John Simon, Associate Member, University of Cincinnati Law Review
On the evening of May 2014, Officer Lattanzio sat in his patrol car in front of the Bridgeport, Connecticut Police Department. An anonymous woman drove up next to his vehicle to inquire about the process of amending a police report. During this interaction, the woman provided Officer Lattanzio with a tip that “there was a man nearby named Branden who had a gun inside a black bag.” The woman pointed down the street, but Officer Lattanzio did not see anyone. The woman left without providing a name. In response to the tip, Officer Lattanzio drove in the direction that the woman pointed eventually spotting an individual, Huertas, a block away. Huertas stood on a street corner carrying a black bag. Officer Lattanzio turned his car driving the wrong way down a one-way street toward Huertas. As he pulled up on the street corner, the patrol car’s spotlight was flipped on. Officer Lattanzio questioned Huertas about the tip for approximately one minute; Huertas cooperated during this time. However, as Officer Lattanzio exited his vehicle, Huertas fled. Police later apprehended and arrested Huertas, and recovered his black bag, which had been discarded during the flight, that contained a gun.
Huertas’ case presents a dilemma within Fourth Amendment jurisprudence regarding when an individual has been seized. Although the Supreme Court has held that for there to be a seizure “there must be either the application of physical force, however slight, or, where that is absent, submission to an officer’s ‘show of authority’ to restrain the subject’s liberty,” circuit courts are divided as to what constitutes submission to police authority.
Without a clear answer, neither law enforcement nor citizens can be certain when a “forceless” law enforcement-citizen encounter falls within the purview of the Fourth Amendment. Moreover, the lack of clarity has pushed some circuits to adopt restrictive interpretations of submission to police authority which is contrary to Fourth Amendment caselaw. At the same time, law enforcement certainly has public safety concerns, as it pertains to official conduct, which cannot effectively be served while the circuit split exists. While the law remains unclear, constitutional protections and the interests of law enforcement suffer. Based upon its well-balanced approach to the issue of submitting to police authority, courts should follow the lead of the D.C. Circuit which maintains that a defendant submits to police authority when that defendant complies with police orders.
The Government charged Huertas with unlawful possession of a firearm in violation of 18 U.S.C. §§ 922 and 924. Huertas subsequently moved to suppress the black bag evidence arguing that the black bag, and its contents, constituted the “fruit of an illegal seizure of his person.” Supporting his contention, Huertas pointed to the fact that he had been seized by Officer Lattanzio when interrogated on the sidewalk underneath the patrol car’s spotlight. Additionally, Huertas argued that the tip that Officer Lattanzio received was uncorroborated and insufficient to justify the seizure. Therefore, the black bag, and its contents, should be excluded.
Alternatively, the Government presented two arguments: (1) that Officer Lattanzio conducted an investigative stop based on reasonable suspicion; and (2) that Officer Lattanzio’s attempted stop of Huertas did not amount to a seizure because Huertas fled.
The district court ultimately denied the motion to suppress holding that “a suspect must do more than halt temporarily; he must submit to police authority, for ‘there is no seizure without actual submission.’” Following the Second Circuit’s jurisprudence, the district court noted that a brief stop and verbal exchange do not constitute submission, and since a brief stop and verbal exchange occurred in Huertas’s case, the seizure did not occur until police arrested Huertas after flight. Thus, the court denied the motion holding that no seizure occurred prior to Huertas’ flight. Huertas pled guilty to his charge and appealed the suppression ruling to the Second Circuit.
Analytical Framework of the Seizure of a Person
The Fourth Amendment provides for “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” While the Supreme Court’s interpretation of the Fourth Amendment continually changes—in part depending upon the composition of the Court—the basic requirements of a Fourth Amendment violation remain, more or less, constant. To plausibly claim that the Fourth Amendment has been violated, the claimant must: (1) show that either or search or seizure occurred; and (2) demonstrate that the search or seizure was unreasonable. Since the circuit split pertains solely to the issue of a “seizure,” this piece will examine only that prong.
Because a claim must first show that a seizure occurred, the first question that must be addressed is: what constitutes a seizure under the Fourth Amendment? In the latter half of the 20th century, the Supreme Court struggled to define a seizure so that the interests between citizens and police were balanced.
The Court’s framework for modern seizure analysis came in Terry v. Ohio, in which the petitioner challenged the police’s “stop and frisk” investigatory procedure. While the Court confronted the police conduct in the moments leading up to an individual’s brief detention, the discussion provided an examination of the term seizure. Regarding the claim that the police seized the petitioner, the Court stated: “…the Fourth Amendment governs ‘seizures’ of the person which do not eventuate in a trip to the station house and prosecution for crime—‘arrests’ in traditional terminology. [W]henever a police officer accosts an individual and restrains his freedom to walk away, he has ‘seized’ that person.”
