California v. Hodari D.
Last updated
Last updated
Supreme Court of the United States
California v. Hodari D.
(1991)
[...]
Scalia, J., delivered the opinion of the Court [...]
Late one evening in April 1988, Officers Brian McColgin and Jerry Pertoso were on patrol in a high-crime area of Oakland, California. They were dressed in street clothes but wearing jackets with “Police” embossed on both front and back. Their unmarked car proceeded west on Foothill Boulevard, and turned south onto 63rd Avenue. As they rounded the corner, they saw four or five youths huddled around a small red car parked at the curb. When the youths saw the officers’ car approaching they apparently panicked, and took flight. The respondent here, Hodari D., and one companion ran west through an alley; the others fled south. The red car also headed south, at a high rate of speed.
The officers were suspicious and gave chase. McColgin remained in the car and continued south on 63rd Avenue; Pertoso left the car, ran back north along 63rd, then west on Foothill Boulevard, and turned south on 62nd Avenue. Hodari, meanwhile, emerged from the alley onto 62nd and ran north. Looking behind as he ran, he did not turn and see Pertoso until the officer was almost upon him, whereupon he tossed away what appeared to be a small rock. A moment later, Pertoso tackled Hodari, handcuffed him, and radioed for assistance. Hodari was found to be carrying $130 in cash and a pager; and the rock he had discarded was found to be crack cocaine.
In the juvenile proceeding brought against him, Hodari moved to suppress the evidence relating to the cocaine. The court denied the motion without opinion. The California Court of Appeal reversed, [and] the California Supreme Court denied the State’s application for review. We granted certiorari.
As this case comes to us, the only issue presented is whether, at the time he dropped the drugs, Hodari had been “seized” within the meaning of the Fourth Amendment. If so, respondent argues, the drugs were the fruit of that seizure and the evidence concerning them was properly excluded. If not, the drugs were abandoned by Hodari and lawfully recovered by the police, and the evidence should have been admitted. (In addition, of course, Pertoso’s observation of the rock of cocaine, at least if he recognized it as such, would provide reasonable suspicion for the unquestioned seizure that occurred when he tackled Hodari. [...])
We have long understood that the Fourth Amendment’s protection against “unreasonable . . . seizures” includes seizure of the person, see Henry v. United States, (1959). From the time of the founding to the present, the word “seizure” has meant a “taking possession" [...]. For most purposes at common law, the word connoted not merely grasping, or applying physical force to, the animate or inanimate object in question, but actually bringing it within physical control. A ship still fleeing, even though under attack, would not be considered to have been seized as a war prize. [...] To constitute an arrest, however— the quintessential “seizure of the person” under our Fourth Amendment jurisprudence — the mere grasping or application of physical force with lawful authority, whether or not it succeeded in subduing the arrestee, was sufficient. [...]
To say that an arrest is effected by the slightest application of physical force, despite the arrestee’s escape, is not to say that for Fourth Amendment purposes there is a continuing arrest during the period of fugitivity. If, for example, Pertoso had laid his hands upon Hodari to arrest him, but Hodari had broken away and had then cast away the cocaine, it would hardly be realistic to say that that disclosure had been made during the course of an arrest. [...] The present case, however, is even one step further removed. It does not involve the application of any physical force; Hodari was untouched by Officer Pertoso at the time he discarded the cocaine. His defense relies instead upon the proposition that a seizure occurs “when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen.” Terry v. Ohio, (1968) (emphasis added). Hodari contends (and we accept as true for purposes of this decision) that Pertoso’s pursuit qualified as a “show of ... authority” calling upon Hodari to halt. The narrow question before us is whether, with respect to a show of authority as with respect to application of physical force, a seizure occurs even though the subject does not yield. We hold that it does not.
The language of the Fourth Amendment, of course, cannot sustain respondent’s contention. The word “seizure” readily bears the meaning of a laying on of hands or application of physical force to restrain movement, even when it is ultimately unsuccessful. (“She seized the purse-snatcher, but he broke out of her grasp.”) It does not remotely apply, however, to the prospect of a policeman yelling “Stop, in the name of the law!” at a fleeing form that continues to flee. That is no seizure. Nor can the result respondent wishes to achieve be produced — indirectly, as it were — by suggesting that Pertoso’s uncomplied-with show of authority was a common-law arrest and then appealing to the principle that all common-law arrests are seizures. An arrest requires either physical force (as described above) or, where that is absent, submission to the assertion of authority.
Mere words will not constitute an arrest, while, on the other hand, no actual, physical touching is essential. The apparent inconsistency in the two parts of this statement is explained by the fact that an assertion of authority and purpose to arrest followed by submission of the arrestee constitutes an arrest. There can be no arrest without either touching or submission.
We do not think it desirable, even as a policy matter, to stretch the Fourth Amendment beyond its words and beyond the meaning of arrest, as respondent urges. Street pursuits always place the public at some risk, and compliance with police orders to stop should therefore be encouraged. Only a few of those orders, we must presume, will be without adequate basis, and since the addressee has no ready means of identifying the deficient ones it almost invariably is the responsible course to comply. Unlawful orders will not be deterred, moreover, by sanctioning through the exclusionary rule those of them that are not obeyed. Since policemen do not command “Stop!” expecting to be ignored, or give chase hoping to be outrun, it fully suffices to apply the deterrent to their genuine, successful seizures.
