ed to a desire to pros­e­cute for crime.”).

5. See Cal­i­for­nia v. Hodari D., 499 U.S. 621, 629 (1991) (find­ing that an indi­vid­ual who dis­card­ed crack cocaine while flee­ing from police “was not seized until he was tack­led” because he “did not com­ply with [the officer’s] injunc­tion” to halt).

6. See gen­er­al­ly Dar­by G. Sul­li­van, Con­tin­u­ing Seizure and the Fourth Amend­ment: Con­cep­tu­al Dis­cord and Evi­den­tiary Uncer­tain­ty in Unit­ed States v. Dupree, 55 Vill. L. Rev. 235, 237 (2010) (dis­cussing “whether an indi­vid­ual has been ‘seized’ before break­ing free, and whether such seizure is deemed ‘con­tin­u­ous’”).

7. See Flori­da v. Roy­er, 460 U.S. 491, 498 (1983) (plu­ral­i­ty opin­ion) (explain­ing that an indi­vid­ual “may not be detained even momen­tar­i­ly with­out rea­son­able, objec­tive grounds for doing so”).

8. See id. (“If there is no detention—no seizure with­in the mean­ing of the Fourth Amendment—then no con­sti­tu­tion­al rights have been infringed.”); see also Hodari, 499 U.S. at 629 (con­clud­ing that “[t]he cocaine aban­doned while [the defen­dant] was run­ning was . . . not the fruit of a seizure” because “he was not seized until he was tackled”).

9. I.N.S. v. Del­ga­do, 466 U.S. 210, 215 (1984); see also Ter­ry, 392 U.S. at 19 n.16 (“[N]ot all per­son­al inter­course between police­men and cit­i­zens involves ‘seizures’ of persons.”).

10. Ter­ry, 392 U.S. at 19 n.16.

11. Hodari, 499 U.S. at 628 (quot­ing Unit­ed States v. Menden­hall, 466 U.S. 544, 554 (1980)); see also Michi­gan v. Chester­nut, 486 U.S. 567, 574–75 (1988) (hold­ing that a police car dri­ving par­al­lel to a flee­ing pedes­tri­an does not con­sti­tute a seizure because such police con­duct “would not have com­mu­ni­cat­ed to the rea­son­able per­son an attempt to cap­ture or oth­er­wise intrude upon respondent’s free­dom of movement”).

12. Hodari, 499 U.S. at 626–28 (empha­sis in original).

13. See id. at 635–37 (Stevens, J., dis­sent­ing) (explain­ing that police may con­duct an inves­ti­ga­to­ry stop based on the stan­dard of rea­son­able sus­pi­cion even though there is no prob­a­ble cause to make an arrest (cit­ing Ter­ry, 391 U.S. at 21–22)).

14. Unit­ed States v. Smith, 575 F.3d 308, 312 (3d Cir. 2009) (explain­ing that “sus­pi­cious behav­ior such as flight” by a defen­dant is rel­e­vant to the rea­son­able sus­pi­cion analy­sis only if occurred before seizure).

15. See Ter­ry, 392 U.S. at 29.

16. Hodari, 499 U.S. at 629 (revers­ing sup­pres­sion of drugs aban­doned by defen­dant dur­ing flight from police); see also Unit­ed States v. Swin­dle, 407 F.3d 562, 572–73 (2d Cir. 2005) (deny­ing sup­pres­sion of drugs dis­card­ed by defen­dant dur­ing police pur­suit as the prod­uct of a seizure, since the inter­ac­tion involved nei­ther phys­i­cal force nor sub­mis­sion to police author­i­ty until his ulti­mate apprehension).

17. Unit­ed States v. Stover, 808 F.3d 991, 996 (4th Cir. 2015). Although cer­tain cir­cuits tend to favor one out­come or the oth­er, the fact-inten­sive nature of the seizure analy­sis pre­cludes cat­e­gor­i­cal rul­ings with­in cir­cuits. Com­pare Unit­ed States v. Wash­ing­ton, 12 F.3d 1128, 1132 (D.C. Cir. 1994) (hold­ing that defen­dant did not sub­mit to the officer’s show of author­i­ty where he “ini­tial­ly stopped” his car but “drove off quick­ly” before the offi­cer reached the car on foot), with Unit­ed States v. Brodie, 742 F.3d 1058, 1061 (D.C. Cir. 2014) (hold­ing that defen­dant sub­mit­ted to the officer’s show of author­i­ty where he com­plied with the request to put his hands on a car before flee­ing sec­onds later).

18. See, e.g., Unit­ed States v. Grif­fin, 652 F.3d 793, 799–800 (7th Cir. 2011) (explain­ing that Hodari fore­clos­es the notion that “seizure begins for con­sti­tu­tion­al pur­pos­es upon the ini­tial show of author­i­ty and con­tin­ues until the sus­pect submits”).