A decade later, the Court provided additional depth to its prior definition of seizure. In U.S. v. Mendenhall, DEA agents approached the respondent in an airport concourse, identified themselves as federal agents, and checked the respondent’s identification. Unsatisfied with her responses to their questions, the agents asked the respondent to accompany them to the DEA’s airport office. In the office, the respondent consented to a strip search and agents discovered narcotics. Making its way up to the Supreme Court, the government called upon the Court to address whether the initial stop in the airport concourse constituted a seizure. The Court concluded that no seizure occurred.
Analyzing the case, the Court generalized its view of the term seizure noting that it “adhere[s] to the view that a person is ‘seized’ only when, by means of physical force or a show of authority, his freedom of movement is restrained. Only when such restraint is imposed is there any foundation whatever for invoking constitutional safeguards.” According to the Court, the Fourth Amendment does not preclude all contact between law enforcement and citizens especially considering that legitimate law enforcement practices require street encounters with citizens. Therefore, a seizure occurs “only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.” The inquiry shifted to an examination of the totality of the circumstances. The Court set forth several factors to be considered when applying this “reasonable person” test: “…the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer’s request might be compelled.” The Court intended for the test to apply objectively—strictly to the facts presented.
Under the facts in Mendenhall, the respondent presented no objective reason to believe that she was not free to leave. While the Court in Mendenhall addressed a seizure based upon law enforcement’s show of authority, the analysis failed to address the requisite sufficiency for a court to conclude that, under the totality of the circumstances, a reasonable person would not feel free to leave.
Providing more definiteness to the “reasonable person” test, the Court, in Michigan v. Chesternut, addressed the issue of whether a seizure occurred during law enforcement’s pursuit of an individual. The facts of that case show that the police, in a marked vehicle, witnessed the respondent act suspiciously while approaching another individual on the street. Upon seeing the police, the respondent fled, and the police gave chase. During flight, the respondent discarded baggies containing pills determined to be codeine.
The government and respondent argued for bright-line rules regarding the applicability of the Fourth Amendment during the police’s pursuit of a suspect. However, the Court, citing the “reasonable person” test found that “the test is necessarily imprecise, because it is designed to assess the coercive effect of police conduct, taken as a whole, rather than to focus on particular details of that conduct in isolation.” The Court continued, “[w]hile the test is flexible enough to be applied to the whole range of police conduct in an equally broad range of settings, it calls for consistent application from one police encounter to the next, regardless of the particular individual’s response to the actions of the police.” As it did in Mendenhall, the Court offered additional factors to be considered in the totality of the circumstances analysis: (1) activating police sirens or flashers; (2) commanding the individual to halt; (3) displaying weapons; and (4) operating the police cruiser aggressively to control the individual’s movement.
Applying these factors, the Court determined that because the police drove next to the respondent prior to his surrender, no seizure occurred.
Finally, the Court added an extra layer to its definition of seizure, and adjusted its analysis, in California v. Hodari D. In that case, a group of youths, including the respondent, fled from police officers in an unmarked car. The respondent, while fleeing, pitched a rock of crack-cocaine which the police discovered and the prosecution introduced at his juvenile proceedings over his rejected motion to suppress. The California Court of Appeal reversed the ruling on the motion to suppress, finding that the respondent had been unreasonably seized making any evidence obtained thereafter inadmissible.
The United States Supreme Court, only addressing the seizure issue, noted: “at common law, the word [seized] 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.” The Court continued: “The word ‘seizure’ readily bears the meaning of laying on of hands or application of physical force to restrain movement, even when it is ultimately unsuccessful…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.” Under this analysis, the Court held that “[a]n arrest requires either physical force (as described above) or, where that is absent, submission to the assertion of authority.” A seizure can be accomplished without physical touching, but words alone do not suffice to show the existence of a seizure.
The respondent further relied upon the “reasonable person” test supplied by Mendenhall. However, the Court concluded that “[Mendenhall] 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.’” Whether police have shown authority depends upon the objective facts of the case; under the totality of the circumstances, a defendant satisfies the test and demonstrates a show of authority “only if” the officer’s conduct would convey to the reasonable person a restraint on his freedom. Further, the Court concluded that the respondent could not support his contention using Chesternut because the Court determined in that case that the “reasonable person” test had not been met.
The Court, assuming that the “reasonable person” test had been met and law enforcement’s actions constituted a show of authority, the respondent failed to comply with that show of authority. Thus, at a minimum, an individual must “submit” to the police show of authority for a seizure to occur. Because the respondent failed to satisfy the initial inquiry—that a seizure occurred—the Court did not address the reasonableness prong.
