Seizures, Arrests

Seizures: Arrests  What is a “seizure” of the Person? o Seizure of a person: an encounter with police rises to the level or a “seizure” if:  Based on the totality of the circumstances, a reasonable person would not feel free to terminate the encounter (Mendenhall: “free to leave”; Florida v. Bostick: “free to terminate the encounter”), and the person in-fact submits to the assertion of authority (Hodari D: if someone flees without submitting to the officer’s show of force, there is no seizure) or  The police apply physical force (note, this includes striking someone with a bullet) with intent to restrain. This is a seizure even if the person then flees (Torres v. Madrid). o Police encounters ranked by level of coercion:  Lethal force  Arrest (custodial seizure for indefinite period, usually for interrogation or persecution, requires probable cause)  Custody  Terry Stop (temporary limited seizures, requires reasonable suspicion)  Consensual police encounter (NOT a seizure, totally unrestricted by Fourth Amendment)  Arrest: custodial seizure for indefinite period, usually for interrogation or prosecution. o Requires probable cause to believe the arrestee has committed or is committing a crime.  Test for probable cause is based on facts that officers knew at the time of the arrest, but is not affected by the officer’s erroneous legal conclusions (e.g., if officers have probable cause to arrest a suspect for crime X, but instead arrest a suspect for crime Y, erroneously believing that they have probable cause from crime Y, arrest does not violate the Fourth Amendment (Devenpeck v. Alford; Wesby). o A warrant is required to enter a home to make an arrest (absent proof of exigent circumstances) (Payton), but a warrant is not required for a felony arrest in a public place (Watson). o Warrantless misdemeanor arrests are permissible even if misdemeanor cannot be punished by incarceration (Atwater).