California v. Hodari D. – Oral Argument – January 14, 1991

Media for California v. Hodari D.

Audio Transcription for Opinion Announcement – April 23, 1991 in California v. Hodari D.

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William H. Rehnquist:

We’ll hear argument next in No. 89-1632, California v. Hodari D..

Spectators are reminded that the Court remains in session.

There will be no talking in the courtroom.

Is it Niver or Niver?

Ronald E. Niver:

Niver, sir.

William H. Rehnquist:

Mr. Niver, you may proceed.

Ronald E. Niver:

Mr. Chief Justice, and may it please the Court:

In this case the California court of appeal reversed a finding of juvenile wardship against Respondent, holding first that he had been seized under the Fourth Amendment, second that the detention was without reasonable cause to detain, and third, the rock of cocaine which he discarded at the time of the seizure was the fruit of that detention.

Today we challenge the first and third conclusions.

We argue that Respondent had not been seized when he dropped his contraband, and that in any event the discovery of the evidence was not the product of any illegality.

The relevant facts are that about 10:00 p.m. on April 18, 1988, two officers were on routine patrol in an unmarked car in Oakland when they turned a corner to see, about 40 yards away from them, four young men talking to the driver of a car parked on the street.

When they looked toward the police car, the driver sped away and the pedestrians ran away.

The officers drove to the approximate place where the men had been standing, and one of them, Officer Pertoso, got out of the car.

The other officer, McColgin, drove in the general direction toward which two of the pedestrians had run away.

But Officer Pertoso ran the other way in an effort to intercept one or more of them.

And that is just what happened.

As Officer Pertoso turned the corner he saw Respondent running toward him, but looking over his shoulder as if to see if he were being followed.

When he turned to face the officer, the two men were 11 feet away from each other.

At this point the officer had said nothing to respondent.

Respondent then did two things.

First he threw an object onto the sidewalk, and then he continued toward the officer, who forced him to the ground and handcuffed him.

The officer then recovered the object, which proved to be a rock of cocaine.

We first address the question of seizure.

A seizure–

Harry A. Blackmun:

Mr. Niver, the State conceded there was no articulable suspicion?

Ronald E. Niver:

–We have never contested that, Your Honor, and the case comes to this Court based upon the premise, the assumption that there was no articulable suspicion.

Yes, Your Honor.

Harry A. Blackmun:

Why–

–You mean even… excuse me, go ahead.

Why do you take that position?

Ronald E. Niver:

Well, because there was a finding by the trial court which was not contested in the trial court.

When it came to the California court of appeal we did not change theories.

It has always been litigated under those circumstances.

And when it came to this Court we chose to maintain our position.

Anthony M. Kennedy:

Well, that there’s no unreason… that there’s no suspicion to stop as of what point?

Ronald E. Niver:

As of the point that the… at the point before respondent dropped his rock of cocaine.

The finding was that there was no basis to chase him.

Anthony M. Kennedy:

In… all right.

In your view does the fact that someone in the defendant’s circumstances here is running away, some evidence that would give rise to a reasonable articulable suspicion?

Ronald E. Niver:

Yes, Your Honor, it is some evidence.

Correct.

The court of appeal so concluded, but, consistent with State law at the time, found that flight without more is not sufficient.

It’s relevant, but not sufficient.

Sandra Day O’Connor:

Now, do you take the position that the police are free to chase somebody without any reasonable, articulable suspicion?

Ronald E. Niver:

We take the position that it does not violate the Fourth Amendment until that person has actually been restrained.

That is the position which we urge upon this Court today.

John Paul Stevens:

May I ask–

–That’s a pretty serious step, isn’t it?

Ronald E. Niver:

Yes, Your Honor.

But to… we believe that this is consistent with this Court’s case law.

A seizure under the Fourth Amendment is composed of two distinct elements, two dimensions.

First–

John Paul Stevens:

May I ask, before you get into the definition of seizure, is it your view of the record that had he not thrown the cocaine, the rock or whatever it was, down, he would not have been stopped?

Ronald E. Niver:

–Oh, he would have been stopped.

John Paul Stevens:

He would have been seized?

Ronald E. Niver:

Yes, Your Honor.

John Paul Stevens:

So that the question then is whether there’s anything illegal about an attempted seizure?

Ronald E. Niver:

That’s exactly the case, Your Honor.

John Paul Stevens:

Anything illegal about an attempted seizure without articulable suspicion.

Ronald E. Niver:

That’s right, Your Honor.

John Paul Stevens:

And is it not rather clear that that should be illegal?

Ronald E. Niver:

Your Honor, our position is to the contrary.

Our position is it does not violate the Fourth Amendment until there is actual restraint.

John Paul Stevens:

So the exclusionary rule should not apply to attempted illegal conduct by the police?

Ronald E. Niver:

It does not violate… that’s right, Your Honor.

It does not violate this person’s right under the Fourth Amendment until he is actually seized.

An attempted seizure is not mentioned in the language of the Fourth Amendment or in this Court’s cases.

Byron R. White:

Well, it seems to me that you have to have… you certainly are going to defend… you’re certainly going to say that the officer properly seized him when he finally did–

Ronald E. Niver:

Yes, Your Honor.

Byron R. White:

–physically, and the reason is, I suppose, that he had thrown the rock away.

Ronald E. Niver:

That’s exactly right, Your Honor.

Byron R. White:

That gave… that gave some sort of reasonable suspicion to do something about it, or what?

Probable cause?

Ronald E. Niver:

At that point it was probably probable cause.

It was probable cause, yes.

Byron R. White:

Because otherwise the case is over, if you had no legal basis to actually seize him physically.

Ronald E. Niver:

At the time he seized him physically he had more than Terry suspicion.

He had–

Byron R. White:

So you think it… you think the issue is whether there was a seizure prior to throwing the rock away?

Ronald E. Niver:

–Yes, Your Honor.

John Paul Stevens:

Is it not clear from what you have acknowledged that the reason he threw the rock away is that the police were in the act of attempting to conduct an illegal seizure?

Isn’t that what prompted him to throw the rock away?

Ronald E. Niver:

He was prompted… Your Honor, yes, Your Honor… no, Your Honor.