19. Hodari, 499 U.S. at 626, 629 (1993) (empha­sis in orig­i­nal) (hold­ing that defen­dant was not seized until he was tack­led by an offi­cer since his flight did not con­sti­tute sub­mis­sion to a police pur­suit); see also Stover, 808 F.3d at 1000-01 (find­ing no seizure since defen­dant did not sub­mit to a show of author­i­ty by ignor­ing an officer’s order to remain in his car).

20. See Smith, 575 F.3d at 313 (“The sim­ple act of an asser­tion of author­i­ty by an offi­cer is insuf­fi­cient to trans­form an encounter into a seizure with­out actu­al sub­mis­sion on the part of the per­son alleged­ly seized.”).

21. See, e.g., Unit­ed States v. Bald­win, 496 F.3d 217–19 (2d Cir. 2007) (hold­ing that defendant’s momen­tary stop in which he peered at the offi­cers through his car win­dow and ignored their orders to show his hands before tak­ing flight “amount­ed to eva­sion of police author­i­ty, not sub­mis­sion” (empha­sis added)); Unit­ed States v. Her­nan­dez, 27 F.3d 1403, 1407 (9th Cir. 1994) (reject­ing a rule that “momen­tary hes­i­ta­tion and direct eye con­tact pri­or to flight con­sti­tute sub­mis­sion” since it “would encour­age sus­pects to flee after the slight­est con­tact with an offi­cer in order to dis­card evi­dence, and yet still main­tain Fourth Amend­ment protections”).

22. Smith, 575 F.3d at 313 (cit­ing Unit­ed States v. Lock­ett, 406 F.3d 207, 211 (3d Cir. 2005)).

23. See Unit­ed States v. McClen­don, 713 F.3d 1211, 1216 (9th Cir. 2013) (hold­ing that defendant’s response of “Yes, that’s me” when approached by offi­cers and asked whether he was the sus­pect that they were look­ing for was insuf­fi­cient to show sub­mis­sion to author­i­ty); see also Unit­ed States v. Smith, 633 F.3d 889, 893 (9th Cir. 2011) (hold­ing that defen­dant did not sub­mit to author­i­ty where he was approached by police and ordered to place his hands on their patrol car, respond­ed “Who, me?,” and then fled the officers).

24. See Unit­ed States v. Leon, 468 U.S. 897, 906 (1984) (“The rule thus oper­ates as ‘a judi­cial­ly cre­at­ed rem­e­dy designed to safe­guard Fourth Amend­ment rights gen­er­al­ly through its deter­rent effect, rather than a per­son­al con­sti­tu­tion­al right of the par­ty aggriev­ed.’” (quot­ing Unit­ed States v. Calan­dra, 414 U.S. 338, 348 (1974))).

25. See, e.g., Unit­ed States v. Mor­gan, 936 F.2d 1561, 1567 (10th Cir. 1991) (hold­ing that defen­dant was seized dur­ing a “min­i­mal” exchange with an offi­cer “since [he], at least momen­tar­i­ly, yield­ed to the Officer’s appar­ent show of author­i­ty. . . .” (empha­sis in original)).

26. Ter­ry, 329 U.S. at 19 n.16 (empha­sis added).

27. See Brodie, 742 F.3d at 1061 (first cit­ing Unit­ed States v. Brown, 401 F.3d 588, 595 (4th Cir. 2005); and then cit­ing Unit­ed States v. Brown, 448 F.3d 249, 246 (3d Cir. 2006)).

28. See, e.g., Mor­gan, 936 F.2d at 1567 (explain­ing that the officer’s show of author­i­ty involved fol­low­ing the defen­dant for sev­er­al blocks with sirens flash­ing, exit­ing from a marked vehi­cle in uni­form, and ask­ing the defen­dant to hold up).

29. Swin­dle, 407 F.3d at 572–73 (con­firm­ing “a con­vic­tion that was achieved with evi­dence obtained by an abuse of police pow­er” because “there was no imme­di­ate ‘phys­i­cal force’ applied or ‘sub­mis­sion to the asser­tion of author­i­ty’” before defen­dant dis­card­ed con­tra­band (quot­ing Hodari, 499 U.S. at 626)); see also Hodari, 499 U.S. at 645 (Stevens, J., dis­sent­ing) (explain­ing that “there will be a peri­od of time dur­ing which the cit­i­zen’s lib­er­ty has been restrained, but he or she has not yet com­plete­ly sub­mit­ted to the show of force” in a police encounter where an indi­vid­ual does not sub­mit to a show of authority).