Returning to Huertas’ appeal, the Second Circuit, analyzing only whether a seizure had occurred, held that Huertas’ brief encounter with police constituted evasion rather than submission to authority. In defining a seizure, the court noted that either the use of physical force or a submission to authority must be present. Considering that Officer Lattanzio did not use physical force, Huertas could only prove that he was seized by showing that he submitted to an assertion of police authority. The court further stated that the seizure issue would be examined under the totality of the circumstances.
The court relied primarily on United States v. Baldwin as support for its position that Huertas did not submit to an assertion of police authority. In that case, Baldwin pulled his car to the side of the road in response to a police cruiser’s siren and flashing lights. As officers attempted to subdue Baldwin, by pulling their guns and ordering him to show his hands, Baldwin sped off. After police apprehended Baldwin, drug paraphernalia was discovered on his person. The trial court denied his motion to suppress and the Second Circuit affirmed holding that, under the circumstances, Baldwin’s conduct “amounted to an evasion of police authority, not submission.”
In the court’s view, Huertas’ conduct evinced efforts to evade police suspicion.  Had Huertas immediately run when the patrol car pulled beside him and turned on its spotlight, a chase would have ensued. By cooperating for a brief time, Huertas attempted to minimize Officer Lattanzio’s suspicions with the hope that Officer Lattanzio would leave, satisfied with Huertas’ responses. To the contrary, Officer Lattanzio exited his vehicle leading to Huertas’s flight. The court also noted that the brevity of the interaction as well as physical distance between Huertas and Officer Lattanzio demonstrates, under all available circumstances, the lack of submission.
Considering all the evidence presented, the Second Circuit determined that Huertas was not seized under the Fourth Amendment.
As police prepared to execute a search warrant at the home of Jerome Earles, Eric Brodie left Earles’ home. According to Deputy Clark, Brodie looked startled to see police outside the residence, but continued to walk away from the home. Because Brodie left the home that police intended to search, police decided to stop him. Deputy Clark pulled a patrol car parallel to Brodie, got out of the vehicle, and told Brodie to place his hands on a nearby vehicle. Brodie complied initially but fled while Deputy Clark gave his partner instructions. As police chased Brodie, he discarded three weapons, and then surrendered once officers threatened to use a taser.
Awaiting trial, Brodie filed a motion to suppress the government’s evidence arguing that the police violated his Fourth Amendment rights. The government, on the other hand, advanced the argument that no Fourth Amendment violation occurred because the brief stop, which included asking Brodie to place his hands on a car, did not amount to a seizure. The trial court dismissed the motion to suppress, and Brodie appealed to the D.C. Circuit.
The D.C. Circuit held that Brodie’s action—obeying police orders by placing his hands on a vehicle—can only be classified as submission to police authority. The government conceded that Brodie complied with Deputy Clark’s request, but under the government’s view momentary compliance does not constitute submission. However, the brevity of the encounter only supports the contention that the seizure was brief, not that the seizure did not occur.
Under the government’s argument, momentary compliance suggests feigned compliance. However, as the D.C. Circuit found, nothing in the record indicated that Brodie feigned compliance; the government failed to provide any evidence that Brodie had an ulterior motive for cooperating with police. In fact, the district court determined that Brodie’s decision to flee came after he placed his hands on the car. In United States v. Washington, the D.C. Circuit held that the defendant, who the police pulled over, did not submit to police authority when he sped off after the police officers exited their cruisers. The court viewed that situation in a different light from Brodie’s situation. The defendant in Washington gained an advantage by luring the police out of their cruiser, while Brodie gained no advantage by placing his hands on the vehicle. Therefore, the D.C. Circuit concerned itself primarily with the defendant’s response to the show of police authority rather than the circumstances giving way to the actual show of authority.
In the end, the D.C. Circuit reversed the district court’s ruling on the motion to suppress finding that Brodie met the requirements evincing a Fourth Amendment violation.
The Supreme Court asserts that a seizure occurs through either the application of “physical force” or “submission to police authority.” Prior to Hodari D., the Court maintained that if the “reasonable person” would believe that he or she was being restrained, that the police-citizen encounter constituted a seizure under the Fourth Amendment. As the Supreme Court found in Mendenhall and its progeny, the “reasonable person” test examines police conduct objectively, removing the subjective thoughts of the citizen. However, Hodari D. seemingly created an additional component of that test as it pertains to “submission to police authority.” The Court effectively held that the “reasonable person” test must be satisfied but satisfying the “reasonable person” test alone does not bring the situation under the Fourth Amendment. Rather, the individual must also submit to police authority. Under Fourth Amendment jurisprudence, courts should apply the standard adopted by the D.C. Circuit, which, when observing the “submission o the show of authority” prong of the analysis, appears to emphasize the individual’s response to the police’s show of authority rather than the individual’s subjective belief regarding any cooperation.