He was prompted to–

John Paul Stevens:

Why do you think he threw it away?

Ronald E. Niver:

–We will never know, because the record does not articulate it.

He… let’s put it… excuse me, Your Honor.

He threw it away because he saw a police officer.

John Paul Stevens:

Who was in an illegal attempt to try and seize him at the very moment, was he not?

You just acknowledged that.

Ronald E. Niver:

We have never acknowledged that at that point there was a show of authority.

All he saw was a police officer running after him.

Even if, taking the view of the court of appeal and the respondent, there was a show of authority, there was no manifestation to this person that he would have been searched, only that he would have been seized.

William H. Rehnquist:

Mr. Niver, is there anything in the record about factually why this particular respondent threw the… the block or brick away at the time he did?

Ronald E. Niver:

Nothing at all, Your Honor.

William H. Rehnquist:

So it’s just really speculation or guessing from what the record shows about the series of events?

Ronald E. Niver:

Entirely, Your Honor.

Antonin Scalia:

Is it anything more than guessing whether they would have arrested him if he hadn’t thrown it away?

Ronald E. Niver:

The officer testified that he wanted to stop him and question him about why he ran away.

There was nothing in the record from the officer’s testimony–

Antonin Scalia:

A Terry stop or an arrest?

Ronald E. Niver:

–A Terry stop.

He did not intend to arrest him when he went after him.

Thurgood Marshall:

Is there anything in the record to show whether he was a purchaser or a seller?

Ronald E. Niver:

No, Your Honor.

As a matter of fact, the finding of wardship was simple possession.

So, no, Your Honor, we don’t have any–

Thurgood Marshall:

So there’s nothing in the record to show that he might have been the purchaser?

Ronald E. Niver:

–No, Your Honor.

John Paul Stevens:

Mr. Niver, you make a point of the fact it would have been just a Terry stop rather than an arrest.

It would have been a Terry stop without any articulable suspicion, would it not?

Ronald E. Niver:

It would… yes, Your Honor.

John Paul Stevens:

So it would have been equally illegal as an arrest.

Ronald E. Niver:

It would have violated the Fourth Amendment to detain him–

John Paul Stevens:

Just as much as a Terry… just as much as an arrest would.

Ronald E. Niver:

–Yes, Your Honor.

Anthony M. Kennedy:

After the running began?

Ronald E. Niver:

After the running began, the running by itself, the court of appeal found, was not sufficient to detain him.

We have not challenged that in this case, Your Honor.

Harry A. Blackmun:

Mr. Niver, what about… well, there were other drugs admitted in evidence, were there not?

Ronald E. Niver:

They were… there is… no, Your Honor.

They were not admitted against him for the finding of the wardship.

The only evidence used against him to establish wardship was the single rock of cocaine which he discarded at the time he confronted the officer.

There was a bag of 15 rocks, but they were never found to be either possessed by him or in fact even cocaine.

The only question before this Court was the legality of the seizure of the single rock.

Continuing on the matter of the elements of a seizure, this Court has acknowledged, has defined a seizure in its case law as composed of two distinct elements: some official action and restraint upon the movement of the citizen at whom the action is directed.

That has been the rule since Terry v. Ohio defined a seizure as physical force or show of authority which has restrained the liberty of a citizen.

Since Terry this Court has found… had occasion to define the parameters of both elements.

With regard to the requirement of a display of authority, this Court has said, beginning in a plurality of cases, of Mendenhall and Royer, and concluding with Delgado and Chesternut, that an objective standard requires the question whether an official action was such that a reasonable person would have believed that he or she was not free to leave.

Respondent suggests that that test replaced that set forth in Terry, but we believe this is conceptually incorrect.

Mendenhall and its progery did not dispense with the requirement of restraint.

This may be illustrated by a simple example.

If an officer says to a pedestrian, stop in the name of the law, and the person flees, never to be caught, he has not been seized in any physical or constitutional sense.

The reason is that the second element, restraint upon movement, has not been satisfied.

This Court has never held that a person has been seized in the absence of restraint by police.

John Paul Stevens:

What if the police officer fired a couple of warning shots, and the fellow still ran and then threw the rock away?

Ronald E. Niver:

If he ran and escaped apprehension, he has not been seized.

John Paul Stevens:

So that even shooting at him wouldn’t be enough?

Ronald E. Niver:

It would be a display of authority, certainly.

It would not be a violation of the Fourth Amendment in the absent of restraint.

Anthony M. Kennedy:

In your view, when the police office puts on red lights behind a car, when does the stop take place?

When the red lights are put on or when the car pulls over to the curb?

Ronald E. Niver:

When the car pulls over to the curb–

Anthony M. Kennedy:

And if there is no basis for the stop, suppose the car pulls away at a high speed?

Ronald E. Niver:

–Then the seizure has terminated.

Anthony M. Kennedy:

Can the police officer acquire a basis for stopping the car after it pulls away at a high speed, if he had no basis to turn on the lights to begin with?

Ronald E. Niver:

I’m not sure I understand, Your Honor.

Anthony M. Kennedy:

Suppose the police officer has no basis for turning on the red lights, but does so anyway.

Ronald E. Niver:

Yes.

Anthony M. Kennedy:

The car then pulls away at a high speed.

Anthony M. Kennedy:

Is the police officer justified in pursuing and stopping?

Ronald E. Niver:

I would say that if there are other circumstances present, certainly.

Anthony M. Kennedy:

Just the circumstances I give.

Ronald E. Niver:

A high-speed chase, I would suggest–

Anthony M. Kennedy:

Well, let’s forget high speed.

Ronald E. Niver:

–All right.

Anthony M. Kennedy:

Suppose he pulled… ignores the lights and continues?

Ronald E. Niver:

I would think so, yes, Your Honor.

Yes, Your Honor.

Anthony M. Kennedy:

You think there would be basis for a reasonable suspicion at that point?

Ronald E. Niver:

At that point, yes, Your Honor, I do.

Antonin Scalia:

And I suppose in one example–

–Is this high speed above the speed limit?

I… Justice Stevens and I were… when you say he pulls away at a high speed, do you mean a high speed above the speed limit, or… what was your answer assuming?