30. Brendlin v. Cal­i­for­nia, 551 U.S. 249, 254 (2007) (empha­sis added) (cit­ing Hodari, 499 U.S. at 626 & n.2 and Cty. of Sacra­men­to v. Lewis, 523 U.S. 833, 844, 845 n.7 (1998)); see also Unit­ed States v. Bald­win, 496 F.3d 215, 219 (2d Cir. 2007) (find­ing no seizure dur­ing a road stop where “[a] rea­son­able per­son” would not have felt free to con­tin­ue dri­ving, since defendant’s “momen­tary stop did not con­sti­tute sub­mis­sion to police authority”).

31. Hodari, 499 U.S. at 625–26 (quot­ing Thomp­son v. Whit­man, 85 U.S. (18 Wall.) 457, 471 (1874)).

32. Id. (explain­ing that an arrestee who dis­cards drugs after break­ing away from the use of force would not make that dis­clo­sure “dur­ing the course of an arrest”).

33. Grif­fin, 652 F.3d at 799–800 (reject­ing defendant’s argu­ment that his entire inter­ac­tion with offi­cers was a seizure, begin­ning when they made a show of author­i­ty and end­ing when he submitted).

34. See id. at 800 (“[A] seizure by phys­i­cal force fol­low­ing a show of author­i­ty occurs when force is applied; it does not relate back to the ini­tial show of authority.”).

35. Unit­ed States v. Valen­tine, 232 F.3d 350, 358–59 (3d Cir. 2000) (quot­ing Lewis, 532 U.S. at 845 n.7) (hold­ing that seizure did not occur until phys­i­cal appre­hen­sion since defen­dant did not sub­mit to the offi­cers’ show of author­i­ty when he “paused for a few moments and gave his name”); see also Brendlin, 551 U.S. at 254 (explain­ing that “there is at most an attempt­ed seizure, so far as the Fourth Amend­ment is con­cerned” with­out actu­al submission).

36. Bald­win, 496 F.3d at 219 (quot­ing Unit­ed States v. Cortez, 449 U.S. 411, 417 (1981)).

37. Unit­ed States v. Lowe, 791 F.3d 424, 430–31, 434 (3d Cir. 2015) (hold­ing that defen­dant sub­mit­ted to “onrush­ing, armed police offi­cers” by “not flee­ing, mak­ing no threat­en­ing move­ment or ges­ture, and remain­ing stationary”).

38. See, e.g., Her­nan­dez, 27 F.3d at 1407 (hold­ing that defen­dant was not seized since “momen­tary hes­i­ta­tion and direct eye con­tact pri­or to flight” do not con­sti­tute sub­mis­sion to police authority).

39. Unit­ed States v. Hes­ter, 910 F.3d 78, 86 (3d Cir. 2018).

40. See Her­nan­dez, 27 F.3d at 1407 (reject­ing such a rule since it “would encour­age sus­pects to flee after the slight­est con­tact with an offi­cer in order to dis­card evi­dence, and yet still main­tain Fourth Amend­ment protections”).

41. 496 F.3d at 217.

42. Id. at 219 (“Our rul­ing is not pred­i­cat­ed on the brevi­ty of Bald­win’s stop, but on the fact that the stop itself did not con­sti­tute sub­mis­sion.”); see Huer­tas, 864 F.3d, 214 215 (2d Cir. 2017) (affirm­ing denial of motion to sup­press on the grounds that there was no seizure in an encounter “last[ing] between thir­ty sec­onds and one minute” where police “shined a spot­light on [the defen­dant] and asked ques­tions to which [the defen­dant] respond­ed”); see also Brodie, 742 F.3d at 1060–61 (hold­ing that defen­dant sub­mit­ted to author­i­ty by “putting his hands on the car when told to do so by the police” even though he fled “a few sec­onds later”).

43. Huer­tas, 864 F.3d at 216 (quot­ing Bald­win, 496 F.3d at 219); see Stover, 808 F.3d at 1001 (“[U]nder con­trol­ling Supreme Court prece­dent, when an indi­vid­ual attempts to evade a seizure and reveals evi­dence or con­tra­band pri­or to sub­mis­sion to police author­i­ty, the Fourth Amend­men­t’s exclu­sion­ary rule does not apply.”).

44. Huer­tas, 864 F.3d at 215–16; cf. Brodie, 742 F.3d at 1061 (hold­ing that the defen­dant sub­mit­ted to police author­i­ty by com­ply­ing with an order to put his hands on a car since there was no indi­ca­tion that “the com­pli­ance was feigned” or that the defen­dant “had some ulte­ri­or pur­pose in putting his hands on the car, such as a belief that doing so would facil­i­tate escape”).