Respondent contends that his position is sustained by the so-called Mendenhall test, formulated by Justice Stewart’s opinion in United States v. Mendenhall , , 554 (1980), and adopted by the Court in later cases, see Michigan v. Chesternut, , 573 (1988); INS v. Delgado, , 215 (1984): “[A] person has been ‘seized’ within the meaning of the Fourth Amendment only if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.” . See also Florida v. Royer, , 502 (1983) [...]. In seeking to rely upon that test here, respondent fails to read it carefully. It says that a person has been seized “only if,” not that he has been seized “whenever”; it states a necessary, but not a sufficient, condition for seizure — or, more precisely, for seizure effected through a “show of authority.” Mendenhall establishes that the test for existence of a “show of authority” is an objective one: not whether the citizen perceived that he was being ordered to restrict his movement, but whether the officer’s words and actions would have conveyed that to a reasonable person. Application of this objective test was the basis for our decision in the other case principally relied upon by respondent, Chesternut, supra, where we concluded that the police cruiser’s slow following of the defendant did not convey the message that he was not free to disregard the police and go about his business. We did not address in Chesternut, however, the question whether, if the Mendenhall test was met — if the message that the defendant was not free to leave had been conveyed — a Fourth Amendment seizure would have occurred. [...]
In sum, assuming that Pertoso’s pursuit in the present case constituted a “show of authority” enjoining Hodari to halt, since Hodari did not comply with that injunction he was not seized until he was tackled. The cocaine abandoned while he was running was in this case not the fruit of a seizure, and his motion to exclude evidence of it was properly denied. We reverse the decision of the California Court of Appeal, and remand for further proceedings not inconsistent with this opinion.
It is so ordered.
Justice Stevens, with whom Justice Marshall joins, dissenting.
[The Court’s narrow construction of the word “seizure” represents a significant, and in my view, unfortunate, departure from prior case law construing the Fourth Amendment. [T]he Court now adopts a definition of “seizure” that is unfaithful to a long line of Fourth Amendment cases. Even if the Court were defining seizure for the first time, which it is not, the definition that it chooses today is profoundly unwise. In its decision, the Court assumes, without acknowledging, that a police officer may now fire his weapon at an innocent citizen and not implicate the Fourth Amendment—as long as he misses his target.
Because the facts of this case are somewhat unusual, it is appropriate to note that the same issue would arise if the show of force took the form of a command to “freeze,” a warning shot, or the sound of sirens accompanied by a patrol car’s flashing lights. In any of these situations, there may be a significant time interval between the initiation of the officer’s show of force and the complete submission by the citizen. At least on the facts of this case, the Court concludes that the timing of the seizure is governed by the citizen’s reaction, rather than by the officer’s conduct. One consequence of this conclusion is that the point at which the interaction between citizen and police officer becomes a seizure occurs, not when a reasonable citizen believes he or she is no longer free to go, but, rather, only after the officer exercises control over the citizen.
It is too early to know the consequences of the Court’s holding. If carried to its logical conclusion, it will encourage unlawful displays of force that will frighten countless innocent citizens into surrendering whatever privacy rights they may still have.
I respectfully dissent.]
Justice Scalia noted in a footnote (omitted above) that “California conceded below” that police did not have reasonable suspicion to seize Hodari and, citing Scripture, stated that the Court would not decide whether a stop would have been lawful. The dissent found the majority’s musings on the question annoying (omitted above):
We will reconsider the legal significance of flight from police when reading cases in which the Court confronted the merits.
Students need not investigate the idiosyncrasies of New York search and seizure law, much less of all the states. Instead, New York’s rejection of Hodari D. is noted as an example of a larger principle: Under our federal system, states may not offer less protection than the Court declares to be provided by the federal constitution. But states may, if they wish, offer more protection. The Court’s decisions about federal constitutional law thereby provide a floor—not a ceiling—for the protection of individual liberties. Would-be reformers of the law may find greater success in the state courts and state legislatures than in the filing of petitions for certiorari.
Keywords: seizure, seizures, arrest, arrestee, show of authority, submission to authority, comply, compliance
The Court’s gratuitous quotation from Proverbs 28:1 mistakenly assumes that innocent residents have no reason to fear the sudden approach of strangers. We have previously considered, and rejected, this ivory-towered analysis of the real world for it fails to describe the experience of many residents, particularly if they are members of a minority. See generally Johnson, , 93 Yale L.J. 214 (1983). It has long been ‘a matter of common knowledge that men who are entirely innocent do sometimes fly from the scene of a crime through fear of being apprehended as the guilty parties, or from an unwillingness to appear as witnesses. Nor is it true as an accepted axiom of criminal law that ‘the wicked flee when no man pursueth, but the righteous are as bold as a lion.’ Alberty v. United States, (1896).
The Court in Hodari D. decided that an attempted seizure by police—ordering “stop” at a suspect who ignores the command and runs—is not a “seizure” for purposes of the Fourth Amendment to the Constitution of the United States. The Court did not, however, decide how state law might regulate such police action. In New York, state courts have rejected the reasoning of Hodari D. when interpreting the state constitution. See People v. Martinez, (N.Y. 1992); People v. Hill, , 634 & n.4 (N.Y. App. Div. 1st Dep’t 2017) (“In contrast [to New York law], the United States Supreme Court rejected mere police pursuit as constituting a seizure in California v. Hodari D.”).
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