Ronald E. Niver:

A high speed that is suggesting–

Antonin Scalia:

Within the speed limit?

Ronald E. Niver:

–Something… either speeding or something suspicious about the circumstances of leaving.

Or, for example, in terms of officer… highway safety, something unsafe about it.

There are a lot of circumstances involving cars that do not arise in the streetside detentions.

This Court has never held that a violation, that the Fourth Amendment is implicated by a detention in the absent… absence of restraint by police.

Now a restraint upon liberty does not mean only an application of physical force, such as the use of handcuffs.

Instead the concept of restraint is broader and includes submission by the officer to a display of authority.

The true test is not the use of force or the absence of force, but the presence of control over the… by the officer over the citizen.

The contours of this element were explored by this Court’s recent decision in Brower v. County of Inyo.

There the Court characterized the seizure as a governmental termination of freedom of movement through means intentionally applied.

Respondent suggests this test, even if relevant, is satisfied if the person cannot go wherever he wants because of the presence of the police, but this open-ended view of a seizure is inconsistent with Brower’s declaration that a seizure is an intentional acquisition of physical control.

The overarching principle, then, is control.

Even if there is a show of authority, if a person can avoid the officer’s control and does so, there is no seizure under the Fourth Amendment.

In this case we have argued in the briefs that there was not even a show of authority in this case.

But even if there was, even if the respondent reasonably believed that the officer was attempting to detain him, there was no physical control over the respondent at the time that he discarded his rock of cocaine.

Ronald E. Niver:

Rather, he did not acquiesce in the officer’s presence.

Instead he dropped the rock of cocaine and continued to move.

The officer had to force him to the ground and handcuff him.

The court of appeal below said that his movement, the direction of his path was influenced by the officer–

John Paul Stevens:

Let me give you a hypothetical.

Supposing an officer comes up to somebody he has no basis for suspecting, pulls a gun on him and says, from a distance across the room, says disarm yourself, throw any weapon you may have in your pocket to the ground, and the fellow does it, and then after that he arrests him.

Is that lawful conduct?

Does that violate the Fourth Amendment?

Ronald E. Niver:

–Yes, Your Honor, it does.

John Paul Stevens:

Why?

The fellow wasn’t under… at the time of the command all he knew is that he was being… and say he runs away then and he never catches the man.

He never catches him, so there is never a successful seizure.

Ronald E. Niver:

At the… well, he was ordered to drop his weapon.

John Paul Stevens:

Right.

Ronald E. Niver:

His act in dropping the weapon was a submission to the officer’s authority.

John Paul Stevens:

And so… does that mean there was a seizure or was there not a seizure?

Ronald E. Niver:

A seizure… there was a seizure of the person and there was a seizure of his weapon.

John Paul Stevens:

Even though he never caught him?

Even though he never subdued him?

Ronald E. Niver:

The seizure ended when he ran away and was not… when he ran from the control of the officer.

John Paul Stevens:

But he was never under the control of the officer, under your argument as I understand it.

Ronald E. Niver:

Our argument is that if a person submits to a show of… submits to a show of authority–

John Paul Stevens:

I see.

Ronald E. Niver:

–at that point he is seized.

It doesn’t require physical control, not in the sense that the officer and the person are standing next to each other.

It requires submission.

If a person objectively submits to the show of authority by a police officer, that is a detention within the meaning of the Fourth Amendment.

John Paul Stevens:

So if this man understood the chase to be a show of authority where he was attempting to catch him, then it would be a seizure and it would have been an illegal seizure?

And throwing it away would be just like throwing the gun away?

Ronald E. Niver:

In this case… if I understand Your Honor’s question, in this case it was not a submission because he attempted to run.

John Paul Stevens:

Well, my fellow threw the gun on the ground and then ran, and he never got caught.

Ronald E. Niver:

He was ordered to do so, Your Honor.

John Paul Stevens:

So the thing that’s wrong here is there is no… nothing equivalent to an order to stop or an order to throw the rock away?

Ronald E. Niver:

That’s exactly right, Your Honor.

David H. Souter:

Mr. Niver, you’re saying, if I understand it, that there’s no Fourth Amendment violation when the police obtain evidence as a result of unlawful conduct by them, unless that unlawful conduct constitutes a completed seizure?

Is that fair to say?

Ronald E. Niver:

Or unless the police officer has ordered the person to–

David H. Souter:

Yeah, but that in your view would amount to a seizure, because it would be a submission to authority, right?

Ronald E. Niver:

–Correct, Your Honor.

David H. Souter:

Okay.

Would–

Ronald E. Niver:

It’s very much… it’s–

David H. Souter:

–All right, would your… would your position be different if instead of raising the issue under the Fourth Amendment, the issue had been raised under the Due Process Clause, pure and simple?

Ronald E. Niver:

–If the respondent had argued–

David H. Souter:

Somebody says there’s a violation of due process in obtaining evidence as a result of unlawful police conduct and using that evidence in trial.

Ronald E. Niver:

–Well, I believe that this Court has not so held since Roshan.

I don’t believe… no, I don’t believe that a motion to suppress under the Due Process Clause would be… would be cognizable.

Unless it violates the Fourth Amendment, the evidence is admissable.

David H. Souter:

So that for evidentiary purposes, illegal police conduct is really not subject to regulation unless you do have a narrow or strict Fourth Amendment violation?

Ronald E. Niver:

Well, not all intrusive police conduct violates the Constitution, and if it does violate the Constitution, it does not necessarily violate the Fourth Amendment.

To be suppressible, the police conduct has to violate the Fourth Amendment.

At the time of the officer confronted the respondent, who then dropped his rock, that did not violate the Fourth Amendment, because, number one, he was not under the police officer’s control and there was no seizure of his–

David H. Souter:

I understand your point on that.

I assume, as far as deterrence is concerned, it doesn’t make much difference that no policeman chases somebody with the expectation that he won’t stop him, or says halt or I’ll shoot with the expectation that he won’t halt, and that therefore he’ll be able to get away with his unlawful action.

I mean, I assume, ex ante, the policeman has no incentive to commit an unlawful act if we adopt the rule that you’re proposing to us.

Ronald E. Niver:

–There is already–

William H. Rehnquist:

You’re free to answer the question, Mr. Niver.