45. Huer­tas, 864 F.3d at 216–17 (explain­ing that the brevi­ty of the inter­ac­tion and the fact that the offi­cer was nev­er in a posi­tion to phys­i­cal­ly restrain the defen­dant were “sig­nif­i­cant cir­cum­stances” demon­strat­ing eva­sion rather than submission).

46. Id. at 217 (explain­ing that Brodie did not involve eva­sive con­duct since the defen­dant “com­plied with an order that con­sid­er­ably impaired his chance of evasion”).

47. Flori­da v. Bostick, 501 U.S. 429, 434 (1991); see Unit­ed States v. Dray­ton, 536 U.S. 194, 200–01 (2002) (“Law enforce­ment offi­cers do not vio­late the Fourth Amend­men­t’s pro­hi­bi­tion of unrea­son­able seizures mere­ly by approach­ing indi­vid­u­als on the street or in oth­er pub­lic places and putting ques­tions to them if they are will­ing to listen.”).

48. See McClen­don, 713 F.3d at 1213, 1216 (hold­ing that answer­ing an officer’s ques­tion “was not suf­fi­cient to show that that [the defen­dant] had sub­mit­ted to the offi­cers’ author­i­ty”); Smith, 633 F.3d at 892–93 (hold­ing that defen­dant did not sub­mit to an officer’s show of author­i­ty where he “paused momen­tar­i­ly, turned to and moved toward [the offi­cer], and engaged in a short ver­bal exchange”); Smith, 575 F.3d at 311, 314 (find­ing no seizure where defen­dant stopped and answered sev­er­al ques­tions from a police offi­cer); Valen­tine, 232 F.3d at 353, 359 (hold­ing that defen­dant did not sub­mit to the officer’s show of author­i­ty where he “paused for a few moments and gave his name”).

49. See Davis v. Unit­ed States, 564 U.S. 229, 236–37 (2011) (“The [exclu­sion­ary] rule’s sole pur­pose . . . is to deter future Fourth Amend­ment violations.”).

50. Unit­ed States v. Menden­hall, 446 U.S. 544, 554 (198) (“[C]haracterizing every street encounter between a cit­i­zen and the police as a ‘seizure,’ while not enhanc­ing any inter­est secured by the Fourth Amend­ment, would impose whol­ly unre­al­is­tic restric­tions upon a wide vari­ety of legit­i­mate law enforce­ment prac­tices.”); see Hud­son v. Michi­gan, 547 U.S. 586, 591 (2006) (explain­ing that “[s]uppression of evi­dence . . . has always been [the Court’s] last resort, not [its] first impulse”).

51. Com­pare Smith, 575 F.3d at 316 (hold­ing that defendant’s two steps and non-respon­sive answers did not con­sti­tute sub­mis­sion where police asked ques­tions and request­ed that defen­dant place his hands on the hood of a car), with Unit­ed States v. Cama­cho, 661 F.3d 718, 725 (1st Cir. 2011) (hold­ing that answer­ing ques­tions con­sti­tut­ed sub­mis­sion where uni­formed police inten­tion­al­ly blocked defendant’s path with their vehi­cle, con­front­ed him with accusato­ry ques­tions, and ordered his com­pan­ion to place his hands on the hood of the car).

52. See Huer­tas, 864 F.3d at 816 n.3 (dis­tin­guish­ing a seizure where the defen­dant “stopped walk­ing and answered ques­tions posed by police” by not­ing that the court “con­sid­ered many fac­tors,” includ­ing that “he was told to stop walk­ing by police that had been fol­low­ing him in an intim­i­dat­ing man­ner.” (cit­ing Unit­ed States v. Her­nan­dez, 847 F.3d 1257, 1261, 1264–65 (10th Cir. 2017))).

53. Cama­cho, 661 F.3d at 725–26 (quot­ing Roy­er, 460 U.S. at 497) (hold­ing that the defen­dant sub­mit­ted to police author­i­ty by respond­ing to the officer’s ques­tions where police blocked his path with their car, con­front­ed him with accusato­ry ques­tions, and ordered his com­pan­ion to place his hands on the hood of the car); see Unit­ed States v. Cog­gins, 986 F.2d 651, 654 (3d Cir. 1993) (hold­ing that the “com­bi­na­tion” of the defendant’s expressed desire to leave while being ques­tioned by law enforce­ment, the officer’s order that he stay, and the defendant’s com­pli­ance by sit­ting back down “result­ed in a seizure”); Unit­ed States v. Wil­son, 953 F.2d 116, 123 (4th Cir. 1991) (hold­ing that an officer’s “pro­longed and per­sis­tent ques­tion­ing,” which led to “vig­or­ous efforts by [the defen­dant] in response,” con­sti­tut­ed a seizure).