The D.C. Circuit found that both the “reasonable person” test was satisfied, and that Brodie submitted to police authority. The officers blocked Brodie’s path and commanded him to place his hands on a nearby vehicle; objectively, any reasonable person not have felt free to leave. More important, though, Brodie complied with the order. Under the totality of the circumstances, Brodie submitted to the display of authority and only after seeing an opportunity to run did he run. The D.C. Circuit, as opposed to the Second Circuit, saw the compliance, however brief, as objectively presumptive of submission to police authority. The brevity simply went to the seizure’s briefness. Thus, the D.C. Circuit’s approach seemingly extends the objectivity of the “reasonable person” test into the second prong of the analysis.
At the same time, the D.C. Circuit provided the government with the opportunity to counter what the facts showed. As the court held in a prior case, evidence of the defendant’s intention to gain an advantage by cooperating with police would serve to debunk the presumption supporting submission to police authority. Thus, a defendant who intended to flee would not acquire the protection of the Fourth Amendment. Under this “exception,” the interests of both law enforcement and citizens would be, more or less, balanced, and the objectivity of the analysis would be preserved.
In contrast, the Second Circuit focuses more on the defendant’s state of mind by looking at the defendant’s intentions at the start of an encounter with police. Rather than treat the momentary compliance to police authority as presumptive of submission, the court found more significant the fact that the defendant waited until the officer left his vehicle to flee. However, focusing on this fact enters the defendant’s mind and reasons that he always intended to flee. Effectively, the court weighed “evasiveness” as a factor in the totality of the circumstances analysis.
Following the Supreme Court’s decision in Hodari D., circuits are split regarding what constitutes “submission to authority” such that Fourth Amendment protections apply. Based upon Fourth Amendment jurisprudence, Courts should follow the lead of the D.C. Circuit which adopts an objective analysis of the defendant’s compliance with police’s show of authority. Keeping consistent with the objectivity of the “reasonable person” test, courts should look to the defendant’s actions in response to police authority to determine whether submission has occurred.
Recently, the Supreme Court rejected the petitioner for cert submitted by Branden Huertas seeking review of the Second Circuit’s decision to dismiss his motion to suppress. Thus, it remains unclear if and when the Supreme Court will address the current split.
 Brief for the United States in Opposition at 2, Huertas v. U.S., 2018 WL 1733135 (Apr. 9, 2018).
 U.S. v. Huertas, 864 F.3d 214, 215 (2d Cir. 2017), cert. denied, 138 S. Ct. 1985 (2018).
 California v. Hodari D., 499 U.S. 621, 621 (1991).
 See, e.g., U.S. v. Valentine, 232 F.3d 350, 359 (3d Cir. 2000) (finding that “[e]ven if [respondent] paused for a few moments and gave his name, he did not submit in any realistic sense to the officers’ show of authority, and therefore there was no seizure until [an officer] grabbed him.”); U.S. v. Morgan, 936 F.2d 1561, 1567 (10th Cir. 1991) (noting that because respondent “yielded” momentarily to police authority, he was seized under the Fourth Amendment).
 Petition for Cert. at 4, Huertas v. U.S., 2018 WL 1733135 (No. 17-818).
 U.S. Const. amend. IV.
 Thomas K. Clancy, The Fourth Amendment: Its History and Interpretation 14 (2008).
 L.R. Article
 392 U.S. 1, 12 (1968).
 Id. at 16.
 446 U.S. 544, 547-548 (1980)
 Id. at 548.
 Id. at 549.
 Id. at 550.
 Id. at 557.
 Id. at 553.
 Id. at 554.
 Id. at 555.
 486 U.S. 567, 569 (1988).
 Id. at 573.
 Id. at 574.
 Id. at 575.
 Id. at 576.
 499 U.S. 621, 622-623 (1991).
 Id. at 623.
 Id. at 624.
 Id. at 626.
 Id. (citing Perkins, The Law of Arrest, 25 Iowa L.Rev. 201, 206 (1940)).
 Id. at 628.
 Id. at 629.
 864 F.3d at 215.
 Id. at 216 (citing United States v. Swindle, 407 F.3d 562, 572 (2d Cir. 2005)).
 Id. (citing United States v. Baldwin, 496 F.3d 215, 219 (2d Cir. 2007)).
 Id. (citing Baldwin, 496 F.3d at 217).
 Id. (citing Baldwin, 496 F.3d at 217).
 Id. (citing Baldwin, 496 F.3d at 217)
 Id. (citing Baldwin, 496 F.3d at 217-219).
 Id. at 217.
 Mendenhall, 446 U.S. at 553.
 Id. at 554.
 Hodari D., 499 U.S. at 628.
 Huertas v. United States, SCOTUS Blog, https://www.scotusblog.com/case-files/cases/huertas-v-united-states/