Ronald E. Niver:

–There is already in place an exclusionary rule which advises the officer that if he chases him and if he seizes him and if he searches him, that evidence will be excluded.

Thank you.

William H. Rehnquist:

Thank you, Mr. Niver.

William H. Rehnquist:

Mr. Sloan, we’ll hear from you.

Clifford M. Sloan:

Mr. Chief Justice, and may it please the Court:

This case concerns the meaning of the term seizure in the Fourth Amendment.

In our view control is an essential element of the seizure.

Control can be achieved through actual physical control or a coercive assertion of governmental authority and citizen acquiescence in that authority.

In respondent’s view, no control is necessary.

One way of understanding the difference between our position and respondent’s position is to consider if the facts of this case were exactly the same, with one change.

And that is that respondent had succeeded in alluding the police after throwing down his rock of cocaine.

In respondent’s view, a seizure would nevertheless have taken place, and the cocaine must nevertheless be suppressed, even though the police might not succeed in apprehending respondent for a period–

John Paul Stevens:

But Mr. Sloan, is that any more anomalous than the hypothetical I gave and the answer counsel gave of pulling the gun on the man and say drop your weapon, and then he runs away and he never gets caught?

Was there a seizure in that case?

Clifford M. Sloan:

–Well, if I could ask for one point of clarification in your hypothetical, Justice Stevens.

Does the individual stop at all, or is he running the entire time and throws the gun away?

John Paul Stevens:

He’s running the entire time.

Clifford M. Sloan:

If he’s running the entire time, I think there is not a seizure of the person.

There is a seizure of the gun, just as in this case the respondent was running the entire time, and there is not a seizure when he is running.

If he stops, then it’s acquiescence to the authority.

But if he’s running the entire time there is not a seizure of the person.

Thurgood Marshall:

Did I understand you to say the procedure was taking place?

Did you say the… the arrest was taking place when he was running?

Clifford M. Sloan:

I… no, I did not say that, Your Honor.

I said that… in fact it’s quite clear that it’s our position that the seizure did not take place until the officer actually gained control of the individual.

Until that–

Thurgood Marshall:

Well, what was going on during the running?

Clifford M. Sloan:

–Well, what the record reveals is that Officer Pertoso was running up a street in one direction, respondent was running–

Thurgood Marshall:

Did he tell him he was an officer of the law?

Clifford M. Sloan:

–No, he did not.

Thurgood Marshall:

Well, how did the man know it?

Clifford M. Sloan:

Well, what is revealed in the record is that he had a jacket that said Police on it.

He was in an unmarked car.

Thurgood Marshall:

And while the man was running he could look back and see the jacket?

Clifford M. Sloan:

Well, apparently–

Thurgood Marshall:

He’s got eyes in the back of his head?

Clifford M. Sloan:

–No, Your Honor, but the evidence is that he saw the car with the individuals in it as he stood there before he ran.

Antonin Scalia:

I thought he was running towards the officer anyway?

Clifford M. Sloan:

He was running towards the officer at the time of the event that the actual seizure… that the throwing away of the rock of cocaine took place and the eventual seizure.

The individuals ran away from the police when they were standing around the car and saw the police car emerge.

Thurgood Marshall:

But I thought–

–Why do you need all of this bending of language?

The fact that he saw him throw away a bag that had cocaine in it, now what more is necessary for conviction?

Clifford M. Sloan:

Well, we entirely agree, Justice Marshall, that when he saw him throw away the rock of cocaine, that furnished probable cause for the… for the arrest.

We entirely agree with that proposition.

Thurgood Marshall:

Well, why do you have to find out whether he was under arrest before then?

Clifford M. Sloan:

Well, in our view it’s quite clear that there was not a seizure before then, and that was in fact the fallacy in the court of appeals’ opinion, was that they thought that it was critical–

Thurgood Marshall:

I think you just want to confuse us, that’s all.

Mr. Sloan, I thought the police vehicle was unmarked.

Clifford M. Sloan:

–It was, Justice O’Connor.

Sandra Day O’Connor:

And there’s no evidence that the defendant understood it was a police vehicle or police in it?

Clifford M. Sloan:

Well, what the evidence is that’s in the record, and it’s the testimony of the two officers at the suppression hearing, is that they did… they had jackets on that said Police.

They were driving an unmarked car.

Whatever inferences are drawn… are drawn from those facts that are in the record.

We would agree… it would be our position that there would be reasonable suspicion from fleeing from police if they reasonably thought it was police.

As counsel for the State has said.

That issue has not been presented in the petition and is not presented in the case.

But we would definitely believe that that would be reasonable suspicion in and of itself.

John Paul Stevens:

But is it correct there’s no evidence that they knew whether they were police officers or… or perhaps rival distributors of illegal substances who might have been after them?

They don’t… we don’t know from the record, do we?

They could have run from people other than police is what I’m suggesting.

Clifford M. Sloan:

It is… it is possible.

The facts in the record are, as I have stated, that they had the jackets on–

John Paul Stevens:

Well, for example, had the officers got out of the car before they started to run?

Clifford M. Sloan:

–No.

I believe–

John Paul Stevens:

So they wouldn’t have been able to see what was on their jackets, would they?

Clifford M. Sloan:

–That’s probably correct.

Now, it’s possible in some of the case law there are inferences that can be drawn about this as a brown unmarked Dodge in this particular neighborhood, but the only evidence is the testimony of the officers and the reaction of those individuals when they ran.

But that… whether they recognized they were police or not really doesn’t bear on the question of whether there was a seizure.

It would bear on the question of whether there was reasonable suspicion or not–

John Paul Stevens:

Yes.

Clifford M. Sloan:

–which is not presented in this case.

But it doesn’t bear on the question of whether there was a seizure or not.

The thrust of our position is that it is a contradiction in terms to say that an individual is at the same time in flight and has been seized, and that is the burden of respondent’s position and it is the burden of the court of appeals’ decision.

Now, the Fourth Amendment addresses the seizure–

John Paul Stevens:

But Mr. Sloan, in my other hypothetical you said you wanted to ask if the fellow was running.

Supposing he was standing there and the officer points a gun at him and says drop your weapon.

