by Dean S. Acheson*
This Contribution examines whether police have effectuated a Fourth Amendment seizure by show of authority when an individual flees from a momentary encounter. Dean S. Acheson (’21) argues that, under Fourth Amendment precedent, pre-flight compliance does not constitute submission to a show of authority in a police interaction that consists of answering brief questions and engaging in evasive behavior.
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.
* 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).