He dropped his weapon, then runs.

Is it now a contradiction in terms to say he has been seized?

Clifford M. Sloan:

–If, when he was standing there, an objective observer would say that he had manifested acquiescence–

John Paul Stevens:

Well, he threw his gun on the ground pursuant to the command–

Clifford M. Sloan:

–Well, I don’t think that the throwing–

John Paul Stevens:

–and then ran.

Clifford M. Sloan:

–I think that the throwing of the object is distinct from the question of the seizure of the person.

In one instance you’re talking about the seizure of the person.

John Paul Stevens:

Right.

Clifford M. Sloan:

There is clearly a seizure of the gun in that instance.

Now as to whether the person has been seized it would be a close factual question in that situation whether he had manifested acquiescence.

If he held up his hands and said you’ve got me, or something–

John Paul Stevens:

No, my facts are he just threw the gun on the ground and ran, and was never caught.

Clifford M. Sloan:

–Well, in those… under those facts I do not think that it would be a seizure, because I don’t think that there is anything, aside from the throwing down of the gun, that manifests acquiescence in the coercive assertion of authority for the seizure of the person.

The mere throwing down of an object is not itself sufficient to establish acquiescence in the authority.

Anthony M. Kennedy:

Suppose he does acquiesce in the authority.

He said… the police officer without any basis says stop, I want to talk to you.

That’s all he says.

And the defendant says you’ve got me and throws out the gun.

Then what?

Clifford M. Sloan:

In that circumstance there, there has been a seizure.

Now, that would then present the second question, which is whether, once there has been a seizure the, the gun that is dropped, or drugs in another situation, after an officer just says stop, I want to talk to you, should be suppressed as fruits of the poisonous tree, and we would submit that it should not be.

But that’s for a separate reason.

But under your hypothetical, Justice Kennedy, there clearly has been a seizure of the person.

The officer orders him to stop and he stops.

Anthony M. Kennedy:

And so what is the result with reference to the gun?

Clifford M. Sloan:

Well, with reference to the gun it would be our position that it is not a fruit of the unlawful seizure, because the decision to throw down the gun in that circumstance is a sufficient intervening independent act of free will.

Anthony M. Kennedy:

Can you argue that here?

Clifford M. Sloan:

Yes, we can, and we do.

That even if the court of appeal is correct and respondent is correct that control is not necessary to the seizure and that a person can at the same time be in flight and be seized, the independent act of throwing down the drugs not in response to any order or any indication from the police that that is what he’s supposed to do is a sufficient intervening independent act of free will.

On that point the Court’s cases on the exclusionary rule are quite clear that there has to be an exploitation of the illegality, but for causation is not itself sufficient.

There has to be something purposeful by the exploitation of the illegality.

And in that instance there would not be such an exploitation.

Now, as we have pointed out in our brief, the history of the Fourth Amendment strongly supports the conclusion that control is an element of a seizure.

The common understanding of the term at the time the Fourth Amendment was adopted and as it is today, is that a seizure requires an element of control.

And that is revealed… the historical evidence, that is revealed in dictionaries of the 18th and 19th century, in early decisions construing the term seizure, and in early State constitutions that equated the concepts of arrest and of seizure.

Now this Court has never found there to be a seizure when there has not been some element of governmental control in either of the senses that I have described.

Respondent suggests that we are advocating some major change in the law.

In fact respondent’s conclusion would lead to a fundamental change in the law, because it would be the first time that this Court had ever held that there was a seizure without any element of governmental control.

The principle that a seizure requires an element of governmental control provides a clear and coherent interpretation of the term seizure.

Respondent’s view, in contrast, is virtually limitless, and it would lead to some absurd consequences.

William H. Rehnquist:

Thank you, Mr. Sloan.

Mr. Lozenski, we’ll hear from you.

James L. Lozenski:

Mr. Chief Justice, and may it please the Court:

The question here is how far the police can go in engaging in intimidating and coercive conduct before the Fourth Amendment rights are implicated.

James L. Lozenski:

First, I would like to clarify the facts of this case somewhat.

You had four young men standing around a car at 10 o’clock at night.

An unmarked police car pulls up to the curb, getting ready to turn the corner.

These young men apparently see this police… or this unmarked car.

They take off and flee.

Instantaneous with their flight, the police officers engage in a pincer maneuver.

The purpose of the pincer maneuver was to cut them off, stop them, find out who they were and what they were doing.

Office Pertoso says I didn’t follow them.

I ran in a different direction while the other officer went around the block.

And the State says there is no show of authority here in this 11-foot scenario where Officer Pertoso confronts Hodari.

Hodari is running along looking over his shoulder.

He turns around and he sees Officer Pertoso bearing down on him.

Officer Pertoso is–

William H. Rehnquist:

Does the record show that he… that Hodari knew that Officer Pertoso was a police officer?

James L. Lozenski:

–The record does not reflect what Hodari knew, Mr. Chief Justice.

Harry A. Blackmun:

There isn’t any testimony about that?

James L. Lozenski:

No.

Mr. Chief Justice, Officer Pertoso… and both officers have testified that they were dressed in the standard task force uniform, that is a blue jacket with Police written on the front, with Police written on the back, blue jeans, tennis shoes, and gun belts.

So I think, in answer to your question, Mr. Chief Justice, when Hodari saw this officer bearing down on him, he knew it was a police officer.

William H. Rehnquist:

When you say bearing down, actually they were running towards one another, weren’t they?

James L. Lozenski:

Officer Pertoso was running directly at Hodari, blocking his path.

William H. Rehnquist:

And Hodari had looked over his shoulder, and then he turned, and 11 feet away he saw Pertoso?

James L. Lozenski:

Bearing right down on him, blocking his path, Your Honor.

Sandra Day O’Connor:

Yeah.

You think that alone is enough to make a reasonable person believe they’re not free to go, seeing someone running towards you?

James L. Lozenski:

Justice O’Connor, in the manner in which Officer Pertoso was bearing down on Hodari, yes, I do.

Sandra Day O’Connor:

Well, I thought we didn’t have any evidence about the manner.

It was just two people running at each other, I mean, in the same… in opposite directions.

James L. Lozenski:

My recollection–

Sandra Day O’Connor:

Do we have other evidence?

James L. Lozenski:

–My recollection of the record, Your Honor, is Officer Pertoso says he was running directly at Hodari.

He wasn’t running to the right or to the left, but he was running directly at Hodari.

Sandra Day O’Connor:

Well, do you think that if a police officer is running down the sidewalk towards someone, and there is a jogger running in the opposite direction toward the police officer, that that alone constitutes a seizure?

James L. Lozenski:

Justice O’Connor, I do not believe that constitutes a seizure, because I think what’s required here is intimidating and coercive conduct on the part of the police officer.

Whether it’s–

Sandra Day O’Connor:

But we don’t have any evidence of that.

There was no gun drawn, there was no order to stop.

We aren’t told of any other evidence, except running towards each other.

James L. Lozenski:

–Yes.

But I think the officer said… the officer testified that our intent was to stop them.

And I think this officer’s–

Sandra Day O’Connor:

Well, but we make an objective inquiry.

We don’t look at what the officer’s intent might have been, do we?

We look at the objective facts and what a reasonable person would believe, whether he has been seized.

James L. Lozenski:

–Justice O’Connor, I believe on the facts of this case and in this 11-foot scenario here, where the officer is bearing down on him, that was a sufficient blocking of his path to constitute a seizure.

In the… in the hypothetical that you gave me, I don’t believe that at that point… if you just have an officer running in the general direction of someone, I do not believe that would be a seizure.

But that is not what we have here.

Sandra Day O’Connor:

Now if the defendant just keeps running, when does the seizure end, do you suppose?

You say there is a seizure–

James L. Lozenski:

Yes.

Sandra Day O’Connor:

–when, when the defendant sees the policeman running towards him.

When would that seizure end if the defendant just keeps running?

James L. Lozenski:

Well, if the–

Sandra Day O’Connor:

And isn’t caught.

James L. Lozenski:

–If he escapes from the officer–

Sandra Day O’Connor:

Um-hum.

James L. Lozenski:

–then the seizure would end at that point, when he–

Sandra Day O’Connor:

What point?

James L. Lozenski:

–When he manages–

Sandra Day O’Connor:

When does he escape?

James L. Lozenski:

–to get away from the police officer.

Sandra Day O’Connor:

It seems to me it leaves a lot of unanswered questions there on the back end of your position.

James L. Lozenski:

Well, I think in this case the officer would have of tackled… would have tackled Hodari if Hodari hadn’t submitted to his authority.

Antonin Scalia:

Did he submit?

Did he stop?

That isn’t in the record, that he stopped.

James L. Lozenski:

He… Justice Scalia, Officer Pertoso testified that Hodari continued right towards him.

Officer Pertoso did not say he went to the left or he went to the right.

Officer–

Byron R. White:

So that they just run into each other did they?

[Laughter]

Or did they skid to a stop?

James L. Lozenski:

–I think they probably skidded to a stop, Your Honor.

Antonin Scalia:

Mr. Lozenski, they must have been running awfully slowly.

As I understand it, he is looking behind him, and he turns around and he sees, he sees the policeman 11 feet away.

James L. Lozenski:

Yes.

Antonin Scalia:

And he, and he still has time to throw away the rock of cocaine and somehow to stop from colliding with him?

11 feet away, and they are both running towards each other?

James L. Lozenski:

Yes.

Byron R. White:

It must be a misprint.

[Laughter]

I mean, I’d like to see that.

That’s quite an accomplishment to do that within 11 feet while they’re both running.

Of course in your view what Hodari should have done was to declared victory at that very moment, because he says, number one, I could continue running and if I get away you won’t catch me, or, number two, I can elect to give you this rock and you can’t do anything with it anyway.

I am home free at this point.

James L. Lozenski:

No, I don’t think that is a correct analysis.

I think that Hodari knew that–

Anthony M. Kennedy:

Well, under your analysis you… Mr. Hodari should have said, Mr. Police Officer, under the Fourteenth Amendment you have made a mistake.

So you take this rock of cocaine and do what you want with it, but you can’t introduce it against me at trial.

[Laughter]

Anthony M. Kennedy:

That’s what he should have done?

James L. Lozenski:

–No.

I don’t think so.

Byron R. White:

Well, that’s what he’s claiming.

James L. Lozenski:

Whatever Hodari did was a direct consequence of that officer bearing down on him.

If that officer wouldn’t have been there blocking his path–

Byron R. White:

So you’re arguing for this position that Justice Kennedy just stated right now.

James L. Lozenski:

–Well, maybe if Justice Kennedy would ask his question again, or propose his hypothetical… there’s another element here.

Anthony M. Kennedy:

You’re arguing that the police, by beginning to chase, have automatically granted immunity from introducing the evidence, because he either… one, he can run away and be successful, or two, he can go to the officer and say you have made a mistake, here’s the cocaine but you can’t introduce it.

James L. Lozenski:

Well, I don’t think either one of those is the case.

I think Hodari panicked.

And I think, as a lot of these cases indicate, that when officers bear down with this show of authority like this, they will panic and discard the contraband.

And I think that is exactly what happened here.

I don’t think Hodari gave thought to anything, because this all happened so fast in this 11-foot scenario.

And I think he panicked and abandoned the contraband, without any reflection on his part.

Sandra Day O’Connor:

Well, do you take the position that the word “seizure” in the Fourth Amendment includes attempted seizure?

James L. Lozenski:

No, I don’t believe that is the case at all.

No, I don’t take that position, Your Honor.

I think that here in this 11-foot scenario when the officer was bearing down on him there was a seizure.

Sandra Day O’Connor:

What makes it a seizure?

What do you think a seizure includes in normal parlance?

Any element of control there?

I mean how can, how can it be a seizure if the person never stops running, and in fact is never controlled by the police?

How can that be a seizure?

And yet under your theory it is.

James L. Lozenski:

Well, there may be a seizure, but if the person keeps running then the seizure stops.

But initially there is a seizure.

Hodari here was effectively stopped when the officer confronted him.

The court of appeal also said that even though Officer Pertoso didn’t have physical control of him, the officer’s conduct of blocking his path was tantamount to a physical restraint.

So I don’t think that a physical… that a physical acquisition of Hodari was necessary.

James L. Lozenski:

The blocking of his path was tantamount to a physical restraint.

Antonin Scalia:

But I thought we have said otherwise.

I thought, you know, if you put up a roadblock and the person… you’re blocking the road and the person doesn’t stop for it but tries to go around it, has he been seized?

James L. Lozenski:

If, from the totality of the circumstances, if you apply the reasonable person test, if a reasonable person would feel, in that person’s… in the person who goes around the roadblock’s position, would… if a reasonable person would view that as a–

Antonin Scalia:

An attempt to stop him, he would.

He would.

But so would the reasonable person, when the policeman says stop or I’ll shoot, and he keeps running.

Is that a seizure?

A reasonable person knows he’s trying to seize him.

But I thought you said an attempted seizure is not a seizure?

James L. Lozenski:

–No, I don’t believe attempted seizure is a seizure.

I think that in this case there is either a detention or there is not.

Antonin Scalia:

But that… doesn’t that depend on whether the person stops or not?

He either stops at the roadblock or he doesn’t.

He either stops when the policeman says stop or I’ll shoot or he doesn’t.

James L. Lozenski:

No, I believe that there can be a seizure without an actual stopping of the person.

The seizure may terminate as long as the person… but, if the person gets going again.

Antonin Scalia:

He’s still seized while he’s running?

He’s still running, but he’s seized?

James L. Lozenski:

Well, if he escapes from the police officer he is no longer seized, Your Honor.

But if the police officer is chasing him and there is a sufficient show of authority, some imitating and… some intimidating course of conduct, yes, I believe that that person has been seized.

Antonin Scalia:

And that, that… you see a scenario, policeman running down the street and the suspect running ahead of him, and the policeman shouting stop, stop, thief.

That has been a seizure, while he–

James L. Lozenski:

Yes.

Antonin Scalia:

–Even while he’s running he is seized?

James L. Lozenski:

Yes.

Antonin Scalia:

Well–

–But at a certain point if he starts running faster than the officer and gets away, the seizure ceases?

James L. Lozenski:

Yes.

If he gets away from the officer I believe that the seizure terminates.

William H. Rehnquist:

How do we determine when it terminated?

James L. Lozenski:

When he gets away from the officer.

William H. Rehnquist:

A certain number of feet, or something like that?

James L. Lozenski:

When the officer lose sights… Mr. Chief Justice, when the officer lose sight… loses sight of him.

William H. Rehnquist:

Looses sight?

James L. Lozenski:

Yes.

Anthony M. Kennedy:

But if he drops the cocaine when the officer might have had some hope of catching him, then there’s a seizure and that can’t be introduced if you later find him 3 weeks later and try him and arrest him?

James L. Lozenski:

That’s correct, Your Honor.

John Paul Stevens:

Mr. Lozenski, can I clear up something on the facts, especially about this 11 feet?

Is it not correct that the testimony of the officer indicates that he was 11 feet away when the fellow threw the rock to the ground, but it does not tell us how far away when he, he was when he saw the police officer?

As I read it, I don’t think it tells you just what that distance was.

James L. Lozenski:

Hodari was looking over his shoulder.

He turned around and saw the officer bearing down on him.

During the suppression hearing this, this distance element came up and the trial judge said well, that’s 11 feet.

John Paul Stevens:

No, he said it’s just about the same.

When he threw the stuff away he was about the same distance as he is from me right now.

James L. Lozenski:

And the judge–

John Paul Stevens:

But he did not say how far he was when he turned around and saw him.

Isn’t that correct?

I think it is, anyway.

James L. Lozenski:

–Well, I think when Hodari turned around and saw the officer, the abandonment of the contraband was simultaneous with the sighting of the officer.

John Paul Stevens:

The testimony doesn’t say that.

James L. Lozenski:

This Court has held that, in Terry v. Ohio, that a police officer may not restrain the freedom of a citizen unless they have a reasonable basis for doing so.

And in justifying the intrusion, the police officers must point to specific and articulable facts to justify the intrusion on one’s freedom of movement.

And as I have stated earlier here, these officers could point to no justifiable and articulable facts to terminate or to chase after and then confront Hodari.

Post-Terry cases such as United States v. Mendenhall have said that a detention occurs if in view of all the circumstances a reasonable person would not feel free to leave.

And in this 11-foot scenario it is clear that a reasonable person would not have felt free to leave.

The State here contends that the Mendenhall test that was also enunciated in Chesternut is not the complete test now, and want this Court to hold that as long as a person is fleeing there is no… there is no detention until he is physically controlled.

The State urges this Court to adopt a bright line rule, however, we feel that under the State’s… under the State’s proposed rule that coercive police action that is sufficiently intimidating that a reasonable person would not free to leave should not be subject to the actual physical restraint rule.

If this Court adopts the physical restraint rule as urged by the… by the state, many of these cases would be freed from the strictures of Terry and its progeny.

James L. Lozenski:

And moreover, the focus… the focus would then… if the Court adopts this bright line rule, the focus would then be on the subjective reactions of the individual to the police action rather than an objective review of the police conduct.

Antonin Scalia:

Well, we might say you’ll need both.

That is that there has to be an objective show of authority, that any reasonable person would take as a show of authority, and in addition there has to be submission to that authority.

What… what’s the matter with that?

That wouldn’t abandon the requisite objective standard of show of authority.

James L. Lozenski:

The show of authority, a submission to the show of authority is fine, Your Honor.

What we object to is establishing a bright line rule that says the submission has to result in the physical restraint of the suspect, otherwise he is not detained, and anything that he does prior to this physical… prior to his becoming physical restrained, is therefore not suppressible.

Antonin Scalia:

Well, I understand you object to it.

I’m just suggesting that a basis for your objecting to it is not that we would be abandoning the objective test of a show of authority.

We would still require that.

James L. Lozenski:

Well, in Chesternut it was… it is my understanding that this Court eschewed bright line rules.

The court that the state is offering now, that there is no detention until someone is physically restrained, is essentially the position that, or the proposition that this Court refused to adopt in Michigan v. Chesternut.

This Court also refused to adopt the… Mr. Chesternut’s proposed rule, a bright line rule that all chases are detentions.

It appears to me that the decision in Michigan v. Chesternut was kind of a compromise of these two positions.

And I think the opinion in Chesternut made it clear that the facts that give rise to these cases are so varied and different that each case must be decided on a case-by-case basis.

For this proposition–

Antonin Scalia:

What do you think about the opinion in Brower?

James L. Lozenski:

–Well, I think Brower is distinguishable from the facts of this case here.

I think the issues in Brower are unrelated to the issues here.

For example, Brower was–

Antonin Scalia:

There was a car instead of a foot chase.

But we did say that seizure requires an intentional acquisition of physical control.

James L. Lozenski:

–Yes.

And indeed there was an acquisition of physical control there of the most dramatic kind, Your Honor.

There was a fatal collision into a roadblock.

But what… what even distinguishes Brower more is that Brower was decided after Mendenhall, Terry, and Chesternut made no mention of any of those cases.

Moreover, Brower did not involve any question of the moment that the show of police force or use of authority constitutes a detention.

So I think Brower was kind of analyzed on its own facts, and we would urge this Court not to buy this Brower… bright line rule that they are relying on Brower for.

It seems to me that the State is urging this Court to overrule Chesternut with Brower, without having… without Brower having made any mention of these other cases.

Antonin Scalia:

It wouldn’t be overruling Chesternut.

Antonin Scalia:

Chesternut was decided the same way as it would be under this theory, but on a different ground.

That other ground isn’t available here.

It wouldn’t be overruling the case.

It would be just using a theory that Chesternut found it unnecessary to use.

That’s really not overruling it, I don’t think.

James L. Lozenski:

Maybe supplementing or refuting part of Chesternut with this rule in Brower.

Maybe not entirely overruling it, but supplementing it or–

Continuing, Your Honor, Mr. Chief Justice, the court of appeal here relied upon Chesternut in its analysis of the facts.

Under the totality of the circumstances here it was reasonable for the court of appeal to conclude that a person in Hodari’s position was not free to leave, because the court of appeal found a detention in this 11-foot scenario where the officer was blocking his path, and they also said that was tantamount to a physical restraint.

This opinion is consistent with the cases that we have mentioned in our brief, so there is no dispute that the right standard was applied here.

We urge this Court to give deference to the decision of the court of appeal here, just as this Court did in the most recent case of Minnesota v. Olson.

Minnesota v. Olson demonstrates that when a reviewing court has applied the proper standard, that this Court will decline invitations to micromanage the application of the standard to the facts, even if this Court does not endorse the outcome of the lower intermediate court’s decision.

Here and in Hodari the court of appeal applied the correct standard to the facts, a fact-specific application.

And they were reasonable in concluding that Hodari was detained in this 11-foot scenario.

Thus we would ask for the same consideration of Federal-State comity here that this Court gave in Minnesota v. Olson.

And we would urge this Court to leave the case-by-case management or administration of these lower… intermediate court decisions to the lower courts rather than try to micromanage them in this Court.

This Court has broad powers, but it would be very difficult to micromanage all State intermediate… all State intermediate appellate court opinions or decisions.

We agree with the Solicitor General that the discarding of contraband as a result of police action is a reoccurring one.

The proliferation of State cases reflect that.

But the State and the Solicitor General want to take all of these cases out of the Fourth Amendment with this bright line rule.

Inherent in this bright line rule is an element of harassment.

It is our feeling that if this bright line rule were adopted by the Court it would give the police too much discretion.

The State assumes that the police will not overreach.

The State assumes that the police will not abuse their discretions.

The State assumes that the police will not harass people by chasing them without a reasonable suspicion of wrongdoing.

This bright line rule proposed by the State would essentially insulate the police from all wrongdoing, such as harassment, overreaching, and abuses of discretion.

And in essence the State’s test would reward police misconduct.

For example, here the police did not have any reasonable suspicion of any wrongdoing, yet they engaged in this pincer movement that was designed to cut Hodari off, find out who he was and what he was up to.

In the bright line rule, under the bright line rule any abandonment prior to the actual physical restraint would then not be suppressible.

Since Terry v. Ohio this Court has recognized that while an officer needs flexibility on the street, there must be some limits on what the police officers can do.

James L. Lozenski:

This Court has also recognized that in police-citizen… that in police-citizen encounters… that police-citizen encounters need some constitutional protection.

So based… for these reasons we believe that this Court in Chesternut refused to adopt the bright line rule that would remove all these cases from scrutiny.

Harry A. Blackmun:

Where is Hodari now?

James L. Lozenski:

Hodari is 19 years old, Justice Blackmun.

He resides in Oakland, California, and he has a young child.

So he is alive and well.

When Hodari was confronted by the officer, he was effectively detained.

Instantaneous with the detention, with the illegal detention, was the discard of this contraband.

The issue here is whether or not this evidence was come at by the exploitation of the illegal detention.

And it is our position that it is because the abandonment of the contraband was a direct consequence of the illegal police action.

The abandonment was not a product of Hodari’s free will.

He had no time for reflection.

There were no intervening circumstances.

And the abandonment was a direct result of a show of authority and the panic on the part of Hodari.

Under Brown v. Illinois, Wong Sun v. United States, Taylor v. Alabama, and Dunaway v. New York, unless there are some intervening circumstances, some time delay indicating reflection, the abandonment will not be an act of free will.

In conclusion, we urge that this Court adhere to the Mendenhall-Chesternut standard as the proper test.

The court of appeal applied the proper test here.

We urge this Court to defer to the court of appeal’s application of the proper standard to this fact-specific situation.

The objective characteristics of this pincer movement which resulted in the blocking of Hodari’s path meets the standards this Court has set forth to define a seizure by a show of authority.

We urge this Court not to repudiate the Mendenhall-Chesternut standard with a bright line rule.

We respectfully request that this Court affirm the court of appeals’ decision.

I have nothing further, Mr. Chief Justice.

Byron R. White:

You don’t necessarily win if we don’t abandon the Chesternut rule.

James L. Lozenski:

Well–

Byron R. White:

I know you think you do, but–

James L. Lozenski:

–I have no response to that, Justice White.

William H. Rehnquist:

Very well.

The case is submitted.